Should Illiterate High School Graduates Sue the Schools that Failed Them?
Lawfare is a bad way to set education policy.
By Helen Andrews, features editor at Commonplace
Two lawsuits caught the public’s attention recently involving students who graduated from their high schools without knowing how to read and write. “William A.” in Tennessee sued the Clarksville-Montgomery County school system after graduating with a 3.4 GPA even though one of his teachers wrote in an internal email, “I am very concerned. This kid can’t read.” In Connecticut, Aleysha Ortiz sued the Hartford Board of Education, the city of Hartford, and her special education case manager individually for negligence and other wrongdoing. She claims her learning disabilities were not adequately addressed, leading her to graduate high school without being able to read even one-syllable words.
These cases are heartbreaking. It’s absurd that any American high school would hand a diploma to a kid who can’t spell his own name. We should cheer on these kids for pursuing some type of accountability. But should we cheer on these kinds of lawsuits?
The sad answer is probably not. Unfortunately, the only result of these lawsuits will be to force taxpayers to pour more money into a broken system.
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In order to assess these lawsuits, we have to ask what exactly the parents who brought them are saying should have happened. Obviously schools should not have graduated an illiterate student. But are the families saying that the school should have withheld a diploma until their child mastered the material and, if he never did even after multiple tries, should have flunked him out altogether? That the schools have standards and enforce them?
No, the position of the parents is that the schools did not pour enough resources into educating their children. In the case of William A., his parents argued that he should have been given sessions with a particular dyslexia specialist whom they liked. Ortiz wrote a letter to state legislators giving a list of the services she felt she should have received: “I should have had the help of a special education teacher, a paraprofessional, lessons designed to meet me where I was and challenge me, speech therapy, and occupational therapy.” More money and services would have solved the problem—that is the takeaway from these judgments.
It is not at all clear that that’s true, though. Connecticut, where Ortiz lived, already spends more on special education services than any of the other states examined in this 2024 study by an education nonprofit: $24,443 per pupil, compared to the average state’s spend of $13,127.
Beyond the specific cases, addressing these horrible outcomes with lawsuits like these only incentivizes schools to throw money at additional services and accommodations without regard for whether these interventions are effective. It tilts the playing field in favor of students who fall into categories that enjoy special legal protections, like children with disabilities, at the expense of ordinary children who may just as easily be failed by their school systems but who have no power to file lawsuits when that happens.
There is a postmodern twist to these stories. Both William A. and Ortiz were able to get away with doing high school coursework thanks to artificial intelligence and other technology. Ortiz says she uses talk-to-text apps to complete her assignments at the University of Connecticut where, incredibly, she enrolled as a freshman in 2024.
William A.’s use of technology was described by the federal judge who ruled in his favor:
William would first dictate his topic into a document using speech-to-text software. He then would paste the written words into an AI software like ChatGPT. Next, the AI software would generate a paper on that topic, which William would paste back into his own document. Finally, William would run that paper through another software program like Grammarly, so that it reflected an appropriate writing style.
It would have been impossible for an illiterate student to skate through high school like this before these tools were invented. Now, in the era of ChatGPT, we can expect to see more struggling students doing the same thing.
Ironically, these technological workarounds are enabled by the very accommodations to which these students were entitled due to disability. Teachers had to give William A. 24 hours to complete assignments that other students completed in the classroom, in order to accommodate his learning disability, which was diagnosed in fifth grade. Taking assignments home overnight allowed him to use AI writing tools. At school, he was allowed to use technology that would read text aloud to him.
This is the bind schools are trapped in: If they forbid students from using text-to-speech apps and other technological tools that do their reading and writing for them, this can be a violation of a disabled student’s right to reasonable accommodations. When these crutches have the inevitable effect of preventing the student from acquiring these skills for himself, the student can turn around and sue the school for failing to teach him.
Special education law is rife with such contradictions. Lawsuits like the two above do nothing to clear up these dilemmas. Instead, they further incentivize schools to act defensively, spending more on special services of dubious efficacy in order to be able to claim that they did all they could.
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Education policy inevitably involves tradeoffs. To what extent should schools fund costly disability services at the expense of other priorities? Should schools spend money on remedial math instruction for students with severe learning disabilities if it means the other children won’t have a chemistry lab?
These are political questions. We have a mechanism for resolving them, called democracy. More and more, however, education policy is being set not by elected officials or voters, but by judges, without accountability.
There is a lawsuit in my home state of North Carolina that has been winding its way through the courts since I was in grade school and is still unresolved. Known as the Leandro case, it was filed in 1994 by families in rural counties who claimed the state had violated their rights by underfunding their schools. North Carolina, like most states, has a clause in its constitution requiring that the government provide children a “sound basic education” (sometimes the phrase is “adequate” education or “thorough and efficient” education).
Forty-five of the 50 states have had “sound basic education” lawsuits of this kind, where activists sue in the courts to get more money for schools by arguing that the state has not met its basic constitutional obligation. Most of these suits have prevailed (60%), and since 1989 the record is 20 out of 29 cases ending in victory for the plaintiffs, according to law professor Michael Rebell’s Courts and Kids: Pursuing Educational Equity through the State Courts (2009).
Only seven states came to the far more reasonable decision that the adequacy of schools is a question for legislatures, not judges. “The landscape is littered with courts that have been bogged down in the legal quicksand of continuous litigation and challenges to their states’ school funding systems,” said the ruling of the Nebraska Supreme Court in 2007. “We refuse to wade into that Stygian swamp.”
Judges who do wade into the Stygian swamp quickly discover that it is not as simple as waving a wand and making schools better. In North Carolina, for example, the state supreme court first ruled for the Leandro plaintiffs in 1997, but litigation sputtered along almost continuously for decades to determine what remedies are required and who is empowered to enforce them. In February 2024, the case came before the North Carolina Supreme Court for the fourth time. A final ruling has not been issued.
The case almost came to a final conclusion in 2022, when the supreme court ordered the state legislature to release $1.7 billion to fund the reform plan mandated by a previous consent order, but then the November elections flipped the court to a Republican majority and the new court agreed to rehear the case. It is fine for elections to lead to sudden policy reversals, but if education policy is going to be decided that way, shouldn’t it be left to the most democratic branch without judges adding a superseding level of interference?
Robb Leandro, the titular plaintiff, is now grown up and working as a lawyer for the firm that represents the poor counties in the suit that bears his name. The supreme court justice who wrote the original Leandro decision has retired and is now a critic of the way the litigation has panned out, saying the case “somehow got off track, as it spun up and down, up and down, and became a money case.” Nobody who launched the lawsuit ever thought it would still be going 30 years later. If they did, perhaps they would have thought twice.
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Lawsuits are a terrible way to set education policy. They are a blunt instrument that allows judges to assert a vague right to a “free appropriate public education” and then leave schools to work out the details.
They are also unfair because they privilege some students over others. Ordinary students do not have a special identity that can be “discriminated against.” Minority status becomes the only path to having real rights.
Disability has exploded since the original Individuals with Disabilities Education Act (IDEA) was passed. In 1975, 8% of public school students were in special education. Today, the share has almost doubled, with 15% of public school students receiving special education services. In Pennsylvania, New York, and Maine, more than 20% of students are identified as disabled.
Is that because disability rates have genuinely increased in fifty years? Or is it because a disability designation is a path to special treatment so parents get their kids a diagnosis in order to take advantage of those services? Or is it sometimes just a scam? In Minnesota, the amount paid to providers of autism services for children has increased 3,000% in five years, from $6 million to $192 million, and investigations have found that many of these purported providers are fraudulent.
Services for students with disabilities, as valuable as they may be, are just one of many things schools have to fund with limited budgets. Parents who think special education should get more money can make that case within the democratic process, just as do people who want more money for science labs or shop class or performing arts. Giving one type of education an extra lever parents can use to demand more funding distorts that process and causes schools to shift money from other priorities to those services that judges are more likely to fault them for not providing.
Aleysha Ortiz says that she went public with her story because she wanted other children in her circumstances to see that enrollment in college is possible. “I would Google people that went to college and did not know how to read. I couldn’t find anyone. … So maybe if I am the first, and I know I’m not, maybe people can be like, ‘That person made it.’”
That is the last thing that should happen. Students who cannot read and write should not be enrolled in college, even if talk-to-speech apps and ChatGPT make it possible for them to muddle through their coursework. Children who struggle in the classroom deserve our sympathy, but this example is one that should be learned from, not imitated.
The coming years are going to confront us with many difficult dilemmas in the field of education, as technology upends the old models and AI gets better at providing shortcuts to students of all kinds, those with disabilities and those without. Decisions about how to navigate these challenges should be made through the democratic process, by everyone with a stake in our future, not by judges working from statutes that privilege some kinds of education over others.