Education Reform and Detroit’s Right to Literacy Litigation
Education Reform and Detroit's Right to Literacy Litigation
Kristine L. Bowman 0 1
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1 Kristine L. Bowman, Education Reform and Detroit's Right to Literacy Litigation, 75 Wash. & Lee L. Rev. Online 61 (2018), https://scholarlycommons.law.wlu.edu/wlul-ronline/vol75/iss1/4
Part of theConstitutional Law Commons; Education Law Commons; and theLitigation
Education Reform and Detroit’s Right
to Literacy Litigation
Kristine L. Bowman*
Ongoing education reform litigation arising out of Detroit,
Michigan presents an innovative claim: Children have an
unenumerated federal constitutional right of access to literacy. On
June 29, 2018, the district court granted defendants’ motion to
dismiss. The case is now on appeal to the Sixth Circuit and is
expected to be argued in the first half of 2019. This litigation has
already broken new ground and, regardless of the ultimate
outcome, it is valuable because it invites us to revisit fundamental
questions about rights, remedies, and the role of courts in education
In 2016, attorneys representing children in some of Detroit,
Michigan’s lowest-performing school districts filed a claim in
federal court alleging the state denied their federal constitutional
right of access to literacy.1 The conditions in which these children
* Professor of Law and Senior Advisor, Office of the Provost, Michigan
State University. J.D., M.A., Duke University; B.A., Drake University. Aspects of
this essay have been delivered at the University of Kansas and University of
were expected to learn were heartbreaking: The complaint
described buildings so cold in the winter that students sometimes
could see their own breath and wore coats to class, and so warm
during other seasons that students and teachers vomited or
fainted. The first thing some teachers did when arriving in their
classrooms in the morning was to sweep up rodent feces because
buildings were infested with vermin. Students suffered from an
incredible shortage of books and many of the books that did exist
were decades old. In addition to this qualitative description of the
learning conditions, the complaint also presented quantitative
disparities: In the five schools the plaintiff children attended,
students’ literacy proficiency rates were in single digits.2 Clearly,
something was wrong, but what to do about this was a difficult
The innovative claim the plaintiffs’ attorneys advanced in
response to this situation—that the students’ unenumerated
federal constitutional right of access to literacy is violated—was
dismissed by the district court, even though the district court did
hold that the state was a proper defendant in the suit. The case,
Gary B. v. Snyder,3 is currently on appeal to the Sixth Circuit.
Already groundbreaking, it is reminiscent of education rights
battles that have been fought for decades. Regardless of the
ultimate outcome of the litigation, we can learn a great deal from
Gary B. because its arguments invite us to revisit fundamental
questions about rights, remedies, and the role of courts in
II. Holding the State Responsible: Rights and Remedies
As I detailed in The Failure of Education Federalism,
education advocates in Michigan have been unsuccessful when
Arkansas and I am grateful to colleagues and to students for their input in those
fora, and to Alexa Shockley and others at Washington and Lee Law Review for
their thoughtful editing. Additionally, it is appropriate to note that in partnership
with other scholars, I filed an amicus brief in the Gary B. case in the Eastern
District of Michigan and also in the Sixth Circuit.
1. Class Action Complaint at 1–3, Gary B. v. Snyder, No. 2:16-CV-13292
(E.D. Mich. Sept. 13, 2016)
, 2016 WL 4775474.
2. Id. at 4–5.
3. Gary B. v. Snyder, 329 F. Supp. 3d 344 (E.D. Mich. 2018).
pursuing education reform litigation in Michigan state courts,
despite moderately strong language in Michigan’s constitution
regarding education.4 Thus, the only remaining judicial avenue for
addressing for the situation in some of Detroit’s worst public
schools runs through federal court. This is why Gary B. focuses on
a small and incredibly important gap in Supreme Court doctrine:
The question of whether there is a federal constitutional floor
regarding educational quality.5 Rights and remedies go hand in
hand,6 and so plaintiffs also contend that the state is an
appropriate defendant in this case. This section discusses both
issues, in turn.
Let us begin with the doctrinal lacuna. When the Supreme
Court decided San Antonio Independent School District v.
Rodriguez7 in 1973, it did not engage the question of whether there
was a federal right to an education of a certain minimum level of
quality8—and that is the essence of plaintiffs’ claim in Gary B.,
that there is a substantive floor.9 Specifically, plaintiffs assert that
the opportunity to become functionally literate is a fundamental,
unenumerated, federal constitutional right.10 The education
provided in the schools plaintiffs attend, the Gary B. plaintiffs
7. 411 U.S. 1 (1973).
8. Id. at 35.
9. See Class Action Complaint, supra note 1, at 77–108.
10. Class Action Complaint, supra note 1, at 24–42; see generally Derek W.
Black, The Fundamental Right to Education, 94 NOTRE DAME L. REV.
(forthcoming 2019) (arguing that the Framers would have expected the U.S.
Supreme Court to recognize a fundamental right to education). A similar lawsuit
was filed in Rhode Island at the very end of November 2018, though its focus is
squarely on civics education and citizenship. Alia Wong, The Students Suing for
a Constitutional Right to Education, THE ATLANTIC (Nov.
https://www.theatlantic.com/education/archive/2018/11/lawsuit-constitutionalright-education/576901/ (last visited Dec. 4, 2018) (on file with the Washington
and Lee Law Review); Dana Goldstein, Are Civics Lessons a Constitutional Right?
This Student Is Suing for Them, N.Y. TIMES (Nov.
visited Dec. 5, 2018) (on file with the Washington and Lee Law Review).
allege, is of such poor quality that many of the children who attend
these schools are functionally illiterate, and so as adults they will
be effectively denied their right to free speech, their right to vote,
and other enumerated constitutional rights.11 Thus, plaintiffs
contend, the state has violated students’ rights under the Due
Process Clause and the Equal Protection Clause. This theory
builds on the Court’s 1984 decision in Plyler v. Doe,12 in which the
Court held that the school district could not exclude undocumented
immigrant students because to do so would deny those children
“the means and skills” necessary to become productive members of
society and thus create a “permanent underclass.”13 Constitutional
harm is often abstract, yet as presented in Gary B., it has a
heartbreakingly concrete manifestation.
Two years have passed since plaintiffs filed their complaint in
fall 2016. During that time, the state’s motion to dismiss was filed,
briefed, and argued; the district court dismissed the case; and
plaintiffs appealed. In its decision on the motion to dismiss, the
district court acknowledged that the fundamental right plaintiffs
invoked is an open question, and thus the district court engaged in
an extensive analysis. Specifically, it noted, “a case like this one
could be argued on either positive- or negative- right theories”14
and “the allegations state the violation of a negative right.”
However, the district court found more important that “a violation
of negative rights is not what the Complaint truly seems to
argue.”15 Thus, the district court joined other “federal courts [in
their] . . . reticence to find positive rights to unquestionably
important necessities of life” and drew from the historical record
to demonstrate that state-sponsored education was not necessary
for liberty or justice.16 The district court also found significant that
the courts which most frequently determine the contours of a right
11. See Class Action Complaint, supra note 1, at 24–42. See also Goodwin
Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330 (2006)
(arguing that the Fourteenth Amendment obligates Congress to ensure a
meaningful floor of educational opportunities through the guarantee of national
citizenship and the Equal Protection Clause).
12. 457 U.S. 202 (1982).
13. Id. at 221–223.
14. Gary B. v. Snyder, 329 F. Supp. 3d 344, 364 (E.D. Mich. 2018).
16. Id. at 365.
to education—state courts—do so by looking to state constitutional
language, not to the fundamental importance of education.17 As a
result, plaintiffs’ claim for a violation of the Due Process Clause
failed, and plaintiffs’ claim of an Equal Protection Clause violation
was not far behind.
Before reaching the “fundamental right” question, however,
the district court concluded that the state officials were proper
defendants.18 In particular, the district court focused on the
unusual degree of control the state exercised over Detroit’s public
schools through a series of emergency managers appointed by the
Governor with input from the state board of education and other
defendants.19 Furthermore, the district court observed that state
statutes creating the emergency manager framework initially gave
each emergency manager broad financial authority over a local
school district or municipality, and then, as state law changed over
time, granted emergency managers authority over school districts’
academic matters as well.20 The district court also noted that
various state and federal courts had upheld the emergency
manager legislation and the acts of individual emergency
managers. Thus, the district court concluded, the state had
exercised significant control over Detroit’s public schools through
emergency management and other similar actions. The district
court then sought to align the state’s responsibility accordingly,
concluding that state officials were proper defendants in the case.
This holding was groundbreaking, even though the district court
did not go as far as plaintiffs had asked; plaintiffs had tried to hold
the state responsible for the natural results of the larger system it
created across the state, rather than hanging their hat on the
emergency manager legislation—and Detroit—alone.21
As colleagues and I discussed in an amicus brief submitted to
the district court in Gary B., the education policies the state of
Michigan has created over time work together in such a way that
many of our poorest school districts, like Detroit, are burdened
17. Id. at 356.
18. Id. at 54.
19. Id. at 353–54.
20. Id. at 350–51.
21. Id. at 352.
very heavily.22 Thus, it should not be a surprise that these
districts provide educational environments and resources so
inadequate that only a very small percentage of students manage
to become proficient in reading, much less demonstrate mastery.23
To explain further: Each state has a web of policies that create
and shape the system of public education, though of course the
contours of the web vary from one state to another, sometimes
significantly.24 The cornerstone of each system is the state finance
regime. In Michigan, according to one recent costing-out study,
schools receive about 75% of the per-pupil allocation necessary to
provide a basic education.25 According to a subsequent study by
the same consultants, large school districts like Detroit receive
about 77% of the necessary base per-pupil allocation.26 So,
education in that state is under-funded to begin with. Relatedly,
Michigan’s school finance system is unusually centralized and its
school choice policies are particularly permissive; as a result, some
districts’ enrollment fluctuates significantly from one year to the
next, with wild swings in revenue paired with an inability to cut
costs to keep up with the decline in revenue.27 Detroit is,
unfortunately, a poster child in this regard: District enrollment
shrank by 71% between 2002 and 2016.28
Other aspects of Michigan’s system strain districts’ resources
even further. Like many other states, Michigan’s teacher pension
system is severely underfunded, and the state has sought to
remedy this by increasing school districts’ required pension
contributions from roughly 13% of employee salaries in 2004 to
25% as recently as 2012.29 In FY 2019, local districts’ required
contributions reduced the number of dollars that reached the
classroom by more than $1300 per student.30 And, Michigan is one
of fourteen states in which the state does not provide school
districts any funding for capital improvements,31 so if local
taxpayers cannot or will not approve a referendum, or if the local
tax base is so depressed that even a high rate of taxation produces
relatively little in the way of revenue, a district must
euphemistically “defer maintenance,” leading to situations such as
the conditions in Detroit described earlier. The district court
appeared uninterested in engaging this context, though.
To be fair, the district court’s approach was not unique. As
state-level policies like the ones just discussed have been adopted
and interpreted, they have been viewed in isolation by multiple
branches of government. Debates about charter schools are seen as
separate from debates about underfunded pensions, and both are
seen as unrelated to costs of capital improvements or emergency
managers. That is a mistake on the part of the legislators and
governors who have enacted these policies and courts who are
asked to review them.
In an amicus brief recently filed in the Sixth Circuit in Gary
B., colleagues and I reiterated the importance of a
systemsthinking approach.32 We contended that the state of Michigan is a
proper defendant given the interactions among the
generallyapplicable laws and resulting impact on Detroit’s public schools,
and the extensive control the state has exercised for the past
twenty years in Detroit.33 Over a dozen other amicus briefs were
filed in support of plaintiffs-appellants, including those by the
Detroit Public Schools Community District and the City of Detroit,
teachers’ unions and other educational advocacy organizations,
and prominent scholars from education, law, economics, and other
If the Sixth Circuit only upholds the district court’s conclusion
regarding liability in Detroit based on the emergency managers’
authority and similar actions by the state and couples this with a
recognition of any degree of unconstitutional action, such a holding
could be helpful to Detroit’s children, but less so to other potential
plaintiffs because o the high and narrow standard for state
liability. In mid-2018, Michigan announced that the last school
district under emergency management had been released from
that level of oversight.35 It is unlikely that Michigan will see
emergency managers of school districts in the near future; even
proponents of the emergency manager idea agree that it has not
been effective in the educational context. Furthermore, state
takeover of local school districts similar to what has occurred in
Michigan is highly unusual in the national context. For these
reasons, a broader holding could have a much greater impact on
the widespread illiteracy in Detroit’s public schools and in other
litigation that seeks to rely on Gary B.
III. The Role of Courts in Education Reform
Each time courts define the contours of rights and the scope of
remedies, they answer specific questions and also participate in a
larger debate about the proper role of courts in education reform.
In structural reform litigation where the alleged constitutional
harm would be a newly-articulated one, as in Gary B., it is
reasonable to assume that the contours of both the violation and
the remedy would become more nuanced over time. However, Gary
B. may not be as much of a unicorn as it first appears. Existing,
nuanced concepts of federalism as well as prior education reform
litigation already provide a basis for thinking through the larger
questions the case presents about the role of courts in education
At the most general level, Gary B. is an intra-state dispute
that is playing out via basic federalism concepts: Should there be
a federal floor of educational quality? Don’t—shouldn’t—states
take care of this? When framed this way, Gary B. joins many other
cases that have engaged similar disputes, including two of the
Court’s most significant school decisions—San Antonio
Independent School District v. Rodriguez36 and Milliken v.
Bradley.37 Interestingly, as Professor Kimberly Jenkin Robinson
identified, the type of federalism employed in the education
context—dual federalism—is defined by a strongly state and local
role and a weak federal one.38 It also is outdated. In other
highlyregulated areas of social policy, including environment and health,
the concept of cooperative federalism is dominant.39 Cooperative
federalism is based on creating a partnership between state and
federal governments to solve problems where the governments’
interests are aligned. It also is premised on limited federal
involvement, though more than is customary under dual
federalism.40 Thus, cooperative federalism could conceptually
ground, and, importantly, still limit a federal right of access to
literacy. If framed in this way, the right would take the form of a
floor (and a low one at that) which in many states might not add
any substantive rights beyond those recognized in an individual
state’s school finance litigation. It also would position federal
courts as an option of last resort. In states like Michigan and
districts like Detroit, however, a right configured in this manner
could do a lot to improve the educational opportunities available to
A right of access to literacy framed as part of cooperative
federalism also would be consistent with federal courts’ limited
appetite for overseeing education reform litigation. Consider the
arc of school desegregation, the most significant systemic
education reform litigation effort federal courts have seen. Prior
to Brown v. Board of Education41 in 1954, state and local laws
prohibited children of different races from attending school
together because of the color of their skin.42 Although the Brown
court struck down segregational laws as unconstitutional, little
changed in most schools for at least a decade; even though schools
were no longer segregated by law, social resistance had entrenched
those practices.43 When it became apparent that educational
access had not changed much at all in reality, the Court eventually
expanded the constitutional harm by defining unconstitutional
segregation as de jure segregation—intentional practices that
entrenched a system of segregation and unequal opportunities,
whether or not they took the form of statutes.44 In the context of
school desegregation remedies, “the elimination of segregation
‘root and branch’”45 was a strong mandate, yet after decades of
extensive and expensive court-ordered remedies failed to close
achievement gaps, the Court seemed to lose its appetite for
pursuing racial and ethnic equality in education. Ultimately, the
Court defined unitary status in such a way that made it easier and
easier for school districts to wind up school desegregation’s
remedial phase even as disparities persisted.46 This is not
unrelated to the fact that a majority of the Court never wanted to
touch the connection between housing segregation and school
41. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
42. Id. at 487–88.
43. Gary Orfield, Education and Civil Rights: Lessons of Six Decades and
Challenges of a Changed Society, in THE PURSUIT OF RACIAL AND ETHNIC EQUALITY
IN AMERICAN PUBLIC SCHOOLS: MENDEZ, BROWN, AND BEYOND 405–30 (Kristi L.
Bowman ed., 2014).
44. Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 213–14 (1973).
45. Id. at 222 (Powell, J., concurring in part and dissenting in part).
46. Bd. of Educ. v. Dowell, 498 U.S. 237 (1991).
segregation47 or to define harm as based on students’ lived
experience in the absence of school districts’ intent.48
Taken together, the Court’s school desegregation decisions
first expanded and then contracted the role of federal courts in
education reform, but they have never eliminated it entirely. “But
those were Fourteenth Amendment anti-discrimination cases, and
that’s not what we have here,” a clever reader is thinking. That
may or may not be the case; plaintiffs present an Equal Protection
Clause argument that Detroit students are denied access to
literacy as compared to other students across Michigan, and the
amicus brief by Harvard law professor Martha Minor explains why
Brown v. Board of Education49 is the conceptual grandparent of
Gary B.50 Regardless, if we agree with plaintiffs’ claim that a right
of access to literacy is a necessary prerequisite for individuals to
realize explicit fundamental rights, then access to literacy is also
fundamental, and thus a proper subject of federal courts’
attention—though not necessarily a subject of unlimited attention.
One last concept related to the role of courts in education
reform is thornier, though it is not one related to federalism. In a
nutshell, systemic reforms have the advantage of achieving broad
change, yet they also, by their definition, subordinate the interests
of any one individual to those of the group and thus can lead to
individual inequities even within an equitable system. In school
desegregation litigation, for example, courts overseeing remedies
regularly allow 15% leeway on either side of an enrollment
demographic target when asking whether individual schools in a
district reflect the population of the school district as a whole.51
Although this flexibility may seem limited, it can lead to
significant variation among schools.52 Student discipline and other
policies also can produce racially/ethnically disproportionate
results that turn out to be constitutionally permissible even while
a district is under court supervision. Similarly, the focus in school
finance litigation is not on whether individual students actually
are provided a constitutionally adequate education; rather, it is on
creating and funding a state system that should be able to produce
certain opportunities for all students. This is something advocates
must accept if they pursue a systemic remedy, particularly one tied
to a right focused on access, not outcomes. Judicial involvement in
systemic reform is not, and never will be, a panacea.
Issues of educational (in)equality and (in)equity are difficult
and complex. In our country, state legislatures have primary
responsibility for maintaining a system of laws that both support
and constrain our school districts, and even with slightly greater
federal involvement, this can continue to be the case. Courts
operate as a check on school districts and state legislatures, and in
my view going to court, especially to federal court, in an effort to
achieve education reform should be a last resort. In Michigan,
however, state courts are not determining the contours of a
violation or remedy—they have insisted that it is not their role to
do so, and they do not conceptualize the problem as a one of a
broken system, much less a broken system the state has
responsibility to fix.53 Although the federal district court in Gary
B. took a different view when concluding that the state was a
proper defendant, its rationale was exceedingly narrow and it
rejected the right on which plaintiffs based their claim. Thus, the
district court repeated some mistakes of the past. Within a
framework of cooperative federalism, the Sixth Circuit has an
opportunity to do otherwise.
52. If a court divides students into two groups for demographic purposes
(i.e. white and non-white), and the district is multi-racial/ethnic, it can lead to
schools that do not remotely reflect the demographics of a district.
53. Bowman, supra note 4, 16–25.
The conceptual and practical challenges to a right of access to
literacy may seem overwhelming, and understandably this is part
of why some people, including some judges, think courts do not
belong in the business of systemic education reform. In my view,
the legislative and executive branch are the best places to create
and refine education policy that serves all of our children in a way
that respects each one’s potential. However, when the result of
state legislative, executive, and judicial action is a system in which
the only option for many families is a school with single-digit
literacy proficiency and appalling physical conditions, a dispute
about jurisdiction seems academic in the worst possible way.
The Supreme Court has hinted that there might be a federal
constitutional floor, albeit a low one, that guarantees a minimum
quality of education. The district court in Gary B. was not
unsympathetic to the reasons why; in its words, “[t]he conditions
and outcomes of Plaintiffs’ schools, as alleged, are nothing short of
devastating. When a child who could be taught to read goes
untaught, the child suffers a lasting injury—and so does society.”54
The Sixth Circuit should take up the challenge to navigate the
uncharted territory presented by Gary B., consistent with the
principles of cooperative federalism. In a country that is a global
leader in the twenty-first century, it should not be too much to
expect that our public schools provide all of our children an
opportunity to become functionally literate, and thus exercise the
fundamental rights of citizenship and realize the promise of the
4. Kristi L. Bowman , The Failure of Education Federalism , 51 U. MICH. J. L . REFORM 1 , 26 - 30 ( 2017 ).
5. Gary B. , 329 F. Supp . 3d at 363 (“The Court is left to conclude that the Supreme Court has neither confirmed nor denied that access to literacy is a fundamental right .”).
6. Joshua E. Wieshart , Reconstituting the Right to Education, 67 ALA. L. REV. 917 , 936 ( 2016 ).
22. Brief for Michigan Education Law and Policy Professors as Amici Curiae in Opposition to Defendants' Motion to Dismiss, Gary B . v. Snyder, No. 16 -CV-13292 (E.D. Mich . Feb. 2 , 2017 ), 2017 WL 2492166. See David Arsen & Mary Mason, Which Districts Get into Trouble and Why: Michigan's Story, 42 J. EDUC . FIN. 100 ( 2016 ).
23. Brief for Michigan Education Law and Policy Professors as Amici Curiae in Opposition to Defendants' Motion to Dismiss , supra note 22.
24. Bowman , supra note 4.
25. Id . at 30.
26. AUGENBLICK, PALAICH AND ASSOCIATES & PICUS, ODDEN AND ASSOCIATES, COSTING OUT THE RESOURCES NEEDED TO MEET MICHIGAN'S STANDARDS AND REQUIREMENTS , viii ( 2018 ).
27. Bowman , supra note 4, at 26-29.
28. Lori Higgins , Rapper Big Sean Commits to Helping Detroit Schools' Enrollment Push, DETROIT FREE PRESS (June 5 , 2018 , 11 :09 AM), https://www.freep.com/story/news/education/2018/06/05/big-sean - detroit-schoolsenrollment/672350002/ (last visited Dec. 5 , 2018 ) ( on file with the Washington and Lee Law Review) . In fall 2017 , the district grew 2% compared to the year before . Sam Park & Amanda Rahn, It's Official: Detroit's Enrollment Grew For the First Time in Over A Decade, Even After Adding the State-Run District , CHALKBEAT (Apr. 2 , 2018 ), https://chalkbeat.org/posts/detroit/2018/04/02/itsofficial-detroits -enrollment-grew-for-the-first-time-in-over-a-decade-even-afteradding-the-state-run-district/ (last visited Nov . 30 , 2018 ) ( on file with the Washington and Lee Law Review) .
29. Bowman , supra note 4, at 29-30.
30. Governor Snyder's FY2019 Budget Proposal , CITIZENS RESEARCH COUNCIL OF MICHIGAN , 23 (Feb. 13, 2018 ), https://crcmich.org/presentations/2010s/2018/webinar_exec_ budget - 021518 .pdf.
31. Bowman , supra note 4, at 30.
32. Brief for Michigan Education Law and Policy and Civil Rights Professors as Amici Curiae in Opposition to Defendants' Motion to Dismiss, Gary B . v. Snyder, No. 18 -1855/ 18 -1871 (6th Cir. Nov . 26 , 2018 ).
33. Id .
34. To read these other briefs, see The Lawsuit , RIGHT TO LITERACY DETROIT, https://www.detroit-accesstoliteracy. org (last visited Dec. 5 , 2018 ) ( on file with the Washington and Lee Law Review) .
35. Jonathan Oosting , Michigan: No Emergency Managers for First Time Since '00 , DETROIT NEWS ( June 27 , 2018 , 3 :02 PM), https://www.detroitnews.com/story/news/local/michigan/2018/06/27/michigan-noemergency -managers-first-time-since- 2000 /737947002/ (last visited Nov. 30 , 2018 ) ( on file with the Washington and Lee Law Review) .
36. 411 U.S. 1 ( 1973 ).
37. 418 U.S. 717 ( 1974 ); Rick Su, Intrastate Federalism, 19 J. CONST . L. 191 , 241 - 43 ( 2016 ).
38. Bowman , supra note 4, at 5.
39. .Id. at 6-7. See also Su, supra note 37 , at 221-26; Kimberly Jenkins Robinson, Disrupting Education Federalism , 92 WASH. U. L. REV. 959 ( 2015 ) ; Kimberly Jenkins Robinson, The High Cost of Education Federalism, 48 WAKE FOREST L . REV. 287 , 292 ( 2013 ).
40. Bowman , supra note 4, at 6.
47. Milliken v. Bradley , 418 U.S. 717 , 752 - 53 ( 1974 ) ; see generally RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF HOW OUR GOVERNMENT SEGREGATED AMERICA ( 2017 ) (detailing how state action at the local, state, and federal level created and perpetuated segregated neighborhoods).
48. Keyes , 413 U.S. at 208-09; Keyes, 413 U.S. at 214- 17 (Douglas, J., concurring); Keyes, 413 U.S. at 218- 35 (Powell, J., concurring in part and dissenting in part).
49. Brown v. Bd. of Educ., 347 U.S. 483 ( 1954 ).
50. Brief for Martha Minow as Amicus Curiae in Support of PlaintiffsAppellants, Gary B . v. Snyder, No. 18 -1855/ 18 -1871 (6th Cir. Nov . 26 , 2018 ).
51. See , e.g., Belk v. Charlotte-Mecklenburg Bd . of Educ., 269 F.3d 305 , 377 - 78 ( 4th Cir . 2001 ) (discussing the “plus 15 percent” average); Stell v . Bd. of Pub . Educ., 860 F. Supp . 1563 , 1583 -84 (S.D. Ga . 1994 ) (discussing the 15 percent variance permitted by other courts).