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Gary B. v. Snyder

United States District Court, E.D. Michigan, Southern Division

July 27, 2018

GARY B., et al., Plaintiffs,
RICHARD SNYDER, et al., Defendants.



         Plaintiffs 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 Fourteenth 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.


         The 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).


         The Complaint contains five counts:

Count 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.
Count Two is also a § 1983 claim under the Due Process Clause and alleges that Defendants, as state actors, created or increased a danger.
Count Three is also a § 1983 action and alleges disparate treatment on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment.
Count 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.
Count Five seeks a judicial declaration that Defendants violated the Constitution and federal law.

         Plaintiffs 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.

         A 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.

         I. Who Controls Detroit Schools?

         Plaintiffs 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 505-09.

         A. Education in Michigan

         1. The Structure of Authority in Michigan Schools

         In 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. VIII, § 2.[1] The constitution further states that "[l]eadership and general supervision over all public education . . . is vested in a state board of education." Id. § 3.

         Michigan's 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.

         2. Michigan's Successive Public Acts

         Circumstances 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's public schools more than once.

         In 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).[2] 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 Public Schools to a locally elected board. ECF 1, PgID 51, ¶ 69; ECF 60, PgID 506.

         In 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).

         In 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).

         3. Priority Schools and the Education Achievement Authority

         The 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.

         Since 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.

         All of 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.

         The 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[3] into a new, statewide district. ECF 1, PgID 54, ¶ 75, ECF 64, PgID 1453. Pursuant to the agreement,

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.

         B. Supervision or Control?

         In 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.

         Defendants 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.

         Defendants 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.

         Following 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.

         Neither 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.

         Whether 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.[4] 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.

         Gulla 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 (emphasis added).

         Even 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.

         Defendants 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.

         What Phillips, Moore, and other cases[5] 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 pled that state actors effectively control the schools, at least in part, and are therefore proper parties.

         II. Plaintiffs' ...

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