Substantive Due Process

Sixth Circuit Votes to Rehear "Right to Literacy" Case En Banc

The judges of the Sixth Circuit want to review the panel decision discovering a constitutional right to literacy, but the parties claim to have settled the case.

|The Volokh Conspiracy |

On April 23, a divided panel of the U.S. Court of Appeals for the Sixth Circuit concluded the Due Process Clause of the Fourteenth Amendment protects "a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy." On Tuesday, the full Sixth Circuit vacated the panel decision because a majority of judges on the court voted to rehear the case en banc. Of note, the vote to rehear the case en banc was requested by a judge on the court sua sponte, and was not the result of a petition for rehearing.

An added wrinkle is that, last week, the plaintiffs and Michigan Governor Gretchen Whitmer announced a settlement in the case. Under this settlement, Governor Whitmer pledged to seek substantial funding from the legislature to fund literacy and other educational programs in Detroit schools, and the plaintiffs agreed to dismiss the case, with little guarantee the Michigan legislature would go long with Governor Whitmer's request. The settlement also requires payment of $280,000 to the seven student plaintiffs and calls for the creation of task forces to advise the Michigan Department of Education on measures to improve literacy and equity in Detroit public schools.

It is not clear yet what the effect the en banc order will have on the settlement, or what effect the settlement will have on whether the court actually rehears the case en banc. Attorneys for the plaintiffs claim the settlement renders the case moot. On the other hand, the state legislature sought to intervene in the case. If this effort to intervene is rejected, it is not clear whether the case will proceed.

Either way, the precedent established by the initial panel decision is gone. As noted in the order granting en banc rehearing, Sixth Circuit Rule 35(b) provides that:

A decision to grant rehearing en banc vacates the previous opinion and judgment
of the court, stays the mandate, and restores the case on the docket as a pending
appeal.

So there is no longer a precedent in the Sixth Circuit holding that there is a constitutional right to literacy. Whether there will be an en banc opinion addressing this question has yet to be determined, but seems unlikely.

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  1. I only wish they had gone further afield and found a fundamental right to happiness; I’m tired of just pursuing it.

    And all those other parts of the Declaration of Independence, the indictments of King George III for his petty bureaucrats sent forth to harass us; maybe we could get rid of them too.

    1. If you don’t like something, you are supposed to say, “There oughtta be a law!” and get your legislators to propose some.

      That’s how democracy works.

      When the side screaming vox populi vox dei abandons it in favor of literally dictatorial demands, the exact opposite of democracy, “in favor of the interests of The People”, well, you know who also made dictatorial, non-democratic laws on behalf of The People?

      History is lousy with those lice.

      1. There oughtta be a law…against saying “There oughtta be a law!”!

    2. It’s actually a right to “property”…..

      1. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”

        1. Locke wrote “property” and Jefferson changed it to “the pursuit of Happiness” for the same reason that we have changed “rights of man” to “human rights.”

          Remember that “property” had two meanings back then, in the era of “property” requirements for voting.

  2. This case is nonsense. Why are federal courts being used to resolve a state education issue? That is really the question that should be asked.

  3. My view is that it is likely that the plaintiffs were sock puppets for the teachers’ unions, who helped put the governor in office. It’s how they negotiate essentially with themselves to raise teachers’ salaries and retirements. This is an easier way to get money to the teachers’ unions than going to the legislature, where the additional spending might be opposed by those pesky Republicans.

    Note what would have happened if the plaintiffs had won, instead of settled. Teachers would have had first call on the state budget, before first responders, prisons, dams, roads, floods, pandemics, parks, etc.

    1. Sure, why not speculate yourself into the other side’s bad faith based on nothing?

      1. If you understood anything in depth about the teacher’s union, you wouldn’t say it was based on nothing.

        That said, it appears to the the usual suspects, using the same dated tactics, of running to the Courts when the democratic process doesn’t give them the results they like, never mind if such results are genuinely possible given the level of cultural dysfunction.

        1. mad_kalak, as a matter of constitutional law, I agree with you and most others here that this case is BS and should be tossed out. But I can’t let pass your comment (and krayt’s above) about “the democratic process not giving them the results they like”.

          We don’t have a democratic process. We have an anti-democratic electoral college, gerrymandered house seats, and a senate in which Wyoming gets to cancel California. If we actually had a democratic process, you’d see far fewer lawsuits like this because a lot more progressive legislation would make it through the democratic process. (Yes, I know, this case involves state rather than federal policy, but the same anti-democratic processes exist in many of the states.)

          So please, stop trying to have it both ways. Don’t fault progressives for not being able to get stuff done through the democratic process when we don’t have one, or for taking the only route open to them thanks to our anti-democratic system. *Of course* progressives are going to do what they have to do if you shut them out of the political process; so would conservatives if that shoe were on the other foot.

          With that caveat, I agree with everyone else here that this particular case should be a non-starter.

          1. “We have an anti-democratic electoral college, gerrymandered house seats, and a senate in which Wyoming gets to cancel California. If we actually had a democratic process, you’d see far fewer lawsuits like this because a lot more progressive legislation would make it through the democratic process.”

            If we actually had a democratic process, we might not have a Wyoming or a California, given that the electoral college and other concessions were a means by populous states to entice less populous states into a permanent political union by giving them some measure of control over the process.

            1. When California joined the union it was one of those little States (4 EVs) leeching off the big ones.

            2. “When the people find that they can vote themselves money that will herald the end of the republic.”
              Benjamin Franklin

            3. TwelveInchPianst, that may well be true, but the *reason* for an anti-democratic system doesn’t change *that we have* an anti-democratic system, and so long as we do, progressives, who have largely been shut out of the process, will find alternative means. You want us using the legislature rather than the courts, fine, end the anti-democratic features that prevent us from winning the legislature. Otherwise, don’t complain if we go to the courts.

              1. It doesn’t matter whether you call it an anti-democratic process or a democratic process with checks to prevent populous states from imposing their will on less populous states.

                The deal says you don’t get to impose your will on the smaller states, either through the legislature, or through court decisions like this one, which you admitted above was BS.

                So don’t complain that you don’t get to impose your will on the less populous states, those were the terms of being in a compact with them in the first place.

                1. Why is it any less egregious for the less populous states to impose their will on the more populous states? Why is tyranny of the minority preferable to tyranny of the majority? Why is the minority more likely to be right about public policy?

                  The deal said nothing about court decisions.

                  And I’m not complaining. I’m pointing out that so long as the system is what it is, it’s hypocritical to claim that progressives should just win elections if they want their policies enacted. And pointing out that progressives will resort to whatever self help is available to them.

                  1. “Why is it any less egregious for the less populous states to impose their will on the more populous states?”

                    1. To the extent that that happens, it’s because those are the terms that the populous states used to entice the smaller states into the compact.

                    2. The less populous states don’t get to impose their will on the more populous states. All laws have to be passed by the house, which has proportional representation.

                    1. Preventing stuff from passing that the majority wants is an imposition of the will of the minority on the majority.

          2. This is about State education in Michigan.

            Electoral Colleges, Wyoming and California have nothing to do with it.

            1. As I said in my original comment, “Yes, I know, this case involves state rather than federal policy, but the same anti-democratic processes exist in many of the states.” Michigan is one of the states in which the Republicans have managed to gerrymander the Democrats out of contention for legislative control.

              1. Most Michigan democrat voters are concentrated in (relatively) populous large cities. Distributing them among more rural districts would require obscene levels of gerrymandering. Districts from the Upper Peninsula would have to snake down to Flint to give the Democrats a fighting chance in those districts.

          3. So a Republic is not a Democratic form of government? That’s sure news to me!

            The democratic process talked about here is that in the USA you petition your representatives, whom are directly elected to represent you for legislative purposes, to pass legislation and then so forth and so on. That is the process referred to here.

            1. Well, in the old Union of Soviet Socialist Republics, you could also petition your representatives, who were democratically elected, to pass legislation, and so forth and so on. Would you consider the old USSR to be democratic?

              They, like us, had a system that was democratic in name, but in which the playing field was tilted so that in practice there would be only one result. And for the very same reason: The people can’t be trusted to run their own affairs.

              The one thing we have that they didn’t is an independent judiciary that puts limits on how oppressive the ruling class can be.

              1. “in practice there would be only one result”

                11 years ago the Dem caucus had 60 senators and the presidency.

                GOP has not had 60 senators since 1907-1911.

                1. And nothing has changed in the last 11 years?

                  1. Changed? Yes, Dems lost a bunch of elections.

                    The point is that the current situation is temporary, not the “only one result”.

                    They have good chance of regaining the Senate this year. Then California will no longer be cancelled out by Wyoming.

                    1. You’re correct that the balance of power shifts back and forth over time; for about 50 years after the Great Depression the Democrats never lost control of Congress and did OK in presidential elections too. But that’s not the point.

                      I am even handed in my denunciations of anti-democratic measures, even when they benefit my side. Gerrymandering is just as wrong when Democrats do it in Maryland and Illinois as it is when Republicans do it in Wisconsin and North Carolina. So while I suppose it’s nice that the balance of power does shift occasionally, I want it stopped altogether. I don’t care that it used to help my side win Congress.

                      But the other issue you’re ignoring is that we have the unprecedented situation of massive flight from the rural states to the urban ones, with no indication that that will be reversed for a very long time, if at all. It used to be that rural control existed but was not insurmountable. If current trends continue, it is estimated that in 20 years, 35% of the population (mostly old, white and conservative) will elect 70% of the Senate. So there may not be another shift. We may be at a situation in which rural, conservative control is cast in concrete, and California and New York simply no longer matter.

                      And even if you’re a conservative, that’s not a good thing. Having one of the two major political parties knowing that it has zero accountability and can do as it pleases with no political consequences is not a good state to be in.

                    2. “massive flight from the rural states to the urban ones, with no indication that that will be reversed for a very long time, if at all.”

                      Its likely going to reverse starting now. The urban areas had the high virus infection rates, not the rural ones. Remote work is going to kill NY and the other big cities.

                      Rural states are not a GOP monolith either. The 10 smallest states by population have 10 Dem senators, 10 GOP ones [with the 10 largest also split 10 and 10].

                      Montana had two US democratic senators as recently as 2014. The “class 2” seat was held by a Dem from 1913 until 2015 and the Dem governor may retake it this year.

          4. I may sound like a broken record, but maybe at some point it’s gotta sink in, even if you may disagree with the system, the system we have is not a direct democracy and was designed that way on purpose due to the Founder’s knowledge of the dysfunctions of Athens and the Roman Republic (primarily).

            The democratic process in our system has rights as safeguards, and divisions of power, and institutions to prevent the madness of crowds as much as a centralized dictator. You have to convince people to change it, as it has been already (13, 14, 15, 17, & 19th amendments) if you want more direct democracy. Go for it, it’s been done before.

            But be careful what you wish for, because if that happens, you might get more nationalistic populism and less progressivism. All it would take, would be about 3-5% of the white population to stop leaning left and be moderate or lean right, particularly if continue to limit immigration. Such wholesale realignments have happened several times in American history.

            1. And, m_k, it’s fine for you to take that position, but you can’t then tell progressives, who have largely been shut out of the political process, to just win elections if they want their policies passed. Give us fair elections (meaning elections in which everyone’s vote counts as much as everyone else’s vote), we’ll win them.

              You can either have one or the other, but not both. You can either acknowledge that since progressives have been shut out of the process, they’re going to take the routes that are still open to them, which includes litigating stuff that should be decided by the legislature. Or, you can abolish anti-democratic institutions so that progressives actually have fair elections in which to run. What you can’t do is tell progressives that they can have neither fair elections nor receptive courts. You, as a conservative, wouldn’t accept that choice if the shoe were on the other foot; why should progressives?

              1. You have fair elections. Problem is, when you win them, you try putting policies into place that people don’t like, and then get voted out of office.

                1. I defined “fair elections” as elections in which everyone’s vote counts as much as everyone else’s vote. That’s not what we have.

                  1. Everyone’s vote counts as much as everyone else’s vote.

                    I vote for my representative. You vote for yours. My vote doesn’t magically count for 10 votes.

                    1. So you’re completely unfamiliar with how our system works? OK, here is the cliff notes version:

                      Each state gets two senators regardless of population. That means that 400,000 Wyoming voters get to cancel 30 million Californians in the Senate. So, if you are a Wyoming voter, your Senate vote counts for 77 times as much as a Californian’s vote for Senate. (Please note, the population numbers I’m using are from memory, but even if they’re off by a little,my underlying point still stands.)

                      The electoral college is not by population. A Wyoming voter’s vote for president is worth seven or eight times as much as a Californian’s vote for president, because of the proportion of electors to population.

                      Partisan gerrymandering, which is almost all Republican with the exception of a couple of Democratic outliers like Maryland and Illinois, means that in Wisconsin this past election, the Democrats got 60% of the statewide vote for state legislature but only 48% of the seats.

                      So no, your vote does not count the same as mine, unless we happen to both live in the same state. Your vote counting the same as mine would mean a Senate that is proportionate by population, a house that isn’t gerrymandered, and an electoral college that either doesn’t exist or is also proportionate to population.

                      And the people who don’t like our policies are mostly from low population areas, but they have disproportionate electoral say because of those anti-democratic measures.

                    2. Why should a Californian’s vote count for anything in Wyoming, any more than in, say, Alberta?

                      The answer is that we are part of a political compact that distributes decision making in a way that protects Wyoming. Without that compact, complaining that votes in California don’t count the same as votes in Wyoming makes as much sense as complaining that votes in California don’t count the same as votes in Alberta.

                    3. I”m not nearly the hardcore populist Krychek_2 is, but the reason why people in California get a say about how stuff is done in Wyoming is because we’er a Union.

                      There’s nothing inherent about privileging states over individuals in a republic.

                    4. “…the reason why people in California get a say about how stuff is done in Wyoming is because we’re a Union.”

                      Yup. A union that allocates political power in a way that protects the less populist states. Where’s the beef?

                    5. Which Krycheck_2 is saying is bad. I track pretty clearly that he’s making an ought argument, not an is argument.

                      And states are an arbitrary level to devolve our minority protection to.

                    6. “a couple of Democratic outliers like Maryland and Illinois”

                      Massachusetts and New York and New Jersey too.

                      Pennsylvania was just gerrymandered by a partisan Dem majority on its Supreme Court replacing a GOP legislative gerrymander.

                    7. Sigh…

                      Each state has two senators to represent their state. Because it’s a federal system. If you want your vote to count for “more”, then move to Wyoming. Of course, if you live there long enough, you may suddenly find that your values change. Because the Senate represents the STATES. In addition, the EC is roughly by population. It doesn’t perfectly translate, but Wyoming, for example, is only worth 1/18th of what California is worth. Because of the population difference.

                      If you’re REALLY going to complain about votes, One area to start is illegal immigrants and non-citizens. All those handy non-citizens REALLY boost up the value of your individual vote. Roughly 14% of California’s population are non-citizens. They “count” for population, but don’t get to vote, so your vote is worth 14% more. Isn’t that nice, you get your vote AND a little more to cover them. In a state like California, that’s like another 7 seats in the House of Representatives that are “freebees because of non-citizens who can’t vote” Compare that to Wyoming, which only has a non-citizen % of 2%. That doesn’t change Wyoming’s single congressional vote at all.

                    8. Which Krycheck_2 is saying is bad. I track pretty clearly that he’s making an ought argument, not an is argument.

                      I don’t think Krychek believes in the ought v is distinction. He (or she) has been assuring me, elsewhere, that science and reason alone are sufficient to resolve moral questions.

                  2. What would be truly “fair” would be to abolish all states and have just one big mess. Want that?!?!

              2. Progressives have been shut out of the political process? (My mind is blown). Was Obama not progressive enough, and hasn’t the Dem party tilted noticeably toward progressivism in recent years?

                You are creating in your own mind a false choice, that you think it is some kind of error to be against direct democracy yet also want social change to come through the legislature. Let me assure you, it’s not. It’s the system, that until the 1960s when the left first took over the courts, we used quite successfully to run this country. Much of social change that the left has had victories with, since the Warren Court, have come through the counter-majoritarian Courts. The right, thanks to Harry Reid and Mitch McConnell, is going to control the Courts for the first time in about 60 years, and the left is freaking out about it.

                Let me address the question you end your comment with a simple truth… what is good public policy is determined by the ruling coalition at the time.

                1. Much of social change that the left has had victories with, since the Warren Court, have come through the counter-majoritarian Courts.

                  Uh, the Great Society would like a word. The creation of the EPA would as well. And the 1965 Immigration Act.

                  The loud stuff is at the courts, but don’t confuse loud with big. Sometimes it’s about actual change, not just owning the cons.

                  Progressive, like liberterian and left and conservative and and and is a protean term; more a brand than anything else. To many, Obama is very much not progressive. It gets pretty amusing. I’m reading a whole board of leftists nodding together to the idea that Romney would be a better President than Biden. And if you disagree, you’re pro-rape.

              3. “And, m_k, it’s fine for you to take that position, but you can’t then tell progressives, who have largely been shut out of the political process, to just win elections if they want their policies passed”

                Republicans are shut out of the political process by Democrats in about as many states as Democrats are shut out by Republicans. (Last time I checked, the most thoroughly gerrymandered state in the country was California.) It’s a wash at the federal level.

                Yes, it’s shameful when either of them does it. But I’m tired of Democrats pretending it’s only Republicans doing it, or that it’s responsible for Democrats being out of power at the federal level so much of the time.

                We could probably have done something about gerrymandering by now, if Democrats weren’t so determined to actually mandate gerrymandering in their own favor by using a warped definition of it.

          5. Krycheck, you do realize that this was entirely within the state of Michigan, right? The electoral college, the Senate and even gerrymandering have precisely nothing to do with this dispute.

            But even if this were a federal issue (where those factors would apply), you do also realize the Democrats are every bit as aggressive about gerrymandering when they are in power, right?

          6. OK, we need to knock down this silly argument about not having a democratic process. A few points..

            1. “anti-democratic electoral college, ”
            -No. The votes to the EC are determined by the votes from the citizens. It’s not a perfect translation, but it’s still quite democratic.

            2. “gerrymandered house seats.”
            -To an extent. And both sides do it, “progressive” and republican. There’s a reason that Massachusetts has exactly zero Republican Congressmen, despite the GOP typically winning 30-40% of the presidential vote. The truth is the “real” gerrymandering is required by law, due to the need for majority-minority districts. Most of the districts in Michigan, for instance, are fairly balanced….except for the 2 majority minority districts.

            3. “and a senate in which Wyoming gets to cancel California.”
            Yes, and? It’s a federal system. Part of the Federal system, is each state having an equal vote. Wyoming balances California. Vermont balances Texas. Delaware balances Florida.

            4. “If we actually had a democratic process, you’d see far fewer lawsuits like this because a lot more progressive legislation”

            If we actually had a “democratic process” like you seem to want, it would be a DIRECT DEMOCRACY. The best example of this is the California proposition system. Which infamously passed Prop 22, then Prop 8. Not exactly “progressive” legislation, but it was passed via direct democracy by the people themselves. Then a bunch of unelected people decided to overturn the what the people decided for themselves via direct democracy.

            Fact is, most people aren’t really “progressive”. The representative system of democracy is how progressives get through, by getting not-really progressive people to vote for representatives, who vote more progressive than they sound.

          7. I love it when the liberal objects to Wyoming having a say in what California might want to do in a federal system, but the same liberal doesn’t think that maybe the citizen in Wyoming might not want to do everything the liberal in California wants.

        2. m_k speculating based on reputational evidence is still just rationalizing your own worldview.

          If you can’t find enough real stuff to fuel your outrage, and need to start assuming hidden conspiracies, you should check yourself.

          1. In the absence of contradictory evidence, knowing what we do about the union that has a primary purpose that puts members over kids and educational outcomes, it’s possible. I can get you quotes on that, btw, from the highest folks in the NEA. So, I’m just keeping an open mind about the issue. Go ahead and research it.

            And please, step down from your silly little soap box that’s about an inch high. You have judged others by their reputation to rationalize your lefty worldview on this very thread.

            Let put it back on you. Tell me that if they were part of the settlement, that you’d trust the NRA, Betsy DeVos, and the Koch brothers in a reply, and that their reputations would not be of a concern to you.

            1. It’s possible? Sure. But y’all are saying it’s likely happening.

              Judging an individual based on past behavior is one thing; judging an event based on a general reputation about third parties in this subject level? That’s making things up.

              As to your hypo, I’d hope to disagree with the settlements on the merits, not based on general hostility to those getting the money. Certainly I’d hope I didn’t make up some collusion scenario out of whole cloth.
              I’m aware some on the left would go there, and that’d be as dumb as what y’all are indulging in.

              1. In the absence of contradictory evidence, knowing what we do about the union that has a primary purpose that puts members over kids and educational outcomes, it’s possible.

                Well Sarcastr0, we do have something to go by. The bankruptcy proceeding from Detroit. The teachers unions contracts and pensions were a major driver behind the filing. That did not just happen by the power of the Holy Spirit.

                It was an endemically corrupt process. There is a track record in MI.

                BTW, it is the same here in the People’s Republic of NJ. We have endemic corruption from teachers unions in many of our metros.

                1. I’m not saying teachers’ unions are pure as the driven snow, but partisan statements that teachers unions are corrupt prove my point – you’re bootstraping your anger in one arena to allow yourself to make up things to be angry at elsewhere.

                  You don’t get to say ‘I’ll bet the teachers’ unions are involved!’ without backing it up with more than just hating unions and seeing them behind everything.

                  1. Wait Sarcastr0, we have objective proof: Detroit’s bankruptcy. How do you get around that? The union contracts were the sine qua non on why Detroit went bust.

                    1. Detroit’s bankruptcy proves nothing about the teachers’ unions to me.

                      But even if it did, doesn’t say jack about their involvement in this court case.

                  2. I’m not saying it’s likely happening. Stop reading into my words things I didn’t write. I’m saying its possible, and I’m keeping an open mind.

                    Still waiting to for you to say that you wouldn’t worry, based on their reputations alone, what the settlement would involve if the NRA, Betty DeVos, or the Koch brothers were part of it.

                    1. m_k, you jumped in defending the OP, who said “My view is that it is likely that the plaintiffs were sock puppets for the teachers’ unions.”

                      That’s the thesis here; you provided no other.

                      I responded to your Koch post at https://reason.com/2020/05/21/sixth-circuit-votes-to-rehear-right-to-literacy-case-en-banc/#comment-8263771

                    2. Look, I know the comment system is confusing, but don’t try to redefine what I said to suit your argument. My response to you saying that “speculating on the other side’s bad faith based on nothing” was for me to say “if you understood anything in depth about the teacher’s union, you wouldn’t say it was based on nothing.”

                      So you correctly got at one point, based on the reputation (from previous actions/events) I was saying that the speculation was not based on nothing, but instead the history of the NEA.

                      Frankly, I had expected you to extol the NEA and, typical to form, deny and deflect that the primary goal of the NEA is its members and not students’ educational outcomes no matter the quotes/evidence.

                      And yes, you responded, but you didn’t answer my question. If you say that you shouldn’t judge people/institutions by reputation, I am humbly asking you to say that you wouldn’t judge by reputation alone a hypothetical agreement if it was produced with the NRA, Betsy DeVos, or the Koch brothers.

                      It’s a very simple question. It’s an admittedly petty trap I laid for you, but you walked into it. Either admit that you don’t judge by reputation 3 people/groups I know you don’t like, or by tantamount of not answering, admit that you were wrong in saying that you shouldn’t judge by reputation.

                    3. The argument that it’s likely IS based on nothing.

                      Doesn’t mean it’s not true, but it sure is a lame argument. Great if you just want to wallow in outrage.

      2. We’ve seen a pattern across government: special interest group sues sympathetic government officials for policy outcome that can’t make it thru the legislature in friendly venue. They either settle or friendly judge gives them the ruling they want, consent decree issues and the legislature’s authority is overridden.

        It should be a, actually I thought it actually already was, fundamental constitutional principle that only the legislature can make laws and appropriate money. The courts can strike laws but have no authority to order the legislature to take specific actions.

        For an example see McCleary v Washington where the state Supreme Court levied a 100,000 a day contempt fine on the state legislature until they appropriated what the Court felt was a sufficient amount of money for schools. That violated the US constitution, because that is not how a republican form of government works.

        1. It’s not a pattern. There are examples, and counterexamples. Your statutory example is not a good one; interpreting and enforcing statutes is part of the judiciary’s job in our republican form of government.

          You’re just engaged in rank narritivism.

          Using your conviction that this is how things go to prove this is how things are going in order to shore up your prediction is a road that leads away from reality. Don’t take it.

    2. Exactly. The Democrat Party governor of North Carolina did the same thing with the transgender freaks in the wrong bathrooms thing. Get a court to rule again you, “settle,” and implement the changes you wanted anyway. Then you can say “Hey, the court made me do it!”

      1. This is the system acting as intended. It’s why we have a Bill of Rights.

        It’s not like the right doesn’t go to court to vindicate their own policies as constitutionally mandated.

        1. Sarcastr0….I don’t think that is the system acting as intended. I don’t believe the Court is there to arbitrate social and cultural questions. Granted, they have had that foisted upon them, but that is a very different thing than saying their role is to adjudicate social/cultural questions.

          Our elected representative decide social/moral/political questions. THAT is how the system is intended to work. At least, that is what they taught me way back when in civics class. 🙂

          1. We do try and save such questions for the legislature as much as we can (seem my post to m_k above). But we do not leave it solely to them – the Bill of Rights has some guardrails. Cultural limits at what the popular components can do. And it is cultural. Like, religion is right there in the Constitution. So is privacy. And you don’t think guns are cultural?!!

  4. “Under this settlement, Governor Whitmer pledged to seek substantial funding from the legislature to fund literacy and other educational programs in Detroit schools,”

    Isn’t that what the teachers and schools are there for in the first place?

  5. A decision to grant rehearing en banc vacates the previous opinion and judgment of the court, stays the mandate, and restores the case on the docket as a pending appeal.

    So as they lost at the District level, this would establish a Michigan precedent that there is not a right to literacy, unless there actually is an en banc hearing.

    Wouldn’t it?

    1. No.

      First, district court decisions aren’t binding on other district court judges. Second, the case will either end with a finding that the case is moot, which will vacate the district court judgment, or with an opinion by the en banc court, which will then be the controlling precedent.

  6. You cannot force anyone to learn what they cannot or will not learn.

    On the other hand, I, my son, and his son, all were literate before even starting school, and not on a “See Spot Run. Run Spot Run.” level. Actual books.

    If you want to make sure (or more sure) that people learn to read, then stop passing them from one grade to the next until they have learned what they were supposed to learn in that grade. Keep order in the classroom so that other students *can* learn. Actually teach them reading, writing, and arithmetic, not feel good coloring pages.

    1. Yes, they were called “Basal Readers” and the most popular ones were called “Dick & Jane” and published by the Scott Foresman Company. In the 70’s we went from there to Phonics, in the ’90s to the disaster that was Whole Language, and now it’s a fight between the Basal Readers and the Coloring Books.

      The problem is that the parents don’t read, and (worse) don’t value reading. They’ll have a television set larger than a small car, they’ll spend untold sums of money on electronic games and sports equipment — not just a basketball but jaw-droppingly expensive sneakers — yet not have a single thing for the child to read. Let alone read to the child.

      It doesn’t matter how much money you pay the teachers or how expensive the coloring books are, unless you address this simple problem, these kids are never going to learn to read.

      https://en.wikipedia.org/wiki/Dick_and_Jane#/media/File:Dick_and_Jane.jpg

  7. The idea is that schools are doing a bad job. The answer is always to throw money at them with no regard for how the previous money was spent, no change in personnel, no plan or process to measure how the money results in any improvement, and no accountability after the money is disbursed.

    And never any other answer to spend less money when spending more inevitably fails to accomplish anything.

    1. Yeah, that’t suck. But who knows what the answer will be? No need to speculate until it actually happens.

      1. I think the suggestion is that “let’s spend more” has been tried before :

        The answer is always to throw money at them

        Again and again and again.

        1. If you take such a sweeping statement literally, then it’s just wrong.

          Lots of school reforms out there on the state and local level over the years. Heck, Common Core was a school reform. How’d y’all like that?

          1. Bill Gates gave us Common Corpse — that was not a “reform” and didn’t come from people in the education field. Sandy Stotsky and others have documented all of this at length.

      2. I know what the answer is — it is to do what Bill Cosby was starting to do before the trials. Cosby in person wasn’t the same man as Cosby on TV, I knew there was something wrong when I met him in person, but he was saying that the Black community has to stop blaming other people and start blaming itself.

        If the top 50 Basketball & Football stars (most of whom are Black) were to read children’s books — on TV or web or whatever — the at-risk children would read along with them. They *worship* these athletes and they’d pay attention.

        If the lawyers bringing this lawsuit were to instead go into Detroit and say “see my fancy car?” “Reading is what got it for me” — there’d be a lot of 8 year olds really interested in learning to read.

        That’s the answer, but, sadly, it ain’t gonna happen….

  8. Unfortunately for the students, Michigan’s Constitution requires legislative approval for all expenditures. I would be surprised if they ever see that $280,000 or increased school funding.

    1. That is probably why it is in federal court.

  9. The idea that one has a right for other people to gift one with literacy is an absurd positive right in the first place. The politics surrounding public education may stink, but that is not an issue that can be solved by judicial rule.

    1. The related issue is the power of the state being used to force one to acquire it. The Puritans had no problem doing that — they believed that the ability to read the Bible was essential for salvation and hence they were saving their children from the Devil.

      But imagine the outcry if we were to employ corporal punishment to encourage learning (as was initially done at Harvard).

      Imagine the outcry if we incarcerated young adults who couldn’t read and kept them in prison until they could demonstrate having acquired literacy? Six months ago, I’d say we would never tolerate that — now I’m not so sure, but it still would be a bad idea.

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