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Suing Schools Over Right to Read

Can schools be sued when students cannot read?  That's the question raised in a class action lawsuit, S.S. v. State of Michigan ("The Right to Read: Suing a State for Better Teaching," American Progress, Dec. 5).  

Although Michigan has had a law on its books since 1993 requiring that all students read at grade level, it has rarely, if ever, been enforced.  But recognizing the handicap that children bear, the American Civil Liberties Union decided to take action.  It focused on the Highland Park School District for failing to take steps to ensure that students are reading at grade level as set forth by state law. The district contains approximately 12,000 residents within the Detroit city limits. The population is 94 percent African American, with about 47 percent living below the poverty line.

The 950-student district was taken over in 2012 by an emergency manager appointed by the governor.  Shortly thereafter, the emergency manager hired The Leona Group, a for-profit charter company, to operate the district's schools.  By this action, the defendants maintained that they were absolved of their responsibility to ensure that all students can read at grade level.  Moreover, they argued that since the Leona Group had been in charge of Highland Park  schools for only one year, it was too soon to evaluate outcomes.  But in June 2013, a circuit court judge refused to dismiss the case.

This surprised me because I thought the issue of professional accountability had been settled in 1976 in Peter W. v. San Francisco Unified School District.  In that case, a student unsuccessfully sought damages from the district for its failure to provide adequate instruction in reading and writing.  The California Court of Appeals ruled that "classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught."

On this last point, there can be no doubt. For example, is reading best taught by phonics or by whole language?  Should students who cannot demonstrate basic reading skills by the end of the third grade be held back or moved along?  A report by the Annie E. Casey Foundation concluded that children who don't read proficiently by third grade are four times as likely to drop out of school. Yet studies have shown that retained students do no better later on than students with nearly identical achievement but who were promoted.  Further, those held back were more likely to drop out.  

The court went on to emphasize that "achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers." On this point, the court was also correct.  Children from low-income homes are not exposed to the same enrichment as their peers. It's not surprising, therefore, that they enter kindergarten already three months behind the average in reading, and never catch up.  Teachers are not miracle workers who possess the power to overcome the effects of factors in the home and neighborhood.

S.S. v. Michigan will be watched closely by other states, where reading test scores have been disappointing because it skips the funding issue and instead focuses on outcomes. The economic and social climate in this country has changed dramatically since 1976, which leads me to believe that the court will be more inclined to take a broader view of professional accountability. In other words, I do not think that educational malpractice suits are doomed ("Educational Malpractice: A Lesson in Professional Accountability," Boston College Law Review, Jul. 1, 1991).  Nevertheless, I continue to hold that schools can do only so much more to address the huge deficits that disadvantaged students bring to class. 

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The opinions expressed in Walt Gardner's Reality Check are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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