During the coronavirus public health emergency, the U.S. Court of Appeals for the Sixth Circuit issued a published decision in Gary B. v. Whitmer, recognizing a right to "basic minimum education." Less than a month later, the Sixth Circuit granted review by the entire court and vacated the earlier decision. What happened in between those decisions is a tale of political conflict, a settlement that sought to head off further appellate review, and a decision by a majority of the Sixth Circuit to overturn the panel's decision before the parties' maneuverings made it impossible to do so.

The story begins with a deplorable situation. The plaintiffs are seven students of public schools in the city of Detroit. In their complaint, they describe how "not even the pretense of education takes place" in their schools, which lack "the capacity to deliver basic access to literacy." The plaintiffs cite examples of seventh- and eighth-grade math classes being entrusted to an eighth-grade student for a month because no math teacher was available. They also note vermin infestations, malfunctioning furnaces that make classrooms both too hot and too cold, and sharing one textbook among four students. The plaintiffs explain these conditions result in illiteracy being the norm among the schools' students.

In September 2016, the plaintiffs sued the Michigan governor and Michigan's state board of education. The plaintiffs claimed these officials had failed to provide a basic minimal education as required by the U.S. Constitution's guarantee of due process. The district court dismissed the action because it concluded there is no substantive due process right to a state-provided basic minimum education.

The plaintiffs appealed. While the appeal was pending, an election occurred, and a Democrat replaced a Republican as governor. On appeal, this switch resulted in an unusual brief from the government defendants. The governor and the board of education argued they were not proper defendants in the case because they did not control the Detroit schools at issue. Only the Republican members of the board of education defended the district court's ruling that there is no fundamental right to a basic minimum education.

The Sixth Circuit's three-judge panel delivered a split decision, with the majority deciding the Constitution recognizes a due process right to a basic minimum education. The court reasoned that recognition of a fundamental right to a basic minimum education fulfilled the two requirements established by the U.S. Supreme Court.

First, the panel majority reasoned that "access to literacy" has been "viewed as a prerequisite to the exercise of political power" and denial of access to such education has been viewed as "serious injustices … that conflict with our core values as a nation." For that reason, the panel majority said the right to a basic minimum education, which the court identified as "access to literacy," is so deeply rooted in United States history and tradition as to be a fundamental right.

Second, the panel majority concluded a basic minimum education is essential to prevent the arbitrary denial of all access to the opportunity for success in life without regard to the circumstances of birth. And thus, the panel majority said the right to an education that can plausibly impart literacy is implicit to the concept of ordered liberty.

The panel majority's conclusion was, according to the dissenting judge, contrary to longstanding U.S. Supreme Court decisions rejecting a substantive due process right to an education. The dissenting judge concluded the issues identified by the plaintiffs should be resolved by the state legislature and local school boards, not federal judges. More specifically, the dissent reasoned the Constitution does not afford a positive right to a government-funded education and worried the panel majority's decision would lead to states and school districts needing to meet federal judges' school-quality standards.

The panel majority's decision was the first federal appellate decision in the nation to recognize a fundamental right to a basic minimum education. The Sixth Circuit's decision was not well received by the Republican members of the state board of education nor the Republican-controlled Michigan legislature. But Michigan's governor and the Democrat majority on the state board of education agreed with the decision and refused to seek either review by the entire Sixth Circuit or the U.S. Supreme Court.

So began maneuvers by the Republican board of education members and the Republican-controlled legislature to further appeal the panel's decision, and the counter-moves by the plaintiffs, the governor and the Democrat majority on the board of education to defeat those moves. The two Republican members of the state board of education had each been named as a defendant, and so they filed a petition for rehearing en banc. And the Michigan legislature moved to intervene as a defendant/appellant because it would have to approve funding to satisfy court-imposed requirements. The three other states in the Sixth Circuit—Kentucky, Ohio and Tennessee—along with seven other states filed an amicus brief supporting the petition for rehearing en banc.

The plaintiffs and the remaining appellants opposed these efforts and moved to withdraw the petition for rehearing en banc, claiming the two individual members of the state board of education were not free to litigate independently. Michigan's elected attorney general, a Democrat, added to the milieu by filing an amicus brief opposing the actions of the Republican officials.

While these motions were pending before the Sixth Circuit, the governor sought to insulate the panel's decision by mooting the case. The governor and the plaintiffs concluded a settlement agreement whereby the governor promised to provide $3 million to the Detroit Public Schools and seek legislative approval for additional funds in exchange for a dismissal of all claims against all defendants. For sake of comparison, Michigan appropriates more than $500 million annually for the Detroit public schools. The governor and the plaintiffs promptly notified the Sixth Circuit of the settlement and asserted the case was now moot.

The Sixth Circuit apparently disagreed. Four days after the governor and plaintiffs' settlement, the Sixth Circuit granted en banc review. The court's order recited that a member of the court had sua sponte asked for a vote as to whether to review the decision en banc and that a majority of the court had voted to do so. The decision to grant rehearing en banc vacated the panel's decision. The court's order was surprising if, for no other reason, than the court held a single en banc argument in 2019.

The parties continue to wrangle over whether the case is moot and whether the Republican members of the state board of education can independently challenge the panel's decision. Briefing for the en banc argument should be completed by Aug. 3. It remains to be seen whether the appeal will continue to a new decision from the en banc court or whether it will fizzle now that the panel's groundbreaking decision has been vacated.

Matthew T. Nelson is a partner at Warner Norcross + Judd where he serves as chair of the firm's appellate and Supreme Court practice.