Mark D. Rosenbaum

Rosenbaum is the director of the Public Counsel Opportunity Under Law project, where he has made the right to quality education a central goal.

He recalled a phone call with the late educator and activist Bob Moses last year as Rosenbaum’s landmark literacy lawsuit against the State of Michigan targeting underperforming Detroit schools was in its final stages. “Bob talked about how kids were getting what he called a sharecropper education,” Rosenbaum said. “We are seeking to change that.”

Part of Public Counsel’s strategy is to draw on relationships with private firms, as it did with Sidley Austin LLP in the Michigan case. “It’s a partnership. The bar is at its highest calling when it works on civil rights cases,” Rosenbaum said.

The suit led to a historic settlement with Gov. Gretchen Whitmer that preserved for the state a first-ever opinion by a federal appellate panel that a basic minimum education, including literacy, is a constitutional right. Gary B. v. Whitmer, 957 F.3d 616 (6th Cir., op. filed April 23, 2020).

The 2-1 panel decision ran counter to a 1973 holding by the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez that no such right exists in the U.S. Constitution. A subsequent 6th Circuit en banc order dismissed the case, letting the settlement stand but vacating the constitutional precedent it had established.

Rosenbaum proceeded with a California counterpart suit that settled last year with a $50 million payout to 75 low-performing state schools to improve literacy outcomes. Morrison & Foerster LLP joined that effort. Ella T. v. State of California, BC685730 (L.A. Super. Ct., settlement filed Feb. 20, 2020).

Then the pandemic struck, and Rosenbaum and colleagues sued again on claims that California schools were failing to offer educational equality to low-income students due to a lack of digital connectivity, ineffective remote instruction and a lack of academic or mental health support. Cayla J. v. State of California, RG20084386 (Alameda Co. Super. Ct., filed Nov. 30, 2020).

“During Covid, the state took existing inequalities and compounded them. The learning losses are unprecedented,” Rosenbaum said.

Trial is set for May 2022. “I hope it doesn’t come to a trial. It would be one of the ugliest trials in the history of California, because it would show that when it comes to kids of color and low income, the state doesn’t really care. The case should be settled in the schoolhouse, not a courthouse.”

- John Roemer