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Nos. 18-1855, 18-1871
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GARY B., et al.,
Plaintiffs-Appellants,
v.
RICHARD D. SNYDER, in his official capacity as Governor of the
State of Michigan, et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
THE HONORABLE STEVEN J. MURPHY III, DISTRICT JUDGE
CASE NO. 16-CV-13292
BRIEF OF AMICUS CURIAE THE CITY OF DETROIT
IN SUPPORT OF APPELLANTS AND REVERSAL
LAWRENCE GARCIA
ELI SAVIT
2 Woodward Avenue
Detroit, MI 48226
(313) 237-1737

ANTON METLITSKY
O’MELVENY & MYERS LLP
Times Square Tower, 7 Times Sq.
New York, NY 10036
(212) 326-2000

JOHN B. SPRANGERS
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, CA 90071
(213) 430-6000

BRADLEY N. GARCIA
SAMANTHA M. GOLDSTEIN
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300

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TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE .........................................................................1
ARGUMENT ............................................................................................................3
I.

DETROIT’S CHALLENGES UNDERSCORE THE CRITICAL
IMPORTANCE OF ACCESS TO LITERACY .............................................4

II.

ACCESS TO LITERACY IS A FUNDAMENTAL RIGHT.........................9

III.

A.

The Supreme Court repeatedly has recognized the paramount
importance of a basic education, including access to literacy. ..........10

B.

The right of access to literacy is deeply rooted in our nation’s
history and tradition. ..........................................................................16

C.

Modern developments confirm that access to literacy is
fundamental. .......................................................................................19

THE EQUAL PROTECTION CLAUSE PROHIBITS
DEFENDANTS FROM DENYING PLAINTIFFS ACCESS TO
LITERACY...................................................................................................21
A.

A statewide education system that selectively denies children
access to literacy is subject to heightened equal protection
scrutiny. ..............................................................................................22

B.

The proper “comparator” for equal protection purposes is
students across the State of Michigan. ...............................................23

CONCLUSION .......................................................................................................28

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TABLE OF AUTHORITIES
Page(s)

Cases

Abington Sch. Dist. v. Schempp,
374 U.S. 203 (1963) ............................................................................................ 10
Bd. of Educ. v. Allen,
392 U.S. 236 (1968) ............................................................................................ 11
Brown v. Bd. of Educ.,
347 U.S. 483 (1954) .....................................................................................passim
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ............................................................................................ 26
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................................................................ 13
Grutter v. Bollinger,
539 U.S. 306 (2003) ............................................................................................ 11
Harper v. Va. Bd. of Elections,
383 U.S. 663 (1966) ............................................................................................ 13
M.L.B. v. S.L.J.,
519 U.S. 102 (1996) ......................................................................................22, 23
McDonald v. City of Chicago,
561 U.S. 742 (2010) ............................................................................................ 18
Meyer v. Nebraska,
262 U.S. 390 (1923) ......................................................................................11, 16
Nat’l Endowment for the Arts v. Finley,
524 U.S. 569 (1998) ............................................................................................ 14
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) .................................................................................passim
Papasan v. Allain,
478 U.S. 265 (1986) ............................................................................................ 15
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TABLE OF AUTHORITIES
(continued)
Page(s)
Plyler v. Doe,
457 U.S. 202 (1982) .....................................................................................passim
Rinaldi v. Yeager,
384 U.S. 305 (1966) ............................................................................................ 26
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ....................................................................................13, 14, 15
Skinner v. State of Okla. ex rel. Williamson,
316 U.S. 535 (1942) ......................................................................................11, 22
Washington v. Glucksberg,
521 U.S. 702 (1997) ........................................................................................9, 16
Williams v. Vermont,
472 U.S. 14 (1985) .............................................................................................. 25
Wisconsin v. Yoder,
406 U.S. 205 (1972) ......................................................................................10, 11
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................................ 22
Other Authorities
Ann Zaniewski, Free Tuition for Detroiters to Add 4-year
Universities, Detroit Free Press (Nov. 28, 2016),
https://goo.gl/FnN2Lb........................................................................................... 2
Barry C. Burden, The Dynamic Effects of Education on Voter
Turnout, 28 Electoral Studies 540 (2009)........................................................... 13
Barry Friedman & Sara Solow, The Federal Right to An Adequate
Education, 81 Geo. Wash. L. Rev. 92 (2013) .................................................... 20
Big Cities Battle Dismal Graduation Rates, CBS News (Apr. 1, 2008),
https://goo.gl/vmXjPz ........................................................................................... 6
Bryony Hoskins, et al., Does Formal Education Have an Impact on
Active Citizenship Behaviour?, 7 Euro. Ed. Res. J. 386 (2008) ......................... 14
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TABLE OF AUTHORITIES
(continued)
Page(s)
Candice Williams & James Dickson, Crime Stats: Detroit marks 302
homicides in 2016, Detroit News (Jan. 4, 2017),
https://goo.gl/2v7MSM ......................................................................................... 7
City of Detroit, Detroit Demolition Program, https://goo.gl/QFt17V ...................... 2
Declaration of Rights, Detroit City Charter (2012) ................................................... 2
Derek Black, Unlocking the Power of State Constitutions With Equal
Protection: The First Step Toward Education as a Federally
Protected Right, 51 Wm. & Mary L. Rev. 1343 (2010) ..................................... 20
Detroit News, Bond agency: Detroit’s local control ‘credit positive’
(May 5, 2018), https://goo.gl/it9s4o ..................................................................... 7
Detroit Regional Workforce Fund, Addressing Detroit’s Basic Skills
Crisis (May 2011), https://goo.gl/x9qeny............................................................. 4
Diary and Autobiography of John Adams, 1755-1770 (L.H.
Butterfield ed. 1961), https://goo.gl/X5EXJv ...............................................17, 18
Donald P. Green & Rachel Sondheimer, Using Experiments to
Estimate the Effects of Education on Voter Turnout, 54 Am. J. Pol.
Sci. 174 (2010) ....................................................................................................13
Goodwin Liu, Education, Equality, and National Citizenship, 116
Yale L.J. 330 (2006) ........................................................................................... 19
Grover J. Whitehurst & Christopher J. Lonigan, Child Development
and Emergent Literacy, 69 Child Development 848 (1998) ................................ 8
J.P. Morgan Chase, Detroit’s Untapped Talent: Jobs and On-Ramps
Needed (Jan. 2016), https://goo.gl/ySZGQR ........................................................ 6
John Gallagher, Amazon to Detroit: You didn’t have enough talent to
get HQ2, Detroit Free Press (Jan. 18, 2018), https://goo.gl/MfBb4Z .................. 7
Kavitha Cardoza, Adding Up the Cost of Low Literacy Among Adults,
NPR (Nov. 4, 2013), https://goo.gl/6EfO4V ...................................................... 20

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TABLE OF AUTHORITIES
(continued)
Page(s)
Kevin Milligan, et al., Does Education Improve Citizenship?
Evidence from the U.S. and the U.K., 88 J. Pub. Econ. 1667 (2004) ................. 13
Mich. Comm’n on L. Enforcement Stds., Information on Law
Enforcement Reading and Writing Test, https://goo.gl/4u2k7s (last
visited Jan. 19, 2017) ............................................................................................ 7
Michael Winerip, Are Schools Passing or Failing? Now There’s a
Third Choice . . . Both, N.Y. Times (Nov. 2, 2005),
https://goo.gl/QioBXi ........................................................................................... 5
Nat’l Ctr. for Educ. Statistics, 2017 Mathematics TUDA Assessment
Report Card: Summary Data Tables with Additional Detail for
Average Scores, Achievement Levels, and Percentiles for Districts
and Jurisdictions (2018), https://goo.gl/rMJZpo .................................................. 5
Nat’l Ctr. for Educ. Statistics, 2017 Reading TUDA Assessment
Report Card: Summary Data Tables with Additional Detail for
Average Scores, Achievement Levels, and Percentiles for Districts
and Jurisdictions (2018), https://goo.gl/QPJdMk ................................................ 5
Nat’l Ctr. for Educ. Statistics, Literacy in the Labor Force: Results
from the National Adult Literacy Survey (1999) ................................................ 19
Nat’l Inst. for Literacy, The State of Literacy in America: Estimates at
the Local, State, and National Levels (1998), https://goo.gl/BlhLE4 .................. 4
Paul W. Kingston, et al., Why Education Matters, 76 Sociology of Ed.
53 (2003) ............................................................................................................. 14
Raymond Wolfinger & Steven Rosenstone, Who Votes? (Yale Univ.
Press 1980) ..........................................................................................................13
Roz Edward, City Launches New Initiative to Ensure More Detroiters
Have Access to Skilled Trades Apprenticeships and Careers, Mich.
Chronicle (Dec. 19, 2016),
https://michronicleonline.com/2016/12/19/city-launches-newinitiative-for-skilled-trades-apprenticeships-and-careers/ .................................... 2

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TABLE OF AUTHORITIES
(continued)
Page(s)
Ryan Beene, Detroit’s Public Schools Post Worst Scores on Record in
National Assessment, Crain’s (Dec. 8, 2009), https://goo.gl/Zcrx1a ................... 5
Shawn Lewis, Detroit Worst in Math, Reading Scores Among Big
Cities, Detroit News (Oct. 28, 2015), https://goo.gl/Zpncso ................................ 5
Sidney Verba, et al., Race, Ethnicity and Political Resources:
Participation in the United States, 23 Brit. J. Pol. Sci. 453 (1993) ................... 13
Skillman Foundation, State of the Detroit Child: 2012 Report (2012),
http://www.skillman.org/wpcontent/uploads/2017/12/2012_Detroit_Child_report-min.pdf ............................ 8
Steven Calabresi & Michael Perl, Originalism and Brown v. Board of
Education, 2014 Mich. St. L. Rev. 429 ..................................................16, 17, 18
Steven Calabresi & Sarah Agudo, Individual Rights Under State
Constitutions When the Fourteenth Amendment Was Ratified in
1868: What Rights Are Deeply Rooted in American History and
Tradition?, 87 Tex. L. Rev. 7 (2008) ...........................................................17, 19
Susan H. Bitensky, Theoretical Foundations for a Right to Education
Under the U.S. Constitution: A Beginning to the End of the
National Education Crisis, 86 Nw. U.L. Rev. 550 (1992) ................................. 18
Thomas S. Dee, Are There Civic Returns to Education?, 88 J. of Pub.
Econ. 1697 (2004)............................................................................................... 14
U.S. Census Bureau, QuickFacts: Detroit City, Michigan,
https://goo.gl/4s1L2T (last visited Nov. 23, 2018)............................................... 8
William C. Wood, Literacy and the Entry-Level Workforce: The Role
of Literacy and Policy in Labor Market Success (June 2010),
https://goo.gl/bVLrG1........................................................................................... 7

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INTEREST OF AMICUS CURIAE 1
0F

When a child is denied a fair opportunity to learn how to read and write, the
adverse effects radiate throughout the community. “Illiteracy,” after all, “is an
enduring disability”: a child “deprived of a basic education” will be
“handicap[ped]” by the “inability to read and write . . . each and every day of his
life.” Plyler v. Doe, 457 U.S. 202, 222 (1982) (emphasis added). Denying
children access to literacy today inevitably impedes tomorrow’s jobseekers and
taxpayers, fathers and mothers, citizens and voters. That is why the Supreme
Court has stressed the “significant social costs borne by our Nation” when children
suffer the “stigma of illiteracy,” and are thereby denied “the basic tools by which
[to] lead economically productive lives to the benefit of us all.” Id. at 221-23.
The City of Detroit (though it does not control Detroit’s schools) is all too
familiar with the far-reaching effects of illiteracy. Widespread illiteracy has
hampered the City’s efforts to connect Detroiters with good-paying jobs, to fill
vacancies on its police force, and to grow its tax base. Illiteracy, moreover, has
greatly exacerbated the effects of intergenerational poverty in Detroit.

Amicus affirms that no counsel for a party authored this brief in whole or in part
and that no person other than amicus or its counsel made a monetary contribution
to its preparation or submission.
1

1

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The City is charged with “insur[ing] equality of opportunity for all persons,”
and with providing “for the public peace, health, and safety of persons and
property within its jurisdictional limits.” Declaration of Rights, Detroit City
Charter (2012). The City takes those mandates seriously. And over the past
several years, it has made significant strides in fulfilling them. Businesses are
returning to Detroit’s downtown. The City’s long darkened streets have been relit
by over 65,000 new LED lights. More than 16,000 blighted structures have been
demolished since 2014. 2 Every Detroit student meeting minimum academic
1F

standards is now entitled to a scholarship to a four-year college or university. 3 The
2F

City, moreover, has recently launched major efforts to connect Detroiters with the
skills training needed for successful careers. 4
3F

Ultimately, however, Detroit’s renaissance will lag if its children are not
afforded a fair opportunity to learn how to read and write. Perhaps more than any
other municipal entity, the City of Detroit understands how fundamental literacy is
to a stable, vibrant community. The City thus files this brief in support of the

City of Detroit, Detroit Demolition Program, https://goo.gl/QFt17V.
3
Ann Zaniewski, Free Tuition for Detroiters to Add 4-year Universities, Detroit
Free Press (Nov. 28, 2016), https://goo.gl/FnN2Lb.
4
E.g., Roz Edward, City Launches New Initiative to Ensure More Detroiters Have
Access to Skilled Trades Apprenticeships and Careers, Mich. Chronicle (Dec. 19,
2016), https://michronicleonline.com/2016/12/19/city-launches-new-initiative-forskilled-trades-apprenticeships-and-careers/.
2

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Detroiters who are Plaintiffs-Appellants in this suit, and specifically to augment
their arguments that literacy is a fundamental right the United States Constitution
protects and that the district court’s equal protection analysis was fundamentally
flawed and must be reversed.
ARGUMENT
The ability to read and write is the foundation for meaningful participation
in America’s democracy, and in the American economy. The Supreme Court has
repeatedly recognized as much—emphasizing, in multiple cases, that selectively
denying children access to literacy is presumptively unconstitutional. The import
of those cases is plain: Access to literacy is a fundamental right. Longstanding
constitutional tradition and modern realities confirm that the right is fundamental.
And the City of Detroit’s experience underscores that literacy is fundamental not
just to an individual, but also to the community to which he or she belongs. The
district court’s conclusion that the right of access to literacy is not fundamental
should therefore be reversed.
The district court also erred in dismissing Plaintiffs’ equal protection claim
for two additional reasons. First, the district court failed to acknowledge a
longstanding line of equal protection cases holding that a state cannot selectively
burden a fundamental right. Second, the district court erroneously concluded that
the appropriate “comparator” class for Plaintiffs was other students who attend
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low-performing schools. Under the district court’s reasoning, no equal protection
violation occurs so long as all of the people subject to the discriminatory
government action are treated the same. This Court should repudiate that view,
because it would gut the Equal Protection Clause and has been rejected by the
Supreme Court on several occasions.
I.

DETROIT’S CHALLENGES UNDERSCORE THE CRITICAL
IMPORTANCE OF ACCESS TO LITERACY
The adverse effects of illiteracy have long reverberated through the Motor

City. Though exact figures vary, Detroit is consistently rated as having the lowest
literacy rates of any urban area in the United States. One significant national study
found 47% of Detroiters lack basic reading and writing skills. 5 Strikingly, nearly
4F

half of that population—approximately 200,000 people—have a high school
diploma or a GED. 6
5F

School-aged Detroiters over the past several years have fared even worse.
The National Assessment of Education Progress (NAEP)—the “gold standard” of

See, e.g., Nat’l Inst. for Literacy, The State of Literacy in America: Estimates at
the Local, State, and National Levels 141-42 (1998) (commissioned by U.S. Dep’t
of Educ.), https://goo.gl/BlhLE4; see also Detroit Regional Workforce Fund,
Addressing Detroit’s Basic Skills Crisis 2 (May 2011), https://goo.gl/x9qeny.
6
See Detroit Regional Workforce Fund, Addressing Detroit’s Basic Skills Crisis,
supra n.5, at 2.
5

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national education assessments 7—determined that in 2017, 95% of Detroit fourth6F

graders were not proficient in reading, and 96% were not proficient in math. 8
7F

Indeed, Detroit’s academic performance lags far behind other large,
demographically similar U.S. cities. In 2009, 2011, 2013, 2015, and 2017—the
last five times the NAEP was administered—Detroit fourth-graders and eighthgraders had the lowest math and reading scores when compared with students in
any other U.S. city. 9 As one urban-education expert put it: “There is no
8F

jurisdiction of any kind, at any level, at any time in the 30-year history of NAEP
that has ever registered such low numbers.” 10 And when students don’t learn, they
9F

See, e.g., Michael Winerip, Are Schools Passing or Failing? Now There’s a Third
Choice . . . Both, N.Y. Times (Nov. 2, 2005), https://goo.gl/QioBXi.
8
See Nat’l Ctr. for Educ. Statistics, 2017 Reading TUDA Assessment Report Card:
Summary Data Tables with Additional Detail for Average Scores, Achievement
Levels, and Percentiles for Districts and Jurisdictions (2018),
https://goo.gl/QPJdMk; Nat’l Ctr. for Educ. Statistics, 2017 Mathematics TUDA
Assessment Report Card: Summary Data Tables with Additional Detail for
Average Scores, Achievement Levels, and Percentiles for Districts and
Jurisdictions (2018), https://goo.gl/rMJZpo.
9
Id.; Shawn Lewis, Detroit Worst in Math, Reading Scores Among Big Cities,
Detroit News (Oct. 28, 2015), https://goo.gl/Zpncso.
10
Ryan Beene, Detroit’s Public Schools Post Worst Scores on Record in National
Assessment, Crain’s (Dec. 8, 2009), https://goo.gl/Zcrx1a.
7

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often don’t graduate. Recently, Detroit has maintained one of the lowest highschool graduation rates in America, often landing at the bottom of the rankings. 11
10F

In Plyler v. Doe, the Supreme Court afforded heightened constitutional
scrutiny to the selective denial of the right to access literacy—noting that illiteracy
imposes “significant social” and “economic” costs on the wider community. 457
U.S. at 221-22. Sadly, Detroit epitomizes that dynamic. Unemployment remains
high in Detroit, as many Detroiters lack the skills employers demand. 12 To combat
11F

joblessness, the City is committing significant resources to job-training programs
in Detroit. Yet illiteracy remains a roadblock. A large percentage of Detroiters
read at or below a sixth grade level, meaning “it can take from 12 to 36 months to
bring these adults to a level of proficiency necessary” to “enter[ ] many job
training programs.” 13 Illiteracy thus stubbornly obstructs the City’s efforts to
12F

connect Detroiters with good jobs, to attract employers to the City, and to grow
Detroit’s tax base. For example, Amazon recently cited Detroit’s K-12 academic
performance as a reason that Detroit was not selected as a finalist for Amazon’s

See, e.g., Big Cities Battle Dismal Graduation Rates, CBS News (Apr. 1, 2008),
https://goo.gl/vmXjPz.
12
J.P. Morgan Chase, Detroit’s Untapped Talent: Jobs and On-Ramps Needed 2, 6
(Jan. 2016), https://goo.gl/ySZGQR.
13
Id. at 8 (emphasis added).
11

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second headquarters despite Detroit’s otherwise competitive bid. 14 And national
13F

credit ratings agencies have continuously warned that the scourge of illiteracy
“affects the city’s ability to grow its tax base.” 15
14F

Widespread illiteracy has also hampered the City’s efforts to make Detroit
safer. Committed to combatting violent crime, the City has expended tremendous
efforts to fill vacancies on its police force. 16 But progress filling those vacancies
15F

has been slowed by a significant number of prospective recruits’ inability to pass
the state-mandated reading and writing test. 17
16F

Perhaps worst of all, illiteracy exacerbates intergenerational poverty in
Detroit. Poverty and illiteracy travel hand-in-hand. In modern society, those who
lack the ability to read and write are disproportionately likely to live in poverty. 18
17F

See John Gallagher, Amazon to Detroit: You didn’t have enough talent to get
HQ2, Detroit Free Press (Jan. 18, 2018), https://goo.gl/MfBb4Z.
15
See Detroit News, Bond agency: Detroit’s local control ‘credit positive’ (May 5,
2018), https://goo.gl/it9s4o.
16
Though crime is down, violent crime remains a major issue in Detroit. See
Candice Williams & James Dickson, Crime Stats: Detroit marks 302 homicides in
2016, Detroit News (Jan. 4, 2017), https://goo.gl/2v7MSM.
17
See Mich. Comm’n on L. Enforcement Stds., Information on Law Enforcement
Reading and Writing Test, https://goo.gl/4u2k7s (last visited Jan. 19, 2017).
18
To take but one data point, adults with the lowest literacy scores are 16.5 times
more likely to have received public financial aid in the past year than those with
the highest scores. See William C. Wood, Literacy and the Entry-Level
Workforce: The Role of Literacy and Policy in Labor Market Success 3, 10 (June
2010), https://goo.gl/bVLrG1.
14

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Yet the flip side is also true: children born into poverty face greater obstacles than
their wealthier peers when learning to read and write. 19 This vicious feedback loop
18F

between poverty and illiteracy is of major concern in Detroit, where both ills
remain too common. 20 And until the poverty-illiteracy cycle is disrupted, new
19F

generations of Detroiters will remain at risk of failing to obtain the “basic tools by
which [they] might lead economically productive lives.” Plyler, 457 U.S. at 221. 21
20F

The City of Detroit does not want this for its citizens, and parents do not
want it for their children. That much is clear from Detroit’s population trends.
From 2000 to 2010, the City’s population fell 25%, but the population under the
age of 18 fell by nearly 36%, with parents citing education as a primary motivator
for leaving. 22 To be sure, Detroit has made significant strides since 2010, and the
21F

See, e.g., Grover J. Whitehurst & Christopher J. Lonigan, Child Development
and Emergent Literacy, 69 Child Development 848, 858 (1998).
20
According to the most recent U.S. Census data, 39.4% of Detroiters live in
poverty. U.S. Census Bureau, QuickFacts: Detroit City, Michigan,
https://goo.gl/4s1L2T (last visited Nov. 23, 2018).
21
It should be self-evident that the fact that children born into poverty face
literacy-related obstacles does not diminish their constitutional right to a real
opportunity to learn to read and write. That much is clear from Plyler, in which
the plaintiffs were children of undocumented immigrants, many of whom
presumably came from non-English speaking families—and many of whom thus
presumably had specialized learning needs. Yet nothing in Plyler suggested that
fact could be used as an excuse to deny them a basic education.
22
Skillman Foundation, State of the Detroit Child: 2012 Report 3, 13 (2012),
http://www.skillman.org/wp-content/uploads/2017/12/2012_Detroit_Child_reportmin.pdf.
19

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City is confident that Detroit will continue its forward progress. But Detroit’s
revitalization is unlikely to be complete—and the enduring effects of educational
inequity are unlikely to be eradicated—until Detroit’s children are given a fair
opportunity to learn how to read and write.
II.

ACCESS TO LITERACY IS A FUNDAMENTAL RIGHT
The challenges facing Detroit speak volumes about the question at the heart

of this appeal: whether access to literacy is a fundamental right, such that its
selective denial is presumptively unconstitutional. See Obergefell v. Hodges, 135
S. Ct. 2584, 2598 (2015) (courts must “exercise reasoned judgment in identifying
interests of the person so fundamental that the State must accord them its respect”).
Contrary to the district court’s conclusion, the right of access to literacy is indeed
fundamental, for at least three reasons. First is precedent: the Supreme Court has
expressly recognized that the opportunity to obtain a minimally adequate
education—including the ability to read and write—has heightened constitutional
significance. See, e.g., Plyler, 457 U.S. at 221. Second, access to literacy is a right
that is “objectively, ‘deeply rooted in this Nation’s history and tradition,’”
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation omitted), and
therefore must be accorded heightened protection under both the Due Process and
Equal Protection Clauses of the Fourteenth Amendment, see also Obergefell, 135
S. Ct. at 2603 (these “Clauses may converge in the identification and definition of
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the right”). Third, courts presented with a claim sounding in fundamental rights
must not blind themselves to “new insights and societal understandings.” Id.
Although literacy has long been recognized as a vital competency, the importance
of reading and writing has only grown in the modern era. Under any constitutional
analysis, therefore, access to literacy is a fundamental right.
A.

The Supreme Court repeatedly has recognized the paramount
importance of a basic education, including access to literacy.

Over and over and over again, the Supreme Court has emphasized the
critical importance of education. Education, the Court has stressed, is “‘a most
vital civic institution for the preservation of a democratic system of government.’”
Plyler, 457 U.S. at 221 (quoting Abington Sch. Dist. v. Schempp, 374 U.S. 203,
230 (1963) (Brennan, J., concurring)). It is “a bulwark of a free people against
tyranny.” Wisconsin v. Yoder, 406 U.S. 205, 225 (1972). And a minimally
adequate education is a prerequisite to effective participation in American life.
“[S]ome degree of education,” the Court has cautioned, “is necessary . . . to
participate effectively and intelligently in our open political system if we are to
preserve freedom and independence.” Plyler, 457 U.S. at 221 (quotation omitted).
As the Court explained in Brown v. Board of Education:
[E]ducation is perhaps the most important function of state and local
governments . . . . It is required in the performance of our most basic
public responsibilities, even service in the armed forces. It is the very
foundation of good citizenship. Today it is a principal instrument in
awakening the child to cultural values, in preparing him for later
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professional training, and in helping him to adjust normally to his
environment. In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity of an
education. 23
22F

Given the paramount importance of education, the Supreme Court has held
that access to a basic education must be afforded heightened constitutional
protection. In Plyler v. Doe, the Court struck down a law allowing local districts to
bar undocumented immigrant children from attending public school. Along the
way, the Court expressly rejected the argument that education is “merely some
governmental ‘benefit’ indistinguishable from other forms of social welfare
legislation.” 457 U.S. at 221. Instead, the Court held, state action denying some
children the opportunity to acquire a “basic education”—like state action denying
people other fundamental rights—is presumptively invalid. Id. at 222. 24
23F

Crucially for purposes of this case, Plyler also makes clear that the
constitutionally protected opportunity to obtain a “basic education” necessarily
includes the opportunity to learn how to read and write. To be sure, the Plyler
Court had no occasion to flesh out the precise contours of what qualifies as a
“basic education.” After all, the children in Plyler were barred from school

347 U.S. 483, 493 (1954); see also Grutter v. Bollinger, 539 U.S. 306, 331
(2003); Bd. of Educ. v. Allen, 392 U.S. 236, 247 (1968); Yoder, 406 U.S. at 221;
Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
24
E.g., Skinner v. State of Okla. ex rel. Williamson, 316 U.S. 535, 541 (1942) (law
selectively denying “fundamental” right to procreate presumed unconstitutional).
23

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entirely, so it was beyond question they were denied access to a “basic education.”
But Plyler reasoned that access to a “basic education” is fundamental largely
because it affords children the opportunity to learn how to read and write. In
striking down the Texas statute, the Court warned that children who are denied a
“basic education” will be marked “for the rest of their lives” by the “stigma of
illiteracy.” 457 U.S. at 222-23 (emphasis added). “The inability to read and
write,” the Court stressed, “will handicap the individual deprived of a basic
education each and every day of his life.” Id. at 222. It was principally because
“[i]lliteracy is an enduring disability” that the Plyler Court concluded the “denial
of basic education” is “most difficult to reconcile . . . with the framework of
equality embodied in the Equal Protection Clause.” Id.
The Plyler Court saw literacy as crucial, in part, because reading and writing
are the gateway to civic participation. Those who are deprived of access to
literacy, the Court explained, are denied “the ability to live within the structure of
our civic institutions,” and foreclosed from “any realistic possibility that they will
contribute in even the smallest way to the progress of our Nation.” Id. at 223.
Access to literacy, therefore, is more than just an end to itself. Rather, like other
fundamental rights, the Constitution protects it because it is “preservative of other

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basic civil and political rights.” Harper v. Va. Bd. of Elections, 383 U.S. 663, 667
(1966). 25
24F

Literacy, for example, helps to safeguard the right to vote. As the Court has
recognized, “a voter cannot cast his ballot intelligently unless his reading skills and
thought processes have been adequately developed.” San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 36 (1973). Consistent with that observation, studies
consistently show that higher levels of education result in higher voter turnout. 26
25F

Literacy is also a virtual prerequisite to effective participation in other civic
endeavors. See, e.g., Plyler, 457 U.S. at 221 (“[S]ome degree of education is
necessary to prepare citizens to participate effectively and intelligently in our open
political system.” (quotation omitted)). After all, an individual who cannot read or
write will be unable to make sense of a newspaper article concerning issues of the

Cf. Griswold v. Connecticut, 381 U.S. 479, 482-83 (1965) (“The right of
freedom of speech and press includes . . . the right to distribute, the right to receive,
the right to read and freedom of inquiry, freedom of thought, and freedom to teach
. . . . Without those peripheral rights the specific rights would be less secure.”
(citations omitted)).
26
See, e.g., Raymond Wolfinger & Steven Rosenstone, Who Votes? (Yale Univ.
Press 1980); Donald P. Green & Rachel Sondheimer, Using Experiments to
Estimate the Effects of Education on Voter Turnout, 54 Am. J. Pol. Sci. 174, 174
(2010); Barry C. Burden, The Dynamic Effects of Education on Voter Turnout, 28
Electoral Studies 540, 540-49 (2009); Kevin Milligan, et al., Does Education
Improve Citizenship? Evidence from the U.S. and the U.K., 88 J. Pub. Econ. 1667,
1667-95 (2004); Sidney Verba, et al., Race, Ethnicity and Political Resources:
Participation in the United States, 23 Brit. J. Pol. Sci. 453, 453-97 (1993).
25

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day. She will be unable to effectively research a political candidate’s positions on
topics of local or national importance. She will be unable to express or develop
her views in online fora. All of these handicaps will severely hamper her ability to
effectively engage in political speech, “the primary concern of the First
Amendment.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 597 (1998). 27
26F

The opportunity to learn how to read and write, in short, plays “a
fundamental role in maintaining the fabric of our society.” Plyler, 457 U.S. at 221.
It is a “keystone” of America’s social and political order, and thus must be
protected as a fundamental right. Obergefell, 135 S. Ct. at 2601.
To be sure, the Supreme Court in San Antonio v. Rodriguez held that
“education,” broadly defined, is not a fundamental right, such that the Constitution
does not require “absolute equality” of educational funding or educational
outcomes. 411 U.S. at 24. But, as the district court rightly recognized, D. Ct. Op.
26-27, Rodriguez does not bar Plaintiffs’ claims. Nearly a decade after Rodriguez,
Plyler held that there is a distinction between (1) the question “whether education

Again, studies have repeatedly confirmed that education is inextricably tied to
forms of active citizenship, including membership in a political party and
participation in protest movements. See, e.g., Bryony Hoskins, et al., Does Formal
Education Have an Impact on Active Citizenship Behaviour?, 7 Euro. Ed. Res. J.
386, 386-402 (2008); Thomas S. Dee, Are There Civic Returns to Education?, 88
J. of Pub. Econ. 1697, 1697-1720 (2004); Paul W. Kingston, et al., Why Education
Matters, 76 Sociology of Ed. 53, 53-70 (2003).
27

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is a fundamental right” and (2) the constitutional significance of “a basic
education”—and held that state action selectively denying the latter is
presumptively invalid. Plyler, 457 U.S. at 223-24. The import of its holding in
Rodriguez, the Court recognized, was simply that “a State need not justify by
compelling necessity every variation in the manner in which education is provided
to its population.” Id. at 223 (emphasis added). But nothing in Rodriguez suggests
that selectively denying some students a “basic education” is a permissible
“variation in the manner in which education is provided,” or that the opportunity to
obtain a “basic education” is anything less than a fundamental right.
Indeed, Rodriguez itself expressly reserved the question whether a state
could constitutionally deny students the minimal “quantum of education”
necessary to the “meaningful exercise” of their First Amendment freedoms and
right to vote. 411 U.S. at 36-37. The Rodriguez Court went out of its way to note
that “no charge fairly could be made” that the State in that case “fail[ed] to provide
each child with an opportunity to acquire the basic minimal skills necessary for the
enjoyment of the rights of speech and of full participation in the political process.”
Id. at 37. And the Court emphasized that the Rodriguez plaintiffs’ case would have
been “far more compelling” if they were “absolutely precluded from receiving an
education.” Id. at 25 n.60; see Papasan v. Allain, 478 U.S. 265, 284 (1986)
(confirming Rodriguez left open the possibility of a claim based on the “radical
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denial of educational opportunity”); see also Pls.’ Br. 25. That is precisely
Plaintiffs’ claim here. See Compl. ¶ 8 (alleging a deprivation of the “opportunity
to learn to read, write, and comprehend”). And their claim, lamentably, is amply
supported by the allegations in Plaintiffs’ complaint. See, e.g., id. ¶¶ 10-17
(alleging, among other things, lack of textbooks and basic materials; overcrowded
classrooms; failure to address students’ specific learning needs; lack of English
Language Learner instruction; and unqualified staff).
In short, the Supreme Court’s numerous pronouncements on the
constitutional significance of basic education, standing alone, demonstrate that
access to literacy is fundamental.
B.

The right of access to literacy is deeply rooted in our nation’s
history and tradition.

Even setting aside Supreme Court precedent, access to literacy is a right that
is “deeply rooted in this Nation’s history and tradition,” Glucksberg, 521 U.S. at
720-21 (quotation omitted), and must therefore be accorded heightened protection
under the Fourteenth Amendment. “The American people have always regarded
education and acquisition of knowledge as matters of supreme importance which
should be diligently promoted.” Meyer, 262 U.S. at 400. At the dawn of the
Republic, at least five states recognized “a state’s obligation to provide a free and
common public school education.” Steven Calabresi & Michael Perl, Originalism
and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 558. Crucially,
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that early emphasis on public education stemmed from the Founders’ belief that
literacy is the lifeblood of liberty. According to John Adams—the principal
architect of the Massachusetts Constitution and its guarantee of public schooling—
literacy and democracy are inextricably intertwined:
The very Ground of our Liberties, is the freedom of Elections . . . .
[And] how can any Man judge, unless his Mind has been opened and
enlarged by Reading. A Man who can read . . . will enlarge his Range
of Thought, and enable him the better to judge who has and who has
not that Integrity of Heart, and that Compass of Knowledge and
Understanding, which form the Statesman. 28
27F

As the nation grew, more and more states embraced the right to a basic
public education. See 2014 Mich. St. L. Rev. at 450-57. In fact, by the time the
Fourteenth Amendment was ratified in 1868, thirty-six of the thirty-seven state
constitutions included a right to education, with a staggering “[n]inety-two percent
of all Americans in 1868 liv[ing] in states whose constitutions imposed this duty
on state government.” 29 This historical evidence—which the district court
28F

ignored—thus demonstrates that, when the Fourteenth Amendment was ratified, “a
public school education was a fundamental, or civil, right.” 2014 Mich. St. L. Rev.

1 Diary and Autobiography of John Adams, 1755-1770, at 220 (L.H. Butterfield
ed. 1961) (Aug. 1, 1761 entry), https://goo.gl/X5EXJv.
29
Steven Calabresi & Sarah Agudo, Individual Rights Under State Constitutions
When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply
Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 108-09 (2008).
28

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at 437. Indeed, so fundamental was the right to a public education that “[a]fter the
Civil War, Congress . . . conditioned re-entry of the Confederate states into the
Union upon their willingness to guarantee public education to all of the children
within their respective borders.” 30
29F

And even in 1868, the right to a public education encompassed more than
the privilege of being shuffled into a building marked “schoolhouse.” 2014 Mich.
St. L. Rev. at 552. “At a minimum,” the concept of a basic education in 1868
included an opportunity to access literacy, because “many of the Framers would
have thought [it] fundamental” that children “be taught to read so they can read the
laws for themselves.” Id.; see also Adams, supra n.28, at 220. The nearubiquitous presence of education clauses in state constitutions in 1868—coupled
with historical evidence that those clauses imposed a duty to teach children how to
read and write—demonstrates that access to literacy is a right deeply rooted in our
nation’s history and tradition. See McDonald v. City of Chicago, 561 U.S. 742,
777 (2010) (that twenty-two of thirty-seven state constitutions protected the right
to keep and bear arms in 1868 was significant evidence that the right is “among the

Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the
U.S. Constitution: A Beginning to the End of the National Education Crisis, 86
Nw. U.L. Rev. 550, 588 (1992) (citations omitted).

30

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foundational rights necessary to our system of Government” that the Fourteenth
Amendment protects (citing Calabresi & Agudo, supra n.29, at 50)).
C.

Modern developments confirm that access to literacy is
fundamental.

In deciding whether Plaintiffs have a fundamental right of access to literacy,
this Court also “must consider public education in the light of its full development
and its present place in American life throughout the Nation.” Brown, 347 U.S. at
492-93. As the Supreme Court recently explained, “new insights and societal
understandings” are crucial to discerning what the Fourteenth Amendment
protects. Obergefell, 135 S. Ct. at 2603. Those insights and understandings
confirm that the right of access to literacy is fundamental.
The importance of literacy is clearer now than ever before. Unlike the
“agrarian and emerging industrial society” of the past, today’s “technological and
information-based economy requires a much higher level of education.” Goodwin
Liu, Education, Equality, and National Citizenship, 116 Yale L.J. 330, 396-97
(2006). Today, people with low literacy levels are “four to seven times” more
likely than those with high literacy levels to be unemployed—and illiteracy
severely depresses the earnings of those who can land jobs. 31 “People with low
30F

Nat’l Ctr. for Educ. Statistics, Literacy in the Labor Force: Results from the
National Adult Literacy Survey, at xiv, 263 (1999).
31

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literacy,” studies have concluded, “are more likely to need unemployment checks,
food stamps and subsidized housing. And they are more likely to end up behind
bars.” 32 The Supreme Court’s sixty-year-old admonition in Brown thus rings truer
31F

than ever: “In these days, it is doubtful that any child may reasonably be expected
to succeed in life if he is denied the opportunity of an education.” 347 U.S. at 493.
Recognizing these modern realities, all fifty states now have constitutional
clauses that guarantee the right to education. Derek Black, Unlocking the Power of
State Constitutions With Equal Protection: The First Step Toward Education as a
Federally Protected Right, 51 Wm. & Mary L. Rev. 1343, 1398 (2010). These
clauses, by and large, have teeth. “[S]ome thirty-one state courts, most of them
high courts, have held that the state constitutional provision has substantive
content: it guarantees a right to a minimally adequate education.” Barry Friedman
& Sara Solow, The Federal Right to An Adequate Education, 81 Geo. Wash. L.
Rev. 92, 129 (2013). In other states, “extensive statutory schemes have further
defined, specified, and regulated this right,” demanding that “states . . . deliver a
certain qualitative level of education therein.” Unlocking the Power, 51 Wm. &
Mary L. Rev. at 1398. “States,” in other words, “have contributed to the
fundamental character of the [basic education] right by placing [it] at the center of

Kavitha Cardoza, Adding Up the Cost of Low Literacy Among Adults, NPR
(Nov. 4, 2013), https://goo.gl/6EfO4V.
32

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so many facets of the legal and social order.” Obergefell, 135 S. Ct. at 2601. And
these modern developments only reinforce what has long been true: access to a
“basic education” is fundamental, Plyler, 457 U.S. at 221, and a basic education
ineluctably includes the opportunity to learn how to read and write.
Because access to literacy is a fundamental right that is protected by both the
Due Process and Equal Protection Clauses of the Fourteenth Amendment, the
district court’s dismissal of Plaintiffs’ claims should be reversed.
III.

THE EQUAL PROTECTION CLAUSE PROHIBITS DEFENDANTS
FROM DENYING PLAINTIFFS ACCESS TO LITERACY
The district court’s analysis of Plaintiffs’ equal protection claim was flawed

for two additional reasons. First, the district court wrongly concluded that because
the Due Process Clause does not impose a “positive” obligation on states to
provide all children with access to literacy, a state can maintain an education
system in which only some children have an opportunity to learn how to read and
write. Second, the district court erred in concluding that the proper “comparison,”
for Equal Protection purposes, was between Plaintiffs and other children who have
been subject to some of the very same educational mismanagement about which
Plaintiffs complain.

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A statewide education system that selectively denies children
access to literacy is subject to heightened equal protection
scrutiny.

The district court entirely failed to analyze Plaintiffs’ contention that the
State’s selective denial of access to literacy burdens a fundamental right under the
Equal Protection Clause. Instead, the district court brusquely reasoned that,
because it had already concluded that the Due Process Clause does not provide
children a “positive right” to a “minimally adequate education . . . [,] Plaintiffs
fail[] to state an equal-protection claim on the basis of burdening a fundamental
right.” D. Ct. Op. 37.
That was error. The Supreme Court has repeatedly held that the Equal
Protection Clause presumptively forbids a state from selectively burdening a right
of “fundamental importance,” even if the state has no obligation to affirmatively
facilitate that right. See M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996); Zablocki v.
Redhail, 434 U.S. 374, 383 (1978); Skinner, 316 U.S. at 541. For example, a state
has no constitutional obligation to affirmatively provide its citizens opportunities
to procreate. But because procreation is “fundamental,” a law that significantly
interferes with the procreative capacities of a subset of the population is
presumptively invalid under the Equal Protection Clause. Skinner, 316 U.S. at
541. Similarly, the Court has made clear that “due process does not independently
require that the State provide a right to appeal” in child-custody cases. M.L.B., 519
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U.S. at 120. But because parental rights are “fundamental,” the Equal Protection
Clause bars states from conditioning such appeals on litigants’ ability to pay court
costs. See id.
As a result, even if this Court concludes that the State is not affirmatively
required to provide access to literacy under the Due Process Clause, that would not
control the equal protection issue. In Brown v. Board of Education, the Supreme
Court held that “the opportunity of an education . . . [,] where the state has
undertaken to provide it, is a right which must be made available to all on equal
terms.” 347 U.S. at 493 (emphasis added). The State of Michigan has “undertaken
to provide” education. Yet Plaintiffs allege that their “schools”—unlike those in
the rest of the state—are schools in name only. Given the fundamental nature of
the right to access literacy, see supra Section II, a statewide education system in
which only some children have an opportunity to learn how to read and write is
subject to heightened scrutiny under the Equal Protection Clause. That is true
regardless whether the Due Process Clause “independently require[s]” a state to
provide children with access to literacy. See M.L.B., 519 U.S. at 120.
B.

The proper “comparator” for equal protection purposes is
students across the State of Michigan.

The district court further erred when it concluded that Plaintiffs are entitled
only to treatment equal to students in other “distressed” schools. Plaintiffs’ equal
protection claim asserts that Defendants deny them “access to literacy equal to the
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access provided to students in other schools in the State on the basis of their race.”
Compl. ¶¶ 207-08. In establishing this claim, Plaintiffs point to disparities in
treatment between students in Detroit schools and students in other schools across
Michigan. See, e.g., id. ¶¶ 1, 85. Among other things, the State permits uncertified
“teachers” to lead classes in Detroit, but not elsewhere. Id. ¶¶ 18, 85. The State
fails to provide sufficient textbooks in Detroit schools, but not elsewhere. Id.
¶¶ 113-18. The State fails to ensure safe and sanitary learning environments in
Detroit, but not elsewhere. Id. ¶¶ 119-27. And, unsurprisingly, schoolchildren in
Detroit drastically underperform academically as compared to students elsewhere
in the state. Id. ¶¶ 6-7, 72, 90-99.
The district court ignored those disparities, instead dismissing Plaintiffs’
equal protection claim based on a fundamentally flawed premise, viz., that the
relevant “comparator” to Plaintiffs’ schools for equal protection purposes was not
“Michigan schools as a whole,” but rather only other “distressed” schools—i.e.,
“Michigan schools that have come under the control of emergency managers, been
designated a Priority School, or were governed by the [Education Achievement
Authority (EAA)].” D. Ct. Op. 37. And, the district court said, Plaintiffs failed to
include in their complaint allegations establishing differences in treatment or racial
composition between Plaintiffs’ schools and other such distressed schools. Id.

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The district court overlooked the simple fact that Defendants are the State
officials responsible for the education system for all of Michigan, not only those
areas in which the State has directly intervened. See Pls.’ Br. 48-51; Compl. ¶¶ 6367. For that reason, Plaintiffs’ claim in no way requires an allegation that
Defendants have treated Plaintiffs’ schools differently from other “distressed”
schools. Plaintiffs’ claim is that Defendants have failed to ensure Plaintiffs receive
a basic opportunity to attain literacy, but have provided that opportunity to students
throughout the rest of the State.
The district court’s rationale is particularly nonsensical given that the only
reason Plaintiffs’ schools were designated “Priority Schools,” or placed in the
EAA, was because the state-controlled education system overseen by Defendants
was already profoundly failing Plaintiffs. Compl. ¶ 75. A school could be
designated a “Priority School” or placed in the EAA only if it was one of “the
State’s lowest-performing schools.” D. Ct. Op. 7; see also Compl. ¶ 75. By
requiring Plaintiffs to allege disparate treatment among, for example, Priority
Schools, the district court was requiring Plaintiffs to compare themselves to
children who were also in the state’s lowest-performing schools. Effectively, the
district court required Plaintiffs—who alleged that the state’s education system has
failed them—to compare themselves to students that the State’s school system was
also failing.
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Endorsing the district court’s definition of those “similarly situated” as only
those persons also impacted by the very government action alleged to be
discriminatory would defeat nearly any conceivable equal protection claim. As the
Supreme Court has explained, a “State cannot deflect an equal protection challenge
by observing that in light of the statutory classification all those within the
burdened class are similarly situated.” Williams v. Vermont, 472 U.S. 14, 27
(1985); see also Rinaldi v. Yeager, 384 U.S. 305, 308-09 (1966) (“The Equal
Protection Clause requires more of a state law than nondiscriminatory application
within the class it establishes.”). As just one example, in City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 448 (1985), the Supreme Court determined
that a zoning ordinance requiring a group home for the mentally disabled to obtain
a special use permit violated the Equal Protection Clause. In so doing, the Court
did not ask whether the plaintiff group home operator had been treated similarly to
others subject to the special use permit requirement; instead, it asked whether the
city had justified the difference in treatment between those subject to the
requirement and “permitted uses such as boarding houses and hospitals” that were
not subject to the requirement. Id.
The same reasoning dictates that the proper comparison here is exactly the
one set forth in Plaintiffs’ complaint. Plaintiffs have pleaded that Defendants are
responsible under state law for overseeing Michigan’s system of education
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statewide. And Plaintiffs have alleged that Defendants’ control of Plaintiffs’
schools, which have student bodies largely comprised of racial minorities, has
“ushered in and hastened a period of dramatic decline” resulting in an abject lack
of access to literacy. Compl. ¶ 72. The state of affairs in Plaintiffs’ schools stands
in stark contrast to the conditions at other schools throughout Michigan,
particularly schools that have far fewer minority students.
Again, as the Supreme Court made clear in Brown: “[T]he opportunity of an
education . . . [,] where the state has undertaken to provide it, is a right that must be
made available to all on equal terms.” 347 U.S. at 493 (emphasis added). At
minimum, that means that Michigan’s statewide education system must provide all
of its students—from Detroit to Ann Arbor to Bloomfield Hills to the Upper
Peninsula—a fair opportunity to learn how to read and write. Under binding
precedent and the terms of Plaintiffs’ complaint, the proper comparators for
purposes of the equal protection analysis are thus students from schools across the
State. The district court’s dismissal of Plaintiffs’ equal protection claim cannot
stand.

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CONCLUSION
For all of these reasons, the decision below should be reversed.
Dated: November 26, 2018

Respectfully submitted,
/s/ Anton Metlitsky
ANTON METLITSKY
O’MELVENY & MYERS LLP
Times Square Tower, 7 Times Sq.
New York, NY 10036
(212) 326-2000

LAWRENCE GARCIA
ELI SAVIT
2 Woodward Avenue
Detroit, MI 48226
(313) 237-1737
JOHN B. SPRANGERS
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, CA 90071
(213) 430-6000

BRADLEY N. GARCIA
SAMANTHA M. GOLDSTEIN
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300

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Form 6. Certificate of Compliance With Type-Volume Limit
Certificate of Compliance With Type-Volume Limit, Typeface Requirements, and TypeStyle Requirements
1. This document complies with [the type-volume limit of Fed. R. App. P.
[______________________________________________]]
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because, excluding the parts of the document exempted by Fed. R. App. P. 32(f)
[and [______________________________________________]]:
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□ this document contains 6,497
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/s/ Anton Metlitsky
Attorney for The City of Detroit
Dated: 11/26/2018

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CERTIFICATE OF SERVICE
I hereby certify that on November 26, 2018, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system. Participants in
this case are registered CM/ECF users and will be served by the CM/ECF system.
/s/ Anton Metlitsky
Anton Metlitsky
Attorney for Amicus Curiae The City
of Detroit