Two requests have been filed asking the full U.S. Court of Appeals for the 6th Circuit to reconsider the groundbreaking 2-1 decision by a panel of that court recognizing a federal constitutional right to a basic minimum education.
One request in the case known as Gary B. v. Whitmer came from two members of the state board of education who were named among the state defendants in the lawsuit brought on behalf of Detroit schoolchildren. The other state defendants, including Michigan Gov. Gretchen Whitmer, a Democrat, did not seek a rehearing before the full Cincinnati-based appeals court.
The second request came from the Michigan Senate and House of Representatives, which filed a motion to intervene in the case and a petition for the full 6th Circuit to reconsider the April 23 panel decision. That ruling attracted nationwide attention for its conclusion that students have a 14th Amendment due-process right to access to literacy.
“It is difficult to know where to begin when a federal appellate court creates a new fundamental right that contemplates a federal-court takeover of the entire public-school system in four states,” says the reconsideration request by the Michigan lawmakers, referring to the states that make up the 6th Circuit—Kentucky, Michigan, Ohio, and Tennessee.
The May 6 filings, written by John J. Bursch, a Caledonia, Mich., lawyer and former state solicitor general, uses vivid language in questioning the logic of the majority opinion in the Gary B. decision.
“Creating such a right [to basic minimum education] has breathtaking consequences,” one filing says, adding that federal courts “will have first dibs on state appropriations, diverting resources from roads, prisons, the COVID-19 response, and the children and families in the very school districts that federal courts may desire to help.”
The Gary B. lawsuit seeks unspecified remedies for improving the Detroit school system, and will head back to a federal district court for further proceedings unless the full 6th Circuit (or the Supreme Court) intervenes.
The Michigan lawmakers’ say in another filing that they need to intervene in the case now because of “the apparent abdication of all defendants” except for two state school board members who have also asked the full 6th Circuit to reconsider the panel decision—Tom McMillin and Nikki Snyder.
The two board members, both Republicans, filed their motion for rehearing with the backing of the state attorney general’s office, even though Michigan Attorney General Dana Nessel, a Democrat who took office in 2019, has expressed sympathy with the students’ case and even tried to file a brief on their side.
The board members ask the full 6th Circuit court “to rehear this case, reject the panel majority’s central legal conclusion finding a fundamental right, and allow the matter to return to whom these critical issues have been principally entrusted under Michigan law, the Detroit board of education and its superintendent.”
Their motion notes that the panel questioned the two board members’ right to offer their own merits arguments against the suit, since they were sued along with multiple other state defendants in their official capacities. They argue that any party has a right to seek a rehearing by the full circuit court.
And the board members’ motion notes that the full 6th Circuit court could decide to rehear the case on its own, something a few legal observers suggested was a possibility in a case like this in which a panel went out on a legal limb.
There will likely be filings from the lawyers for the students defending the panel’s decision and urging the full court not to rehear the case before any decision is made.
A version of this news article first appeared in The School Law Blog.