Fundamental? Not now….

So after weeks of procedural machinations in Gary B., et al. v. Whitmer — the Sixth Circuit case arising out of a challenge to conditions at some of Detroit, Michigan’s worst-performing public schools, in which a panel of the Sixth Circuit ruled that students have a fundamental constitutional right to a “basic minimum education” — what appeared destined to be the next great Supreme Court education case has ended with a fizzle.
As the Sixth Circuit was preparing to hear the case en banc (i.e by all the judges on the court), Michigan’s Democratic governor yanked the rug out from under her own side of the lawsuit by abruptly settling with the Plaintiffs.  Although the Republican legislature then tried to intervene to keep the case alive, so that the full Sixth Circuit court could review the panel’s first-ever ruling that a fundamental right to a “basic minimum education” (what the Court also called a right to “access to literacy”) exists under the Fourteenth Amendment, on Wednesday (June 10, 2020) the Court agreed that the settlement mooted the appeal, and dismissed the case.
Although the settlement appeared designed to enshrine the panel’s “fundamental right” ruling and protect it from review by the entire Sixth Circuit — and there was a pretty good chance that neither the en banc Sixth Circuit nor the current Supreme Court would have upheld that ruling — the fact that the Sixth Circuit granted en banc review before it dismissed the appeal means that at least technically, the Court vacated the original decision, which means that it no longer had any precedential force.  While parties will no doubt attempt to use Gary B. as authority for future cases, at least officially we are all back to the drawing board.