Oral argument — Gary B v. Gretchen Whitmer

and 181871 Gary B. et al. v. Richard Snyder et al. Arguments not to exceed 15 minutes per side. Mr. Phillips you may proceed for the appellants. Good morning your honors and may it please the court I'd like to reserve three minutes for rebuttal. All right. Thank you. We're here on a motion to dismiss so the complaint has to be accepted as stating the nature of the case and the district judge quite correctly described the allegations in this complaint as representing deplorable conditions in the schools at issue here and that those conditions have led to outcomes that are devastating to the class of students that have been named in that complaint. What we deal with here is a fundamental right of access to literacy and by that what do we mean? Precisely what we're looking for is what we don't have in the schools that are at issue here. One, we expect books to be available to every student. We expect books that are contemporary to be available. They should not be two, three decades old. We should have teachers in every school class. We should not have substitutes for long periods of time. We should not be in a situation where non-certificated teachers are permitted to teach in these schools and yet no other schools throughout the state of Michigan. We should be in buildings that are consistent with a learning environment. That is where the heat system works, where the air conditioning works and so that people can actually learn how to read, how to write and none of those things is available as we have alleged in the complaint. The district court accepted that, acknowledged it and said simply that he personally at least was unable to find that there's a fundamental right of access to literacy. The Supreme Court has consistently left open the question of whether such a right exists. It identified it in Rodriguez. It came back to it in Plyler. It came back to it again in Peppeson and Cardemus. It has specifically recognized obviously education stands on a different footing from the provision of all of the resources that states provide to their citizens. You, does your, so you cite a fair number of state constitutional provisions in support of your theory. I wonder if those prove too much because one of those state constitutional provisions suggests that Rodriguez is actually incorrectly decided and how do you say that those constitutional provisions don't show a general right to education because we know that's what Rodriguez held but they do show the right to access to literacy that you're alleging. Well it may well be that if the court were to revisit the question in Rodriguez it would take in, it might very well take into account that history and might revisit that issue but you don't need to go there because the court has consistently left open the issue of whether the lesser included right of access to literacy is not one that the court has said is not fundamental and therefore it's perfectly legitimate to look at that state constitutional provision. That's what's, it's kind of strange right because those provisions don't, like if you look at them they don't say there's a right to access to literacy, they just talk more generally about the right to education and we know that they are not enough to create a fundamental right to education because we're bound by Rodriguez and that's what Rodriguez clearly held. So how do we use them to, how do they support the narrower argument? So the fundamental question that you ask yourself when you're looking for fundamental rights under Obergefell is whether or not what we're looking at is by tradition and history and as an accepted way of thinking about the importance of the interest at stake, where do you look? And you look to the constitutional provisions that say, state constitutions consistently say and did when the 14th Amendment was adopted, education is extremely important. So it seems to me it follows a fortiori if education is extremely important whether it's a fundamental right or not, a fortiori access to the minimalist amount of education has to be at least fundamentally important and particularly then if you use all of the methodologies that are available to evaluate whether or not something is a fundamental right and Obergefell sort of went through them. I mean the history is there and the history speaks for itself. But nobody can seriously doubt that not having literacy will significantly influence at least every other right you might use, the right to vote, the right to exercise First Amendment protections of one sort or another. You can't even read the Constitution if you cannot read. And the other important element of this, and it comes out of Plyler, right, where you're taking a discrete set of innocent children and saying to them, we're not going to provide you with access to the basic tools, books and everything that will allow you to read. We're saying to you, you are now stigmatized for all time. The fact that you went to Osborne High School will stigmatize you for the rest of your life because you never had an opportunity to be in a position to read and that will affect everything that goes on in that human's life henceforth. And so under those circumstances it would seem to me that all of the criteria that courts have traditionally turned to in order to ascertain whether or not something is a fundamental right coalesce in this particular case. Do you think that Plyler actually, so Plyler helps you on the equal protection claim, but do you think it undermines you in some respects on the fundamental rights analysis because there was a effectively legal prohibition on the children in that case getting a free education but the court didn't apply, didn't say there was a fundamental right even in that context. So it wasn't just a, I take your argument to be a functional analysis, the law says you're allowed to have an education but functionally they haven't been providing it. There was a law that said these children should not get an education for free and the court didn't apply, at least didn't say it. It didn't say it, I mean I don't know that I would say that, I mean. Well it did engage in kind of the, maybe you could argue for a heightened rational basis review which other cases have interpreted it to be, but they didn't say that there was fundamental right which generally speaking triggers super high scrutiny. Well the truth is in this case, candidly I'd be fully satisfied with rational basis scrutiny but I think I'm entitled to at least something somewhat higher than that because the state has not yet identified even the remotest justification for depriving children of books, of teachers. I mean the notion that this is a school and that these are schools in name only, what is the legitimate state interest in creating that kind of a sham arrangement and treating a subclass of students in this particular fashion? To be sure, the court in Plyler had an easier ground because it was a complete deprivation and it was done on the basis of alienage and it obviously adversely affected innocent children. But as the case comes here, and as the district court acknowledged the case comes here, we have essentially alleged that you might as well not have shut the door. And the state, I suppose you could say to its credit, says our theory is limitless. I mean they defend this on the basis that it's perfectly okay to bring hundreds of students together and sit them in a recess and give them an opportunity for social interaction. I submit to you that that is simply wrong and that no limiting principle by its nature says that the court should recognize that there is in fact a fundamental right in this particular context. I'm sorry, Your Honor, did you? You know your allegations are not that definitive about when the problem began or arose or how it was perpetuated. And with respect to allocating responsibility for the state of affairs, of the record and the facts that you allege, there seems to be a lack of definitiveness in terms of the allocation of blame here. I mean you do allege, as you have to, that the state and state officers are responsible ultimately. But also you don't sue the local school board, so we don't have all the actors before us in your complaint. So there does seem to be some weaknesses in the way you present your claims. I could go on at greater specific, but how do you respond to those kinds of problems? Well, in the first instance it seems to me if we need more defendants, if the court recognizes that there is in fact a fundamental right of access to literacy, at the end of the day the ultimate responsibility is that of the governor and the people whom he has appointed or she. And so we have a perfectly legitimate defendant. I do actually think under the circumstances and given the extraordinary amount of activity that the state and state actors have had in running the Detroit public school system for more than a decade and a half, that the way we approached it in 2016 when we filed the complaint identified at least a core of defendants who could provide significant relief to my clients by providing books, contemporary books, teachers, certificated teachers and buildings in which you can educate these students. So we are at the motion to dismiss stage. If it turns out after we have an opportunity to investigate what has happened both during the period of time when Detroit was taken over by the Michigan authorities and during the period of time since the return of some authority back to the Detroit school system, we can amend our complaint. We can find which defendants are in fact necessary in order to achieve success. But as matters stand today and I do want to respond to my friend's argument because I'm sure he's going to stand up here and say we're not the bad guys here. We didn't do anything. But the reality is we are in a situation today just as we were in 2016 when we filed this complaint where we know that there are schools that have no books, that have books that are 20, 30 years out of date, that have classes with no teachers. We have 8th graders teaching 8th graders. We have circumstances where people cannot learn because the conditions are either too hot or too cold or rat infested. Can the district court make the determination that this wasn't a mootness issue because of what the state had done all along and because the expectation would be that the state at any moment could reinsert itself. Is that correct? That is correct. Remind me, educate me on how the split between the Detroit Public Schools, the current one, and the Detroit Public Schools Community District came about. I'm unclear on what entity created those two, that distinction and was in charge of making that division. I thought the state of Michigan did that in order to offload the debts of the school district onto the predecessor entity in order to allow the successor entity to be debt free and therefore in a position to... So the current existing oversight was created by the state. Yes, Your Honor. You know, you've got a... you're asking for injunctive relief here and in deciding whether you have a cognizable claim, which isn't quite enough of a challenge on its own, there's the problem of determining what relief could be potentially available and that has some relationship to, I suppose, also to whether you have a legally cognizable claim. And this is not a request for an injunction where you want us to enter an order preventing some illegal activity. You want a decent school system set up and funded and staffed and all that. But your complaint allegations, maybe understandably, but don't make clear how you would like the court to assist in accomplishing that by an injunctive order. I mean, the complaint itself, for example, say that there's a problem in that, well it doesn't say this, but it says that problem is one would think because there's a problem in getting people, teachers who would want to teach in the Detroit system. And if we need to devise a remedy that involves expenditure of funds, there's a issue of legally where could that money come from, whether we could even order the allocation of such money. And your complaint doesn't say anything about the practicalities of funding the kind of school system with the resources that would be needed to ameliorate the problems that you've identified. What do you want us to do in that regard or what kind of injunctive remedy and where would we get the resources if we agreed with you that there's even a federal constitutional right to literacy, which again, the Supreme Court certainly hasn't said that as of yet, so even, excuse me? The Supreme Court hadn't said there was a right to same-sex marriage either, but a lot of courts of appeals adopted that view before the Supreme Court did, so I wouldn't be hesitant on that score, but let me speak directly to your question about the remedy. That's a point well taken. I don't mean to suggest, but what I'm saying, what we could might or might not be willing to do, but certainly this is not an easy case. I suspect I wouldn't be here for an easy case, Your Honor, but putting that issue aside, I think the fundamental answer to your question, and I don't want to be flip about it, is that you're putting the cart before the horse here. To be sure, the question of what the ultimate remedy is going to look like is a daunting one, and obviously I've confronted this since we began this litigation and have it in mind, but I would not remotely be in a position to tell you today what I think would be an appropriate remedy in its fullest extent because we're going to need a record. Remember, we were dismissed at the complaint stage, and we suggested certain remedial measures in the remedy section of the complaint, but whether those are the right remedies or appropriate remedies, it's going to depend ultimately on what the nature of the wrong is. I mean, that's the whole 11th Amendment argument with respect to the remedy, right? I mean, that's Millikan v. Bradley. Chief Justice Berger wrote it and said, as long as your tailored remedy is adequate and is tailored appropriately, then the 11th Amendment is not an obstacle when you're eliminating a violation of the Constitution. What I would suggest to you, Judge Clay, is that rather than deny these children access to the fundamentals of the ability to learn out of fear of what's going to come down the road, the better answer is grant them that right, and to be sure there will be many hours devoted to trying to figure out what the right remedy is, but it would be, I would think, a horrible mistake to say, I'm not going to grant the right in the first instance because I'm afraid that the remedy may be a difficult one down the road. At a minimum, there are certain things that can be done that are pretty straightforward. The idea of having books for every student and that are reasonably contemporary, that having student, you know, certificated teachers. Well, we know about those things because we've read the rec and we've read your complaint. I merely emphasize them, Your Honor. These legal issues, what I'm trying to focus on here, and I won't go on much longer because I know your red light's on there, but let me just ask you about your complaint allegations. You seem to be emphasizing substantive due process more than equal protection in the sense that you don't, with regard to the equal protection arguments, you don't really come up with comparators, don't, at least in my way of thinking, don't make out a, you know, a sufficient claim of disparate impact, at least not with your complaint allegations and even as to the racial component, that's not fleshed out. You do say a few times in passing that there's racial inequities in the school systems and probably we all recognize that, but you don't develop the theme or argument and how that's applicable with regard to the complaint allegations that you want us to take into account with regard to a potential equal protection claim. And so I'm just wondering why that doesn't seem to be the case. That argument isn't further fleshed out in your allegations. Well, the first answer is that what we allege is that obviously these are extraordinarily color, people of color, students of color, right, 98%, 99% of the students in these schools are people of color. So this is unusual in that regard in terms of, you know, why these schools are being treated in this particular fashion. Do we have a basis for saying, I mean, so I don't think there's any question there's a disparate impact. The question is, is there intentional discrimination under these circumstances? And at this stage, it's probably not all that clear whether it is or isn't, but again, we were dismissed out on the motion to dismiss. We've not had an opportunity to ascertain exactly why the resources were allocated by the state and the way they were. It may well turn out that there's a much stronger case. We raise the issue of the discrimination because I think the district court clearly erred in saying that the only comparators are other school systems that the state has actually taken over. I mean, I think that's just wrong. I think the fundamental issue here is Michigan runs a school system in which it purports to provide essential access to everyone and denies it to our clients, the vast majority of whom are people, are students of color. I didn't view your brief or your complaint as alleging a traditional equal protection claim. Did not allege a traditional equal protection claim. So you didn't see Washington v. Davis, no intentional discrimination allegations whatsoever. I didn't see Washington v. Davis, disparate impact, neutral laws, you need to show disparate impact and intentional discrimination. But the Supreme Court has recognized that when there are racial overtones to the way certain privileges are being allocated, it does affect the due process analysis, and so we use it to reinforce that argument. Would you also say that yours is simply a positive right, a positive fundamental right? Your opposing counsel asked why you don't fall within the normal, or their explanation of normal being negative rights framing. But yours is not a negative right claim. There's some reference to that, but am I correct that the complaint makes a positive right claim? To be sure, you're correct that we make a positive right claim. The truth is we also make a negative right claim. What we said is that these are schools in name only, and you cannot take students, any human beings, and say I'm going to put you in a yard for eight hours a day. You can't require them to be there. Right, unless you're going to offer them a quid pro quo, and here the quid pro quo is access to literacy. That's the whole reason for this, and what we don't have is that. So your argument would be that you present both, that you do make a negative rights complaint, you do state a claim for negative rights based on compulsory attendance. And I think it's not, personally I don't see much to be gained by categorizing negative versus positive. It seems to me it's all one and the same, because it's a fundamental due process problem, and the question is, is there a liberty interest here? There are liberty interests, but the fundamental liberty interest is you are compelling these children to be in a place where the only reason to justify compelling them to be in that place is the expectation that you will provide them at least access to literacy. Don't you think the negative right is pretty important? I'm sorry? Because the Cheney makes clear that the due process is a right against a government coercion or a government intrusion on your liberty interest, and suggests there is no positive right even to the protection of life and liberty and physical security. So I do think that the Supreme Court's case law does draw this divide between positive and negative. I think Cheney should be limited to dealing with the state vis-a-vis third parties and the people who are in their custody. Here you're talking about the state actually physically maintaining compulsory arrangements, taking custody of these children for a block of time. It seems to me you have to come up with a rationale, some explanation for why you can do that. Would you be satisfied with an injunction striking down the mandatory attendance requirement? No, of course not, because that's not an equitable resolution of this problem. That would eliminate any negative coercion on children, of course, but doesn't that suggest that you're really seeking a positive right? Because your remedy is clearly a positive remedy. There's no question. Yes, we do need a positive remedy, but again, I don't know that it helps. I mean, there are lots of situations where you need positive remedies. All prison litigation arises and gives rise to those kinds of remedies. So that's not an obstacle. I don't think it helps the analysis to try to segregate out the nature of the right in one direction or the other. I think at the end of the day the question is, does it make sense for the state to say we can essentially hold you against your will for long periods of time without giving you the quid pro quo, which is access to literacy, that at the end of the day you will have something that you can show for it, that we're not just going to put you in front of movies for hours on end, as opposed to just simply do what's the right thing to do here, which is books and teachers and buildings where education can take place. All right, you might want to. Is it your position that Obergefell changed the test from Glucksburg, or that they share a common test? Oh, I think they derive from the same basic sources. It's just a question of how you analyze the history and the traditions and the nature of the right. And we are clearly much closer, much. I mean, I would think if anything, we're on the other side of Obergefell, frankly, because the history, the traditions, the importance of this right to all other rights all point directly in the direction that there should be a fundamental right of access to literacy, Your Honor. All right, thank you very much. You have your full rebuttal time. Good morning, Your Honors. May it please the Court. My name is Raymond Howd. I'm an assistant State Defendant, except for board members Pugh and Tilley. So when I say State Defendants, it will be all the defendants other than those two. You know, Detroit, like many urban schools in the country, have experienced rapid growth through the early part of the 20th century. And then for shifts in population and economic decline, loss of pupils have now shrunk. And that is not unique to Detroit. And that's what occurred here. With the shrinkage of the student population, then there's a decrease in the finances that are available. And I just wanted to give you an overview of the state's involvement. Really, they just got involved in 1999. At that point, there were extreme deficits that were run by the Detroit Public School System Board, mismanagement of funds, and there was some real concern about the academics. Can we consider that evidence at this stage? It's just bad. It's not in the complaint. It is in the Great City School Report that was attached to the motion for summary judgment. That kind of was the basis for my question. And some of your standing analysis and your stuff, that was outside the complaint. I thought at the 12B6 stage, we were limited to the four corners of the complaint. You're correct, Your Honor. And I just wanted to give some context, because as this panel has indicated, these are very complex social and economic issues. And there's no easy solution. So for standing purposes, do you concede that you're not, you didn't raise any standing arguments on appeal. Do you think that we have an independent duty to consider standing? Are you conceding that standing exists at this stage and you're only making a motion? No, I believe that this court can consider standing at this stage as a jurisdictional matter, especially with the lower court having determined that the state defendants are only the proper parties in this lawsuit because of the intervention that the state took through the years. So we can sui sponte consider standing because it's jurisdictional, but you didn't mention it in your brief. So I was just curious about why that was and why you only relied on mootness. It really goes to the mootness more than standing. It's really the proper parties. And the reason that I bring up the background is that the state has gotten in, has first time was mayoral control of the city of Detroit and the mayor appointed a board. It was turned back to local control in 2005 and then after that, it just got worse. The student population continued to diminish and the deficits went sky high. Well, counsel, let me ask you this. Even as to, by way of background, the years during which the conditions were allowed or permitted to deteriorate during which local control was in effect, even as to those times, the state was ultimately legally responsible for the local schools. And so even if we accept your contention about how bad things have become with the local school board and that kind of thing, during which the conditions deteriorated, even during those times, the ultimate legal authority for the operation of the Detroit schools would have been the state of Michigan as a matter of law. You're not contesting that, are you? I am contesting that, your honors. In Michigan, the state has general supervision and oversight of the public school system. They're the coordinating body, the state board of education. That's even in the state constitution, isn't it? Yes, correct. But that's different than having direct control. And there's no tradition that's more honored than local control over education. But Michigan is head. I'm sorry. I was just going to say, you know, there hasn't been any shyness by the state in recent years in coming in and taking over local control whenever they wanted to do that. Under a statute, yes, there are provisions that are out there. But when a school is operating, when a school district is operating under local control, the state simply doesn't have the ability to go into the school and say, you've got to teach this. You've got to hire more teachers. Well, no, but they cannot displace local control or take over from local control. The state has that authority, and it's done so. That is true. Judge Strange has a question for you. That was my question, that Michigan, we've got 20 years now of Michigan effectively taking complete control off and on from cities, from emergency managers. That's a long history. I'm struggling with the idea that 20 years of moving in and out and taking and exercising control, sometimes by public acts that referendums took away and then new public acts were replaced, and they enabled that activity to go on. I'm struggling with how you think that would not – Michigan has not exercised the very control that makes it an appropriate defense. I would agree. In those cases where the state has exercised intervention, if you will, under various statutes, I agree 100% with you. But in 2016, the school district was given back to local control and an elected board of education, and they appointed Dr. Vitti as the superintendent, and they are in full control. Did the state make the division between the public school systems and the community? System that is now in existence, is that a state-generated division? Yes, they are a general powers district like every other school district in the state of Michigan now. As to the mootness, and this applies to all of the state defendants, any rules that the state had in the direct operation of the school districts involving the appointment of emergency managers, the creation of the education achievement authorities, the priority schools and the state school reform act have now been completely removed from the school district, and local control has been implemented. The defendants were the proper parties in this case only because of that role. Judge Clay, as you indicated earlier, the question arises, well, what is it? What kind of an injunction could a court possibly issue to tell the state board of education members and the governor to stop doing what? And that therein is the basis for the mootness argument. There is no longer a remedy, and as your honor indicated, if there is a continuing constitutional violation, then the plaintiffs would have to bring in the Detroit school district now. If in fact they still... If that is a necessary party to a resolution of remedy, then the federal rules allow that to be added. So why would that exclude your clients, the state clients, merely because we have an additional indispensable party that is necessary to remedy? Your honor, I can guarantee you the people in this courtroom, the last thing they want is state intervention anymore, as you indicated. But that's not the issue here. The issue is who is the appropriate defendant. And I don't... I'm struggling with your argument that because there may be an additional party needed for relief that that makes your clients not the correct defendant. I don't think those arguments track. I think the point is there is no longer a continuing constitutional violation. Based on what? What's the basis for that statement? I mean the conditions in the schools have not changed or improved. If there were a constitutional violation, and I'm not saying that there is, but if there is, it still persists. The legislature paid, committed $750 million to the school district, $150 million for start up and financing cash flow issues for the school, and relieved it and created this debt-free school district. How could there be a continuing violation unless someone is not implementing literacy, hiring teachers, providing textbooks? That's the entire allegation, that someone is not doing that and it's alleged that the state is responsible. I think that's what the complaint is alleging here. But as the lower court indicated, the reason that the state defendants were the proper parties was because of their role in the intervention. And because of the judge's conclusion that there is every likelihood that that intervention will occur in the future. And that's based on 20 years of evidence. So I take it you're indicating that this is capable of recurring? Of the capable of recurring? Yes. That's what the district court decided. Moving on to defendants McMillan and Snyder only. Two board members. Our argument there is that this court should affirm the lower court's decision that there is no fundamental constitutional right to access literacy. And also to affirm the court's decision dismissing plaintiff's complaint on equal protection grounds. All of the defendants here fully understand the importance of literacy. Nobody is trying to say, well, it's not that important. It clearly is. But if we're trying to determine what kind of a minimum adequate education is, there's no discernible obligation that could be measured. What is that? What does it consist of? In fact, in the amicus brief that the community district filed, they indicated that on the national test, 7% of 8th graders read above grade level and 5% of 4th graders. The state average is 44%. Is 44% not a minimal adequate education? Doesn't your opposing counsel concede that you can't measure this by the outcome of providing the literacy services? In other words, you can't say that because they're at 2% and you're at 44%, that takes care of everything. Their position is that it is not the success full receipt and evidence of the literacy that is at issue. What is at issue is the failure to provide access. Whether or not that access is accepted, whether or not those kids do what they ought to do or can do what they ought to do, the argument is there's no access. You've not made it available. But the plaintiffs utilize the assessment rates and the proficiency rankings to establish that there's no access. Or to establish that there's a serious problem. There's a difference between a serious problem, one that rises to the level of a constitutional fundamental right, and the difference of having no access to education. Nobody here would ever say that that's great, that less than 10% pass the proficiency rankings. But the fact that there are some students that do belies the point that this is an empty warehouse where it's filled. Isn't this a constellation of factors? This is not just about, well, some of them could do it and so we have sufficient literacy in this group, so we're not going to discuss the underlying problem. Because the underlying problem is evidenced by everything in the complaint. Not just the fact that you may have people with zero proficiency, but in fact that you have people with zero proficiency in the buildings that have been described, in the school situation, in the teaching, in the availability of the things that students need to learn. Don't we have to look at that whole constellation in making this determination? Yes, among other things. I'm struggling. Among other things, such as the socioeconomic factors of where the child lives, what kind of background, what is the home environment, and poverty is the common threat. The suggestion might be that access to education is even more significant when you are fighting the backfires that are in the community. That's part of the issue here. What type of education do you have to provide in a community that's already having existing problems? I think, Counselor, that's why I struggle with these arguments about the extension of a constitutional right. For example, your argument that it removes, to make this a fundamental right, removes it from the political process. It takes it out of public debate. I recognize that we have three co-equal branches and we need to honor that. But it seems to me that in the context of equal protection, and here a comparable argument is being made under a fundamental right, and that's that these plaintiffs are unable to participate in our system of ordered liberty because they're denied the access to literacy that is a necessity for participation in the system. They can't be within the American system without the within our political process if they can't read and write even at a minimal level. Isn't that what Rodriguez was addressing? I want to make sure I get the quote right. It suggests heightened scrutiny is warranted where a group is relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. So why isn't that part of the calculus that we have to look at in ascertaining whether this is a fundamental right? In determining whether it's a fundamental right, and by the way, I don't disagree with any of the statements that you've said about the importance of literacy, but Rodriguez had a state statute. We actually could say what was it that we're looking at, that we're looking at. The question here, what you have is, what did the governor do? What did any of the state board members do? There's just no... Or not do. Or not do. That they could have, that was within their authority to do. And so I think that Rodriguez, while I don't disagree with its statements, the extension to this situation would not be applicable. Do you have anything further? I know you read lights on there. Yes. One other point, Your Honor. Plyler v. Doe is not applicable here, again, because that involved a statute that clearly excluded people. In this particular case, as referenced in the Papasan case, a court, while it does consider all well-pleaded allegations as true, does not have to accept as true conclusions from those allegations. And so when the plaintiffs make the statement that there is absolutely no literacy being taught in these schools and that they're schools in name only, that's a legal conclusion that I don't believe that the court has to accept as true. And one point about the comparator group, it would have to be schools under which the state intervened. Because as Michigan's local control policy, as is across the nation, the state intervened. And it was only because of the state's intervention for financial and ultimately bailed out the district from bankruptcy. I think that's really what an issue, too, is. What is the standard for a school, a district that's facing bankruptcy? And while the state may have had, I don't agree with 20 years because the mayor of the city of Detroit appointed the board for five years in the early 2000s. And then when the emergency manager was appointed, the conditions were... I don't want to get into the blame game because I really think that the goal here is for everyone to work together and try to resolve this. I don't have anything further that's not already in the briefs. Thank you very much. And we'll have Rebecca. Thank you, Your Honors. I'd just like to make three basic points. First, Judge Clay, I don't think I completely answered your question, which is, does the complaint identify what happened during the period of time that the state took over responsibility? The first page of the complaint says the state took over management of the school system and essentially drove it into the ground by both acts of commission and omission. So it's true, we don't do a comparison between what the school system was like before the state took over, but we certainly recognize that the state made the conditions significantly worse than they were prior to that time. With respect to mootness, Judge Strange, I think you pretty much nailed it, which is you can't sit here and play a shell game and start moving these around and say, you have to name a different defendant every other year. That's not the appropriate answer. The right answer is, at the end of the day, the governor is ultimately responsible. He is a named defendant. If we need to chase down additional defendants as we go along, we will do that. But at a minimum, there's no basis for any kind of a claim of mootness. Obviously, that was not before the district court, because they didn't raise mootness before the district court. But at the end of the day, if the state came here and said, we have 150 trucks of new books and 150 buses of new teachers, and we are ready to put them into the four schools that are at issue here, and we've got brand new buildings that have been constructed, then you might have a mootness argument, or at least there would be an interesting inquiry as to kind of where we are in the process. They haven't done any of those things. They've spent a little more money. That's fine, and of course, that's a valuable plus. But it doesn't remotely eliminate the conditions that are the basis for our allegation of a mootness. One thing I wanted to ask, which I'm able to on opening, is do you have an analogy on the jurisdictional mootness standing to other contexts in which courts have recognized these types of what Judge Clay has suggested are pretty far-reaching allegations for an injunction? Have courts ever done anything like this? I guess the best analogy would be maybe in the Brown context. That was limited to district. Prison overcrowding is another one. I mean, the public institution, hospitalization, public institutions like that, when the states have run those into the ground, the courts have issued injunctions basically to remedy the violation. I mean, the classic statement of it is root and branch, to eliminate the discrimination, root and branch of the desegregation context. In this context, we would say what you have to do is you have to eliminate the non-access to the literacy in a way that puts the people in the position they would have been. In that context, though, they did limit it to the district-by-district approach, and your claim seems to be statewide. You seem to suggest you want statewide remedies. No, I mean, we're here on behalf of a class involving four schools at this point. But your injunction says you want guarantees of state access to remediation. It seemed to me that remedy was requesting statewide assurances of literacy. Well, I mean, I think it would probably follow that the reality is that we're only filing on behalf of the four schools and seeking relief from the four schools and for the students who are in the class, that is, past and present, you know, school students and future school students. So that's, I don't think we can go beyond that. But, you know, can we ask for certain affirmative measures for those students? Absolutely. I think we're entitled to do that. And then, Judge Strange, I just want to, I think, reaffirm basically the core point you were making, which is, you know, our complaint here is about the inputs. If you don't have a system where you can properly educate somebody, all we go to the proficiency scores for is to show you that's, what do you get at the end of it is, you didn't get access to literacy and the reason you know it is that the vast, vast majority of the students who went through that system were nothing more than warehoused. And it's not a simple legal conclusion that these are schools in name only. Any school that purports to not have books, not have graders teach other students, and warehouses children in conditions that we wouldn't put a prisoner in is a school in name only, Your Honor. If there are no further questions. Thank you, Your Honors. Thank you very much and the case is submitted.