Minnesota Should Enforce the Constitutional Right to Literacy

       (In today's post, JvonKorff on Education takes a break from a series on Cruz-Guzman to discuss our failure in Minnesota to enforce the constitutional and statutory right to literacy.   Cruz-Guzman is one of numerous integration suits that have dominated Minnesota's education litigation landscape.   This post interrupts to remind that the Education Clause is primarily about empowering each child through education, and that learning to read is the gateway to education).   

Across the country, civil rights advocates have increasingly begun to demand that states and individual districts recognize students constitutional right to become literate proficient readers.  

For example, in in July, 2021, Berkeley Unified School District agreed to settle a class-action lawsuit claiming that district failed to identify students with reading disorders and provide necessary accommodations for them. Under the terms of the proposed settlement agreement, Berkeley schools agreed to  offer universal screening for reading disorders and implement new programs for teaching reading. The changes will be implemented over the next three years.

Nearby, the Oakland NAACP  has made literacy its main educational focus. As part of their campaign to require the Oakland School District to apply the reading science based recommendation of the National Reading Panel, the Oakland NAACP explains:

Our students are not receiving the free and appropriate education they need to successfully navigate college, careers, societal institutions, or opportunities to be of service to the Oakland community. Our Black, Latino and Pacific Islander students in the Oakland Unified School District ("OUSD") are four times more likely to be reading multiple years below grade level than our white students . Without the ability to read, they are denied learning and denied the opportunity to identify, cultivate, and leverage their talents in whichever way they choose. The failure of OUSD to educate our students has resulted in reduced earning potential, racialized health disparities and communities vulnerable to gentrification.

Across the country, Fairfax County Virginia NAACP issued a letter demanding that their school district transform its literacy program.  They wrote: 

"Literacy is a human right, without which there is no freedom, and there is no justice.  …In a year where all students have suffered, the learning loss for Black and Hispanic children has been catastrophic. These losses are particularly concerning when viewed through the lens of the long-standing minority student achievement gap. This disparity in learning begins the moment children enter school and are not taught effectively to read. Sadly, the methodology currently used in Fairfax County Public Schools (FCPS) to teach reading has failed over many decades

Tired of the failure of the Detroit school system to teach its students to read, advocates for Detroit children launched a first-in-the-nation effort to use the federal courts to establish a federal constitutional right to literacy education.   In 2020, the 6th Circuit Court of Appeals recognized that right stating:

The Fourteenth Amendment's Due Process Clause provides students with a fundamental right to a basic minimum education, meaning one that provides access to literacy; history of public education in country reveals longstanding practice of free state-sponsored schools, ubiquitous at time of Fourteenth Amendment's adoption, and role of basic literacy education within broader constitutional framework suggests access to literacy is essential to exercise of other fundamental rights and concept of ordered liberty.

 Before further appeals could be completed, the State of Michigan settled with the plaintiffs. 

Minnesota's education litigation landscape has in contrast been characterized by a failure to go right to the heart of what counts for our kids:  their right to learn, at the core of which is the ability to read proficiently.   Since the 1970's there have been multiple litigation alleging various violations of the constitutional right to education for Minnesota students.  However, none of the metro-area litigations have sought to enforce the right to a quality basic education, and none has touched on the very most basic right to education, the right to learn to read proficiently.

There is no legitimate defense to Minnesota's failure to teach its students to read.   Basically, Minnesota is doing a great job with the kids who learn to read effortlessly; but it is abandoning the others.  Only about 5% of all children lack the capacity to learn to read, and often those students are excused from standardized reading tests that would be reported on the Minnesota Report Card.     

    The table below displays the Minnesota MCA reading proficiency scores for all tested students in three districts on the left three columns. The right two columns

  

report the proficiency percentages for non-English-language -learner black students in Minneapolis and St. Paul.   Our urban core cities are failing to teach somewhere between 70 and 80 percent of black students whose first language is English.   Our literacy issues impact all students however:  Statewide, about 40% of all white students do not score proficient on Minnesota's MCA reading tests.  (And, one cannot find any indication that on average, Minnesota charters are doing any better).    We  are simply not meeting our responsibility to teach all students who can learn how to read to read proficient.   

Why are we failing so many students in public education?  

• The abject failure of leadership at all levels of Minnesota from Governors on down to school boards, department of education, superintendents and school leadership to reform the teaching of reading by implementing what is known to work for the students are system is now failing.   
• The mistaken belief that everything and anything other than what schools do is to blame for our failure and the corresponding refusal to change.
  
• The failure to deploy and require changes in curriculum that is not working, changes in basal and supplemental reading programs that are not working, changes in instructional practices that are not working, simply because they work just fine for the 60% of students who learn to read, no matter what techniques we use
• The passive and sometimes aggressive resistance to identifying students with the characteristics of dyslexia 
• The failure of the attorney general, of the department of education, of the Governor, of the legal community, and of the NGO community to use our imagination to enforce the constitutional right to literacy.  School choice hasn't done the job; charter schools haven't done the job; integration suits haven't done the job.   Maybe its time to fix the literacy problem in Minnesota by, well, fixing the literacy problem directly.  
  

Yes,  there a constitutional right to literacy!   We'll discuss the legal basis for that in a subsequent post.   Simply put, the Minnesota Supreme Court in the Cruz-Guzman and Skeen cases have founded the constitutional right to an adequate education on the legislative requirements applicable to all districts: the right to an adequate education that meets all state standards, and many of those standards demand that school districts teach students to read.    In our next post, we'll return to discuss the Cruz-Guzman litigation, but let us not keep our eye off the prize:  the ultimate prize, the ultimate driving purpose of the education clause was to provide every student with the freedom and power that comes from an education adequate to prepare them for citizenship and for equal participation in economic society.  Once finished with the Cruz-Guzman case, we'll return to discuss the legal basis for the constitutional right to literacy. 

 

 

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The State's Position in Cruz-Guzman (Part III)

This is the third post in a series on the Cruz-Guzman litigation, triggered by Judge Robiner's decision denying the Cruz-Guzman Plaintiffs' Motion for Summary judgment, but certifying a legal question to the court of appeals for resolution, in the event that Plaintiffs appeal the order.  This third post describes in a nutshell the position of the State of Minnesota.   A single post cannot do justice to any of the parties' intricate positions.  But the constitutional right to an adequate education, established by the Skeen and Cruz-Guzman Supreme Court decisions is a matter of high public interest. And so today's post is a brief and necessarily incomplete of what the state defendants told the court in their legal brief. 

The Attorney General’s brief for the defendants begins by acknowledging that the constitution requires the legislature to establish a “general and uniform system of public schools."   And, the brief implicitly bows to the fact that the legislature meets this responsibility “to create such a system through an extensive statutory framework. See Minn. Stat. chs. 120-129C.” In thus beginning, the brief indirectly acknowledges the Supreme Court’s holdings in Skeen and Cruz-Guzman that the linchpin of the constitutional education clause is that the legislature must assure that all districts provide an adequate education that meets all state standards, standards that are found in Chapters 120 to 129C. 

The state's brief then points out that the plaintiffs are actually adding a new concept to the education clause not explicitly found in either Skeen or Cruz-Guzman decisions.  Skeen is an educational adequacy decision that says that the legislature has a fundamental constitutional responsibility to provide enough funding to districts so that they can provide each student with an adequate education that meets all state standards.   The State's brief implicitly refers to these state standards as providing the framework for educational adequacy.  But, as the brief points out, the legislature has purposely excluded from that framework a requirement for racial or socioeconomic balanced enrollment.  In fact, the plaintiffs are claiming in effect, that the existing framework is inadequate and unconstitutional because it should have included a racial balancing requirement.  The State's brief continues:

"Plaintiffs do not challenge this framework, but nonetheless claim the system established by the Legislature is constitutionally defective because some schools fail to enroll a particular student demographic profile, regardless of cause and regardless of educational impact."

Racial balance, the state defendants exclaim is not part of the educational framework.  The plaintiffs are proposing an order that:

"would graft a new requirement onto the Education Clause: that the Legislature guarantee that every school in the state has a particular mix of students based on race and income. Such a constitutional requirement has no basis in law. The State has a long-standing policy of encouraging integration in its schools. The State has voluntarily enacted an administrative Achievement and Integration Rule ("A&I Rule") that requires identified school districts to address demographic imbalances and funds those efforts as a matter of educational policy. The State, however, is not constitutionally required to guarantee a particular mix of students.

In opposition to the motion, the State asserts that the plaintiff’s attempt to win without further proof is defective for several reasons:

• No Proof of Impact or Intent: “As a matter of law, racial imbalance in some schools standing alone, without regard to impact or intent, does not establish a violation of the Education Clause. “ 
  
  
• No Manageable Standards:  “Plaintiffs' position also is not supported by the state Supreme Court opinion in this case; does not lend itself to manageable judicial standards; and would inappropriately and necessarily entangle the court in educational policy decisions.”  This is the point that we referred to in Part II of our series on Cruz-Guzman.  When a court orders defendants to do something, it needs a measurable standard, and the Plaintiffs’ proposed order does not provide that standard.   

• Not Connected to Educational Adequacy.  “The Motion further must be denied because, at a minimum, Plaintiffs must show that any racial or economic imbalance in Minneapolis and St. Paul schools caused students to receive an unconstitutionally inadequate education. Plaintiffs have presented no evidence on this fact.”    

This last point is really important, and we have mentioned in the prior posts.   Had plaintiffs alleged that Minneapolis and St. Paul – and metropolitan area charters as well -- are not providing an adequate education to tens of thousands of their students, the plaintiffs would have no problem proving that contention.   We’ll not repeat the evidence here, but it is a slam dunk case, that nobody wants to bring, for some reason, despite all the protestations in the metro area as to how much we all care about providing an adequate education.

The Supreme Court declared in 1993 that the constitution requires the state to fund and provide each student with an adequate education that meets all state standards.  And, if the plaintiffs had alleged and proved that racial imbalance is the cause of this inadequate education, they would have had an easy road to victory.   But this is not the case that the Cruz-Guzman have spent five years to prove: they want the court to find that racially imbalanced schools are per se a violation of the education clause, because obtaining a public school education in an fully integrated classroom is inherently required by the constitution, even if that integrated education is in a school providing an otherwise constitutionally inadequate education. 

This claim -- that racially balancing metro schools would result in an adequate education --runs against the grain of an inconvenient truth.   Students are regularly leaving public schools and charters that provide an inadequate education, often making the choice to attend another school that also provides an inadequate education.  But where is the public interest in forcing students to attend their neighborhood schools (or forcing them not to attend the school that they have chosen) if that power is being used to place student in schools that are not providing an adequate education that meets all state standards, as Skeen and Cruz-Guzman actually require.  

Indeed, the case for racial balance would be vastly improved, if Minneapolis and St. Paul traditional publics and charters were required to educate to high literacy standards all children who are able to read (about 95% of all children) and to teach all children who can learn math and science, to do so proficiently.     In the next post will take a look at how Judge Robiner responded to the Plaintiff's motion, and then we'll take a look at the position of charter intervenors in the case.