On April 23, 2020, the Sixth Circuit Court of Appeals issued Gary B. et al v. Whitmer, a case arising out of a challenge to conditions at some of Detroit’s worst-performing public schools.  Gary B. is not a First Amendment case, but rather a substantive due process case under the Fourteenth Amendment.  I am writing about it on this blog, however, because I believe it has the potential to be one of the most most important education cases in decades. Why? Because for the first time in recent memory, a court of appeals has ruled that students have a constitutionally-protected right to education, something that the Supreme Court has rejected or avoided in decades worth of cases, including cases such as San Antonio Independent School District v. Rodriguez and Plyler v. Doe.
Now, there are limits to the reach of Gary B:  the Court ruled that students have a right to “a basic minimum education,” which it defined as “access to literacy.”  And the facts alleged about how bad conditions were in the Detroit schools that the plaintiffs claimed deprived them of an “access to literacy” were (if accurate) truly horrendous.  And because the Supreme Court has repeatedly rejected the notion that education is a protected constitutional right (it is not mentioned in the United States Constitution, after all), there was little doubt that the Gary B decision would be appealed, at least to the full (“en banc”) Sixth Circuit, if not to the Supreme Court.
…and that is where things have gotten really messy.  I was actually looking at the Court’s docket today to see what has been going on with regards to any appeal, and the case has become somewhat of a (procedural) mess:

• Shortly after the decision came out, the two Republican members of the State Board of Education moved for rehearing.
• Ten states, led by Tennessee, immediately filed a brief supporting the request that the decision be reviewed.
• The State Board of Education then passed a resolution approving of the holding of the Court, that students have a fundamental right to a basic minimum education (despite the fact that they had been opposing that right for years).
• The majority of the State Board (all Democrats) then moved to strike the request for the en banc rehearing, arguing that the two Republican members had no authority to act individually.
• The two members responded, claiming that whether to hold an en banc review is really more a matter for the court to decide, than the parties to request.
• The Sixth Circuit then granted en banc review, but its order reads “a member of the en banc court sua sponte requested a poll in this case…”, which technically means the court acted on its own, and not on reliance on the Republican members’ request for review.

To make matters even more complicated, there are reports that the Plaintiffs have “settled” the case with Michigan’s Democratic Governor.  This raises the issue of whether there is even a case left to appeal — although rumor has it that the Republic Legislature is trying to intervene, to keep the case alive.
I will post updates as the Court works its way through the tortuous appellate procedural morass.  I am also working on a more complete description of the Gary B decision, so keep your eyes peeled.