Nessel splits with Whitmer, sides with Detroit kids in literacy suit

Michigan Attorney General Dana Nessel on Friday broke ranks with Gov. Gretchen Whitmer, a fellow Democrat, and sided with Detroit schoolchildren in their lawsuit against the state over literacy.

Nessel followed through on promises and filed an amicus brief in the U.S. Sixth Circuit Court of Appeals requesting the court rule that there is a constitutional right to a minimally adequate education.

The stance is in opposition to a brief the state filed last month on behalf of Whitmer and the state school board members who decline to address whether students have such a right. State attorneys for both Whitmer and former Gov. RIck Snyder, a Republican, have argued the courts have already decided there is no right to a minimum standard of public education.

Related: Candidate Whitmer: A Right to Literacy. As Michigan gov: No need to address

“There are moments in our state’s and, indeed, our nation’s history when silence in the face of abhorrent circumstances is not an option. Today is one such moment,” Nessel said in a written statement.

The dueling court briefs are related to the class-action lawsuit five Detroit students in low-achieving public schools filed against the governor and state school board, contending that Detroit children were denied access to literacy due to state disinvestment in the schools. The lawsuit accuses the state of “separate and unequal” treatment of students in Detroit’s low-performing schools, who are mostly poor children of color.

The students took their so-called “access to literacy” case to the appeals court after a district court judge in Michigan last year dismissed the lawsuit. Judge Stephen J. Murphy III ruled that education is important, but the U.S. Constitution does not provide a fundamental right to access to literacy nor the right to a “minimally adequate education.”

Nessel disagreed in her court filing.

“Granted, the right to a public education is not expressly mentioned in the Constitution, but neither are most of the rights we recognize as fundamental. The sparse constitutional text does not mention the right to marriage or the right to privacy, yet we have found our treasured document to embody these rights,” Nessel said.

“A minimally adequate education cannot be just a laudable goal—it must be a fundamental right. That is the only way to guarantee that students who are required to attend school will actually have a teacher, adequate educational materials, and a physical environment that does not subject them to filth, unsafe drinking water, and physical danger.”

Whitmer’s office released a statement Friday that did not address Nessel’s arguments.

“As the governor has always said, she believes every child has a birthright to a good education… ,” Tiffany Brown, her spokeswoman, said in an email to Bridge.  “It’s also why the governor has offered the strongest education budget in a generation, with a laser-focus on literacy.”

Mark Rosenbaum, attorney with Public Counsel, the California-based law firm that represents the students, called Nessel’s move “a major development.”

“Nessel sees in that right (to a minimally adequate education) the future of the state and the promise of our democracy,” he said. “That’s in stark contrast to the governor who used these children to advance her future, not theirs.”

Related: Whitmer plan to boost funds for neediest K-12 students hits wall in Lansing

Detroit’s public school system ranked last for the fifth consecutive time among 27 of the nation’s large cities on the Nation’s Report Card reading tests in 2017.

The class action lawsuit blames years of low achievement in Detroit schools on what it calls the state’s “deliberate indifference” to the city’s students.

Nessel’s brief argues that a minimally adequate public education is critical to ensure citizens can “exercise their constitutional rights” and the lack of a minimal education jeopardizes the foundation of American democracy.

“As Michigan’s attorney general, acting on behalf of the general welfare of all the people – and particularly every child in this State – I am legally, morally, and personally compelled to advance this important concept,” said Nessel.

When Whitmer was campaigning to become governor, she criticized state Republican leaders for fighting the Detroit children’s lawsuit and claimed that public school students have a right to access to literacy and a quality education.

However, she took no stance on the isuse after she became governor and the target of the lawsuit. Whitmer’s office told Bridge last week that she remains committed to improving education in Michigan as proven, in part, by her proposed 2020 budget to increase education funding.

Her 2020 budget proposal would triple funding for literacy coaches statewide, adding $24 million to hire experts to help schools boost reading skills.

That money would increase the number of literacy coaches in the state from 93 to 279 for the 550 school districts and 300 charter schools in Michigan. Under the proposed budget, the state would pick up the full tab for those coaches, instead of the current system in which local districts pay half the cost.

However, that proposal has run into opposition. The House Appropriations Subcommittee on School Aid and Department of Education on Thursday approved a bill that did not include Whitmer’s recommendation for a weighted formula for education funding.

Whitmer’s proposal recommended an increase of a half-billion dollars to Michigan public schools, with funding increasing by $180 per student.

Nessel’s brief may explain why she was not involved in defending the state in the case so far.  

Eric Restuccia, the state’s deputy solicitor general, filed the brief on behalf of Whitmer and the state school board in the U.S. Sixth Circuit Court of Appeals last month, noting that the U.S. Supreme Court has not recognized that students have a Constitutional right to literacy or quality education.

He also argued that since Detroit schools are no longer controlled by a state emergency manager, as they were when the case was filed in 2016, the children should not be able to continue to sue the state over the condition of the schools.

Restuccia requested the court hear oral arguments from both sides before ruling on the case.