What will happen next in the Sixth Circuit's "basic minimum education" case?

Will the 6th Circuit vacate take the case en banc sua sponte?

|The Volokh Conspiracy |

Today a divided panel of the Sixth Circuit decided Gary et al v. Whitmer et al. My co-blogger, Jon Adler summarized the decision here. In short, the panel majority found that Due Process Clause of the Fourteenth Amendment protects a fundamental right to a "basic minimum education." I agree with Judge Murphy's dissent. Judge Clay's majority opinion, joined by Judge Stranch, is inconsistent with longstanding Supreme Court precedent.

In the normal order, the state Attorney General would seek re-hearing en banc. But this case may be different. Michigan Attorney Dana Nessel has praised this decision! Indeed, she tried to file an amicus brief in support of the plaintiffs. It is doubtful that she would appeal.

What happens next? Perhaps one of the other defendants will appeal. The case was filed against several state officials:

GRETCHEN WHITMER, Governor; TOM MCMILLIN, member of MI Bd of Education; MICHELLE FECTEAU, member of the MI Bd of Education; LUPE RAMOS-MONTIGNY, member of the MI Bd of Education; PAMELA PUGH, member of the MI Bd of Education; JUDITH PRITCHETT, member of the MI Bd of Education; CASANDRA E. ULBRICH, member of the MI Bd of Education; NIKKI SNYDER, member of the MI Bd of Education; TIFFANY TILLEY member of the MI Bd of Education; SHEILA ALLES, Interim Superintendent of Public Instruction for the State of MI; TRICIA L. FOSTER, Director of the MI Dept of Technology; WILLIAM PEARSON, State School Reform/Redesign Officer, in their official capacities,

I do not know if any of these positions have independent litigation authority. Or, perhaps the AG can allow them to retain outside counsel.

What happens if none of these officials seeks rehearing en banc? The Michigan House and Senate may seek to intervene. Virginia House of Delegates v. Bethune-Hill held that single houses of state legislatures cannot intervene. I do not know how the bicameral Michigan Legislature would fare. This decision would no doubt affect spending in the state, and restrict the ability to regulate education.

I can see another procedural riddle. Before the legislature can file a motion for rehearing en banc, it would have to seek to intervene. Presumably, that motion would be filed with the same three-judge panel that just ruled. If that panel denies intervention, the state would have to seek rehearing en banc on the denial of the motion to intervene. At that point, the timeframe to seek a petition for rehearing en banc on the original panel decision may lapse. I don't know the answer to this question.

There is another possible outcome.

Under Federal Rule of Appellate Procedure #35, federal courts of appeal can rehear a case en banc sua sponte. That is, one judge can request a poll. If a majority of judges in active service wish to rehear the case, en banc review is granted. At that point, the panel decision is vacated, and then the case would be set for en banc proceedings.

This case is an excellent candidate for en banc review. It presents "a question of exceptional importance" that would radically alter eduction policy in Michigan, as well as in Ohio, Tennessee, and Kentucky.

What happens if the Sixth Circuit sua sponte grants en banc in this case? The Attorney General would likely argue that she agrees with the panel decision. At that point, there is no live case or controversy, and the appeal would be dismissed for lack of subject matter jurisdiction. I doubt the AG would risk appealing this case to the currently-constituted Supreme Court. And then, the district court's decision, which rejected a right to "basic minimum eduction," would stand.

Such an outcome mirrors Hollingsworth v. Perry. The district court found that Prop 8 was unconstitutional. The California AG declined to appeal. Intervenors tried to appeal, but the Supreme Court held that there was no live case or controversy. As a result, the District Court's judgment remained in effect–at the time it was rendered, there was still a live case or controversy. In short, a sua sponte en banc call in the Sixth Circuit would end this case.

If en banc is denied, then Judge Clay's decision becomes law of the circuit. Suits would be immediately filed throughout the circuit. District Court judges could then proceed to discovery, and other lengthy proceedings before the Circuit Court has a chance to review a final judgment. And in some cases, local governments will gladly enter into consent decrees to constitutionalize a right to education. At that point, the 6th Circuit could only use mandamus, or other extraordinary writs, to intervene. And if the composition of the Supreme Court changes, this case may actually be upheld.

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  1. “I agree with Judge Murphy’s dissent.”

    My ‘wrong side of history’ hunch has been confirmed.

    1. ‘wrong side of history’ Yet you claim not to be religious

      1. The final word on tearing down constitutional protections against increasing government power sans amendment has a known outcome.

    2. Thanks for making yourself look like the pompous arse you actually are…

      1. Clingers generally resent their betters.

        1. The existence of this suit clearly evidences this sentiment.

  2. I like the ruling (a child without the ability to read or write decently has an almost zero chance of succeeding in society. . . . Music, sports, and the arts being the notable exceptions that first come to mind.), but I’m not convinced that this is really a fundamental right. I hate these procedural rules that block legitimate appellate inquiry. I hate it when liberals are screwed by these roadblocks; and I hate it when conservatives are screwed in the same way.

    1. This is an horrendous ruling where the court seeks to mandate certain policies in a domain where the judiciary is not fit to travel into. The substantive due process doctrine is shaky, but I thought even its proponents would be restrained enough not to create positive rights out of whole cloth. (You can bring up Gideon v.. Wainwright but I think the criminal aspect makes the case distinguishable, putting aside any questions of original meaning or other issues there might be with that holding).

      People were rightly criticizing Judge Walker for his preening-College Freshman-essay ruling just recently, the majority here should be subject to the same scorn.

      1. Gideon v. Wainwright is not really a positive right, although it superficially looks like one. You can’t go to the government and demand a lawyer. It’s really a negative right: the right not to be prosecuted without a lawyer. The government can fully comply with Gideon simply by letting you go and not supplying you with anything.

    2. But a public education guarantees none of those things.

      1. A public education may not guarantee any of those things, but not having an education pretty much guarantees *not* having any of those things.

    3. But education is inherently a STATE/LOCAL responsibility and if we are to purport to be a federal republic, this suit should be fought out in state court, not Federal.

  3. It’s obviously not a right. Rights are ‘negative’, that is, they stop others from doing things to you. A right can’t command others to do something for you – at best that’s a privilege, not a right.

    You can only have a right if you would have that liberty, at least in principle, in a world with no other people. (This isn’t a sufficient test, but it is a necessary test).

    1. Rights are ‘negative’, that is, they stop others from doing things to you.

      And where did you get that from? Right to a jury trial? Right to counsel?

      1. “And where did you get that from? Right to a jury trial? Right to counsel?”

        Yeah, think of all the people who’ve never had a jury trial! Or counsel!

        The right is to not be convicted without either of those.

        1. Your formalistic explanation has swallowed the rule.

          So if the government is to have any criminal justice system, it needs to do this thing.
          Similarly, if the government is to allow marriage, it needs to do this thing.
          And, if the government is to have an education system, it needs to do this thing.

          Fundamental rights operate primarily through equal protection anyhow.

          1. Sarcastr0….Why is this question even justicable at the federal level?

            Education is a state matter. If Detroit is failing their children, then may I suggest that Governor Whitmer do something about it? This is her problem to solve, along with the MI legislature. This never should have gone to the federal courts at all, IMO. The federal courts need to steer clear of these state political questions.

            1. I’m conflicted. I think this decision was wrong as a matter of constitutional law and will likely be reversed if the Supreme Court takes the case. And yes, education is a state matter, and the primary responsibility is with state officials rather than with federal judges.

              All that said, this is another example of how our political dysfunction fails our citizens. Give Governor Whitmer a non-gerrymandered legislature and the problem would likely have been fixed already.

              So the question is this: When the political branches fail the citizens because of political dysfunction, do courts have the right to fill in the gap? I think the answer to that question is no, though you can’t really blame a desperate citizenry whose needs simply aren’t being met from trying.

              1. Ok, let’s dispense with the gerrymander red herring. Can you tell me a single state in the union that does not have a gerrymandered drawing of legislative districts? Please…just name one state where gerrymander doesn’t exist in any form. Gerrymandered is normal. They are all gerrymandered toward whatever Team holds power.

                When the political branches fail the citizens because of political dysfunction, do courts have the right to fill in the gap?

                I love this question. It is a great one. Seriously, it is a great question and I am not being a smartass. I come out the same way….HELL NO! Here in the People’s Republic of NJ, we have a NJSC that has said – HELL YEAH! We’ll fill that gap! – and cost taxpayers untold billions. And achieved very little for it. Outcomes have not meaningfully changed, but taxpayer dollars sure in hell have changed hands, courtesy of our NJSC.

                The political state legislative process, warts and all, has to address this. I want the ability to hold the decision-makers accountable for their acts. We can’t do that with the Judiciary.

                1. You may think gerrymandering is a red herring, but if you want to “hold the decision-makers accountable for their acts”, it’s a whole lot easier with non-gerrymandered seats. One of the many unfortunate side effects of gerrymandering is that it makes it easier for incumbents of both parties to get re-elected. Doing away with gerrymandering would make politicians of both parties more accountable, because their seats would actually be competitive.

                  And yes, everyone does it, but two wrongs don’t make a right. If I were a Detroit schoolchild, not getting an education in part because of Republican gerrymandering, it would be small comfort indeed that the Democrats do the same thing in Maryland. All of it needs to be gotten rid of.

                  1. Yes but what does that have to do with handing the power over to unelected judges? You can’t hold them accountable at all. Or, to the extent you can, it’s through elections of people from gerrymandered districts. In other words, there is no theoretical way for unelected federal judges to improve the situation, at least where accountability is concerned.

              2. ” Give Governor Whitmer a non-gerrymandered legislature and the problem would likely have been fixed already.”

                Former Michigan resident here, my family lived at about 9 1/2 mile, at least until the riots. Even after that I had relatives close enough to Detroit to get car-jacked on a bad day.

                Gerrymandering’s got nothing to do with it.

                The real problem here is that Detroit is both incompetently/corruptly managed, (Has been for decades.) AND extremely jealous of their independence. And there’s a sort of standing threat that, if you upset them, they’ll riot again.

                Most of the state has a “bring it” attitude towards that threat, are really fed up with Detroit, but the pols understandably don’t want to deal with that, so Detroit generally gets to run their own affairs unless “their own affairs” spill out into the rest of the state. Well, spill out too much, anyway, even on a good day it sucks to live right next to Detroit.

                And that goes double for the Democratic pols, because Detroit IS run by Democrats, so the last thing they want to do is acknowledge how badly run Detroit is.

                1. A big part of Detroit’s problem is that it was a one-industry town, and when the auto industry went south, it took Detroit with it. Detroit is now diversifying so hopefully that won’t be a problem forever.

                  I never claimed that gerrymandering was the *only* reason for Detroit’s ills, but it would be blinking reality to claim that it has nothing to do with it. Without gerrymandered seats, the entrenched Detroit pols would also be in competitive districts, as would the Republicans in the rest of the state, making it that much more likely that problems would actually get fixed.

                  1. “Without gerrymandered seats, the entrenched Detroit pols would also be in competitive districts”

                    Nope. Gerrymandering isn’t responsible for the fact that many Detroit precincts are 80-90% Democratic. You’d have to actively and grossly gerrymander Michigan for the districts in Detroit to be competitive between the parties.

                    Compact, ungerrymandered districts just reflect the facts on the ground, and the facts are that Detroit is overwhelmingly Democratic.

              3. Give Governor Whitmer a non-gerrymandered legislature

                Have you ever seen a map of Michigan’s state house districts? They’re about as far from gerrymandered as it gets.

                If you actually wanted to increase Dems in the state house every district would require tendrils into Detroit.

            2. Commenter – I fear you are begging the question with your ‘Education is a state matter.’

              1. What do you mean, Sarcastr0?

            3. Education is a state matter. If Detroit is failing their children, then may I suggest that Governor Whitmer do something about it?

              Detroit is a failed city that ought to be bulldozed — and there have been serious plans to do exactly that.

              1. Heck, it’s been failed SO THAT it could be bulldozed: Mayor Young used to actually cut off city services to areas he thought he might want to take by eminent domain, so the price would be lower.

          2. “Fundamental rights operate primarily through equal protection anyhow.”

            It can’t in this case, since the EP claims were tossed out. The claim here is not: If you have an education, it must provide minimum adequacy, including literacy. It’s: The state must provide minimum adequate education, including training literacy. This is not a negative right.

            The reason courts typically shrink away from positive rights cases
            (“Republican Form of Government”) is because they lack the expertise to tell the state how to provide for the things promised.

          3. Your formalistic explanation has swallowed the rule.

            No, it hasn’t. Criminal trials are a means of the state depriving someone of life, liberty and/or property. The procedural protections of the Constitution are limits on government power — the government can’t convict me and send me to jail, unless it gives me certain procedural rights. A jury trial is one of them. So it is a negative right, in the sense that it is a limit on government power. If the government does not prosecute me, I have no right to a jury trial.

            Don’t know what you mean by marriage. The most recent marriage rulings are equal protection rulings. Equal protection is again a check on government power. There are things the government does not have to do, but if it does, it cannot arbitrarily exclude certain classes of people.

            Education could be an equal protection issue. The racial segregation cases of the 1950s and 1960s were grounded in equal protection.

            But, as others have pointed out, the ruling here was not an equal protection ruling, but a free-floating, positive right to demand some level of education from the State. There is nothing in the federal Constitution or its history that even remotely suggests such a right. In fact, there is nothing in the Constitution that establishes a positive right against the government or the States.

      2. It’s definitional. That’s what a right is in philosophy. You can’t just pretend rights are whatever you say they are, at that point rights aren’t actually a thing.

        The other respondents have the gist of it on procedural rights when the government wants to deprive you of your rights.

  4. The majority’s schoolhouse rock homily on an “educated” public is unbearable. People have innate capacities and filling their heads with ideas they only dimly understand is a recipe for disaster.

    I think Nietzsche’s arguments on the dangers of universal literacy should be reckoned with

    1. People have innate capacities and filling their heads with ideas they only dimly understand is a recipe for disaster.

      What kind of paternalistic elitism is this? Some people do best when uneducated?

      1. Some people do best when uneducated?

        Yes. And it is probably better for society when some segment of the population stays uneducated and uninterested in public affairs.

        1. Define “uneducated”. Do you mean people who never finished even high school?

          Like Lincoln? Richard Branson? Benjamin Franklin? Walt Disney? Edison? David Karp? Peter Jennings? Many trades and craftsman?

        2. I would agree. But only if we could identify ahead of time who, after becoming educated, would think like you.

          Troll.

        3. Please, proceed.

          Tell us more about your awesome caste-based society.

          1. For years, this was a polemical, partisan blog with a scant academic veneer.

            The natives seem to have decided to dispense with that veneer, leaving just unvarnished movement conservatism and white, male, right-wing grievance studies.

  5. Next time liberals complain about a conservative court “making up rights” I’ll just point them to this.

    I realize the question has never squarely come in front of the Supreme Court, but even the Warren Court wouldn’t go this far.

    And liberals stop whining about Trump packing the courts. With rulings like this can’t really blame them for doing so.

    1. Re-posting from another thread, but ‘finding’ rights isn’t some new thing, nor is it something not contemplated by the Founders. The right to travel showed up around 1820.

      Check out Lawrence. Or Paul v. Virginia. Or Moore v. City of East Cleveland, Or Loving v. Virginia. Or Troxel v. Granville.

      1. Will you say whether you agree with the found right in this case?

  6. The NH & MA decisions were bad enough, but they were at least based on actual provisions of the State Constitution.
    This is insane.

    1. The People’s Republic of NJ has some spectacularly bad decisions from the NJSC as well.

      1. Perhaps you’d be happier in West Virginia or Oklahoma? As conservatives are painted into increasingly small corners by American progress, those spots seem safe for clingers, at least for a time.

        1. Kirkland is going to find that the Red States are going to be economic oases in the coming economic wasteland.

          Just sayin….

          1. Who needs education, smarts, or marketable skills in the next economy? It turns out that being on the wrong end of bright flight — all of the smart, ambitious young people departing at high school graduation, never to return — was actually perfect preparation for Dr. Ed’s world of the future.

            And West Virginia, Mississippi, and Wyoming shall lead them all . . .

            1. The number of diversity czars, victim-class advocates, community organizers, and government regulators prepared by “higher education” (indoctrination centers) will become completely unnecessary.

              That is bad news for the NWO overlords….

    2. There is a big difference in a state judiciary finding a provision of state constitution (many of which contain an explicit clause provide for public education) and the federal courts finding such a right when there is clearly not one in the federal constitution. And any fair reading of the Constitution and Amendments does not provide for one. In fact, I believe the 14th Amendment rejected including adding such a provision.

      1. clearly

        1. I think this basic of federalism is lost upon most, especially in a day and age where the federal constitution has been “incorporated” into state and local government practices.

          Ask your average “man on the street” the difference and 9/10 (if not greater) will have absolutely no understanding.

      2. Jimmy…completely agree = There is a big difference in a state judiciary finding a provision of state constitution (many of which contain an explicit clause provide for public education) and the federal courts finding such a right when there is clearly not one in the federal constitution.

  7. In addition to the fact that it violates clear precedent (San Antonio Ind School District v. Rodriguez), there is a fundamental problem with finding a constitutional right to particular services.

    What if the teachers should go on strike? Then it’s in fact a constitutional right, this could be criminally punished, it could bs punished as a conspiracy to violate the students‘ constitutional rights by comspiring to withhold the education they are constitutionally due.

    And if yhat can be done, then under the 13th Amendment, the teachers can be constitutionally enslaved amd forced to work for no pay.

    A constitutional right to another person’s services is a constitutional right to enslave that person.

    This is why the Supreme Court has been careful to limit constitutional rights to services to special situations, such as when a person is in custody.

    1. What if the teachers should go on strike? Then it’s in fact a constitutional right, this could be criminally punished, it could bs punished as a conspiracy to violate the students‘ constitutional rights by comspiring to withhold the education they are constitutionally due.

      Teachers’ strikes are already illegal under state law (at least in most states) and usually there is an additional requirement that every teacher’s contract include a “no strike” clause.

      Not that this isn’t violated….

      1. And wasn’t there a 13th Amendment challenge to the Taft-Hartley Act?

      2. If you have a right to a “basic education” generally the government cannot take actions to stop you from accessing that right (at least without some section 1983 liability) so I don’t think the argument that a teacher strike could be a civil rights violation is far flung.

      3. Also I don’t think it would be outside of the realm of possibility that a teacher’s union, who plans a strike, could be found liable/guilty of conspiracy to deny civil rights.

        There are a few examples of police unions being found guilty/liable of doing so for planning unconstitutional law enforcement strategies.

  8. For some reason, my earlier comment disappeared.

    In many states, including my own, this has been the law under the state constitution for decades. What it has practically meant is this. Every few years, some class action plaintiffs bring a lawsuit challenging some aspect of the laws relating to public education, such as funding formulas or, even, the existence of teacher tenure. This is not hard, since every state’s system fails to meet largely aspirational standards. There is a motion to dismiss, and, eventually, some appellate court will rule that the case may proceed while giving absolutely no guidance as to what the plaintiffs must prove to prevail. Then follows years of discovery into all sorts of largely random facts, and opinions of experts saying, in effect, the state’s system is flawed in general, and whatever the plaintiffs are complaining about has something to do with it. Then follow summary judgment motions, which all too often end up requiring a trial at which the parties still have no idea what they need to prove. Then a trial in which the parties operate like ships passing in the night, and, whatever the result, an appellate decision. Whichever way it comes out, some plaintiffs will be back in a few years claiming, essentially, that the schools in Bedford-Stuyvesant are worse than the schools in Scarsdale because of [fill in the bank]. And the cycle repeats.

    1. Hence why courts ought to perform judicial functions and not that which belong to the executive.

      Also why we don’t need the courts functioning as a de facto “abortion control board” micromanaging that section of healthcare.

      And if you need a historic example of how poorly it goes when courts try to perform bureaucratic functions through the judicial decisionmaking process, just look at how miserable the implementation of Brown v. Board dragged on for decades.

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