April 24, 2017 Asked and Answered

Are schools that fail to teach children to read violating their rights? (podcast w/transcript)

By Stephanie Francis Ward

The 14th Amendment has been used to secure civil rights for a multitude of groups. But does it give children a constitutional right to literacy? Is it the government's responsibility to adequately fund schools, so students learn what they need to reach appropriate reading levels?

In the Detroit public school system, it was recently found that only 7 percent of its 8th grade students were proficient in reading. So in 2016, a group of lawyers filed a federal civil rights claim against the city’s school system. In this episode of Asked and Answered, the ABA Journal’s Stephanie Francis Ward discusses the lawsuit with Carter Phillips, one of the attorneys representing the plaintiffs.

Podcast Transcript

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Stephanie Francis Ward: Do children have a constitutional right to literacy, and is it the government’s responsibility to adequately fund schools so students learn what they need to reach appropriate reading levels? In the Detroit Public School System, it was recently found that only 7 percent of its 8th grade students were proficient in reading.

So, in 2016, a group of noted U.S. Supreme Court lawyers filed a federal civil rights claim against the city school system. I’m Stephanie Francis Ward, and on today’s episode of the ABA Journal’s “Asked and Answered,” I’m discussing the lawsuit with Carter Phillips, one of the attorneys representing the plaintiffs. Welcome to the show Carter.

Carter Phillips: Thank you, Stephanie. It’s a pleasure to be here.

Stephanie Francis Ward: What I wanted to ask you first was, how did this case come to the attorney’s minds? How did you get the idea from it? Was it something that came about when you were sitting around talking? What inspired you to file this?

Carter Phillips: Well, I think it’s fair to give Public Counsel the public interest law firm that operates out of California the first level of credit here. They, I think, have been examining educational issues for quite some time along with other public interest litigation matters. And I don’t know exactly how they connected in the first instance with some of the local people in Detroit, but they did.

And the more they did the investigation the clearer it became that, in a very sad way, I think, Detroit has become almost the perfect storm of inadequate access to literacy. So, then they reached out to law firms and lawyers who have the kind of expertise you might need if you’re gonna litigate a case like this for the long haul. And I guess, fortunately, one of the firms that falls in that category is Sidley, my firm.

Stephanie Francis Ward: Right.

Carter Phillips: And I was enthusiastic to work on the case as well as a substantial number of my partners.

Stephanie Francis Ward: What did you think when you first heard about how they were planning to shape the argument? And when they contacted you, what was your first impression?

Carter Phillips: Well, my first reaction was probably that this issue’s been litigated already and not in a way that was particularly favorable to the students; Rodriguez in ‘73 even though that was slightly—I guess I was in law school but just barely in law school. And that went the other way, although, there’s a caveat there that essentially identifies the possibility of the standards or the provision of education being so low that it could in fact violate the constitution.

Those are those kinds of giveaway lines that the Supreme Court often uses that you never really have much of an opportunity to take advantage of. But the truth is if there is such a case out there and it seems to me Detroit would certainly push you to the edge of believing that this cannot be what anybody thinks of as providing any kind of an educational opportunity.

Stephanie Francis Ward: Right. And some of the things that are mentioned in your complaint like the outdated textbooks, the proficiency levels of reading and math, the safety issues in the buildings, I mean, as you said, Detroit does take you there. But do you think that these conditions exist in a lot of other large urban school systems?

Carter Phillips: I’m reasonably certain that they do.

Stephanie Francis Ward: Yeah.

Carter Phillips: I mean, we weren’t doing a survey of the nation in search of it. I think this is one of those situations where you find a particular problem, and then you set out to solve that problem rather than kind of see how does that problem compare to others. So, my guess is there are other large urban communities that’ll have pockets of schools that are extremely unhelpful in terms of providing basic access to education and basic access to literacy.

But, in this particular case, we identified five schools in the Detroit Public School System that seem to us so far below whatever minimal standards you’d want to set that made it sensible to challenge. The other aspect of it, of course, is Michigan controls the public education program in Detroit in a way that is significantly different than a lot of other municipalities.

A lot of other school districts are funded less directly from the state. And so, I think having a bit of a disconnect between who’s doing the funding and who’s getting the money and the relationship there probably makes Detroit, in some ways, less or at least makes the school system more in jeopardy of kind of being overlooked in the scheme of things. Stephanie Francis Ward: I see. And you mentioned how they get the funding. Do you see in different Michigan school districts that they’re getting funding from parents or our tax dollars? Does it vary dramatically based on where one lives—

Carter Phillips: Well, yeah.

Stephanie Francis Ward: —and what kind of funding they get?

Carter Phillips: Right. I mean, as we say in the complaint, the dividing line between Detroit and Grosse Pointe is the single largest barrier to educational access and probably the biggest barrier to racial integration that you could devise because Grosse Pointe has enormous resources.

Some of that comes from the state. Some of it comes from private entities, and it has all of the resources you would want in order to be a very successful educational program. And then, by comparison, literally across the border none of those resources is available to the public schools that are right there.

Stephanie Francis Ward: I was curious too if Detroit might be different from other urban city school districts that have some problems, in that if you’re in Chicago or Los Angeles, for example, I think you can find some wonderful public schools and some really not-so-good public schools. In Detroit, is there a mix as well? Are there some really good schools in the Detroit Public System, or is it not so much because it’s more segregated perhaps?

Carter Phillips: I think it’s more segregated even though the Supreme Court decided to question about the inner-district desegregation way back when in the ’70s. And Detroit was the case, and the Court said no, you couldn’t go inner district in terms of providing a remedy.

And I think as a consequence of that, it really did freeze the internal versus external and created the kind of white flight and wealth flight out of Detroit that makes it difficult to have enough resources available within the city to improve the quality of the educational system. So, I’m sure there are some —there must be a school or two. I mean, we didn’t take on that issue. We’re not going after the entire school system of Detroit.

Stephanie Francis Ward: Right.

Carter Phillips: So, I’m not suggesting that every school would be on our list, but the reality is there are at least five schools that I can identify readily that simply do not educate their students at what I would regard as minimally adequate way to allow them even access to literacy, much less actually provide them with literacy.

Stephanie Francis Ward: When you started working up the case, what surprised you the most?

Carter Phillips: Just the conditions themselves. The idea that there would be 50 students where you have seats available for half of them or so, and others are sitting around on the floor and standing around. And most of them don’t have books. A lot of them don’t have actual teachers.

Some of them have students teaching. I mean, the conditions are just simply nothing like, I guess, what I think of as a person who’s never been in that kind of an environment before as remotely aimed at trying to ensure that every one of those students somehow is gonna get past the finish line of kinda basic literacy to be in a position to take advantage of math and reading and writing and then go on to science and other enterprise.

I mean, all of these things are additive, and if it’s so clear at the beginning that there’s no real effort being made to ensure simple understanding of words and how to sound them out and what phonetics are about then, yeah, the rest of it is a complete loss because you can’t build off of a nonexistent foundation.

Stephanie Francis Ward: So, I have to say I’m shocked. You’re saying that in some of the classrooms there wouldn’t be enough chairs for the students in the class to sit in, and they’d sit on the floor during class?

Carter Phillips: Yeah, or stand around the teacher’s desk. I mean, that’s pretty—

[Crosstalk]

Stephanie Francis Ward: And this wasn’t like rug time in kindergarten or the 1st grade? Wow!

Carter Phillips: No, this was the educational time.

Stephanie Francis Ward: Right. Well, I think some people would say rug time is too. But I’m curious has it come to the point yet where counsel has had a chance to ask the administrators why don’t you have enough chairs for your students who come to class? And if so, what was their answer?

Carter Phillips: I mean, we’ve talked to the students. We’ve talked to the parents. We’ve talked to some teachers. We haven’t talked to the administrators at this point because, candidly, in some sense, they are on the other side of the litigation.

Stephanie Francis Ward: Sure.

Carter Phillips: We can’t really reach out to them at this point.

Stephanie Francis Ward: Right.

Carter Phillips: We’re at the complaint phase of this. I mean, look. The answer’s pretty obvious. They don’t have the resources. And whatever resources they have they’re gonna put in whatever band aide will help whatever problem needs an immediate solution. And buying chairs probably is a fairly low priority. I mean, if you’re trying to decide between books and chairs, where would you go? I suppose if you’re a school, you’d probably want to have books. But they seriously—

Stephanie Francis Ward: But they don’t—

Carter Phillips: —don’t have enough of those either.

Stephanie Francis Ward: —have books either though, right?

Carter Phillips: Yeah, exactly.

Stephanie Francis Ward: Huh.

Carter Phillips: So what are you gonna do? Chairs break, and if you don’t have any money to replace them and the number of students continues to increase, you not only can’t replace what breaks but you certainly don’t have the funds to expand in any of the resources that might otherwise be needed.

Stephanie Francis Ward: You mentioned the different funding sources, and if you’re in a school district with a lot of middle and upper middle-class students, oftentimes there is some very ambitious fundraising at those individual schools. And I was curious what you thought about that if it’s ultimately very helpful. One thing that occurred to me was does it make sense to do a bunch of fundraising for your school, which is very laudable and takes up a significant amount of people’s times, or perhaps, would the energy be better to press the government for more funding for schools to buy some chairs for people whose parents can’t fund the school for chairs? And put more pressure on the government to give the schools more money for basic needs that are shocking if you don’t go to those schools that they don’t have.

Carter Phillips: I guess the question and individual people’s focus is if you have school-age children and they’re going to school somewhere other than in an inner-city in Detroit and you try to maximize their ability to be educated, I’m not shocked that you would do everything that you can to raise money to improve the quality of the school experience for your kids, I mean, if it benefits you directly.

If you’re living outside of that area and looking at Detroit, I would hope that the average resident outside of Detroit would feel some moral compulsion to improve the quality of life inside that city. But, I mean, that’s a stretch in terms of the way the politics of states and government operate. I mean, they’ve got lots and lots of priorities and calls on their resources, and one of the sort of sad facts is you can’t participate in a democratic system if you don’t have access to basic literacy.

And so, in one sense, you’ve almost guaranteed that these will be the most politically disenfranchised segment of this particular society because they’re not well enough educated even to know how to seek to get to improve it. Plus, by the time they leave school, their incentive or enthusiasm for changing it has now long since gone. Nothing can help them at that point. And they may or may not be worried about the next generation.

Stephanie Francis Ward: I see. And what is your sense for Detroit with the problems they have, how much of that is related, like what percentage would you say is related to school funding? Would it be 100 percent, 90 percent? Do you have a sense on that?

Carter Phillips: Yeah, I doubt that it’s 100 percent because with all the money in the world, you’re still gonna have some issues I suppose. But in order to put yourself in a position where you at least have adequate resources to guarantee everybody has a seat, everybody has books, that you have decent teachers committed to it who are fully certified, etc., I mean, that’s a funding issue. Those are all elements that can be solved to some extent with funding. Will there be issues about whether or not teachers really want to be in that school system and continue to deal with turnover? It’s hard to know.

It’s not unrealistic to think that that will continue to be substantial turnover as opportunities come along to take advantage of your experience as a teacher and somebody comes along and wants to give you more money or an easier commute or a better environment, etc. That’s just inherent, and I don’t think that one’s gonna go away.

But if you have the basic resources, you still are gonna be able to come in and backfill with another cadre, hopefully, of young and energetic and enthusiastic educators.

Stephanie Francis Ward: And you mentioned something earlier I wanted to come back to. You said you had heard of students teaching classes. Can you tell me a bit more about what you heard about that?

Carter Phillips: I wasn’t there for that particular session. But some of my colleagues sat there and sat and watched a class where no teacher showed up. And a student —this happened twice, I guess —and the student sort of took it upon him or herself to teach whatever was supposed to be the assignment for the day. And you can imagine the amount of attention focused on one student by 30 some other students is not likely to be all that great.

Stephanie Francis Ward: No, yeah.

Carter Phillips: It’s loud and boisterous.

Stephanie Francis Ward: Yeah.

Carter Phillips: I mean, the one thing at least an adult can give you is some measure of control; whereas a student, obviously, has substantially less access to that.

Stephanie Francis Ward: And I was curious. It seems like now for people who want to enter the teaching profession, it’s extremely hard to find a job largely because of funding. Is it also hard to get hired by the Detroit Public School District, or is that a pretty easy place where you can teach if you want to? Are they hiring?

Carter Phillips: Oh sure, they would hire. I mean, the problem is they can’t recruit nearly enough fully certified teachers to fill in those slots, and that shouldn’t come as a big surprise because if you have any other choice about where you would teach, why would you teach in a place that’s rat infested, cockroach infested, doesn’t have enough seats for the students, doesn’t have any books for those students, where education is not perceived to be a central element of what the state’s mission is all about?

And then here you are at a not-fabulous compensation level to begin with. Not horrible but certainly nothing to write home to mom about. I mean, in the scheme of things, you would only take that job opportunity if, candidly, there wasn’t anything else available. And even then you might prefer to go into a different profession.

Detroit’s the only city that the state has listed the requirement that teachers have to be certified. I’m sure they did that with the hope that maybe they could find people who are still good and energetic and capable of providing some additional education. But at the end of the day, what you’re talking about is a single location, single educational system where it is lawful under state law to put in as teachers people who are otherwise utterly disqualified or incompetent to teach in any other school in the state. And that by itself sends an extraordinary message.

Stephanie Francis Ward: Carter, if you could please hold that thought. Before you continue, we need to hear a word from our sponsor.

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Stephanie Francis Ward: And we’re back. I’m Stephanie Francis Ward, and on today’s episode of the ABA Journal’s “Asked and Answered,” I’m speaking with Carter Phillips, one of the attorneys who is involved in the lawsuit against the Detroit Public School System which alleges that children have a constitutional right to literacy.

So, Carter we were speaking about the issue that in Detroit they must have certified teachers in their school, and that’s a problem, as you mentioned. I’m curious if, in working up the case, did you come across many teachers who are certified as reading specialists or had special education certification or perhaps some offerings within that like offerings for speech, dyslexia, ADHD specialists, anything like that?

Carter Phillips: Yeah, they have them in the school system, but they rarely make it to the particular schools we’re talking about. In fact I don’t recall any instances in which any of the specialized teachers were there. But that could just be a function of our folks weren’t there in the same time. But realistically what you’d be talking about is a person who’s got responsibility for a dozen schools and who might show up once every 12 days to make a cameo appearance at one of the schools that’s involved in our litigation.

So, I mean, those resources exist, but they are in extraordinarily limited supply. And realistically, that’s not gonna be much of a help, certainly to remediate the problems that have been allowed to creep up now through the last decade.

Stephanie Francis Ward: I see. And earlier you mentioned that there are significant differences between the Detroit school system and other Wayne County school districts. Can you tell us briefly what are some of the biggest differences you’ve noticed?

Carter Phillips: Well, if you just look at the quality of the schools themselves, just the physical plant is eye popping. I mean, these are not necessarily all brand new schools out in the suburbs, but they are very, very nice, largely inviting kinds of buildings and edifices. And inside, they seem to have all of the equipment that you would want.

The gymnasium is ready to be played on in a serious way. I mean, the schools that have swimming pools, they have swimming pools that actually have clean water in them and that work. The swimming pools in our schools have dead rats in them and no water, which, I guess, the rats die of thirst. I don’t know.

Stephanie Francis Ward: Maybe they can’t swim, yeah.

Carter Phillips: Yeah.

Stephanie Francis Ward: Oh, but you said there’s no water. Excuse me, right.

Carter Phillips: There’s no water, so swimming’s not their issues. I think they don’t know how to get out of the pool, and so, they just die there. But, I mean, that part’s all appalling. And if you see the teachers, the teachers are all dressed nicely and ready to go and excited, etc. And at least the few I’ve seen inside our school district, they are pretty tired.

They’re doing their best. They’re trying hard. And it is an extraordinarily difficult task, I think. I marvel that people do it on a day-in-day-out basis when they know that they’re ultimately struggling to just try to get —what —1 percent, 2 percent of their students to proficiency? And that’s just a heart wrenching kind of situation to be placed in, I think

Stephanie Francis Ward: Right. Well, and I was curious how the Detroit School System approaches standardized testing because I know in Chicago—at my children’s school, I mean—there’s a big push. We get emails a month ahead letting us know it’s coming and saying be sure and don’t miss any school. And get to bed early, and have a good breakfast.

And they don’t have any homework the week of standardized testing, which is great. But I was curious if you had seen how the administrators in the schools that you’re suing, how do they approach their standardized testing time? Is it just like another day or—

Carter Phillips: Yeah, it has to be because they don’t have the luxury of being able to kinda step aside and kinda say well, let’s clear our minds now. And let’s focus on exactly what we need to focus on, and make sure you get home and have a nice meal. That’s probably up in the air as to whether that was gonna happen anyway. I mean, that in a lot of ways is kind of a luxury. I mean, I understand—

Stephanie Francis Ward: Sure.

Carter Phillips: —why schools do it certainly. It makes perfect sense to get everybody in the right frame of mind. But that’s not realistic in the five schools where our students are. And at least as far as I know, if there’s any communication about it, it’s pro forma. It’s not really serious in terms of expecting that there’s gonna be some vast change and focus for these students.

And ultimately, if you haven’t got the basics of how to sound out words and phonetics or any other things, it’s not gonna make any difference in whether you take a day off and clear your mind. There’s nothing for you to be able to demonstrate proficiency with.

Stephanie Francis Ward: What responsibility, if any, do you think that the caregivers of children in the schools that you’re suing have for their children’s literacy?

Carter Phillips: In this lawsuit, while the challenge that’s going on inside the five schools is clearly a lawsuit against the state of Michigan and their officials responsible for the provision of education, and that’s certainly where they put it. They say well, well, this is all on the parents or caregivers of the children. In their motion to dismiss, that’s where they argue this.

I just think that’s fine. There’s some measure of responsibility, I think, that goes there. I don’t quarrel with that. You can always hope the caregivers will provide greater help. But at the end of the day, it’s not the responsibility of the caregivers to provide a minimum of access to literacy and to the basic materials needed to get an education.

I mean, I find it hard to imagine that the state of Michigan really believes that they can have a law that makes going to public school mandatory, create buildings that are little more than a warehouse with no educational resources available, and then say that somehow satisfies anybody’s notion of providing a realistic opportunity to be educated.

There’s a great quotation that comes from Chief Justice Roberts, of all people. And it just came out a few weeks ago in the Douglas School District case. And it comes up in the context of the IDEA, which is, obviously, dealing with children with disabilities. But what he says there just sort of resonated with me as somebody who’s been thinking about these issues now for a while.

But “when all is said and done, a student offered an educational program providing “merely more than de minimis progress from year to year can hardly be said to have been offered an education at all.” And the reality is I’m not even sure my clients even got minimis progress. I don’t think they got any progress.

I think if anything there were probably degradations in their skillsets over time. But in any event, they certainly didn’t get anything more than de minimis. And I think the Chief Justice got it exactly right. That’s no education at all.

Stephanie Francis Ward: We were talking about students advocating for themselves. You mentioned that if you haven’t been taught to read, it’s a little hard to figure out how to advocate for yourself and what you need to do. Do you have a sense that for some of the children in your case, their parents also went to the Detroit Public School System, and they also did not get a minimum education for literacy? And perhaps their grandparents did as well. Do you have a sense of whether this is a problem that’s been going on generations?

Carter Phillips: Well, there’s no question that the Detroit Public School System’s been inadequate for some period of time. I think it certainly dates back to the ’70s when the Court rejected the idea that there could be inner-district remedies available. And so, yes, I’m quite certain that there are generations now of individuals who are in this system.

And you think about it. It is really quite tragic the idea that if a parent made it through the Detroit Public System without being able to demonstrate any proficiency on any of the kind of basic measures of skills is employed presumably in a position that’s probably minimum wage and then has children. And those children are going through exactly the same situation. The parents really literally don’t know enough to say this is just wrong.

Stephanie Francis Ward: Right.

Carter Phillips: I mean, I’ve got to believe intuitively they know it is, but I don’t even know that they know how to articulate that this is just wrong other than we have to send our children to school. That’s mandatory. We’ll comply with our obligations, and we do that.

But to say the caregivers it should be on you to do more, they have to at least have the same level of literacy that somebody else would be able to provide in order to help their children. I mean, it doesn’t help if they can’t read. Then, obviously, they’re not gonna be able to help their children read.

Stephanie Francis Ward: Right. If you prevail in this lawsuit, what do you think that could mean for other school districts that have similar problems?

Carter Phillips: I would hope in the first instance that if we were to win this case that the politics would shift dramatically that now, it’s not a matter of simply sweeping all of this under the rug and not worrying about the worst of the worst conditions that may exist in a particular school district. I would hope that people would say well, we now have a constitutional responsibility to do more.

And if they’re looking for a compelling argument for why they should devote more resources to education, this would be a pretty compelling argument, I would hope. So, I think it has implications on that score, and obviously, it would provide a basis upon which you could go in and do the same kind of an inquiry that we did in Detroit. Look at the individual schools. It’s not always that easy because, obviously, the administrations don’t really give you full access to the schools.

And in some ways, for perfectly legitimate reasons, but it does make it a more complicated process. But I think people, if they saw that there is a fundamental right to access the literacy that would cause more parents, more students to put up their hands and say I don’t believe my school’s providing it.

So, we could find more situations and be in a better position to kind of seek relief and remedies for a wider range of individuals. But as I said, to me, what would be more powerful is just the fact of a holding would cause resources to shift away from wherever they’re being spent now and more in the direction of trying to educate our youngest citizens.

Stephanie Francis Ward: Have you found that many people think that’s already established law, that there is a fundamental right to literacy?

Carter Phillips: I think most people in a colloquial sense believe that that there is a fundamental right to literacy. I mean, how can you have a system that says you have to go to school for eight years but not expect you to actually come away with anything other than spending time in a building for eight years?

But the reality is such a right doesn’t exist at the moment, at least not in any way that’s judicially enforceable. And so, I think in the court of public opinion, we’re probably already ahead of the game. But in the court of law, I think we still have an uphill climb.

Stephanie Francis Ward: What’s next in the case? What comes next on the docket?

Carter Phillips: There’s been a skirmish about a meekus brief. A lot of the meekus groups have come in, not surprisingly, and on both sides. But that’ll take care of itself soon, and then we’ll file our reply brief shortly. And then the case will be teed up for argument on a motion to dismiss. I assume the district judge will hold an oral argument on the motion to dismiss. That should be fun and interesting.

Our hope, obviously, is that the Court denies the motion to dismiss and gives us the opportunity to engage in some of the discovery to get at some of the questions you asked, which is talk to the administrators. Talk to the state. Understand if the state even knows about the conditions in these schools to some extent. But then try to get answers to the questions why we don’t have the basic resources, and what would it take to get there.

Stephanie Francis Ward: All right. Carter that’s everything I wanted to ask you today. Would you like to add anything else?

Carter Phillips: No, Stephanie. I appreciate very much the opportunity to talk with you about a subject that’s near and dear to my heart. And I guess we’ll just stay tuned and see what happens with the litigation.

Stephanie Francis Ward: Well, thank you so much Carter. It was wonderful speaking with you today. And listeners, thank you for joining us on today’s episode of the ABA Journal’s Asked and Answered. I’m Stephanie Francis Ward, and I hope you tune in again next month.

End of transcript.

Updated on April 27 to add transcript.

In This Podcast:

Stephanie Francis Ward
Carter G. Phillips is the chair of the executive committee of the law firm Sidley Austin. He has argued 84 cases before the U.S. Supreme Court, nine of which he argued as an Assistant to the Solicitor General in the U.S. Department of Justice and 75 of which he argued while in private practice. He has also argued over 120 cases in U.S. courts of appeals, including at least one in every circuit, and more than 30 in the U.S. Court of Appeals for the Federal Circuit. He is an adjunct professor at Northwestern University Pritzker School of Law, where he teaches a clinic on arguing before the U.S. Supreme Court.