In April, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a landmark decision in the Detroit literacy case,  Gary B. v. Whitmer, holding that there is a “fundamental right to a basic minimum education” under the U.S. Constitution. The two-to-one decision of the three-judge panel defined the right in terms of “access to literacy.”

Shortly thereafter, the plaintiffs settled the case with the main plaintiff, Michigan Governor Gretchen Whitmer. Under the terms of the settlement, the governor, who stated that she agreed that all students have a constitutional right to education, committed to immediately provide the Detroit schools an additional $3 million for literacy education, seek a further $97 million  appropriation from the legislature and establish two advisory panels to consider literacy needs of students in Detroit and throughout the state. The plaintiffs agreed not to proceed with the trial (and the possibility of a more extensive remedial order) and to dismiss the case.

The fly in the ointment here was that the governor was not the only defendant in the case, and the full complement of 26 judges of the Sixth Circuit have the right to reconsider “en banc” the ruling of any of the 3-judge panels that initially hear cases, although they very rarely invoke this prerogative. This case also has been heavily overlaid with politics. The litigation was filed when a Republican, Richard Snyder, was governor and both houses of the legislature were controlled by Republicans. Snyder fought the plaintiffs vigorously. After the trial court ruled against the plaintiffs and they appealed to the Sixth Circuit, Whitmer, a Democrat, was elected governor while both houses of the legislature remained under Republican control. The new governor decided not to oppose plaintiffs’ position on the right to education. However, two minority members of the state board of education, which was also a defendant in the case, continued to strongly oppose plaintiffs’ appeal.

After the three-judge panel issued its ruling and the Governor settled with the plaintiffs, the minority state board of education members asked the full Sixth Circuit Court to review the case en banc. The Republican legislative leaders, who had not been parties to the case, then asked the appeals court to allow them to intervene to support the en banc request and to participate in the reconsideration hearing if the request were granted.

Before these motions were decided, the Sixth Circuit  “sua sponte” (i.e. on its own motion”) issued an order to review the case en banc. The Court’s order to reconsider  specifically stated that “the previous decision and judgment of this court are vacated…”  This means that legally, the decision of the three-judge court has been eradicated, and it no longer can be cited as a legal precedent. Plaintiffs then informed the Court that it had settled with the governor and that they did not want to continue to appeal the case before the full Court. The other defendants and the legislative leaders told the Court that they did want to continue the appeal. Earlier this week, the Sixth Circuit issued a ruling that accepted the plaintiffs’ position that the case was now moot and, accordingly, dismissed the appeal.

The net effect of the complicated history of the Gary B appeal is that although two U.S. Court of Appeals judges issued a landmark ruling holding for the first time that there is a right to education under the U.S. Constitution (at least to a limited degree),  that decision is now a legal nullity. However, as Mark Rosenbaum, one of the lawyers for the plaintiffs, put it, “The decision was vacated but the words will never disappear.”

Despite the nullification of the Gary B decision, the legal issue of whether there is a right to education under the U.S. Constitution is still being actively litigated in the U.S. District Court for Rhode Island in Cook v. Raimondo. Plaintiffs there are seeking a more robust definition of a right to education than that sought by the Gary B. plaintiffs. They are asking the Court to declare that all students have a constitutional right to an education that will prepare them to function productively as capable voters and effective civic participants. The case was argued before Chief Judge William E. Smith last December, and his decision is expected to be issued shortly. Michael A. Rebell, the executive director of the Center for Educational Equity, is lead counsel for the plaintiffs in this case.