OCBA UPDATE: Education as a civil right

By James G. Derian

In 1954 the U.S. Supreme Court proclaimed that public education is a "right which must be available to all on equal terms."1 That landmark decision in Brown v. Board of Education stood for the proposition that the federal government would no longer allow states and municipalities to deny equal educational opportunity to a historically oppressed racial minority. Ruling unanimously, the justices overturned the concept that segregated schooling could ever be equal.

Nineteen years later in 1973, however, the U.S. Supreme Court held in San Antonio Independent School District v. Rodriguez 2 that public education was not a fundamental right provided in the text of the U.S. Constitution and, therefore, not subject to strict scrutiny. Accordingly, it found that the Texas school funding system based on local property taxes was not in violation of the 14th Amendment's Equal Protection Clause, even though it relegated those living in less-affluent school districts to grossly unequal educational opportunities.

Public education may not be a fundamental right guaranteed under the U.S. Constitution, but every state constitution includes a provision that speaks to that state's duty to provide primary and secondary public education for all children. Interestingly, 16 years after San Antonio Independent School District v. Rodriguez, the Texas Supreme Court ruled in 1989 that its state constitution required "substantially equal" access to educational funds for poor as well as wealthy school districts.

Michigan's Constitution states: "The legislature shall maintain and support a system of free public elementary and secondary schools, as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin."3 Like many other states, Michigan does not expressly undertake a duty in its constitution to provide equal educational opportunities for all students, apart from the assurance that they will not be subject to religious, racial or ethnic discrimination.

Prior to 1995, Michigan's public schools were primarily funded at the local level. Local school districts held elections that determined the millage rate for property taxes funding the school system. On average, districts received 70 percent of their funding from local sources and 30 percent from state sources. This meant that funding for school districts varied considerably, ranging from a high of more than $10,000 per student to a low of only $3,398. This was a very inequitable system and between 1963 and 1994 there were more than 12 ballot proposals to change the method of school funding in Michigan, but none of them passed.

But 1994 saw the adoption of Proposal A, which fundamentally changed the way Michigan's public schools are financed. The majority of school funding is now funneled through the State Foundation Allowance. The rest of each school district's annual operating revenue comes from an 18-mill property tax on the district's non-homestead property; these funds are paid directly to the district. The amount of revenue raised in a particular school district varies widely based on the value of its real estate.

Nonetheless, Proposal A has provided relatively consistent funding for districts across the state and has also reduced the overall level of property taxes paid by homeowners. Although disparities continue between the minimum and maximum State Foundation Allowances school districts receive, the gap has been reduced from $2,300 in 1994-95 to $1,053 in 2012-13. Today 80 percent of Michigan school districts get between $7,100 and $7,400 per pupil. Increased federal revenues have also worked to reduce historical funding differences.

Nevertheless, because of cuts in state funding and sharply reduced tax revenues beginning in 2009 due to the Great Recession, more than 50 Michigan school districts ended 2013 with budget deficits, according to State Superintendent of Schools Mike Flanagan. The Pontiac School District, which is one of these essentially insolvent districts, recently received approval from state regulators for a 10-year plan to pay off its $51.6 million debt. The situation statewide is so bad that Superintendent Flanagan has actually called on Michigan's lawmakers to devise a "Marshall Plan" to rescue the state's financially troubled public schools. Meanwhile, the State Board of Education has launched its own efforts to begin exploring new solutions to the state's broken system of financing schools.

But the problem runs deeper than finances, of course. Our state also has hundreds of public schools that are failing to deliver anything resembling a decent-quality education to its students. Under the Snyder administration, Michigan has created the Educational Achievement Authority (EAA), which is a statewide school system for academically failing schools. The EAA began its work by taking over 15 failing Detroit schools in September 2012. The EAA has identified 146 other failing Michigan schools that are among the bottom 5 percent performers academically in the state. In order to avoid being taken over by the EAA, these failing schools will have three years to successfully develop and implement an improvement plan, addressing a number of objective criteria like dropout rate, course completion, teacher attendance, etc. It's anticipated that about 50 additional schools will end up in the EAA during the next few years unless they begin to show dramatic improvement. The EAA could soon be the largest school district in Michigan, according to projections made in a federal grant application submitted by the state.

But Michigan isn't alone. Unequal education is a nationwide problem. Tellingly, compared to students in other countries, U.S. students fell from 25th to 31st in math and from 11th to 21st in reading, according to the latest assessment of the Organization of Economic Cooperation and Development. Worse yet, every year in the U.S. about 1.25 million students, or one out of four high school seniors, do not graduate from high school after four years. And almost 40 percent of African-American and Hispanic students do not graduate annually.

The dropout rate nationally is 8 percent.4 In Michigan, the dropout rate improved to 11 percent in 2013. It's estimated that approximately 12 million students in the U.S. will drop out over the next decade at a cost to America of $1.5 trillion. These estimated costs will come from lost tax revenue, expenditures on government programs and the cost of incarceration. In addition, we'll sustain an incalculable amount of lost economic growth.

In the view of many economists, our failing public schools are a threat to America's economic competitiveness in the global marketplace. They argue that improving educational equity and performance will improve the quality of life for all Americans. That's because education not only increases individual wealth, it also increases the economic productivity and wealth of the nation as a whole. In addition, it's a well-known fact that education is associated with greater civic involvement, lower crime rates and greater personal health.

At the local level, closer to our own backyard, you can do your part to improve educational equity by volunteering for one of the OCBA's upcoming Law Day programs. On May 1, we will be presenting Constitution-themed programs at Pontiac Middle School and the Pontiac Academy for Excellence. Each program will last two hours. Everyone interested in participating as a volunteer should contact Executive Director Terri Gilbert.

Now I'd like to hear from you. Should access to a quality education be a civil right in Michigan? Does it make economic sense for the state to undertake the cost of providing access to a quality education for all students? Your views matter to me. Email me at james.derian@delphi.com.



1Brown v. Board of Education, 347 U.S. 483 (1954).

2411 U.S. 1 (1973).

3Mich. Const. Art. 8, Sec. 2.

4The U.S. Department of Education's measurement of the dropout rate is the percentage of 16- to 24-year-olds who are not enrolled in school and have not earned a high school credential.


James G. Derian, corporate counsel for Delphi Automotive Systems LLC, is the 81st president of the Oakland County Bar Association.

Published: Wed, Apr 16, 2014