1 00:00:00,160 --> 00:00:03,640 Speaker 1: Should federal courts protect the ability to read and write? 2 00:00:04,160 --> 00:00:07,160 Speaker 1: In a federal class action on behalf of Detroit school children, 3 00:00:07,240 --> 00:00:10,000 Speaker 1: the planeiffs point to a lack of resources and facilities, 4 00:00:10,000 --> 00:00:12,719 Speaker 1: among other things, and claim that the State of Michigan's 5 00:00:12,720 --> 00:00:17,079 Speaker 1: disinvestment in Detroit schools has resulted in illiterate students. But 6 00:00:17,200 --> 00:00:20,200 Speaker 1: the state, relying on a nineteen seventy three Supreme Court 7 00:00:20,200 --> 00:00:23,560 Speaker 1: decision that education is not a fundamental interest, is arguing 8 00:00:23,560 --> 00:00:26,079 Speaker 1: that there is no right to literacy, and a federal 9 00:00:26,079 --> 00:00:28,400 Speaker 1: court is going to decide whether the case then can 10 00:00:28,480 --> 00:00:31,960 Speaker 1: go forward. Our guests to talk about this today are 11 00:00:32,159 --> 00:00:35,240 Speaker 1: Kimberly Robinson, and professor at the University of Richmond's School 12 00:00:35,280 --> 00:00:38,080 Speaker 1: of Law, and James Ryan, the dean of the Harvard 13 00:00:38,080 --> 00:00:43,480 Speaker 1: Graduate School of Education. When I was in a previous life, 14 00:00:43,520 --> 00:00:45,720 Speaker 1: I used to work at the New York City School System. 15 00:00:45,720 --> 00:00:47,559 Speaker 1: I was General council there and I worked on New 16 00:00:47,640 --> 00:00:51,279 Speaker 1: York City's case supporting a lawsuit in the New York 17 00:00:51,320 --> 00:00:54,120 Speaker 1: State Court of Appeals and other New York courts to 18 00:00:54,280 --> 00:00:58,600 Speaker 1: get additional funding for the City school system. And most 19 00:00:58,640 --> 00:01:01,920 Speaker 1: of the cases really that have been brought over the 20 00:01:02,000 --> 00:01:04,959 Speaker 1: last several decades have been like that one. That is, 21 00:01:05,319 --> 00:01:08,320 Speaker 1: state court cases under state constitutions about whether or not 22 00:01:08,400 --> 00:01:12,039 Speaker 1: there is equitable or adequate funding or equitable and adequate 23 00:01:12,080 --> 00:01:15,000 Speaker 1: funding for school systems to provide the right level of 24 00:01:15,080 --> 00:01:18,400 Speaker 1: education for students. Here we have a claim that there's 25 00:01:18,400 --> 00:01:21,880 Speaker 1: a federal constitutional right to literacy. What exactly are the 26 00:01:21,880 --> 00:01:26,640 Speaker 1: plantiffs arguing in support of that position? So they are 27 00:01:26,720 --> 00:01:30,560 Speaker 1: arguing that the United States constitutions, specifically the fourteenth Amendment, 28 00:01:30,640 --> 00:01:35,679 Speaker 1: protects a right to literacy. So they're distinguishing and claiming 29 00:01:35,680 --> 00:01:39,600 Speaker 1: a right to literacy. They are building on um a 30 00:01:39,640 --> 00:01:42,200 Speaker 1: couple of cases, but sort of distinguishing themselves from that. 31 00:01:42,319 --> 00:01:45,959 Speaker 1: So there's San Antonio Independent School District versus Rhodriguez that 32 00:01:46,040 --> 00:01:49,520 Speaker 1: held that there's not a fundamental right education. But the court, however, 33 00:01:50,120 --> 00:01:54,760 Speaker 1: did specifically note that the plantiffs had not alleged um 34 00:01:54,800 --> 00:01:59,000 Speaker 1: the denial of specific minimal skills that would be necessary 35 00:01:59,040 --> 00:02:05,800 Speaker 1: to exercise other fundamental rights here. However, the Detroit litigation 36 00:02:06,600 --> 00:02:10,680 Speaker 1: specifically alleges that the schools are not providing them adequate literacy, 37 00:02:10,760 --> 00:02:15,600 Speaker 1: literacy to enable them to function as citizens, to basically 38 00:02:15,639 --> 00:02:19,280 Speaker 1: sort of read and speak effectively. And so this sort 39 00:02:19,320 --> 00:02:22,920 Speaker 1: of taps into that space where the United States Spring 40 00:02:22,960 --> 00:02:25,400 Speaker 1: Court said, Well, the Plaineffs have not alleged this here 41 00:02:26,000 --> 00:02:28,639 Speaker 1: and the Detroit litigation they have alleged this, and so 42 00:02:29,120 --> 00:02:31,359 Speaker 1: they argue that this is a violation of their Fourteenth 43 00:02:31,360 --> 00:02:34,000 Speaker 1: Amendment rights in the United States Constitution, which is why 44 00:02:34,000 --> 00:02:36,840 Speaker 1: they are now in federal court instead of state court, 45 00:02:36,880 --> 00:02:39,960 Speaker 1: which is the litigation you referred to before, was previously 46 00:02:40,000 --> 00:02:45,280 Speaker 1: in state court. Jim, how strong is their claim? Well, 47 00:02:45,400 --> 00:02:47,680 Speaker 1: to pick up on what Coverley said, it's a completely 48 00:02:47,720 --> 00:02:52,280 Speaker 1: plausible claim legally insofar as the Court left open the 49 00:02:52,320 --> 00:02:55,640 Speaker 1: possibility that there might be a right to a minimally 50 00:02:55,639 --> 00:03:00,440 Speaker 1: adequate education UM. In again cases after Rodriguez, the Court 51 00:03:00,880 --> 00:03:03,320 Speaker 1: went out of its way to say that remained an 52 00:03:03,320 --> 00:03:08,000 Speaker 1: open question. UM. And it hasn't really been litigated in 53 00:03:08,160 --> 00:03:11,080 Speaker 1: federal court prior to now because litigants have turned to 54 00:03:11,160 --> 00:03:15,240 Speaker 1: state courts and tried to pursue a right to more 55 00:03:15,320 --> 00:03:18,440 Speaker 1: than a minimally adequate education. I think UM. Part of 56 00:03:18,480 --> 00:03:20,960 Speaker 1: the reason it hasn't been pursued was the fear that 57 00:03:21,000 --> 00:03:24,720 Speaker 1: this might be aiming too low. UM. But if there 58 00:03:25,000 --> 00:03:28,240 Speaker 1: is um a right to a minimally adequate education, surely 59 00:03:28,360 --> 00:03:32,239 Speaker 1: literacy would comprise a component of a minimally adequate education. 60 00:03:32,600 --> 00:03:35,840 Speaker 1: So it's a fascinating case because in some respects it 61 00:03:35,920 --> 00:03:39,360 Speaker 1: goes back to a question that's been opened for more 62 00:03:39,360 --> 00:03:43,920 Speaker 1: than forty years um and explicitly left open um, explicitly 63 00:03:43,960 --> 00:03:46,720 Speaker 1: left open by the court. And you might be wondering, well, 64 00:03:46,720 --> 00:03:49,800 Speaker 1: why would the court say there's no general fundamental right 65 00:03:49,800 --> 00:03:51,720 Speaker 1: to education but there might be a right to a 66 00:03:51,760 --> 00:03:56,520 Speaker 1: minimally adequate education. And here, Kimberly, um is exactly right 67 00:03:56,560 --> 00:04:00,480 Speaker 1: that the rationale would be that a minimal the adequate 68 00:04:00,560 --> 00:04:05,040 Speaker 1: education is necessary to exercise other rights that are explicitly 69 00:04:05,080 --> 00:04:08,800 Speaker 1: set forth in the Constitution. Well, Kimberly, the plantiffs also 70 00:04:08,840 --> 00:04:13,440 Speaker 1: seemed to be relying beyond the claims you've you and 71 00:04:13,560 --> 00:04:17,000 Speaker 1: Jim have set forth that on equal protection the Civil 72 00:04:17,080 --> 00:04:20,320 Speaker 1: Rights Act. Is there an angle that they can make 73 00:04:20,400 --> 00:04:25,080 Speaker 1: here that, given the the racial makeup of students in 74 00:04:25,120 --> 00:04:28,920 Speaker 1: the schools in Detroit, that there's really a discriminate discriminatory 75 00:04:28,960 --> 00:04:32,040 Speaker 1: intent or effect here that might booster their bolster their 76 00:04:32,040 --> 00:04:35,840 Speaker 1: case for getting the federal court to intervene. They do 77 00:04:35,920 --> 00:04:39,359 Speaker 1: actually specifically alleged that the state of Michigan has intentionally 78 00:04:39,440 --> 00:04:42,680 Speaker 1: discriminated against these children, who are largely children of color, 79 00:04:42,839 --> 00:04:46,000 Speaker 1: mostly African American, as well as low and controls and 80 00:04:46,040 --> 00:04:49,680 Speaker 1: say they do specifically alleged intentional discrimination under the fourteenth Amendment. 81 00:04:50,360 --> 00:04:52,960 Speaker 1: That is very difficult to prove in court that they 82 00:04:53,400 --> 00:04:58,400 Speaker 1: intentionally targeted these children because of their race. However, they 83 00:04:58,440 --> 00:05:01,880 Speaker 1: have you know, sufficiently led that too, you know, bring 84 00:05:01,960 --> 00:05:06,080 Speaker 1: such a claim, Jim. Is there any other way to 85 00:05:06,240 --> 00:05:09,640 Speaker 1: argue that the state has to provide an education to 86 00:05:09,760 --> 00:05:13,160 Speaker 1: its children than the way these plaintiffs have chosen to 87 00:05:13,720 --> 00:05:17,960 Speaker 1: be Could they have had an easier path? Well, Typically, 88 00:05:18,279 --> 00:05:21,840 Speaker 1: what litigants have done has gone to UM state courts 89 00:05:21,880 --> 00:05:27,320 Speaker 1: because all state constitutions guarantee or right education, which is 90 00:05:27,320 --> 00:05:30,880 Speaker 1: why all the school finance cases UM up until now, 91 00:05:31,080 --> 00:05:34,760 Speaker 1: or the vast majority of them after UM the U 92 00:05:34,800 --> 00:05:37,440 Speaker 1: Supreme Courts decision in Rodriguez, have been been brought in 93 00:05:37,520 --> 00:05:41,760 Speaker 1: state courts. My understanding is that an attempted suit in 94 00:05:41,839 --> 00:05:46,280 Speaker 1: Michigan based on the Michigan Constitution UM was not successful, 95 00:05:46,440 --> 00:05:49,280 Speaker 1: which is I think part of the reason why these 96 00:05:49,560 --> 00:05:52,799 Speaker 1: UM litigants are in federal court rather than state court. 97 00:05:53,120 --> 00:05:55,320 Speaker 1: But that is a UM you know, that's a more 98 00:05:55,400 --> 00:05:59,120 Speaker 1: straightforward path and a more well worn path because of 99 00:05:59,160 --> 00:06:04,000 Speaker 1: all the litigation has occurred in nearly every statement country, Kimberly, 100 00:06:04,760 --> 00:06:07,200 Speaker 1: do you think that the federal courts are going to 101 00:06:07,279 --> 00:06:10,280 Speaker 1: want to get involved in this sort of question? Not 102 00:06:10,320 --> 00:06:12,240 Speaker 1: all state courts have really wanted to. It's been sort 103 00:06:12,279 --> 00:06:14,360 Speaker 1: of a mixed bag over the years as to whether 104 00:06:14,400 --> 00:06:15,920 Speaker 1: state supreme courts are willing to do it. Do you 105 00:06:15,960 --> 00:06:18,520 Speaker 1: think the federal courts are going to show any appetite 106 00:06:18,520 --> 00:06:23,599 Speaker 1: for getting involved in this issue? You know, I think 107 00:06:23,880 --> 00:06:25,560 Speaker 1: what you're going to see at the lower court level 108 00:06:25,680 --> 00:06:27,600 Speaker 1: is a mixed bag as well. In other words, some 109 00:06:27,920 --> 00:06:32,840 Speaker 1: federal courts may see, um, this is something that basically 110 00:06:32,839 --> 00:06:35,000 Speaker 1: it's very close to what was argued in Rodriguez and 111 00:06:35,080 --> 00:06:36,600 Speaker 1: say that it's fore close by that. But I think 112 00:06:36,640 --> 00:06:40,359 Speaker 1: they're sufficient. I think the allegations and extreme conditions that 113 00:06:40,400 --> 00:06:45,080 Speaker 1: they alleged in Detroit could lead at least a majority 114 00:06:45,120 --> 00:06:47,119 Speaker 1: of the federal courts to say, no, this is something 115 00:06:47,200 --> 00:06:49,599 Speaker 1: distinct from what we saw in Rodriguez. So in the 116 00:06:49,680 --> 00:06:53,400 Speaker 1: Rodriguez case, it was really about funding disparities and the 117 00:06:53,440 --> 00:06:56,919 Speaker 1: gap and funding that was between more affluent districts and 118 00:06:56,960 --> 00:07:01,159 Speaker 1: low income districts. Here we're talking about really the types 119 00:07:01,200 --> 00:07:04,960 Speaker 1: of conditions that you see and oftentimes many third world countries. 120 00:07:04,960 --> 00:07:08,880 Speaker 1: So you have, you know, classrooms without um the facilities. 121 00:07:08,960 --> 00:07:12,760 Speaker 1: They talk about, you know, infestation, vermin in the classroom, 122 00:07:12,840 --> 00:07:18,120 Speaker 1: inadequate U heating and cooling of the classrooms, teachers who 123 00:07:18,200 --> 00:07:20,600 Speaker 1: are not you know, certified or qualified to teach. I mean, 124 00:07:20,640 --> 00:07:22,360 Speaker 1: there's just a lot of basic things that are not 125 00:07:22,400 --> 00:07:25,000 Speaker 1: being provided to these children. And they lay it out 126 00:07:25,000 --> 00:07:27,040 Speaker 1: in great detail on the complaint, and I think there 127 00:07:27,040 --> 00:07:30,400 Speaker 1: will be many federal judges who are willing to say 128 00:07:30,560 --> 00:07:32,920 Speaker 1: this simply goes too far and there should be some 129 00:07:33,080 --> 00:07:37,240 Speaker 1: basic constitutional protection for these children. The the challenge with 130 00:07:37,320 --> 00:07:41,160 Speaker 1: that maybe what Jim alluded to, which is that if 131 00:07:41,200 --> 00:07:43,560 Speaker 1: the if the federal courts do ultimately agree to it, 132 00:07:43,640 --> 00:07:47,640 Speaker 1: they may only recognize something that is quite minimal. In 133 00:07:47,640 --> 00:07:50,960 Speaker 1: other words, it may help children in extreme conditions and 134 00:07:51,000 --> 00:07:54,360 Speaker 1: Detroit and other um inter city neighborhoods, but it won't 135 00:07:54,720 --> 00:07:57,080 Speaker 1: address some of the additional disparities that some of the 136 00:07:57,120 --> 00:08:00,160 Speaker 1: state litigation was designed to address, which is children her 137 00:08:00,240 --> 00:08:02,480 Speaker 1: warrant in schools that really can shocked the conscious, but 138 00:08:02,560 --> 00:08:05,600 Speaker 1: still We're being provided an education that does not equip 139 00:08:05,640 --> 00:08:10,560 Speaker 1: them to be effective citizens and engaged members of our 140 00:08:10,560 --> 00:08:14,400 Speaker 1: society seeking, you know, gainful employment. So that is one 141 00:08:14,400 --> 00:08:15,200 Speaker 1: of the dangers