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The Right to Read: Suing a State for Better Teaching

Fourth-grader reading

SOURCE: AP/Orlin Wagner

A fourth-grader reads in class.

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The research is irrefutable: Children who don’t learn to read proficiently by the third grade face nearly insurmountable challenges not only in their next decade of schooling but also into their adult lives. The mounting evidence clearly linking the ability to read well in the early grades to future success has, over the past few years, prompted a number of states to consider and enact legislation to require the retention of students who cannot read at grade level in the third grade and the intervention of special instruction and support to raise their reading achievement. Earlier this year, Arizona enacted a new law requiring any student not proficient in reading at the end of the third grade, as measured by the state reading test, to be retained in the third grade (though there are exceptions for English language learners and students with disabilities). For the most part, the new laws addressing reading proficiency target the third grade as the make-or-break year for reading, though some laws specify remediation in the fourth or fifth grades.

The laws, though they vary in the specific grade level targeted, tests required, and remediation procedures, share a common philosophy: Learning to read in the early grades is essential if a child is to succeed in the upper grades and beyond. As a policy, these laws appeal to the best desires of citizens and educators, and promise that children will learn and master the fundamentals to participate and succeed in a civic democracy.

Florida is often spotlighted as the first state to enact a reading proficiency law in 2002. But Michigan has had a law requiring that students read at grade level since 1993. It is buried deep in the state’s code governing schools and says that students must read on grade level at the fourth and seventh grades, and if students cannot read, the state must provide special instructional assistance to bring them up to grade-level reading within 12 months. But the law has seldom, if ever, been heeded. As a consequence, many children in Michigan’s school districts are not able to read on grade level.

In 2012, Florida’s state department of education estimated that 18,000 students were retained in the third grade because they were unable to read on grade level. But in at least one district in Michigan, students who were not proficient in reading in the fourth and seventh grades did not receive the specialized instruction required by law. That prompted the American Civil Liberties Union, or ACLU, to test the strength of the Michigan law’s requirement that children read on grade level in grades four and seven through a class action lawsuit—S.S. v. State of Michigan.

The suit on behalf of eight named plaintiffs and their student colleagues in the Highland Park School District claims that the state and district are legally obligated to do more than just operate and maintain schools, and must ensure that all students learn to read. Highland Park, a small city of about 12,000 residents, is an independent island of a municipality entirely within the Detroit city limits. According to the 2010 Census data, Highland Park’s population is approximately 94 percent African American, with about 47 percent of its residents living below the poverty line. The 950-student school district was taken over by a governor-appointed emergency manager in 2012 when the district experienced a financial crisis. Shortly after taking over, the emergency manager hired The Leona Group, a for-profit charter company, to run the district’s schools.

What makes this particular lawsuit worth noting is its timeliness given the mounting concern for improving reading proficiency among elementary schoolchildren in the United States. It may provide a glimpse into what other states could face if their laws requiring mandatory reading proficiency are not fully carried out. It is possible that other students in other states will file suit asking to be taught to read.

Another interesting issue in Michigan is that the remedy being sought is improved teaching, specifically around the quality of literacy instruction to support students to read at grade level, and to have an intervention system in place for students and schools that fail to meet that goal. While lawsuits about educational equity in other states have often been based initially in variation in funding between districts, S.S. v. Michigan skips the funding issue and goes instead to the outcome of education—whether students learned to read—and questions whether the materials and instruction delivered to students was appropriate. Lawyers representing the plaintiffs assert that the state and local agent have an obligation to deliver high-quality education to students, and ensure that all students can read. An expert witness from the University of Michigan, who inspected the Highland Park schools as part of the case, concluded that the instructional activities and materials inside the schools themselves are insufficient to help students learn to read on grade level, as required by law.

Suing to be taught to read

The complaint in S.S. v. Michigan says that the state and district:

… failed to deliver to all students enrolled in Highland Park School District adequate educational services such that all students possess basic literacy skills appropriate to their age and development and have failed to take proper steps to effectively remediate these deficiencies where they exist.

The reading scores in Highland Park seem to bear out that claim. In the 2011-12 school year, only 35 percent of fourth graders and 25 percent of seventh graders were proficient in reading. According to the law, the other students—the ones who were not proficient—should have received extra assistance to be brought to grade level. But test scores from the following year, when these students were in the fifth and eighth grade, show that only 30 percent of fifth graders and 41 percent of eighth graders were proficient in reading. It appears that not all of the students were brought up to grade level in the year after they failed to read proficiently.

The evidence of the lack of skill among students is demonstrated in a letter that an eighth-grade student—one of the plaintiffs in the case who was not given the special support needed and required by law to read at grade level—wrote to the governor of Michigan asking for better teaching. The letter appears in the complaint:

My name is [redacted] and you can make the school gooder by geting people that will do the jod that is pay for get a football tame for the kinds mybe a baksball tamoe get a other jamtacher for the school get a lot of tacher.

The remedies for students who don’t learn to read

For some states that have enacted achievement benchmarks with educational consequences tied to them, students must be retained if they cannot read at grade level in the third grade  and sometimes in the fourth grade. But there are exceptions in the laws. Some state laws allow a school administrator, under certain circumstances, to override the retention directive. A student might also avoid retention if he or she participates in a reading intervention program before starting the fourth grade. In states such as Indiana and Maryland, a student who participates in such a program is promoted even if he or she does not read at grade level upon completion of the intervention.

Michigan’s law has fewer exceptions, allowing only students classified as needing special education or having extenuating circumstances to be exempt from being brought to proficiency in reading in the fourth grade, or receive special services so they do so within a year. Thus, the ACLU’s case rests on the claim that the teaching in the Highland Park schools was not of sufficient quality to teach students to read at grade level, and the extra services—if any—that were delivered to the fourth graders who were not proficient in reading were not up to the task either.

Elizabeth Moje, a professor of literacy education at the University of Michigan, was one of two expert witnesses accepted by both the plaintiffs and defendants. She was directed by the court to spend several days in the schools observing classroom instruction and the materials available to students and teachers and produce a report on her observations. She reported that she found a variety of pedagogical shortcomings in Highland Park classrooms and spotlighted the lack of qualified teachers and adequate instruction. Moje ultimately concluded that these students were not failing to learn—instead, Michigan and the Highland Park schools were failing to teach.

The defendants’ arguments in Michigan

The lawsuit names all levels of governance as defendants—from the state of Michigan, the state department of education, and the state board of education to the local school district and its leadership. While each entity has a slightly different relationship to education in Highland Park, they all share at least one perspective on the case: Something has already been done to offer sufficient education to the students in the Highland Park schools, and therefore the lawsuit should be dismissed.

The defendants’ arguments hinge on governance changes made in 2012 when Michigan Gov. Rick Snyder (R) appointed an emergency financial manager to oversee the district’s finances, which had fallen into an $11 million deficit. The emergency manager turned over operation of the entire Highland Park school district to The Leona Group. It is the defendants’ contention that the act of appointing an emergency financial manager absolved the state and the district of responsibility for ensuring that students read at grade level. Once the emergency manager was in place, the state and district were no longer liable for decisions or actions taken by the manager, claim the defendants. Moreover, even if the district can be held legally liable for the alleged educational inadequacies, the district’s emergency manager contends that changes have already been made, including the hiring of The Leona Group. The newly installed charter school company will hire teachers and will ensure that classrooms have adequate supplies.

The defendants also argue that the state has not been given the opportunity to fully provide the substantive educational remedy in question. They point to the fact that The Leona Group has been operating Highland Park schools for only a single year and that more time is required to implement intervention programs and help students reach grade-level reading proficiency. The Leona Group “must be given adequate time to implement reading assistance programs and achieve its academic goals,” stated the defendants in their motion to dismiss the case. While it’s true that the charter operator has only been in Highland Park for a year, the Michigan law in question doesn’t provide an exception for a change in school governance, and it clearly states  that all children must read at grade level in fourth and seventh grades.

Highland Park lawsuit developments

During the 2012-13 school year, while the lawyers argued and Moje, the university professor, visited the Highland Park schools, only 21 percent of fourth graders in the district were proficient in reading. The remaining fourth graders—79 percent—had failed to learn to read in the first few critical years of school. As for Highland Park’s seventh-grade students, 27 percent were proficient in reading. These students will soon enter high school where the reading demands ramp up as the subject matter becomes more difficult, which means nearly three-quarters of them will face daunting classroom challenges.

In June 2013, a circuit court judge sided with the plaintiffs and refused to dismiss the case. Neither the state, the local education officials, nor the charter school operator could be contractually immune from providing reading instruction to the struggling students, wrote Judge Marvin R. Stempien. The judge went on to note that the state constitution establishes the state’s responsibility for maintaining a system of public schools, and the statute related to students reading at grade level stems from that responsibility. A shift in governance or delegating the delivery of education to a charter school group doesn’t relieve that state of its obligation under Michigan’s constitution.

Later in his opinion, Stempien noted that the statute sets forth a definite action to be taken if students cannot read on grade level, and further specifies that the action should be “special assistance.” The law says exactly: “provided special assistance” to help children read. Stempien ordered the case to go to trial. The ACLU called the judge’s decision “a victory for the rights of children in the state to receive an adequate education.”

Conclusion

Clearly, in Michigan, there is a legal requirement that students should learn to read by a specific grade—just as is laid out in a number of newer laws in states around the nation. And equally as evident, students in Michigan have been allowed to fall through the cracks when the law wasn’t enforced.

Will S.S. v. Michigan be the latest in a string of cases that is advancing arguments about equity  in the delivery of education rather than just the financing of education? That question probably won’t be answered any time soon. The state of Michigan, the Highland Park schools, and the charter school operator—all defendants in the case—appealed the circuit court judge’s decision, putting the case into the hands of the state appellate court judges. It will be months and perhaps years before the arguments in this case will be complete and the court rules on whether the lawsuit can proceed. In the meantime, Highland Park’s students are continuing to struggle to learn to read.

Jenny DeMonte is the Associate Director for Education Research at the Center for American Progress. Akash Patel was an intern at the Center.

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