The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.