Opinion | Detroit’s Schools Are Unconstitutionally Unequal

For much of the past decade, schoolchildren in Detroit were forced to endure conditions that can only be described as abhorrent. In many schools, classroom temperatures exceeded 90 degrees during the spring and summer, and neared freezing during frigid Michigan winters. Mold was endemic in some school buildings, and vermin was common in others.

In one school in 2015, the math teacher resigned just a few weeks into the school year. The solution in that case? A high-performing eighth-grade student was tasked for a month with teaching both seventh- and eighth-grade math.

Does the Constitution permit such shoddy treatment of schoolchildren? We may soon find out. In October, the United States Court of Appeals for the Sixth Circuit heard oral argument in a class action case alleging that children in Detroit attended schools that unconstitutionally “lack the staffing and capacity required to effectively implement” elementary literacy programs.

They’re seeking to have the state now provide Detroit schools with the resources to deliver grade-appropriate, evidence-based instruction, as well as remedial education for the Detroit students affected during the time the state controlled the local education system.

The basic argument is that the State of Michigan, which requires all children to attend school, shuffled Detroit students into classroom environments that undermined teachers’ efforts to provide meaningful educational benefits. The judges focused mainly on a specific claim that students had been denied “substantive due process.” But under Supreme Court precedent, there is also a strong argument that Michigan’s statewide education system violates the Constitution’s Equal Protection Clause.

Michigan’s Constitution — like the Constitution in virtually every state — requires “a system of free public elementary and secondary schools.” Michigan has generally fulfilled that obligation by granting local school boards the authority to run school systems. In the late 2000s, however, the state took direct control of the Detroit public schools. In so doing, it displaced Detroit’s elected Board of Education, as well as the local superintendent.

In the decade that followed, the bottom fell out from under Detroit’s schools. The schools physically deteriorated, as did students’ academic achievement. In every year that the National Assessment for Educational Progress has been administered since 2009, Detroit fourth and eighth graders have ranked dead last in the country when compared with students in other large urban districts. In each of those years, only about 5 percent of Detroit’s children were ranked proficient in math or literacy.

By any measure, the state’s takeover of Detroit schools was a failure. But it was also a constitutional abdication. Though the Supreme Court has held that the Constitution does not require absolute equality in educational outcomes, it has also emphasized — in Plyler v. Doe and other cases — that a basic education is of fundamental, constitutional importance. It’s true that the court has not yet decided the contours of a fundamental right to a “basic education.” But by any conceivable standard, children in Detroit were denied those basics when they were being taught by other children, in uncomfortable, even dangerous, conditions; when organized reading groups “read books at a fourth- and fifth-grade reading level, even though the students are in high school” or when even teachers themselves lack textbooks.

The Supreme Court has repeatedly held that even when states are under no obligation to provide a “fundamental right,” the Equal Protection Clause prohibits states from selectively facilitating those rights. States, for example, have no obligation to provide for appeals in child-custody cases. But because the right to parent one’s children is “fundamental,” a state cannot condition the right to appeal on a party’s ability to pay court costs.

The same reasoning can and should apply here. The State of Michigan opted to establish a statewide system of public education. Having undertaken that responsibility, it cannot maintain a system in which only certain Michiganders — those who reside in Detroit — are denied the fundamental opportunity to achieve a basic education. There can be no doubt that the state is responsible for Detroit’s plight. And there is little ambiguity on where Supreme Court precedent points us. In Brown v. Board of Education, the court admonished that education, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

There are now at least reasons for hope in Detroit. The local Board of Education has regained control of the schools, and the main school district — staffed by many of the same hardworking teachers who endured years of state neglect — has posted impressive academic gains under Superintendent Nikolai Vitti. But Detroit schools are still digging themselves out from those years of state-imposed, unconstitutional mismanagement. The system and its students deserve restitution.

Eli Savit is an adjunct professor of law at the University of Michigan.

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