Asked and answered: Kary L. Moss


By Steve Thorpe
Legal News

The American Civil Liberties Union of Michigan has filed a class-action lawsuit in Wayne County Circuit Court on behalf of eight students who represent nearly 1,000 children attending K-12 public schools in Highland Park. The suit names the state of Michigan, its agencies charged with overseeing public education and the Highland Park School District for failing to take effective steps to ensure that students are reading at grade level as set forth by law.

Kary L. Moss has served as the Executive Director of the ACLU of Michigan since 1998 and currently serves as chair of the ACLU Executive Directors Council, representing all state ACLU offices. She earned a Masters in International Affairs from Columbia University and a J.D. from CUNY Law School at Queen's College. Moss also clerked in the United States Court of Appeals for the Second Circuit and is the author of several books.

Thorpe: Most agree that declining literacy is a problem. How big?

Moss: The Highland Park School District, while among the worst in the nation, is in the bottom 5 percent of school districts in the state so it is not, by any means, alone. The failure rates at HPHS on the 2011-12 Michigan Merit Examination ("MME"), the final standardized test administered to students in the State of Michigan, were 90 percent or higher for all subjects tested: for Reading, the failure rate was 90 percent. And we know that reading is the gateway to all other learning so it's not surprising to see the scores for other topics are even worse: for Math, 97 percent; for Writing, 94 percent; for Social Studies, 100 percent; and for Science, 100 percent. Moreover, according to MDE graduation data -- regarded by the federal government as understating actual dropout numbers -- about 42 percent of HPHS's students do not graduate in four years. HPHS currently has a dropout rate of 23 percent, double that of schools statewide. Of those students who have not dropped out before 11th grade, 0 percent score "Proficient" overall on the MME. Literacy is the gateway to all other learning so "how big" is quite big indeed. As Highland Park shows, we are failing to educate a generation of children.

As but one ramification, failure to read proficiently is linked to higher rates of school drop-out, which impairs individual earning potential, undermines self-esteem, and destabilizes family cohesion. At a state level, this failure saps the general productivity and competitiveness of the State, needlessly costing our taxpayers hundreds of millions of dollars each year in lost tax revenues and increased social welfare, health care and criminal justice costs.

These children are no different from all other children -- they have dreams of college and productive careers. They hope to vote and participate in their communities. But those dreams and hopes and desires will be forever frustrated if they are relegated to learning conditions that fail the standards and criteria demanded by state law -- conditions that shock the conscience of all citizens who care about the well-being of these children, their families and their communities. As matters now stand, these children, and others like them, have no option of fully realizing their aspirations to become educated and successful members of society.

Thorpe: What are school officials required, by law, to do that they are not doing?

Moss: They have failed to deliver to all students enrolled in HPSD adequate educational services so that all students possess basic literacy skills appropriate to their age and development and to take proper steps to effectively remediate these deficiencies where they exist.

Article 8, Section 2, of the state Constitution singles out education as a uniquely important state function and says: "The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." To execute this constitutional mandate, our Legislature recognized that at a bare minimum, the ability to achieve basic literacy as represented by achieving reading proficiency appropriate to age and grade level constitutes the root of all learning. This law, embodied in section 380.1278 of the Michigan Compiled Laws, states:

Excluding special education pupils, pupils having a learning disability, and pupils with extenuating circumstances as determined by school officials, a pupil who does not score satisfactorily on the 4th or 7th grade [MEAP] reading test shall be provided special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months.

Yet, to the best of our knowledge, HPSD has not developed or implemented a plan, much less a district-wide program, through which all students who fail to score satisfactorily on the MEAP Reading test in 4th or 7th grade are provided access to research-based reading remediation instruction that is designed to address the particular areas where students are deficient in literacy skills. To the extent that they have sporadically utilized reading programs, like Read 180 and DEAR, they have not been made available to all students who fail the 4th or 7th grade MEAP Reading test, and there are big questions about whether they have been properly implemented. To the extent that they are using online teaching programs, it appears that they don't have enough computers and that the programs are not properly supervised by adults with some understanding of or training in literacy acquisition.

Thorpe: The suit cites general conditions in the district that interfere with students' ability to learn. What are some of those conditions?

Moss: We spent months investigating conditions in the schools and found many, many problems. There is a critical lack of textbooks such that students are only rarely able to take them home, and in many instances cannot take books home at all. This makes it very difficult for children to complete homework, constrains the nature of homework that can be assigned, and requires that valuable classroom time be allotted so that students can do homework. Many textbooks are outdated and in unacceptable condition. Often, students must share them in the class, undermining their ability to learn at their own pace. There is a critical lack of paper and copying machines in the schools. Teachers at Barber and Ford must make their own copies at their own expense which means that what happens in the classroom is invariably affected by a teachers' personal finances and willingness to procure copies on their own.

The conditions that the children learn in are unconscionable. Many classrooms have no or inadequate heat. During winter, students reported having to wear their parkas and gloves in class, impeding their ability to concentrate and learn. Barber and Ford have no counselors or vice principals. This prevents these schools from developing sensitivity to individual needs of students, offering them meaningful academic assistance, working with teachers to develop effective classroom management skills and practices, and [also prevents] permitting principals to fulfill their responsibilities as instructional leaders by having to take on other roles. As a result, classroom time for many core curricular subject areas is not efficiently utilized and students idly spend many hours each week left to their own devices rather than receiving needed instruction and learning assistance.

We have heard reports that one 7th grade class at Barber had over 50 students for an entire semester and students had to sit on the floor or stand at the back of the classroom. The bathrooms are not properly maintained, often smeared with feces, lack toilet paper and paper towels, and are missing stall doors and other fixtures. School buildings are unsecured such that a homeless man was able to live and sleep in the facilities without detection by school officials. Classrooms and hallways are often filthy and damp from leaks. The libraries within these schools are inadequately resourced with books and staff, often closed, and students are sometimes prohibited from checking out books.

And for anyone that might want to help individual students, their individual files typically do not include assessments of grade level performance, current and post MEAP assessments, counseling records, attendance records or discipline records. Student files are not readily accessible to parents as mandated by Federal and State law, and school personnel sometimes actively resist disclosing their contents.

Thorpe: The ACLU had some of the students tested by experts. Tell us about that.

Moss: Each of the children we represent were administered a Qualitative Reading Inventory assessment examination to evaluate their reading proficiency. The standardized tests given to children -- the MEAP, for example -- have been designed primarily for audiences of policymakers, but when you're dealing with on-the-ground reforms, educators still need to gather additional information from assessments like the QRI to have information to act upon.

Thorpe: Is this just about financial resources or are there other causal factors?

Moss: There is plenty of blame to go around. There are many examples of schools in high poverty areas that have successfully been turned around. All children are capable of learning as long as the adults around them don't give up on them and it appears that that is, with a few exceptions, essentially what has happened in Highland Park. As far money goes, when you look at the data and high failure rates, its clear that something is wrong. But this lawsuit focuses on the obligation of those charged with educating our children to implement, as required by state law, the best intervention programs according to the best educational standards out there.

Thorpe: You've called Highland Park the "canary in the coal mine" and suggested that other districts deserve to be targeted. What are some possible candidates and when might that happen?

Moss: Highland Park, like many others, has experienced a declining population and tax base and a loss in the quality of its schools as a result. Financial mismanagement and other financial burdens, like the pension obligations, have all exacerbated the situation. To the extent that those realities shape what education looks like today in high poverty areas, it actually presents an opportunity to ensure that the best thinking of educators who have worked successfully with 'turnaround' schools is applied.

Thorpe: What do you see as the most favorable outcome of the suit?

Moss: That the Governor, Republican and Democratic legislators, unions, and educational experts stand together to announce a set of solutions that will set Michigan on a new course -- one that we can all be proud of. We hope to see the academic needs of these children receive the same and more attention as the governance needs of the district. We hope to see that teachers with appropriate training and credentials are assigned to deliver the reading remediation services to eligible students. We hope to see all children reading at grade level and reading to learn. And we hope to see children, across the state, having the same opportunities for an education no matter where they happen to live.