Kids Don't Have a Right to Literacy

[goldberry]

I wonder what is the point to having a right to education then?  Or is there not a right to education either?

http://thehill.com/blogs/blog-briefing-room/news/395231-michigan-judge-rules-kids-dont-have-a-fundamental-right-to

U.S. District Judge Stephen Murphy III acknowledged the importance of literacy in his ruling on Friday in a 40-page opinion.

"Plainly, literacy — and the opportunity to obtain it — is of incalculable importance," Murphy wrote. "As plaintiffs point out, voting, participating meaningfully in civic life, and accessing justice require some measure of literacy."

But he concluded that those points "do not necessarily make access to literacy a fundamental right,” adding that the U.S. Supreme Court ruled in the past that the importance of service "does not determine whether it must be regarded as fundamental."

[EKS]

Perhaps the logic is that not everyone can attain literacy? 

[Petrichor]

...that's like the whole point of education though, to be a literate adult.right?

But then, like EKS said, it makes me think about certain special needs kiddos, some of whom will never be able to attain literacy.

 

[katilac]

2 minutes ago, EKS said:

Perhaps the logic is that not everyone can attain literacy? 

 

No, because the quote is that access to literacy is not a fundamental right. 

[Tanaqui]

...is this some sort of originalist garbage?

[Carol in Cal.]

This reminds me of the disgusting but often upheld position of teachers' unions that teachers cannot be held responsible for results or for learning, but rather only for attempts to teach.  "We did our best and it's out of our hands" is such a pervasive and strong position in education, especially, I think, in large and bureaucratic school districts that it's no wonder that it has strayed into other venues of society.  Hence the push (which won't work either, arguably) for teacher evaluations and raises based on them.  If Gates can't make that work with all his money, no one can.  And hence also the push (which actually might work but is extremely disruptive--a very blunt object type of approach that BEGS to be abused basically) to completely eliminate faculties of schools that seem to have fallen into a culture of failure. 

This is one of the reasons that I favor charter schools in California.  They sidestep all this mess, they still have to take everyone, they are not allowed to be religious, and they seem to basically work. 

[Amber in SJ]

Although charter schools have their own problems as well.  For a year while we homeschooled through a public charter, we were required to show we had "attempted" the standards, not mastered or achieved a minimum level of comprehension.  I could show a multiplication worksheet that my dd had drawn hearts all over (not that I would do that) and the mere act of handing a worksheet to dd was enough to "attempt" the standard.  It was almost insulting.  I understand that these rules might be a CYA for children with certain special needs so the teacher can show that the material was presented in some way to the student, but really?

Amber in SJ

[AimeeM]

1 hour ago, EKS said:

Perhaps the logic is that not everyone can attain literacy? 

This makes the most sense to me.

 

[Carol in Cal.]

45 minutes ago, Amber in SJ said:

Although charter schools have their own problems as well. 

That's certainly true.

But they also have to be able to show "progress" which is not required of the regular public school system.  

Good point about the homeschooling charters--I was thinking of the 5 day per week brick and mortar ones, but didn't specify that.

[Bootsie]

I think he is using the term "fundamental right" in a very specific, legal context.  I do not read this to mean that he does not think children should have access to education and literacy.  Something can be good and as a society we can choose to provide it, but that does not mean that it is a constitutionally protected right.

 

According to Merriam Webster dictionary:

Legal Definition of fundamental right

: a right that is considered by a court (as the U.S. Supreme Court) to be explicitly or implicitly expressed in a constitution (as the U.S. Constitution)

NOTE: A court must review a law that infringes on a fundamental right under a standard of strict scrutiny. A fundamental right can be limited by a law only if there is a compelling state interest.

[Carrie12345]

How does one exercise their right to a free and appropriate education without an underlying right to literacy?  I realize that students who are unable to achieve literacy can still get "free and appropriate", but the ability to achieve literacy would mean that reading is the APPROPRIATE basic means.

There may be room for argument after aging out at 21 or whatever individual state regulations declare, but this specified kids.

[Carrie12345]

Side note: I just read that my middle-class, suburban hometown's high school has a 22% reading proficiency rate.

[ealp2009]

1 hour ago, Carrie12345 said:

How does one exercise their right to a free and appropriate education without an underlying right to literacy?  I realize that students who are unable to achieve literacy can still get "free and appropriate", but the ability to achieve literacy would mean that reading is the APPROPRIATE basic means.

 But the only children with a right to a Free Appropriate Public Education are children with disabilities in need of special education services.  Even with these children, accessing a FAPE is a challenge and often requires a lawsuit.  I’m not convinced giving that right to every child would actually change things for the better for children.  I just know that it would be expensive and lawyers would take home most of the money.   Not that I agree with the judge ... I’m just not sure what the answer is.  

Edited July 3, 2018 by ealp2009
Correcting something that was deleated

[Farrar]

I feel like I need someone really versed in education law to explain this to me, because it seems to run counter to other federal level education decisions I've seen in the past. Like, I get that he's using "fundamental right" in a legal context, but I still am a little surprised, as someone who has followed education law a little in the past.

It used to be a common practice here in DC if you wanted the city to foot the bill for private school, to sue the system and the bar to show that they weren't providing an education was absurdly low. I know that literacy was a part of it. (The system got better and finally nipped that in the bud.)

However, I know that many education cases like this are decided at the state level - like in a state supreme court - because state constitutions are often more clear about the right to access education. In that situation, it often is considered a "fundamental right" in a legal sense.

[73349]

I feel that this is unreasonable in light of compulsory attendance. The children must show up every day until age 16 under state law, but the state doesn't even have to make a reasonable effort to teach them to read while they're there, though it's proven that their city is failing to do it? Ick.

[JennyD]

Quick summary: The Supreme Court has held that there is no fundamental right to an education under the U.S. Constitution.  (San Antonio Independent School District v. Rodriguez)  "Fundamental right" is indeed a legal term of art and essentially it means a right that the Court has held to be so important that (1) the Due Process Clauses of the 5th and 14th Amendment require that the government has to have a really good reason to infringe on people's exercise of this right; and (2) the Equal Protection Clause of the 14th amendment requires that the government has to have a really good reason to make distinctions between different people's ability to exercise this right.  The Court has upheld very few fundamental rights -- voting and travel are two exceptions.  There is one case -- Plyler v. Doe -- in which the Court suggested that it *might* be unconstitutional to totally deprive children of an education altogether, but it's not a super strong precedent.  

However, state constitutional law is a different story.  Many state constitutions have either explicit education clauses or clauses that refer to the "common welfare," and a number of state courts have interpreted those provisions to require the state to provide a certain level of education (see the Kentucky case Rose v. Council for Better Education ) and/or a certain level of equity across school districts (see the Vermont case Brigham v. State).  

And finally, as someone mentioned upthread, IDEA -- the Individuals with Disabilities in Education Act -- establishes a federal statutory right to a free and appropriate education for children who qualify under its definition of disability.  

[Faith-manor]

If the child has no right to access literacy, then the compulsory education laws should be made unconstitutional.

Sometimes I think our courts have their heads very far up their butts! Seriously, one cannot even begin to participate as a full citizen without literacy. Yes, some students cannot achieve it due to specific types of issues beyond the control of the courts, but to say that access is not a fundamental right is the height of STUPIDITY!

Repeal those compulsory education laws. If you are going to be idiots, at least be consistent idiots! If there is no constitutional right, then this should trump state constitutions. Logically forced attendance for something in order to gain something that is not constitutionally guaranteed, a fundamental right, would be an over-reach of state and local governments.

 

[JennyD]

2 minutes ago, Faith-manor said:

Seriously, one cannot even begin to participate as a full citizen without literacy.

 

This was Justice Thurgood Marshall's (losing) argument, FWIW.

[Terabith]

It's frustrating to me that kids don't have a right to literacy....But as someone training to be a teacher, I can see some value in saying that they aren't guaranteed to education that works.  Part of me feels like that's bullshit, but I also remember when I was a kid, there were certainly students who were doing everything in their power not to learn anything, and it isn't fair for teachers to be held to a standard that those students learn.  It's especially unfair to hold teachers accountable for students learning when they have absolutely no autonomy to teach those students.  They aren't allowed to start with where the student is...they have to start with where the grade level prescribes.  They have to use the materials the school district provides, at the speed the school district demands.  They don't have any autonomy to do the job the way it should be done, so it would be cruel to hold them to results.

[Katy]

That's weird.  I thought IDEA established that everyone has a right to a free public education, or at least the attempt at one, no matter how disabled they are, or how much support the school board has to accommodate to get them up to an average grade level.  If that's not a precedent that is now common law, what is it?  Yes, you have to extrapolate that disabled students wouldn't get the right to an education unless abled students already held it, but still...

[JennyD]

22 minutes ago, Katy said:

That's weird.  I thought IDEA established that everyone has a right to a free public education, or at least the attempt at one, no matter how disabled they are, or how much support the school board has to accommodate to get them up to an average grade level.  If that's not a precedent that is now common law, what is it?  Yes, you have to extrapolate that disabled students wouldn't get the right to an education unless abled students already held it, but still...

 

No.  It's a statutory right to education that belongs only to those students who meet the standard of "disability" in the statute.   There are other federal statutes -- the ADA and Section 504 of the Rehabilitation Act -- that prohibit discrimination on the basis of disability and require schools to make some degree of "reasonable accommodation," but the only American children who have an actual federal affirmative right to a free and appropriate education are those who qualify under IDEA.

There have been people who have argued for years, of course, that many elements of IDEA -- FAPE, individualized education plans, rights of appeal and due process for parents -- should be available to all children.   

[goldberry]

46 minutes ago, JennyD said:

Quick summary: The Supreme Court has held that there is no fundamental right to an education under the U.S. Constitution.  (San Antonio Independent School District v. Rodriguez)  "Fundamental right" is indeed a legal term of art and essentially it means a right that the Court has held to be so important that (1) the Due Process Clauses of the 5th and 14th Amendment require that the government has to have a really good reason to infringe on people's exercise of this right; and (2) the Equal Protection Clause of the 14th amendment requires that the government has to have a really good reason to make distinctions between different people's ability to exercise this right.  The Court has upheld very few fundamental rights -- voting and travel are two exceptions.  There is one case -- Plyler v. Doe -- in which the Court suggested that it *might* be unconstitutional to totally deprive children of an education altogether, but it's not a super strong precedent.  

However, state constitutional law is a different story.  Many state constitutions have either explicit education clauses or clauses that refer to the "common welfare," and a number of state courts have interpreted those provisions to require the state to provide a certain level of education (see the Kentucky case Rose v. Council for Better Education ) and/or a certain level of equity across school districts (see the Vermont case Brigham v. State).  

And finally, as someone mentioned upthread, IDEA -- the Individuals with Disabilities in Education Act -- establishes a federal statutory right to a free and appropriate education for children who qualify under its definition of disability.  

 

Thanks for this, very interesting.  I agree with others that this should contradict the idea of compulsory education then.

[EKS]

In reference to a free and appropriate education--an appropriate education may not have anything to do with attaining literacy. 

In fact, I would argue that a good percentage--and possibly a majority--of adults are not literate enough to participate meaningfully in our democracy.  And I'm not convinced that this is due to a failure of the education system. 

[Carrie12345]

34 minutes ago, Terabith said:

It's frustrating to me that kids don't have a right to literacy....But as someone training to be a teacher, I can see some value in saying that they aren't guaranteed to education that works.  Part of me feels like that's bullshit, but I also remember when I was a kid, there were certainly students who were doing everything in their power not to learn anything, and it isn't fair for teachers to be held to a standard that those students learn.  It's especially unfair to hold teachers accountable for students learning when they have absolutely no autonomy to teach those students.  They aren't allowed to start with where the student is...they have to start with where the grade level prescribes.  They have to use the materials the school district provides, at the speed the school district demands.  They don't have any autonomy to do the job the way it should be done, so it would be cruel to hold them to results.

 

I don't read "right" as equivalent to "guaranteed attainment".  I mean, we all have the American right to pursue happiness, but we're not guaranteed to achieve it.

[Katy]

21 minutes ago, JennyD said:

 

No.  It's a statutory right to education that belongs only to those students who meet the standard of "disability" in the statute.   There are other federal statutes -- the ADA and Section 504 of the Rehabilitation Act -- that prohibit discrimination on the basis of disability and require schools to make some degree of "reasonable accommodation," but the only American children who have an actual federal affirmative right to a free and appropriate education are those who qualify under IDEA.

There have been people who have argued for years, of course, that many elements of IDEA -- FAPE, individualized education plans, rights of appeal and due process for parents -- should be available to all children.   

 

You're right.  There is no federal right to education.  I thought there was because of a barely-remembered reading of Endrew F. v. Douglas County School District, but there isn't.  That needs to be changed. I still think you could argue that decisions like that establish a common law access, because if equal access is a requirement access is clearly a common law requirement.

But last year the supreme court overturned some interpretation that implied not all disabled children deserve accommodations... the unanimous opinion clearly reasoned that all children deserve accommodations that allow them to perform at grade level.  Not above grade level, there was no requirement for a gifted program.  Nor was there a requirement for a child doing okay to have every accommodation that could be made available to them. I'll find the decision and quote...

Here's an NPR article for those who don't want to slog through the opinion: https://www.npr.org/sections/ed/2017/03/22/521094752/the-supreme-court-rules-in-favor-of-a-special-education-student

Here's the PDF: https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf

 

[Frances]

11 hours ago, Amber in SJ said:

Although charter schools have their own problems as well.  For a year while we homeschooled through a public charter, we were required to show we had "attempted" the standards, not mastered or achieved a minimum level of comprehension.  I could show a multiplication worksheet that my dd had drawn hearts all over (not that I would do that) and the mere act of handing a worksheet to dd was enough to "attempt" the standard.  It was almost insulting.  I understand that these rules might be a CYA for children with certain special needs so the teacher can show that the material was presented in some way to the student, but really?

Amber in SJ

There have also been some pretty sad stories about for-profit charter schools competing for students for the dollars in cities where they are popular, but doing very little to educate the children once they have them. Also, my son did a semester at one of the very few charter schools here, and I was not impressed.

[Tanaqui]

Quote

If there is no constitutional right, then this should trump state constitutions.

 

The stricter standard prevails.

[Carol in Cal.]

38 minutes ago, Frances said:

There have also been some pretty sad stories about for-profit charter schools competing for students for the dollars in cities where they are popular, but doing very little to educate the children once they have them. Also, my son did a semester at one of the very few charter schools here, and I was not impressed.

This is why I specifically mentioned charter schools as set up in CA.

Here in CA they are required to do state testing, to demonstrate student progress, and to ensure that students are receiving an appropriate education regardless of disability.  Additionally, they can't have religious education.  Those are the main regs here, and I understand that this varies a lot from state to state.

However, here in CA some of the school districts are so big and capricious that you absolutely cannot count on them.  It is clear in mine that the best interests of the students don't even rate a mention in decision making--it's all about the numbers.  They say, well, what can WE do? if parents complain about student safety on the playground.  They take the kids but they don't take responsibility for their safety, for providing them with teacher continuity or even with certified teachers, or for anything they consider 'extra' like sports, art, or music.  Having the charter option, despite the bitter fights against every single charter by the district board, is very helpful in giving parents hope that their kids might possibly be safe and educated.

[EmseB]

I think language is a big part of the problem here.

I can see a law being passed requiring every child of a certain age be provided with an education.

I can't see a so-called "right to literacy" because on some level, literacy is dependent on an individual's ability. A fundamental right isn't something one has to achieve on any level. A right is something someone has regardless of their abilities. Also, as un-PC as it is to say, there is no way to for everyone achieve the same level of literacy across the board because of those individual abilities. That's not a right in any sense of the word and it's silly to call it such.

IOW, someone who can't learn to read (like my nephew with cerebral palsy) isn't being denied his rights if he does not achieve it, and it would be a horrible way to write laws (horrible a la NCLB) to assume such or to hold him to the same literacy standard in some attempt to make a blanket law re: a right to literacy.

[Bootsie]

6 hours ago, Carrie12345 said:

 

I don't read "right" as equivalent to "guaranteed attainment".  I mean, we all have the American right to pursue happiness, but we're not guaranteed to achieve it.

Not only are we not guaranteed the right to achieve happiness, we are not guaranteed that someone will provide us with happiness.  

The idea of "right the the pursuit of happiness" being a fundamental right is that it is a right that anyone, anywhere should have without the government interfering without good cause.  It is a right I have that the government should not limit.  But, it is something that I pursue myself.  

If I had a right to happiness and could demand that I receive happiness, it would imply that someone is obligated to provide me with happiness.  Then, legally it isn't so much that I have a fundamental right, it is that someone has a legal obligation to do something for me.  

In this case, whose obligation is it that the child be provided with literacy?  Is it the parent's obligation?  Is it the government's obligation?  How is literacy defined?  Who gets to define it?  What happens if we decide it is the government's obligation?  Does the government then get to outlaw homeschooling because it wants control over what it is obligated to provide? 

[ktgrok]

4 hours ago, Terabith said:

 

11 hours ago, Carrie12345 said:

Side note: I just read that my middle-class, suburban hometown's high school has a 22% reading proficiency rate.

Read the comments of any newspaper article and that will be very very believable. 

[Bootsie]

4 hours ago, Arctic Mama said:

Rights are defined as access, not outcome.  Further refinement goes into the standards of what defines the lower threshold of that access.  

 

That’s where this judge botched it.

I do not think that "fundamental rights" are defined as access, or outcome.  I have the right to free speech.  I do not have the right to access of a microphone.  If I have some trauma to my vocal chords, I do not have a right to have my access to speech restored.  That would mean that someone else has the obligation to provide me with something.  

[goldberry]

I don't know if you can read this without a Quora account, but the answer here by Christopher Aeneadas (scroll down) was very helpful and detailed.  He talks about the difference between positive and negative rights.

 

https://www.quora.com/How-did-a-Michigan-judge-arrive-at-his-ruling-that-children-do-not-have-a-fundamental-right-to-learn-how-to-read-and-write-when-public-education-is-mandatory

[EmseB]

1 hour ago, goldberry said:

I don't know if you can read this without a Quora account, but the answer here by Christopher Aeneadas (scroll down) was very helpful and detailed.  He talks about the difference between positive and negative rights.

 

https://www.quora.com/How-did-a-Michigan-judge-arrive-at-his-ruling-that-children-do-not-have-a-fundamental-right-to-learn-how-to-read-and-write-when-public-education-is-mandatory

 

I think he got it mostly right, except this last part, which baffles me because he sort of explains the reasoning in his paragraphs above this one:

Quote

That seemed like a positive-right remedy. So it ruled, as a case of first impression, that Access to Education is not a Fundamental Right in a Civil Rights sense. As such the Plaintiffs (as the Question asked) have no right to read and write. At least none that the Court was competent to enforce.

That's exactly the point of all that positive/negative stuff. They do have a right to read and write. And before anyone says that is a ridiculous distinction, there are places in the world where this right is denied to people based on sex/race/class/etc. That is, it's not just that the mechanisms don't exist for them to learn, it is that they are not allowed to learn because of who they are. That is not at all what the court was saying.

Again, if literacy is a fundamental, universal right then how can that possibly be enforced when we know that not all people will be able to read? We'd have to set a baseline for achievement, account for mental/learning disabilities, kids and adults who are resistant to learning, etc., then create exceptions based on those things to our baseline for achievement. Universal human rights don't have exceptions. They don't depend on individual ability to do anything. Of course we should have an educated populace. That doesn't equate to a right to literacy, because to me a "right to literacy" is just word salad. There is no way of enforcing a right to literacy universally as a basic human right. Which is exactly why the court didn't feel competent to enforce it in any sense, and then of course, the headlines coming out are sensational, "Kids don't have a right to read and right," which is not true. Kids have access to a free, public education, but as we've seen from NCLB, individual levels of ability and achievement cannot be what our education system and fundamental rights are based on.

[EmseB]

On 7/3/2018 at 9:17 PM, Arctic Mama said:

I’d say this is a flawed metaphor.  Your ability to personally utilize your right isn’t the lower threshold for speech. 

 

The reason I’d argue this is a fundamental right, and why I support public access (if not administration) to education is precisely because a citizen cannot participate fully in the republic in a legal sense without literacy or aids to achieve the same ends.  Everything from voting to reading public signs and informed medical consent require literacy.  Oppression of a population is most quickly achieved through controlling who accesses education, illiteracy is the quickest way to subjugate an individual or population.

 

To guarantee the other freedoms, the ability to personally consume and synthesize knowledge is foundational. That’s why slaves, historically, didn't read or do sums.  It’s disgustingly logical ?

Except being barred from learning to read or do math is entirely a different thing than the government granting some kind of nebulous right to literacy. Literacy requires individual responsibility (effort) and individual ability. Those are not things that can be enforced as rights, which is kind of what the court was saying in this case.

The ability to personally consume and synthesize knowledge is going to be highly, highly based on individual ability and drive (perhaps more than is currently OK to say out loud). In the US today, there is a vanishingly small number of kids who are actually banned from learning, and that is usually an individual choice made by a caregiver or parent and not due to lack of access. Even in the cases of poor-performing school districts, usually there is a disproportionate amount of money spent on teaching kids to read and write (disproportionate to results, that is).

The quality of that education is a different question entirely, and one I've answered by opting out of the public school system, but very few are in a position today of slaves of the 17 and 1800s.

[SKL]

In the context of big-city schools that are failing to achieve full literacy, I may not use the same language, but I don't see how a lawsuit demanding literacy is going to do anything.  There are too many factors the schools can't control when it comes to urban youth achievement.  Seems the lawyers need to go back to the drawing board or maybe redirect efforts away from litigation in favor of some activities that are shown to improve urban literacy.

[EmseB]

36 minutes ago, SKL said:

In the context of big-city schools that are failing to achieve full literacy, I may not use the same language, but I don't see how a lawsuit demanding literacy is going to do anything.  There are too many factors the schools can't control when it comes to urban youth achievement.  Seems the lawyers need to go back to the drawing board or maybe redirect efforts away from litigation in favor of some activities that are shown to improve urban literacy.

I agree with this. I also think (independent of this case) if I was one of the people that was graduated from one of those schools and later came to realize I was functionally illiterate (probably due to some kind of embarrassment or humiliation later in life), I would probably be pretty peeved. And what recourse is there at that point?

[ElizabethB]

On July 3, 2018 at 4:56 AM, Carrie12345 said:

Side note: I just read that my middle-class, suburban hometown's high school has a 22% reading proficiency rate.

Yes, sadly, the way they teach currently reading with balanced literacy and sight words leads to that failure rate.  With a good phonics program, the failure rate is much lower, and with phonics plus good intervention and early detection of those with underlying problems, even lower.

My syllables program is a great way to improve literacy for groups of kids;  I would love to see a ton of people using teen and adult volunteers to reach those in the worst schools while also helping those who need it from any school.  I'm working on finish up the DVD now, but the lessons are all free online at YouTube with the materials free to print, my average inner city class improves 1.7 reading grade levels.

http://www.thephonicspage.org/On Reading/syllablesspellsu.html