UPDATE: Sixth Circuit Finds a Constitutional Right to a Basic Minimum Education

On May 6, 2020, we reported to you that a panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision holding that there is a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. As a follow up to that post, on May 19, 2020 the Sixth Circuit vacated that ruling so that it can be considered by the entire Sixth Circuit bench. The ruling allowed students from five of the lowest-performing schools in Detroit to sue Michigan officials over their inability to read. There was some speculation about whether a rehearing before the entire Sixth Circuit bench (en banc) would be sought by the Attorney general, who had publicly praised the decision. However, the Sixth Circuit did so itself (sua sponte) under rules granting it the power to vacate panel decisions for consideration by the entire bench. This is done so where there is a potential for “a precedent-setting error of exceptional public importance” or direct conflict with Sixth Circuit or Supreme Court precedent. As reported in the blog post, the U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to a basic minimum education. As the dissent noted, the Court held in Plyler v. Doe, that “p]ublic education is not a ‘right’ granted to individuals by the Constitution.” The effect of the ruling is that the opinion of the three-judge panel is vacated and of no force and effect. We will keep you posted on any developments in this important case.