Thursday, May 21, 2020

Sixth Circuit Votes to Rehear "Right to Literacy" Case En Banc

By Jonathan H. Adler - May 21, 2020 at 08:55AM

On April 23, a divided panel of the U.S. Court of Appeals for the Sixth Circuit concluded the Due Process Clause of the Fourteenth Amendment protects "a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy." On Tuesday, the full Sixth Circuit vacated the panel decision because a majority of judges on the court voted to rehear the case en banc. Of note, the vote to rehear the case en banc was requested by a judge on the court sua sponte, and was not the result of a petition for rehearing.

An added wrinkle is that, last week, the plaintiffs and Michigan Governor Gretchen Whitmer announced a settlement in the case. Under this settlement, Governor Whitmer pledged to seek substantial funding from the legislature to fund literacy and other educational programs in Detroit schools, and the plaintiffs agreed to dismiss the case, with little guarantee the Michigan legislature would go long with Governor Whitmer's request. The settlement also requires payment of $280,000 to the seven student plaintiffs and calls for the creation of task forces to advise the Michigan Department of Education on measures to improve literacy and equity in Detroit public schools.

It is not clear yet what the effect the en banc order will have on the settlement, or what effect the settlement will have on whether the court actually rehears the case en banc. Attorneys for the plaintiffs claim the settlement renders the case moot. On the other hand, the state legislature sought to intervene in the case. If this effort to intervene is rejected, it is not clear whether the case will proceed.

Either way, the precedent established by the initial panel decision is gone. As noted in the order granting en banc rehearing, Sixth Circuit Rule 35(b) provides that:

A decision to grant rehearing en banc vacates the previous opinion and judgment
of the court, stays the mandate, and restores the case on the docket as a pending
appeal.

So there is no longer a precedent in the Sixth Circuit holding that there is a constitutional right to literacy. Whether there will be an en banc opinion addressing this question has yet to be determined, but seems unlikely.


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