United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
HONORABLE STEPHEN J. MURPHY, III JUDGE.
are minor children who attend, or attended, public schools in
Detroit. They have alleged that the conditions of their
schools are so poor, and so inadequate, that they have not
received even a minimally adequate education. Specifically,
they alleged they have been denied access to literacy on
account of their races, in violation of their rights under
the Due Process and Equal Protection Clauses of the 14th
Amendment of the United States Constitution. They brought
suit against the Michigan state officials they believe to be
responsible. Defendants filed a motion to dismiss the
Complaint, principally because they believe Plaintiffs sued
the wrong parties. Defendants also contend that
Plaintiffs' alleged harm is not cognizable under the
Constitution. Many amici weighed in on the matter and the
Court held a hearing. For the reasons below, the Court must
grant the motion and dismiss the case.
Court may grant a Rule 12(b)(6) motion to dismiss if the
complaint fails to allege facts "sufficient 'to
raise a right to relief above the speculative level,' and
to 'state a claim to relief that is plausible on its
face.'" Hensley Mfg. v. ProPride, Inc., 579
F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). The Court will
view the complaint in the light most favorable to the
plaintiff, presume the truth of all well-pled factual
assertions, and draw every reasonable inference in favor of
the non-moving party. Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
If "a cause of action fails as a matter of law,
regardless of whether the plaintiff's factual allegations
are true or not," then the Court must dismiss it.
Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005
(6th Cir. 2009).
Complaint contains five counts:
One is brought under 42 U.S.C. § 1983 and alleges the
deprivation of a fundamental right under the Fourteenth
Amendment's Due Process Clause.
Two is also a § 1983 claim under the Due Process Clause
and alleges that Defendants, as state actors, created or
increased a danger.
Three is also § 1983 action and alleges disparate
treatment on the basis of race, in violation of the Equal
Protection Clause of the Fourteenth Amendment.
Four is brought under Title VI of the Civil Rights Act and
related federal regulations and alleges that Defendants used
federal funds to intentionally discriminate against
Plaintiffs on the basis of race.
Five seeks a judicial declaration that Defendants violated
the Constitution and federal law.
voluntarily dismissed Counts Two and Four, see ECF 64, PgID
1445, n.11; ECF 109, PgID 2590-91, so two avenues of relief
remain: the Due Process Clause and the Equal Protection
Clause. Defendants move to dismiss the Complaint on two
grounds. First, they insist that they cannot be sued.
According to Defendants, the State of Michigan and its
officials never operated Plaintiffs' schools, so they are
the wrong parties to enjoin. Moreover, Defendants contend
that they are immune from suit under the Eleventh Amendment.
Second, Defendants argue that access to literacy is not a
constitutionally protected right, so the failure to provide
such access cannot constitute a valid claim under 28 U.S.C.
§ 1983. They also dispute the allegation that Plaintiffs
have been treated differently on account of their races.
description of the background of the matter will help to
illuminate the posture of the suit, and the background will
in turn help answer whether Defendants are indeed the proper
parties to be sued. Thus, the Court will begin with a
description of those facts.
Controls Detroit Schools?
assert, "[t]he State of Michigan is ultimately
responsible for complying with all constitutional mandates
regarding public education. But it has particular
responsibility for the schools in Detroit, as it has
controlled the [Detroit Public Schools] (and now, [Detroit
Public Schools Community District]) schools since 1999."
ECF 1, PgID 46, ¶ 61. Accordingly, Plaintiffs hold
Defendants "responsible for the education of all
Michigan public school students and for the system of
Michigan public schools[.]" Id. at 126, ¶
200. Defendants counter that though the State has a
supervisory role in education and eventually appointed an
emergency manager, the State never had "direct
control" over Detroit schools-at most, one local
authority supplanted another. See ECF 60, PgID 505-509.
Education in Michigan
Structure of Authority in Michigan Schools
Michigan, educational responsibilities begin at the state
level. The Michigan Constitution requires the legislature to
"maintain and support a system of free public elementary
and secondary schools" and every school district must
"provide for the education of its pupils without
discrimination as to religion, creed, race, color or national
origin." Mich. Const. art. 8, § 2. The constitution
further states that "[leadership and general supervision
over all public education . . . is vested in a state board of
education." Id. § 3.
legislature exercised its constitutional obligations by
passing and periodically updating the Revised School Code.
The Code governs the various types of school districts in the
State, Mich. Comp. Laws §§ 380.1131, 380.11a, and
requires the board of each district to "establish and
carry on the grades, schools, and departments it considers
necessary or desirable for the maintenance and improvement of
its schools and determine the courses of study to be
pursued," Id. § 380.1282(1). See also
id. § 380.1278 (requiring local school boards
to establish certain curricula). Still, the Code also
reaffirms the state board of education's role in
"leadership and general supervision of all public
education[.]" Id. § 388.1009.
Michigan's Successive Public Acts
sometime require more state involvement-especially when those
circumstances involve finances. Over the last few decades,
Michigan enacted several statutory schemes permitting state
officials to appoint managers in the event of financial
crises. See generally Phillips v. Snyder, 836 F.3d
707, 711-12. (6th Cir. 2016) (summarizing Michigan's
various statutory schemes since 1988). Michigan used those
mechanisms to intervene in Detroit public schools more than
1999, Public Act 10 went into effect. The Act required
Detroit's mayor to appoint a "school reform
board" charged with appointing a chief executive
officer. Act of March 26, 1999, §§ 372(1), 374(1).
The reform board was initially composed of seven members: six
appointed by Detroit's mayor, and the seventh appointed
by "the superintendent of public instruction or his or
her designee." Id. §
372(2)(b). After five years, the mayor would gain the
power to appoint the seventh member as well. Id. The
arrangement ended in 2004, however, when a voter referendum
returned governance of Detroit Schools to a locally elected
board. ECF 1, PgID 51, ¶ 69; ECF 60, PgID 506.
2008, the state again became involved. Plaintiffs assert that
the Governor "invoked Public Act 72 to appoint an
Emergency Financial Manager" for Detroit Public Schools.
ECF 1, PgID 51, ¶ 69. Public Act 72, also known as the
"Local Government Fiscal Responsibility Act," went
into effect in 1990 and has since been repealed. But in 2008,
it required the Governor to appoint an emergency financial
manager for the district if certain financial conditions in a
school district occurred. Mich. Comp. Laws §
141.1238(1). By the terms of the Act, the State's
superintendent of public instruction prepared a list of
potential nominees, the State's board of education
narrowed the list down to three candidates, and the Governor
made a final selection from them. Id. Plaintiffs
concede that the emergency financial manager "shared
power" with the locally elected school board, but aver
the manager nevertheless "exercised authority not only
over financial decision-making, but some educational
decision-making as well." ECF 1, PgID 51, ¶ 69.
Although the Complaint does not go into further detail, the
characterization is consistent with the broad powers granted
to the manager under the Act. See generally Mich. Comp. Laws
§§ 141.1240, 141.1242 (repealed 2013).
2011, the emergency manger gained more power in governing the
affairs of Detroit schools. That year, Michigan repealed
Public Act 72 and replaced it with Public Act 4, the
"Local Government and School District Fiscal
Accountability Act." Public Act 4 did not last
long-Michigan voters rejected it by referendum the following
year-but the legislature soon replaced it with the very
similar Public Act 436, which remains in effect. See Mich.
Comp. Laws § 141.1541, et seq. Just as with the prior
Public Acts, 4 and 436 also required the Governor to appoint
a review board principally composed of state actors. Mich.
Comp. Laws § 141.1512(4) (repealed by Prop. 12-1, Aug.
8, 2012); Id. § 141.1544(4). But the Acts also
empowered the emergency managers to "[e]xercise solely,
for and on behalf of the school district, all other authority
and responsibilities affecting the school district that are
prescribed by law to the school board and superintendent of
the school district." Mich. Comp. Laws §
141.1520(f) (repealed by Prop. 12-1, Aug. 8, 2012);
Id. § 141.1554(f).
Priority Schools and the Education Achievement Authority
State's interventions have not always been
finance-driven. Detroit students' academic performance
also prompted State intervention through additional measures:
the designation of Priority Schools and the creation of the
Educational Achievement Authority.
2010, the Code has required the State's Superintendent of
Public Instruction to publish a list of the State's
lowest-performing schools and place those schools "under
the supervision of the state school reform/redesign
officer," who is also known as the "SRO."
Mich. Comp. Laws § 380.1280c. A school's designation
as a "Priority School" triggers steps to devise a
plan, including "input from the local teacher bargaining
unit and the local superintendent." Id. §
380.1280c(2). One outcome of the requirements has been the
creation of a "state school reform/redesign school
district" over which the SRO acts as the superintendent.
Id. § 380.1280c(6). The SRO "may exercise
all the powers and duties otherwise vested by law in the
school board that previously operated [the] school"
other than taxation and borrowing. Id. §
380.1280c(6)(b). Notably, the SRO "accedes to all the
rights, duties, and obligations of the school board with
respect to that school." Id.
the schools attended by Plaintiffs (that have not already
closed) have been designated as "Priority Schools"
and are supervised by the SRO. ECF 1, PgID 52, ¶ 70.
State has also intervened in Detroit schools through the
Education Achievement Authority (EAA). Michigan law permits
school districts and other governmental entities (with the
Governor's approval) to enter into "interlocal
agreements" to share powers and resources. Mich. Comp.
Laws §§ 124.502, 505a, 510(1). Through those
agreements, the government entities can create new legal
entities, such as commissions, boards, or councils, which are
then given significant powers. Id. §
124.507(1)-(2). In 2011, an emergency manager acting in the
stead of the Detroit Public Schools' board entered into
an interlocal agreement with Eastern Michigan
University's Board of Regents that transferred 15 Detroit
schools into a new, statewide district. ECF 1,
PgID 54, ¶ 75, ECF 64, PgID 1453. Pursuant to the
Seven of the eleven members of the EAA's board of
directors [were] appointed by the Governor, and the Governor
also appoint[ed] the executive committee from among the board
members. The executive committee then appoint[ed] the EAA
chancellor, who ha[d] great autonomy and control over the
administration of the EAA schools.
ECF 1, PgID 54-55, ¶ 75. The EAA has since disbanded.
Supervision or Control?
light of the foregoing, there is no question that the State
has been heavily involved with Detroit schools for some time.
Indeed, Public Act 10 went into effect before any of the
Plaintiffs were of school age, and in most cases, before they
were even born. There likewise is no question that Michigan
law imbues the emergency managers-under any of their various
legal descriptions-with significant power and authority to
conduct the affairs of Detroit schools. The question, then,
is whether the State's involvement described here makes
its actors the proper parties to sue in the case.
suggest that the answer is no and direct the Court to
Phillips v. Snyder, 836 F.3d 707 (6th Cir. 2016).
There, voters and elected officials sued Michigan's
Governor and Treasurer and argued that Public Act 436
violated the United States Constitution as well as the Voting
Rights Act. Phillips, 836 F.3d at 710. Specifically, the
plaintiffs argued that the appointment of emergency managers
"violate[d] their substantive due process right to elect
local legislative officials." Id. The Court of
Appeals affirmed the district court's dismissal of the
due-process claims because "given the need for states to
structure their political subdivisions in innovative ways,
there is no fundamental right to have local officials
elected." Id. at 715 (relying upon Sailors
v. Bd. of Educ., 387 U.S. 105 (1967)). Arguably, the
holding implicitly recognized that the emergency managers at
issue were in fact local officials, but that question was not
before the court and the opinion did not decide the matter.
also direct the Court to an earlier case, Moore v.
Detroit Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002).
There, students and teachers alleged Public Act 10 violated
the Voting Rights Act, the United States Constitution, and
Michigan's Constitution. Similar to the plaintiffs in
Phillips, the Moore plaintiffs challenged the appointive
nature of the School Reform Board created under the Act.
Moore, 293 F.3d at 356. The Court of Appeals found Public Act
10 to be constitutional and noted that it satisfied
rational-basis review because "[t]he Michigan
Legislature was entitled to believe that [Public Act 10]
would address the problems that the legislators perceived to
exist" in Detroit's schools and the schools'
sheer size "provide[d] a rational basis for adopting a
different approach to governance." Id. at 371.
But once again, the Court of Appeals did not address whether
the appointed board was effectively an arm of the state.
the motion hearing in this case, Defendants submitted two
supplemental and, as yet, unpublished authorities:
Guertin v. Michigan, No. 16-cv-12412, 2017 WL
2418007 (E.D. Mich. June 5, 2017), and Gulla v.
Snyder, No. 16-000298-MZ (Mich. Ct. Cl. Aug. 16, 2017).
ECF 110. Both opinions concern the Flint water crisis and the
role and status of emergency managers. Defendants aver that
the cases support the proposition "that the State of
Michigan does not operate or control schools in the City of
Detroit because emergency managers are appointed local
officials." ECF 110, PgID 2600.
case, however, gives the Court particular guidance on the
question now before it. In Guertin, Flint residents sued the
Governor, Flint's emergency manager, and others, alleging
that they actively concealed from residents the dangerous
lead levels in the water. Guertin, 2017 WL 2418007, at *1.
The governmental defendants argued that they were acting as
an arm of the state and therefore entitled to immunity under
the Eleventh Amendment of the Constitution. Id. at
*14. The district court employed the Sixth Circuit's
four-factor test to "determine whether the city
defendants [were] an arm of the state," and ultimately
concluded that they were not. Id. at *14-15
(applying Kreipke v. Wayne State Univ., 807 F.3d
768, 775 (6th Cir. 2015)). After finding that the
"near-determinative factor" of whether the state
would be liable for any judgment weighed against the
defendants, the court also concluded that "under state
law, an emergency manager is a municipal agent and thus not
subject to the protections of Eleventh Amendment
Immunity." Id. at *15 (citing Kincaid v.
City of Flint, 311 Mich.App. 76, 87- 88 (2015)). And
Defendants rely on that assertion here.
Defendants enjoy Eleventh Amendment immunity is a separate
question from the broader inquiry of whether any of them
could be said to have controlled Detroit
schools. Any persuasive value of Guertin at this
stage of the litigation is therefore misplaced. And though
Kinkaid makes clear that emergency managers "act only
on behalf of numerous local officials," it also confirms
that they "serve at the pleasure of the
governor." 311 Mich.App. 76, 88 (2015) (citing Mich.
Comp. Laws §§ 141.1515(5)(d), 1549(3)(d)) (emphasis
original). Neither case answers the question of whether the
Governor and his or her appointees should be held responsible
for the conditions in Detroit schools.
v. Snyder is also not helpful. There, the Court of
Claims reviewed the text of Public Act 436 to determine
whether emergency managers are state actors. ECF 110, PgID
2707-09. But that analysis attempted to ascertain only
whether that court had jurisdiction to hear the case under
Michigan's Court of Claims Act and concluded only that:
"emergency managers are not state officers for the
purpose of MCL 600.6419(1)(a)." Id. at 2709
so, the Michigan Court of Appeals roundly criticized the
Gulla opinion in a more recent, published opinion. See
Mays v. Snyder, No. 335555, 2018 WL 559726, at *14,
n.14, ___ N.W.2d ___ (Mich. Ct. App. Jan. 25, 2018). And the
Mays court held precisely the opposite: "an emergency
manager operates as an administrative officer of the state.
Further, it is beyond dispute that at a minimum, an emergency
manager must be characterized as an employee of the
state." Id. at *14.
are not emergency managers. Rather, they are principally
members of the State's Board of Education. The Governor,
the Superintendent of Instruction, the Director of
Michigan's Department of Technology, and the SRO are also
defendants. As the Court explained above, however, those
parties were responsible for the selection and appointment of
the emergency managers. Emergency managers "serve[d] at
the pleasure" of the Governor and ultimately the
Governor decided when the financial emergency necessitating
intervention was complete. See Mich. Comp. Laws §§
141.1549(3)(d), 1562; but see Id. §
141.1549(6)(c) (permitting the local government to remove the
emergency manager after a year and a half with a
supermajority). Nevertheless, all of the Defendants had a
role in the designation and supervision of Priority Schools.
In particular, Defendant Baker, as SRO, exercised significant
control over schools.
Phillips, Moore, and other cases suggest is that Detroit
residents have repeatedly pushed back against the Public Acts
and state actions that supplanted local control. At each
step, courts affirmed the legality of the State's
interventions. Now, facing the deplorable conditions alleged
in the Complaint, Detroit students seek to hold someone
responsible. They have adequately ...