Lawsuit Against Governor
Lawsuit Against Governor
SOUTHERN DIVISION
DAWN PAULING, next friend of J.P.; ALIYA
MOORE, next friend of the minor children C.J.
and T.M.; TAMIKA BILLS, next friend of the
minor D.B.; DOROTHEA NICHOLSON
next friend of the minors D.W. and A.W.;
SHERRY LAWRENCE, next friend of the
minor S.L.; LOUISE HAMM, next friend of the
minor N.H.;EILEENE GORDON-KING, next
friend of the minor A. G-T.; ELENA HERRADA,
next friend of the minors M.G. and F. G.;
DAVON HARRELL; The PUBLICLY-ELECTED
DETROIT PUBLIC SCHOOLS BOARD, and
DR. JOHN TELFORD, all on behalf of the
designated minor Children and as REPRESENTATIVES
of the CLASS of ALL IMPOVERISHED SCHOOL
CHILDREN
CLASS ACTION
Case No.
Hon.
Magistrate
Plaintiffs,
v.
RICK SNYDER, individually, and in his
Official Capacity as Governor of the
State of Michigan, PHILLIP PAVLOV,
individually, and in his Official Capacity
as a Senator in the Michigan Senate,
AL PSCHOLKA, individually, and in his
Official Capacity as a Representative
in the Michigan House of Representatives,
ROY S. ROBERTS, individually and in his
respective Official Capacity as an
Emergency Manager of the Detroit
Public Schools, JACK MARTIN, individually
and in his respective Official Capacity as an
Emergency Manager of the Detroit Public Schools,
This is a class action suit brought, in part, under the Equal Protection and
Substantive Due Process Clauses of the Fourteenth Amendment (42 U.S.C. Sec.
1983, U.S. Const. Amend. XIV), section 504 of the Rehabilitation Act of 1973 [29
U.S.C. 794], Title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.],
and the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
2.
Class members are the impoverished children among the 58,000, more or less,
students of the Detroit Public Schools (DPS) (including those enrolled in EAA
schools) who from 2011 to the present have experienced and will continue to
experience serious and permanent damage caused by Defendants willful and
wanton callous indifference to their educational needs. Class member have been
and are presently subjected to the unconstitutional effects1 and/or application of
Michigans Local Financial Stability and Choice Act; Public Acts of 2012; MCL
Sections 141.1541, et. seq. (Public Act 436) and its predecessor statute Public
Act 4.
3.
This action seeks compensatory damages for the the entire class of DPS children
living in poverty who have been subjected to constitutional violations arising
from the defendants callous indifference in the creation of and practices resulting
from Public Act 436 and Public Act 4. These acts provide that when a state
municipality or school district experiences a certain level of financial hardship,
the state appoints an un-elected Emergency Manager to rule by decree over said
jurisdiction, assuming all of the powers and duties of locally-elected legislative
and executive officers. Emergency Managers have been appointed under P. A.
436, or its predecessor statute, P.A. 4, over the Detroit Public Schools by
defendant Snyder continuously since 2011 to the present.
4.
These sweeping Michigan Emergency Manager powers and duties include, but
are not limited to, acting [f]or and in the place and stead of the governing
body, . . . [ruling] by decree over cities and villages through powers that permit
the emergency manager to contravene and thereby implicitly repeal local laws
such as city and village charters and ordinances, . . . explicitly repeal, amend, and
enact local laws such as city and village ordinances, . . . [and] sell, lease, convey,
assign, or otherwise use or transfer the assets, liabilities, functions, or
responsibilities of the local government. . . (See, MCL 141.1549(9)(2); MCL
141.1549; MCL 141.1552; MCL 141.1552(12)(1)(r), emphasis added.
5.
The defendant Emergency Managers charged with financial reform did not have,
nor were they supported by, the necessary expertise to manage non-financial
aspects of municipal government, including public school districts.
6.
7.
The Emergency Manager Law is predicated on the concept that a local financial
crisis is due to the inability of local officials to address the problem. In fact,
beginning in 1999 the State took over the management of the DPS which was
functioning financially in the black and with its student body performing at a
level on average with the school districts of the entire state of Michigan and, in
the seventeen years since, have turned the district into a virtual financial hell-hole.
The EM is supposed to be able to better handle the situation, make better and
faster decisions, and resolve the financial crisis, but has done nothing but drive
the district downward. The EM law states [t]hat the fiscal stability of local
governments is necessary to the health, safety, and welfare of the citizens of this
state and it is a valid public purpose for this state to assist a local government in a
The Emergency Manager is deemed necessary not only to resolve the fiscal
problem but also to protect the public health and safety. Yet in the case of of the
Detroit Public Schools, while other state and local officials were involved,
Emergency Managers undertook and/or established decision-making processes
that compromised and damaged the quality of education DPS children received, a
critical reason being the loss of accountability and the system of checks and
balances that are provided by representative government.
9.
The Emergency Manager statutes both in principle and in practice have had a
callously disparate impact on poverty-stricken DPS children, most particularly
children of color. A majority, 50.4%, of the states 1,413,320 African American
residents are now ruled by unelected Emergency Managers including the Detroit
Public Schools and its current proportionality of 87% African American and 7%
Hispanic students. Both Public Act 4 and Public Act 436 have been applied in a
discriminatory manner. The state has imposed Emergency Managers on cities with
majority or near majority African- American populations, even though there were
non-African-American cities with the same or worse Fiscal Health Score, as
defined by Defendant State Treasurer. In Oakland County, the state imposed an
Emergency Manager on the City of Pontiac, which has an African American
population of 52.1%, but the state did not impose an Emergency Manager in the
Oakland County cities of Hazel Park (9.8% African American population), and
Troy (4.0% African American population), even though each of these cities had an
identical Fiscal Health Score of 6. This discriminatory pattern in Oakland
County was repeated in other counties throughout the state in violation of the
Equal Protection and Substantive Due Process Clauses of the Fourteenth
Amendment. (42 U.S.C. Sec. 1983, U.S. Const. Amend. XIV).
10.
Further, the Michigan Constitution grants to its citizens the right to vote, on equal
terms, to all qualified electors in local, state and Federal elections, (Const. 1963,
Art. II, 1), and proscribes an equal framework for local self-governance (Const.
1963, Art. VII, Sec. 22); and it is axiomatic that once the state grants [t]he right
to vote on equal terms, the State may not by later arbitrary and disparate
treatment, value one persons vote over that of another. League of Women
Voters v. Brunner, 548 F. 3d 616 (6th Cir. Ohio 2008)(citing headnote 4, Bush v.
Gore, 531 U.S. 98 (2000)).
11.
which are the direct and proximate result of Public Act 436 and Public Act 4,
value one persons vote over that of another, which violates the Fourteenth
Amendments Equal Protection Clause. (42 U.S.C. Sec. 1983, U.S. Const.,
Amend. XIV; Bush v. Gore, 531 U.S. 98 (2000), supra). Plaintiffs contend,
concurrently and alternatively, that P.A. 436
also violates the Equal Protection Clause by debasing and diluting residents right of
vote, Plaintiffs, however, also assert a separate and distinct substantive due process
claim.2
12.
Moreover, in its haste to approve Public Act 436 during the legislatures 2012
lame duck session, the State, upon information and belief, failed to apply for and
obtain either the approval of the Attorney General of the United States, or a
declaratory judgment of a panel of the United States District Court for the District
of Columbia, [p]rior to the enactment of any new voting qualification or
perquisite to voting, or standard or practice of voting, such as Public Act 436,
which Michigan is required to do since Buena Vista Township and Clyde
Township were covered jurisdictions within the State, subject to the preclearance
requirements under Section 5 of the 1965 Voting Rights Act. (42 U.S.C. 1973c,
and 42 U.S.C. 1973b(a)).
13.
There has been a long-standing and contentious relationship between the State of
Michigan and the DPS. It is of more than historical interest that the seed for the
instant litigation was planted more than forty years ago when the U.S. Supreme
Court in Milliken v Bradley, 418 US 717 (1974), declined to expand the boundaries
of the school district to set aside the separate and inherently unequal educational
opportunities afforded DPS children.
predicted the long-term impact of the Courts decision on future children of the
Detroit Public Schools in his dissent. [T]he Court today takes a giant step
backwards. Notwithstanding a record showing widespread and pervasive racial
segregation in the educational system provided by the State of Michigan for children
in Detroit, this Court holds that the District Court was powerless to require the State
to remedy its constitutional violation in any meaningful fashion. Ironically
purporting to base its result on the principle that the scope of the remedy in a
desegregation case should be determined by the nature and the extent of the
constitutional violation, the Court's answer is to provide no remedy at all for the
violation proved in this case, thereby guaranteeing that Negro children in Detroit will
receive the same separate and inherently unequal education in the future as they have
been unconstitutionally afforded in the past. (Id at 782)
14.
15.
The Michigan Constitution specifically notes the importance of education to a wellordered society: Religion, morality and knowledge being necessary to good
government and the happiness of mankind, schools and the means of education shall
The importance of education to a democratic society has also been addressed by the
U.S. Supreme Court: [N]either is [education] merely some governmental benefit
indistinguishable from other forms of social welfare legislation. Both the importance
of education in maintaining our basic institutions, and the lasting impact of its
deprivation on the life of the child, mark the distinction. The American people have
always regarded education and [the] acquisition of knowledge as matters of supreme
importance. We have recognized the public schools as a most vital civic institution
for the preservation of a democratic system of government, and as the primary
vehicle for transmitting the values on which our society rests. [A]s . . . pointed out
early in our history, . . . some degree of education is necessary to prepare citizens to
participate effectively and intelligently in our open political system if we are to
preserve freedom and independence. And these historic perceptions of the public
schools as inculcating fundamental values necessary to the maintenance of a political
system manager have been confirmed by the observations of social scientists. In
addition, education provides the basic tools by which individuals might lead
economically productive lives to the benefit of us all. In sum, education has a
fundamental fabric of our society. We cannot ignore the significant social costs borne
by our Nation when select groups are denied the means to absorb the values and
skills upon which our social order rests. In addition to the pivotal role of education in
sustaining our political and cultural heritage, denial of education to some isolated
group of children poses an affront to one of the goals of the Equal Protection Clause:
the abolition of governmental barriers presenting unreasonable obstacles to
advancement on the basis of individual merit. Plyer v. Doe, 457 U.S. 202, 221 (1982)
(citations and quotations omitted).
17.
The Due Process Clause of the U.S. Constitution guarantees that an individual will
not be deprived of life, liberty, or property without due process of law. US CONST
amend V. Furthermore, under the Fourteenth Amendment, no one may be deprived
of life, liberty or property without due process of law nor be denied equal protection
of the laws. US CONST amend. XIV, 1.
18.
19.
fundamentally unfair.
20.
21.
22.
This Court has jurisdiction over this action pursuant to Title 28 U.S.C. 1331 and
1343(3) in that the controversy arises under the United States Constitution and
federal statutes 42 U.S.C. 1983 and 28 U.S.C. 2201 and 2202. Plaintiff further
invokes the supplemental jurisdiction of this Court under 28 U.S.C. 1367(a) to hear
and adjudicate state law claims. All acts or omissions alleged herein were done by
defendants individually or in their representative capacities on behalf of the State of
Michigan, or their officers, agents, and employees, acting under color and pretense of
the statutes, ordinances, regulations, customs and usages of the State of Michigan
and the United States.
23.
Venue is proper in this district under 28 U.S.C. 1391(b) because a substantial part of
the events giving rise to the claims in this action occurred in this district and all
plaintiffs are residents of the city of Detroit County of Wayne, State of Michigan.
PARTIES
Plaintiffs
24.
25.
ALIYA MOORE is the natural parent and next friend of TW, a child in the first
grade, and CJ, a child in the eighth grade at Paul Robinson/Malcolm X elementary
school and brings this lawsuit on said childrens behalf, individually, and on behalf of
the class of plaintiffs herein identified as children of poverty enrolled in the Detroit
Pubic Schools from 2011 to the present time.
26.
TAMIKA BILLS is the natural parent and next friend of DB, a student in the tenth
grade at Communication/Media Arts and bring this lawsuit on said childs behalf
Additional named plaintiffs are DPS 4th grader DW3, by her next friend DOROTHEA
NICHOLSON, DPS 5th grader SL, by her next friend SHERRY LAWRENCE,
Special Education student JASON PAULING by his next friend DAWN PAULING,
Special Education student AG-T by his next friend EILEENE GORDON-KING,
Special Education 8th grade students MG and FG at Golightly by their next friend
ELENA HERRADA, student NH by his next friend LOUISE HAMM, and former
DPS non-graduate student DAVON HARREL all individually and on behalf of the
class of plaintiffs herein identified as children of poverty enrolled in the Detroit
Pubic Schools from 2011 to the present time.
28.
All plaintiff-parents are residents of the City of Detroit, County of Wayne, State of
Michigan and meet the standards to be considered impoverished under the standards
and guidelines of both federal law and Michigan state law.
Class Action Requisites
29.
The class of poverty-stricken DPS children is so numerous that joinder of all class
members is impracticable. There are currently 47,000 children, more or less, enrolled
in the Detroit Public Schools and approximately 11,000 children more or less, former
DPS students, now in the EAA. Thousands of other children have left the DPS since
2011 either through graduation, dropping out and/or transferring to other non-DPS
schools. The fifty-nine (59) per cent of these children who live in poverty as defined
3The
names of the designated next friend parents minor children are redacted per local court rule
to protect the identities of said children.
by state and federal guidelines constitute the class of minor-plaintiffs bringing this
cause of action.
30.
There are questions of law and fact common to the class of poverty-stricken DPS
children in that the impoverished fifty-nine (59) per cent of the 58,000 children, more
or less, have been subject to the same policies and procedures of callous and
depraved indifference foisted upon them manager by the defendants herein.
31.
The class representatives will fairly and adequately protect the interests of the class
as Plaintiffs School Board and Telford, by virtue of their past accountability,
adherence to the systems of checks and balances of a free society, and continuing
dedication to DPS children, are especially well-qualified and dedicated as residents
of Detroit to act in a manner beneficial to the interests of the poverty-stricken class
members. Poverty-stricken Plaintiff parents as next friends on behalf of their minor
children will also fairly and adequately protect the interests of the class as their
claims are typical of each member of the class. Plaintiffs Counsel is unaware of any
conflicts of interest between the class representatives and absent class members with
respect to the matters at issue in this litigation. The class representatives will
vigorously prosecute the suit on behalf of the Class, and the Class representatives are
represented by experienced counsel who has substantial experience and expertise in
complex litigation involving personal and property damage.
32.
The number of class members is sufficiently numerous to make class action status
the most practical method for Plaintiffs to secure redress for injuries sustained.
33.
There are questions of law and fact common to the class of poverty-stricken DPS and
EAA children in that each of the approximate 58% of the 58,000 children, more or
less, in the DPS and EAA have been subjected to the same callous indifferent policies
and procedures foisted upon them by the defendants acting under color of state law.
34.
The claims of the class representatives are typical of and common to all members of
the class in the following ways;
a.
The designated minor plaintiffs and all other members of the class are
and/or were poverty-stricken students in the DPS or EAA during the time period
when control of the educational policies and practices were under the control of the
defendant emergency managers acting under color of state law. Typical povertystricken Students in Detroit:
1. Attend a school where classrooms are overcrowded,
2. Are exposed to non certified teachers during their K-12 experience,
3. Do not have access to instructional technology on a daily basis in their
classroom,
4. Are not college or career ready at graduation,
5. Do not read at grade level at any point in their K-12 experience,
6. Do not learn basic numeracy,
7. Are seriously undereducated (miseducated) at graduation (if they do
graduate),
8. Are mainly African-American or Hispanic,
9. Are, by definition, living in poverty-stricken low income home situations;
Defined as $23,834 for a family of four in 2013, Detroit's childhood
poverty rate is 58.6%.
10. Are at higher risk to drop out of School,
11. Are at higher risk to never qualify to attend post secondary education,
12. Are at higher risk to become incarcerated,
13. Are more likely to remain in poverty or underperform economically,
14. Attend an economically or racially segregated school, and
15. Are more likely to have teachers not certified or trained in critical areas
like math.
b. Attributes of Commonality among this class of children include:
1. Emergency Manager control of academics, loss of public accountability and
systems of checks and balances,
2. Diversion of Title 1 and other federal funds away from classroom resources
(computers, textbooks, tutoring, etc.),
3. Inadequate resources (instructional technology, textbooks, tutoring, etc.),
4. Inadequate support for resources that expand access to curriculum,
5.
6.
7.
35.
36.
Common question of law and fact susceptible to class-wide resolution exist with
respect to every member of the class, including class representatives, such as
whether the conduct of defendants as enumerated herein in this complaint was the
proximate cause of the predominant statistically significant decrease in
educational performance, and whether the constitutional rights of each member of
the class, including the representative minor children, were violated by the
defendants.
37.
Each child in the class, including the named representative minor plaintiffs, could
rely on the demonstrated statistical significance of decreased educational
performance levels if she or he brought an individual action.
38.
Defendants
39.
Defendant RICK SNYDER is the Governor of the State of Michigan and this
lawsuit is brought against him, individually, and in his official capacity.
Defendant Snyder is a resident of the city of Ann Arbor, County of Washtenaw,
State of Michigan.
40.
41.
43.
44.
45.
46.
Defendant CLARA FLOWERS was an employee and agent of DPS employed from
2011 to 2014 as Principal of Henderson Academy and then employed as Assistant
Superintendent of DPSs Office of Specialized Students Services under the
supervision of Defendants Roberts, Martin and/or Earley.
48.
49.
50.
51.
52.
Principal of a DPS school from 2011 through 2014 under the supervision of
Defendants Roberts, Martin and/or Earley.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
65.
After the Bradley decision in 1974 until 1999, the DPS operated under the
direction of an elected Board that took "small, often difficult steps in attempts to
rise above and move past the inherited separate and inherently unequal
educational status afforded to the district by Milliken. The elected Board of DPS
operated satisfactorily within that framework with these inherent limitations until
the initial takeover by the State in 1999.
66.
In 1994, the voters of Detroit approved a $1.5 billion Bond for school repairs
and new buildings. The number of children enrolled in the DPS in 1994 was
167,551 and rising.
67.
In 1999 DPS had an enrollment of 173,848 students. In 1999, the DPS enjoyed a
ninety-three million dollar surplus, 1.2 billion dollars in bond money remaining
from a 1.5 billion dollar bond for school repairs and new buildings that was
approved by voters in 1994. Students of DPS were testing at levels equivalent to
other students in the State of Michigan.
68.
In 1999 the State of Michigan took over control of the running of the Detroit
Public Schools (DPS) and aside from a brief three-year period (2007-2009) the
state has controlled the DPS to the present time.
69.
In 1999 David Adamany, the first Reforms CEO reported to the Michigan
Legislature that the DPS was the number one performing school district in the
nation with a population above 100,000 students where the majority were
receiving free and reduced-cost lunches. The DPS had 40 schools where over
80% of its students tested at or above national levels. Detroit had more nationally
certified teachers than any other school district in the State and teaching
professionals from around the nation came to Detroit to learn what and how to
teach.
70.
Under state control by 2005 the district had a $48.7 million deficit and
enrollment had declined to 141,185 students.
71.
When the district was returned to the Board of Education (2007), the district had
a $1.1 million deficit and student enrollment had declined to 113,394, the
enrollment loss alone creating a $400 million loss of revenue. After nearly seven
years of state control, the schoolchildren had regressed in test scores at all grade
levels.
Legislative History of the State Takeover of the Detroit Public
Schools
72.
In 1988, the state enacted Public Act 101 of 1988 (PA 101). Public Act 101
allowed the state to intervene when local municipalities were found to be in
financial distress. The statute allowed the state to appoint emergency financial
managers over cities experiencing a financial emergency.
73.
In 1990, the legislature passed the Local Government Fiscal Responsibility Act,
Act No. 72, Public Acts of 1990 (PA 72). Public Act 72 authorized state officials
to intervene when local governments face a financial emergency.
74.
Pursuant to P.A. 72, Michigans local financial emergency review board could
appoint an emergency financial manager (EFM) only after the Governor declared
a financial emergency within the local government.
75.
Under P.A .72, local elected officials were not removed from office and the
EFMs powers only extended to matters of finance. Their powers did not extend
to purely administrative or policy matters. Furthermore, EFMs had the power to
renegotiate, but not unilaterally break contracts. By legislative edict, the only
background required of an EFM was five years of business experience.
76.
local, state and federal taxpayer monies away from educational use by the bribery
schemes being perpetrated by the defendant principles of DPS/EAA and
defendant vendors.
79.
Michigans Emergency Manager law (Public Act 4), was repealed by Michigan
voters in the November 6, 2012 general election. The question squarely on the
ballot was whether to repeal Public Act 4, the Local Government and School
District Fiscal Accountability Act (Public Act 4), the emergency manager law
which preceded Public Act 436. Public Act 4 was preceded by Public Act 72, the
Local Government Fiscal Responsibility Act, Act No. 72, Public Acts of 1990
(Public Act 72). Both Public Acts 4 and 72 were forms of governance by
Emergency Manager which diminished the authority of local officials upon a state
determination of municipal financial distress.
80.
In Michigan, the emergency manager issue was not some obscure ballot
question in the November 6, 2012 general election. The issue was highly
publicized by the Michigan and national press, and well-known to the states
voters because of the fierce political and legal battle that had been waged in courts
of law and in the court of public opinion. The ballot question committee known as
Stand Up for Democracy coordinated the circulation of petitions, collecting
226,339 petition signatures and filing same in 50 boxes with the Michigan
Secretary of States Office.
81.
The State Board of Canvassers, the body charged with reviewing the petitions, did
not accept the petitions, having deadlocked by a vote of 2-2, along a straight
party-lines, with the two Republican appointees to the tribunal voting to defy its
own staff report, its own expert witness from Michigan State University, and
sworn testimony and a printers affidavit from one of the states most respected
printers, and in defiance of their own eyes, erroneously concluding that the type
size of the petition heading was not 14-point bold type as required by statute.
82.
83.
Challenger Citizens for Fiscal Responsibility filed for leave to appeal to the
Michigan Supreme Court. Leave was granted. Defendant Snyder and the States
Attorney General filed amici briefs in support of the challengers position.
84.
After having heard oral argument, the Michigan Supreme Court, on August 3,
2012, in a 4 to 3 ruling, rejected the challengers position, and held that the
petitions were in actual compliance with state law and the issue was ordered on
the ballot. The Court held, The Board of State Canvassers shall certify the
petition as sufficient because a majority of the Court concludes that plaintiff either
actually complied with the law or that the Court of Appeals original writ of
mandamus was not erroneous. Stand Up for Democracy v. Secretary of State,
Mich. S. Ct. No. 145387, at 28 (Aug. 3, 2012).
85.
86.
Press coverage of the legal battle over the petitions (Fontgate) and the
Supreme Courts ultimate ruling to allow voters access to the ballot on the
Emergency Manager question was intensive. The voters well understood the
issue.
87.
Michigan law provides that measures certified for referendum are suspended
until the outcome of the election. MCL Sec. 168.477(2). The State Attorney
General issued an Opinion that while Public Act 4 was suspended pending the
results of the election, Public Act 72 would take its place, even though, under
Michigan law, Public Act 4 had expressly repealed Public Act 72. (Mich. Atty
Genl., Opinion No. 7267, August 6, 2012
88.
Proposal 12-1, the referendum on the emergency manager law, was decisively
defeated at the polls by the Michigan electorate, by a margin of 53% (No) to 47%
(Yes), with a total of 2,370,601 ballots cast in opposition. Michiganders made it
plain, having been well- informed, and during a Presidential election year, when
voter attentiveness and voter turnout were at their highest, that they did not want
an emergency manager law.
State Legislature Overrides Vote of Electorate
89.
In utter contempt, brazen arrogance, and callous disregard for the will of the
Michigan voters who had just rejected Public Act 4, defendant Al Pscholka, acting
individually and in his representative capacity, submitted a House Bill and
defendant Phillip Pavlov, acting individually and in his representative capacity,
submitted Senate Bill 4214. By December 12, 2012 the bills submitted by
defendants Pavlov and Pscholka, culminated in PA 436 which was passed during a
lame duck session in the State Legislature. Both defendants acted with callous
indifference to the constitutional rights of Michigan citizens, including the
children of the Detroit Public Schools. As a result, the Michigan Legislature
enacted, and defendant Snyder, acting with callous indifference to the rights of,
among other, the children of the DPS, signed, Public Act 436 on December 26,
2012, only fifty days after Michigan voters had soundly rejected P. A. 4.
90.
Public Act 436 largely reenacted the provisions of Public Act 4, the law that
Michigan citizens had just revoked to expressly eliminate emergency managers in
the State of Michigan.
91.
In enacting Public Act 436, defendants Pavlov, Pscholka and the Michigan
Legislature included a minor appropriation provision, obviously to stop and
prevent Michigan voters from putting Public Act 436 to a referendum. Further, an
amendment to allow freedom of information access to these actions was rejected
by the legislature.
92.
The new law, Public Act 436, took effect on March 28, 2013.
93.
Like Public Act 4 before it, Michigans Public Act 436, is stunning in its
evisceration of voting rights.
95.
Public Act 436 again changed the title of existing P.A. 4 emergency
financial managers to emergency managers and again expanded the
scope of their powers to cover all the conduct of local government. Once
again, the requirements of the emergency required no academic or
educational qualification, but just five years of business or financial
experience. The Act specifically stated Sec. 9(a) The emergency manager
shall have a minimum of 5 years' experience and demonstrable expertise in
business, financial, or local or state budgetary matters. In other words, if an
emergency manager was appointed to run a school district with such
minimal qualifications, such a person would be totally unqualified and/or
incompetent to deal with educational issues.
96.
97.
Eritrea
Ethiopia
Iran
Kazakhstan
Libya
Madagascar
Myanmar
North Korea
Rwanda
Sudan
Syria
Tunisia
Turkmenistan
Uzbekistan
Vietnam
Zimbabwe
Along with the general grant of legislative power to emergency managers, Public
Act 436 exempted the EM from following existing city charters and local
ordinances, i.e., the type of power exercised by dictators in non-democratic areas
of the world.
98.
PA 436 did not provide any process that emergency managers must follow in the
adoption or repeal of local laws, but rather permitted the emergency manager to
do so by private orders, not subject to open meetings requirements. As mentioned
above, an attempt to amend the language off PA 436 to permit access to records
under the Freedom of Information was rejected by the State Legislature.
99.
Public Act 436 also stated that an emergency appointed under PA 4 and an
emergency financial manager appointed under PA 72 shall be considered an
emergency manager under PA 436 when the new law took effect.
100.
Under PA 436, the DPS EM would serve at the pleasure of defendant Snyder and
would continue to serve until removed by the Governor or until the Governor
finds that the financial emergency has been rectified.
101.
Under Public Act 72 Governor Jennifer Granholm had appointed Robert Bobb as
Emergency Financial Manager (EFM) over the DPS in January 2009. Bobb, in
defiance of his limited statutory role as to financial matters, attempted to exert
complete control over the DPS. Wayne County Circuit Court Judge Wendy Baxter
issued a ruling finding that the Detroit Public Schools School Board, and not the
EFM, possessed the power under state law to determine what curriculum would
be taught and which texts would be used in the citys public schools. The court
had determined that the EFM had irreparably damaged the school district.
102.
left DPS, she was re-hired by HMH to work 21 hours per week for $182,000 a
year. In his affidavit, Jensen claims that Byrd-Bennetts emails indicate that she
and her assistants rigged the request for the proposal process months in advance
to favor of HMH. The [federal agent] told the judge an unusual financial
transaction took place about three weeks before the contracting process for the
Detroit deal began. Records show the FBIs analysis of a bank account belonging
to Barbara Byrd-Bennett shows a deposit into her Money Market account on July
20, 2009 in the amount of $26,530.26 from Houghton Mifflin Harcourt.
103.
Upon taking office Defendant Snyder replaced Bobb and appointed defendant
Roy Roberts as emergency financial manager of the DPS under PA 72.
104.
Once passed, both Public Act 4 and Public Act 436 have been applied in a
Since being taken over by the State under P.A. 72, P.A. 4 and P.A. 436,
appointed defendant emergency managers, individually and in their respective
official capacities, have acted with recklessness and manifest depraved
indifference to the plight of DPS children and the tax-paying citizens of Detroit
in matters concerning the educational, financial and physical accommodations
of the Detroit Public Schools. As an example, Defendant BYRD-BENNETT,
individually, and in her official capacity as a duly appointed DPS official
brokered a forty-million dollar deal for a so-called Learning Village Project
that never materialized. Defendant Byrd-Bennett served as the academic and
accountability officer for the DPS. In 2012, federal agents also began
92.
93.
94.
Under PA 436, elected officials of the DPS were displaced and/or divested of
governing and law-making authority and replaced by emergency managers.
96.
Under PA 436, Detroit citizens effectively lost their right to vote for the
Plaintiff DPS Board.
97. Local elected DPS officials were effectively removed from office under PA 436
and this removal occurred without any showing of malfeasance or misfeasance
causing or contributing to the financial circumstances faced by the DPS. In so
doing, the Act implicitly assumed that these local officials were guilty of
corruption or gross incompetence that caused or contributed to the financial
circumstances of the DPS. Public Act 436 makes this assumption of guilt and
removed DPS elected officials without any finding of fault and without any
form of due process. Nowhere in this pattern of selection insofar as the DPS is
concerned, was there any mention or acknowledgment that the State of
Michigan, by and through the callous indifference of all defendants, was solely
responsible for the financial and educational disasters brought onto the children
of the DPS from 1999 to the present.
98.
Two successive State takeovers has moved the Detroit Public Schools away
from academic growth and enrollment stability into a profound downward
spiral of decreasing test scores, massive enrollment loss, decrepit unhealthy,
unsafe school conditions, and impending fiscal catastrophe, all directly and
high school, compared to 6 percent of those who have never been poor. This
rises to 32 percent for students spending more than half of the survey time in
poverty. For children who were poor for at least a year and were not reading
proficiently in third grade, the proportion of those who dont finish school rose
to 26 percent. The rate was highest for poor black and Hispanic students, at 31
and 33 percent respectively. Even among poor children who were proficient
readers in third grade, 11 percent still didnt finish high school. That compares
to 9 percent of subpar third graders who were never poor. Among children who
never lived in poverty, all but 2 percent of the best third-grade readers
graduated from high school on time. The longitudinal study was conducted by
Donald J. Hernandez, a professor of sociology at Hunter College and the
Graduate Center at the City University of New York, and a senior advisor to the
Foundation for Child Development. It was commissioned by the Annie E.
Casey Foundation. The study confirms the link between third grade scores and
high school graduation and broke down the likelihood of graduation by
different reading skill and poverty levels.
101.
graduation rate data for the 2013-14 school year that shows the states rate,
including DPS, was 78.58% while the Detroit Public Schools, alone, had a
graduation rate of only 71% for 2013-14. Three (3) out of every 10 students in the
DPS do not make it to graduation.
The direct relationship between dropping out of high school and imprisonment.
102. On any given day, about one in every 10 young male high school dropouts
is in jail or juvenile detention, compared with one in 35 young male high school
graduates, according to a study of the effects of dropping out of school in an
America where demand for low-skill workers is plunging. The picture is even
bleaker for African-Americans, with nearly one in four young black male
dropouts incarcerated or otherwise institutionalized on an average day, the study
said. That compares with about one in 14 young, male, white, Asian or Hispanic
dropouts. Researchers at Northeastern University used census and other
government data to carry out the study, which tracks the employment, workplace,
parenting and criminal justice experiences of young high school dropouts. Were
trying to show what it means to be a dropout in the 21st century United States,
said Andrew Sum, director of the Center for Labor Market Studies at
Northeastern, who headed a team of researchers that prepared the report. Its one
of the countrys costliest problems. The unemployment, the incarceration rates
its scary.
103. The DPS Board became embroiled in a battle over academic control with
defendant Roberts. The Board had become increasingly alarmed at the precipitous
drop in DPS academic performance, particularly 3rd Grade reading levels. The
board voted to pilot a "Race to the Top" research project based at Wayne State
University Research Park. The QWK2LRN project developed a rapid turnaround
system for low performing schools based on using "large effect size interventions"
and instructional technology. QWK2LRN had notable successes at Highland Park
and in one of nations lowest performing schools in South Carolina. QWK2LRN
presented strong evidence that using large effect size interventions and
instructional technology could move Detroits Priority schools out of Priority
status in one school year. The pilot approach was approved by former E.F.M.
Robert Bobb, but was aggressively opposed when defendant Roberts took control
of the district.
104. This plan to increase the level of education of Detroit schoolchildren was
blocked by defendant Roberts who had no other plan to address the needs of
Detroit's lowest performing schools as would be predicted and known by
defendant Snyder who chose defendant Roberts to run DPSs educational efforts
with full knowledge of defendant Roberts lack of educational background and
awareness. Defendant Robert's vociferous opposition to education initiatives by
the board was public and documented. Mr. Roberts became infamous for mocking
the board by saying. " If a school district tells you that they moved 10% you
should call the F.B.I."
105. The testing of levels of achievement has dropped precipitously in the past
four years by this do nothing attitude of all defendant emergency managers
manifesting a callous indifference to the needs of the children of DPS. All the
while, defendants SHY and ALLSTATE SALES were paying kickbacks to the
thirteen-named defendant-principals in the approximate amount of $908,518 for
the provision of millions of dollars of certified and submitted fraudulent invoices
to DPS for payment to SHY for goods that were not delivered. All these
transactions occurred during, and ass a result of, lax policies and procedures
condoned and/or ignored by defendant emergency managers
106. The available statistics clearly demonstrate the precipitous falloff in student
performance; A recent analysis of the reading and math levels of DPS and EAA
students reveals how damaged the DPS children are:
DPS Total Reading
88% DPS 3rd grade are not proficient readers
88% DPS 4th grade are not proficient readers
87% DPS 5th grade are not proficient readers
84% DPS 6th grade are not proficient readers
84% DPS 7th grade are not proficient readers
83% DPS 8th grade are not proficient readers
75% DPS 11th grade are not proficient readers
i. Math:
DPS Total Math
0% DPS students are advanced in math
89% DPS 3rd grade are not proficient in Math
92% DPS 4th grade are not proficient in Math
100% DPS 5th grade are not proficient in Math
100% DPS 6th grade are not proficient in Math
100% DPS 7th grade are not proficient in Math
100% DPS 8th Grade are not proficient in Math
88% DPS 11th grade are not proficient in Math
ii. Education Achievement Authority Reading:
EAA Total Reading
100% EAA 3rd grade are not proficient readers
100% EAA 4th grade are not proficient readers
95% EAA 5th grade are not proficient readers
100% EAA 6th grade are not proficient readers
90% EAA 7th grade are not proficient readers
92% EAA 8th grade are not proficient readers
94% EAA 11th grade are not proficient readers
0% EAA students are advanced readers
iii. Education Achievement Authority Math:
dealt, in part, with the issue of Roy Roberts conduct as emergency manager and plaintiffs Title IX
claim.
evidence that either Roberts or any of the school officials under his
authority took any action to terminate Pughs access to the students at the
Douglass Academy. Moreover, it appears that, contrary to the districts
policies regarding the volunteer program, Pugh and the members of his
mentorship team never were subjected to any background checks, and
school officials present at the time of the forum meetings made, at best, no
more than token efforts to attend those meetings or to observe Pughs
behavior toward the students. Robertss failure to take any action either to
detect or to prevent Pughs harassment of the plaintiff plainly was
unreasonable in light of his actual knowledge of Pughs inclinations. That
evidence is sufficient to create a question of fact on the plaintiffs Title IX
claim that warrants jury resolution.
The disastrous EAA Plan: A Failed Experiment at the Expense of DPS Children
at the Cost of Millions of Dollars.
110. The Education Achievement Authority (EAA) was a controversial plan
created by defendant Snyder in 2012 to reform Michigans lowestperforming schools; a partnership between the state, Detroit Public
Schools and Eastern Michigan University (EMU) to administer a number
of schools that were taken by the state, removed from DPS, and put into
the EAA, which is overseen by the state, with a majority of the board
members appointed by the governor and the EM of the DPS, the
superintendent of the EAA. The EAA oversees 15 schools nine charter
elementary/middle schools, and six high schools. Once put in place, the
EAA's graduation rate for 2013-14 was 61.55%, up from 61.17% in 201213, i.e. ten per cent lower than the DPS.
111. There has been much controversy surrounding the EAA, which has been
criticized for poor academic performance and declining enrollment. There
also has been an FBI investigation into the EAA for alleged kickback
schemes involving vendors.
112. Some local school districts have refused to accept student teachers from
EMU because of the university's affiliation with the EAA. EMU Student
Body President Steven Cole recently expressed hoped that student
teachers will be able to go back to placements in local school districts.
"It's encouraging to see that they voted to withdraw from the (EAA)
agreement. It's been overdue, a vote we've been asking for," he said. "And
the community has been urging for two years now to get out."
113. Defendant Roberts had a serious conflict of interest as he became
chairman of EAA's board at the same time as being emergency manager
of the DPS all to the detriment of the DPS children. Because of this
conflict, defendant Roberts was forced to remove himself as chairman of
the EAA board.
114. The defendant emergency manager(s) provided loans from the Detroit
Public Schools to facilitate EAAs startup when at the time DPS was itself
in financial difficulty.
115. The emergency manager(s) seized the assets of Detroit Public Schools (15
schools) and moved them to the E.A.A. and gave away substantial DPS
assets to private charter schools for nominal sums.
116.
to chart student growth. Since mean scale scores are based on students
raw test scores, they give us a picture of student achievement test growth
even if students have not yet obtained proficiency. The cohort data are
especially important because, as the EAA has rightly maintained, students
who start out so far behind might take a few years to reach the proficiency
cut score, even if they are making steady progress from year to year.
Thus, while proficiency rates are not a good measure of whether or not the
EAAs students are progressing on tested curriculum, the cohort data are.
So what do the cohort data tell us? In all, MDE successfully matched
1,377 students from their 2012 math MEAP performance to their 2013
math MEAP performance, and 1400 students from their 2012 reading
MEAP performance to their 2013 reading MEAP performance. The
matched math and reading cohorts, according to MDE, constituted 86.8%
and 87.7% respectively of all 2013 EAA testers on those two tests. The
tracking of those students shows us, convincingly . . . that the majority of
EAA students failed to demonstrate even marginal progress toward
proficiency on the States MEAP exams in math and reading. Among
students testing this year who did not demonstrate proficiency on the
MEAP math exam last year, 78.3% showed either no progress toward
proficiency (44.1%) or actual declines (34.2%). In reading, 58.5%
showed either no progress toward proficiency (27.3%) or actual declines
(31.2%).
118.
119.
As the EAA miserably failed in its efforts with respect to these children,
they are included in the class of DPS children who have had their rights
violated by the defendants resulting in damage to their educations such as
to impact them for a lifetime.
her school, but got paid anyway with the help of phony invoices signed by
Campbell
124. Gerlma Johnson, former principal at Charles Drew Academy, former
principal at Earhart Elementary-Middle School and current principal of
Marquette-Elementary Middle School, accepted $22,884 in kickbacks from
Shy.
125. James Hearn of West Bloomfield, principal at Marcus Garvey Academy,
accepted $11,500 in kickbacks from Shy.
126. Tanya Bowman of Novi, former principal at Osborn Collegiate Academy of
Math, Science and Technology, accepted $12,500 in kickbacks from Shy.
127. Josette Buendia of Garden City, principal at Bennett Elementary School,
accepted $45,775 in kickbacks from Shy.
128. Ronnie Sims of Albion, former principal at Fleming Elementary and Brenda
Scott Middle School, accepted $58,519 in cash kickbacks from Shy.
129. Willye Pearsall of Warren, former principal at Thurgood Marshall
Elementary School, accepted $50,000 in kickbacks from Shy.
130. Tia Von Moore-Patton of Farmington Hills, principal of Jerry White
Center High School, accepted $4,000 in kickbacks from Shy.
Subpoenas, issued in May and June 2014, also sought records related to
various companies named in the subpoenas; Futures Education, a
company with offices in Dearborn that provided support services for
special education. The EAA told investigators that it didnt have invoices
for more than $740,000 from the company, according to the records.
135.
The records also show investigators seeking contracts, invoices and other
records related to a wide range of other companies that did business with
the EAA. Investigators wanted to see records relating to $114,000 in
invoices from a company called Detroit Media Specialists, but the district
attorney wrote to an investigator in July 2014 that "The EAA has no
financial records/files related" to the company. The district attorney also
told the investigators that the EAA had no records of contracts with
defendant Allstate Sales, World Wide Sales, Educating Hands, Gloria P.
Davis, Conari Consulting and Learning Gizmos. The district also had no
record of almost $1 million in invoices from Educating Hands, Top Flight
Education, M.A.D.E. Training, Beyond Basics, Ingrid Walton and AlkebuLan Village. All of these issues occurred at the time defendant emergency
managers were serving in a supervisory capacity role for the EAA and
also running the DPS. While totally unqualified by virtue of their lack of
training and education in educational matters, the defendant emergency
managers were appointed by defendant Snyder because of their financial
backgrounds in business, but said defendants failed to establish policies or
procedures with regard to financial transactions that could have prevented
and/or detected these fraudulent schemes.
136.
The FBI asked EAA officials specifically about contracts and payments
made to Esperanza, a now-defunct nonprofit, and to Follett Educational
Services, a textbook company. Records show that the first chancellor of
EAA
and
Cecilia Zavala,
Esperanza's
former
chief
operating
Detroit. Authorities said the money was supposed to be used to serve atrisk students.
138.
Mumford's former business manager, lost her job in 2014 after officials
in the district discovered shed signed off on a $500,000 contract with
Pearson, an international educational services company, according to an email directed to a FBI special agent. EAA board approval was required on
any contracts over $250,000, and only the chancellor was supposed to sign
off on contracts that large, the e-mail said. The school principal said that
the woman who signed the $500,000 contract was not in the right role as
business manager, and offered to transfer her to another position so that
this issue would not arise again. The district attorney has written that the
woman was reassigned to another job at the school. But that the transfer
left the defendant principal Snapp serving as her own business manager.
139.
education issues. The district paid huge sums of taxpayer money to yet
another for-profit company that promised to create plans to serve our most
vulnerable childrenbut refuses to reveal those plans or report how
successfully theyve been implemented, said Ralph Simpson, a
cooperating attorney with the ACLU of Michigan, which accused the
EAA of violating the state Freedom of Information Act in its lawsuit in
Wayne County Circuit Court. Given the challenges already faced by
special-education students, we think the public needs to know exactly how
well and effectively the school district and Futures are serving our
children. The EAA struck the deal with Futures in 2012, paying out as
much as $2 million a year for Futures services. The deal ended prior to
the start of the 2014-15 school year.
Other Costly Projects Developed and Mismanaged by Defendant Emergency
Managers with Calloused Indifference To and Disregard of the Rights of DPS
Children.
140. Mumford High School was demolished and replaced with a new building
at a cost of $56 million. Upon completion in 2012, Mumford High School
was immediately turned over to the Educational Achievement Authority.
The lease amount is for $1 million per year, which will amortize the
construction cost at Detroit taxpayer expense in a mere 56 years!
141. Kettering High School, renovated at a cost of $6.9 million was closed in
2012 and remains vacant. Kettering was specially outfitted to service
physically disabled students, with one entire wing converted for this
purpose.
142.
143. The building was then sold by the State for $3 million. The land on which
Southwestern stood is in the pathway of what is commonly known as
Snyders Bridge.
144.
The EAA has benefitted greatly from bond money intended to improve
DPS buildings. Southeastern High School and Central High School both
received renovations and repairs amounting to more than $50 million for
each building and were taken by the defendant Snyder through his
defendant emergency managers to give to the EAA, thus depriving DPS
children of the constitutional right to have their educational statuses fully
funded, in part, by Detroit taxpaying citizens.
145.
The bulk of the bond money paid by the residents of Detroit to improve
their school system was spent between 1999 and 2006 (from the 1994
bond) under the CEO, and from 2009 through 2012 (from the 2009 bond)
under emergency manager appointees of the Governor.
146.
For years and even today, the waste of funding has been blamed on the
Detroit Public School Board, although the Board played no role in the
wasted expenditures incurred by the defendants.
147.
149.
DPS students have fled to charter schools whose standards are worse than the
DPS with few exceptions.
150. The biggest change in district enrollment numbers has an entirely different
source the rapid increase in Charter Schools following the enactment of
the charter school law in 1994 (Public Act 362 of 1993). There was no
consideration given to neighborhoods and property values when publicly
funded schools were left vacant and open by the State while at the same
time funding nearby charter schools, many of which were profit-making
enterprises. A Detroit Free Press report sheds light on the question of
school governance. Charter schools are run by management companies,
but there are also boards of directors, roughly analogous to school
boards. However, in the case of many charter schools, these ostensibly
governing bodies are mere window dressing, a rubber stamp for the
appropriation of public money by the businesses in whose interest these
schools serve. When even handpicked board members have had enough
and demand more transparency and an accounting of where the money is
going, they are usually removed or simply ignored. Case in point is the
minutes from a board meeting at the Detroit Enterprise Academy in
October, 2010. DEA is a charter school run by National Heritage
Academies, an outfit set up in the mid-1990s by J.C. Huizenga, cousin of
H. Wayne Huizenga, founder of the huge trash conglomerate, Waste
Management Corporation. When asked why he became interested in
starting a school, Huizenga quipped, I got to thinking about the
possibility of opening a charter school that would overlay a business
model on top of the education model. Regarding the for-profit aspect of
the enterprise, Nick Paradiso, NHAs vice president pointed to Huizengas
interest in various bond markets. He added while the company does not
disclose its financial operations, it started making a profit in 2000. At the
2010 board meeting an exchange took place between a board member and
NHA representative Greg Lambert regarding the NHA management fee.
The issue in question was a resolution put forward by board members for
dual signatures for disbursement from the Detroit Enterprise Academy
bank account. In other words, there was a question as to who was
withdrawing the money and where was it going. A verbatim segment of
the minutes reads, There was a discussion regarding the amount of the
NHA management fee. Greg Lambert clarified that the entire amount
received by NHA was the management fee according to the contract and
that there was no separate item line for a management fee. He stated he
would not disclose a specific dollar amount for management fees. The
appropriateness of this position was questioned since public money was
involved. Mr. Lambert stated that the public dollars became private when
they were received by NHA. He further indicated that because NHA is a
private company, the information need not be disclosed. The Detroit Free
Press also analyzed the files of the Michigan Department of Education and
records from charter schools obtained under the Freedom of Information
Act.
The documents show NHA:
Routinely charges schools rents that experts consider above fair-market
value.
Charges 14 schools, four in Detroit, more than $1 million each per year.
Has collected more than $380 million in rent including almost $42
million in 2013-14 since the company opened its first school in 1995.
NHAs schools pay separately for utilities, maintenance, insurance and taxes,
pushing the costs of their buildings well above what many real estate and
education experts consider acceptable.
Collected approximately $220 million in taxpayer dollars in 2013-14 from
its 47 Michigan schools.
151. Defendant Snyder has paid lip service to increased accountability and
transparency for charter schools. As a recent news article states,Even in the
face of documentation of lack of academic performance, transparency and
Over the past ten years, DPS has shut down nearly two-thirds of their
156. In 2011, there were three centralized locations for disabled student parent
activities: the largest center was Oakman Orthopedic, for children with
differing abilities; Charles R. Drew Transition Center, for disabled young
adults 18-26; and the Detroit Day Center for the Deaf. The DPS received
federal funding for operation of these schools.
157. Oakman was in the 90th percentile of capacity. The school had all of the
required ADA accommodations for students and special accommodations
unique to the school. Oakman allowed siblings of disabled students to
attend together creating a vibrant community. It had received multiple
awards. It was closed without an academic, or low enrollment reason for
the closure. Defendant Roberts said that the building needed fixing.
158. Oakman Parents quickly contacted an influential community leader, who
tried in vain to persuade defendant Roberts to rethink his decision. He had
made up his mind and he let her know that the defendant Snyder stood by
him. The leader explained the meeting with Roberts during a break at an
EAA Board meeting: I asked Mr. Roberts about a meeting he had
promised me (at the previous EAA meeting in Detroit) to discuss Oakman
and why he believed it should close. Even though I approached him in a
very polite and professional manner when I told him I was still interested
in taking up his offer to meet, he instantly became very hostile. He said his
decision was final and he had spoken to the governor about it. Hoping to
dispel concerns he had about Oakman, she continued, telling him how
unique and special Oakman was. She told him of the research she did,
suggesting perhaps his enrollment numbers were too low and that the
repair costs were inflated. Roberts had said at first that the costs of repairs
was a fairly small amount. Over a short period of time he made several
other statements each time increasing the claimed costs of repairs and it
turned out that no estimate for repairs had ever been obtained.
159. The community leader
students were slated to go to were not even prepared for students with
disabilities, and asked him to reconsider the closing Oakman. He was
unpersuaded. His hostility only seemed to increase. He went on about how
maybe I should work for DPS. I told him I already had a job. Finally I
asked him, So when you said you wanted to meet with me, you lied? He
literally yelled, Are you calling me a liar? You're a liar. He then stormed
off the stage.
160. A grandmother of a DPS child most adroitly describes the impact of
family life when a school is closed; It tears the fabric of the community
apart when kids who live near one another cant go to school together or
study together (because of transportation). It creates different allegiances,
but we want the best we can obtain for our grandchild so we make the
hike across town to the closest public school. Some people had money to
move out of the district because of the school closures and the community
is torn apart by this too. They were basically pushed out to do right by
their children. So you lose neighbors and friends.. . . . If you put too many
people in a cage, they will be irritated and unhappy. You know what
happens when you put too many kids in a classroom? The teacher cant
teach. We cant learn like that. It is inhuman how Ive heard Henderson
disabled children are treated now. It makes me feel like we are slaves.
161. Henderson Academy was under the direction and control of defendant
Flowers at this point in time, and Flowers was taking kickbacks from
defendant SHY for alleged sales of products that were never provided for
the benefit of Hendersons school children, many of whom were special
needs students transferred from the closing of Oakman.
162. Jason Pauling, one of the named plaintiffs, was doing well academically,
including in subjects like algebra, at the Detroit Day School for the Deaf
at the time that school was closed. He was ultimately moved over to the
Jerry L. White facility where an untrained teacher there gave the teenager
a coloring book and crayons. Jasons mother persisted in her efforts to
improve her sons educational opportunities and, in tragic irony, the boy
was enrolled in the Michigan School for the Deaf in Flint, Michigan
where he stayed five days a week until June 4, 2015. Jason, deaf since
birth, is currently undergoing testing to determine his level of exposure to
the deadly effects of lead caused to be present in the drinking water in the
City of Flint by the defendant Early in his former position. Jason is
currently undergoing testing for potentially dangerous lead levels in his
body.
163. Priscilla Sanstead, co-founder of the national teachers organization
BATS says: Corporate education reformers of today are producing the
mall walkers. Exposed wires hang from missing ceiling tiles. Watermarks
from leaks abound. Kids either sit in freezing classrooms with their coats
on or strip off layers because of stifling heat. How can you teach or learn
in conditions like these?
169. Another teacher at Spain Elementary, Patricia Hall, filed a complaint with
the Michigan Occupational Safety and Health Administration (MIOSHA)
in October 2015 regarding the dangerous conditions in the school,
including the inhalation of dangerous mold. For years, DPS allowed the
water damage in the gym to go unrepaired and did nothing to remediate
the mold that grew as a result.
a. Ms. Hall complained that the children and employees at Spain
Elementary had been experiencing health concerns similar to
symptoms from exposure to black mold spores, including but not
limited to respiratory ailments, chronic fatigue, stomach pain,
difficulty concentrating, and sore throats.
b. DPS falsely responded to that complaint that it would fix the
problem within fifteen days causing MIOSHA to close the
investigation.
170.
that have been taped or boarded up, and even bullet holes that have not
been repaired. DFT conducted an on-site examination of that facility on
January 13, 2016 and issued a report summarizing the investigation teams
findings on January 14, 2016. In that report, the team noted that the
building lacked routine maintenance or major modernization. The team
found pest droppings and water damage, including damaged ceiling tiles
and missing windows. The team went on to report that the faculty was
universally frustrated by the temperature extremes (too hot and too cold)
throughout the school, broken windows, inoperable water fountains and
continued leaks throughout the building. Several [teachers] commented
how demoralizing it was for students to be in an environment that needed
so many repairs, pointing out the bullet-ridden windows that have not
been replaced in years. Meanwhile, defendant BOWMAN, the principle
of Osborn, received on eight occasions kickback payments from defendant
SHY in the approximate total amount of $12,500.
171. Particularly alarming, the report described the link between the conditions
found in Osborn and the health and safety of the student body: Students
in this school are predominantly African American and research has found
that the asthma prevalence is especially high (upwards of 40%) in this
population. It is imperative that any asthma triggers such as mold or dirt
be addressed immediately to make the environment safe for those
students.
172. At Carleton Elementary, teachers posted pictures showing water damage
and pieces of tile coming loose and falling off the ceiling. One teacher
reported the debris striking a student in the head during testing.
173. Similar conditions were noted at Carstens Academy of Aquatic Science,
Detroit
Elementary, and
Noble
Elementary-Middle School.
174.At Dossin Elementary-Middle School, teachers took pictures of rodent
droppings, gaps being allowed to exist between windows, and, once again,
water damage and mold. Also, desks in some classrooms are not only used
for students, but also to hold buckets to catch the rain water dripping from
the ceiling.
175.At A.L. Holmes Elementary, the sidewalks are in disrepair and are a
potential hazard for those attempting to enter the school.
176.Keidan Special Education Center is infested with mice and bugs with
students learning around rodent droppings.
177. Similarly, at Thirkell Elementary-Middle School, the toilets routinely
overflow and leak into the preschool room and students and faculty are
forced to deal with a severe cockroach infestation.
178. One teacher posted a video of a live mouse running around the halls of
Davis Aerospace Technical High School.
179. These problems are not isolated to the schools described above. One
teacher, Pam Namyslowski, 4th Grade Teacher at Mann Elementary
School wrote a letter to defendant Darnell Earley that was published by
the Huffington Post describing the neglect in [m]any schools. In that
183. Despite these widely publicized, well documented, and alarming hazards,
DPS under defendant Darnell Earley has failed to take action to repair and
maintain the public schools.
184.In fact, defendant Earley recently admitted that he knew about the
conditions at Spain Elementary a long time ago stating This did not just
happen overnight. Mr. Earley cavalierly acknowledged that Code
violations are not new to Detroit Public Schools. Instead of taking action
to correct the health and safety concerns regarding the water damage in
the gym and the mold that grew as a result of it, Earley told school
workers to just avoid using the gym because DPS was planning on selling
the property to Detroit Medical Center anyway.
185. Sadly, defendant Earley has a pattern and practice of managing public
systems in this regard. Prior to his appointment to DPS, defendant Earley
was the emergency manager for the City of Flint. During his tenure at the
City of Flint, defendant Earley implemented the shift in drinking water
from the Detroit Water System District to the Flint River to allegedly
decrease costs. That change has also made national news with thousands
of Flint residents being exposed to lead poisoning. Even though
complaints had been made by local residents during defendant Earleys
administration, nothing was done and residents were encouraged to drink
the water.
186. Even the DPS spokeswoman, Michelle Zdrodowski, has admitted that
school buildings are in complete disrepair.
intellectually,
emotionally
and
physically.
COUNT II:
Violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C.. 2000 (Title VI)
and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 ("section
504").
193.Plaintiffs re-allege and re-plead all the allegations of the preceding
paragraphs of this Complaint and incorporate them herein by reference.
194. Federal Funds have been received and used by defendant emergency
managers in ways violative of Title VI and Section 504 provisions of
federal law.
195. Title VI regulations define the term federal financial assistance broadly
to include: (1) grants and loans of federal funds, (2) the grant or donation
of federal property and interests in property, (3) the detail of federal
personnel, (4) the sale and lease of, and permission to use federal property
or interest in such property without consideration or at a nominal
consideration, and (5) any federal agreement, arrangement, or other
contract which has as one of its purposes the provision of assistance. 45
C.F.R. 80.13(f). Thus, federal financial assistance means assistance in
the form of any grant, loan, or contract (other than a contract of insurance
or guaranty). See 42 U.S.C. 2000d-4. It does not mean assistance by
providing coloring books and crayons to children capable of performing
math at the level of algebra.
196. Title VI prohibits discrimination on the basis of race, color, or national
origin in any program or activity that receives Federal funds or other
Federal financial assistance. Programs that receive Federal funds cannot
distinguish among individuals on the basis of race, color or national
origin, either directly or indirectly, in the types, quantity, quality or
timeliness of program services, aids or benefits that they provide or the
manner in which they provide them. This prohibition applies to intentional
discrimination as well as to procedures, criteria or methods of
EMRR, 14-18).
203. The pattern of discrimination is also exemplified by what has happened in
other school districts. In the School District of the City of Muskegon
Heights, the Emergency Manager issued an order assum[ing] immediate
control over all matters of the School District [and that] the present
Muskegon Heights Board of Education will serve in an advisory capacity
during the duration of the Emergency Managers appointment.
(Emergency Manager, School District of the City of Muskegon Heights,
Order No. 2012-1). Less than two months later, the Emergency Manager
issued a 7-year contract to a private contractor, to operate all of the School
Districts public schools as charter schools. (Emergency Manager, School
District of the City of Muskegon Heights, Order No. 2012-9).
204. In the School District of the City of Highland Park, the Emergency
Manager unilaterally entered into a contract with the Muskegon Heights
School District, and transferred funds from the Public School District to
the Public School Academy System. (Emergency Manager, School
District of the City of Highland Park, Order Nos 2012-02, 2012-01).
205. Conversely, in non-Emergency Manager controlled jurisdictions across
the state, voters are allowed to elect local representatives who have full
powers and duties. The Royal Oak Charter contains language, typical of
Michigan city charters, regarding local self- governance:
Section 1
COUNT IV:
Violation of 42 U.S.C. Sec. 1983; Equal Protection, Equal Dignity Owed to Each
Voter Callously Disregarded, U.S. Constitution Amend. XIV
208.Plaintiffs re-allege and re-plead all the allegations of the preceding
paragraphs of this Complaint and incorporate them herein by reference.
209. The locally-elected legislative and executive officials in non-Emergency
Manager jurisdictions have full powers and duties as proscribed by their
respective charters. Whereas, the locally-elected legislative and executive
officials under the control of Emergency Managers do not. The more
authority exercised by an Emergency Manager, the less the value of the
votes that chose the publicly-elected officials replaced by them.
210. This valuing of one persons vote over that of another runs afoul of the
Equal Protection Clause because: Having once granted the right to vote
on equal terms, the state may not by later arbitrary and disparate
treatment, value one persons vote over that of another. It must remember
that the right of suffrage can be denied by a debasement or dilution of the
217. In United States v. Carolene Products Co., 304 U.S. 144 (1938), the Court
held that the liberty interest under the Fourteenth Amendment incorporates
rights under the requirement that no state shall [d]eprive any person of
life, liberty or property without due process of law: the rights enumerated
in and derived from the first eight amendments in the Bill of Rights; and,
the right to participate in the political process (e.g., the rights of voting,
association, and free speech).
218. The right of voting was upheld by the Sixth Circuit in League of Women
Voters of Ohio v.Brunner, 548 F.3d 463 (2008)(also citing to the dignity of
each vote requirement in Bush v Gore, supra) where the right to vote was
burdened through the state of Ohios arbitrary voting standards which
differed from "county to county, city to city, and precinct to precinct."
219. Public Act 436 violates the Equal Protection Clause because the states
process of selecting jurisdictions for the imposition of Emergency
Managers was done with calloused indifference in a arbitrary and
discriminatory manner, resulting in the denial of the right of Detroit voters
to participate equally in the voting process and, by extension, to the
children of the Detroit Public Schools who have experienced firsthand the
ramifications of the dictator-like running of the district.
COUNT V
Intentional and/or Grossly Negligent Caretaking of Local, State and Federal
Funds Intended for Educational Use of DPS/EAA School Children.
220.Plaintiffs re-allege and re-plead all the allegations of the preceding
paragraphs of this Complaint and incorporate them herein by reference.
PLLC