Sixth Circuit Court of Appeals Refuses to Enjoin a Mask Mandate Lacking a Religious Exemption

On August 23, the United States Court of Appeals for the Sixth Circuit weighed in on the constitutionality of mask mandates lacking a religious exemption. A Michigan school challenged the mandate in place by the state’s Department of Health and Human Services, stating the order was a violation of their free exercise of religion, equal protection, and substantive due process rights. A school official said the K-5 mask mandate violated the school’s sincerely held religious beliefs by preventing students from participating fully in their Catholic education.

In a 2-1 decision, the court affirmed the district court’s opinion that mask mandates that did not include an exemption for religious beliefs was not in violation of the Free Exercise of Religion Clause, noting it was subject to the rational basis test. The judge ruled the state order was not motivated by hostility to any specific faith and that it was neutral because it applied to all schools. Further, Defendants did not challenge the sincerity of the religious objection to the mandate, thereby simplifying the court’s analysis.

The rational basis is the least burdensome test and to prevail the governmental entity need only show some rational relation to a legitimate state interest. In contrast, the court could have applied “intermediate scrutiny” which would have required the government to show an important interest. The final option would have been to require “strict scrutiny” which requires the highest burden, a compelling state interest. In short, the court established that mask mandates need only clear the shortest and easiest to clear the hurdle.

What does this mean for your district?

Resurrection School v. Hertel serves as a roadmap for combatting religious exemption challenges to mask mandates. Such mandates should be examined to ensure neutrality and general applicability. Other nonreligious exemptions, such as medical exemptions should be narrow and discreet. Please contact one of the attorneys on the Ennis Britton team if you have questions about this case or mask mandates.

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.

Sixth Circuit Finds a Constitutional Right to a Basic Minimum Education

A panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision holding that the Fourteenth Amendment’s Due Process Clause protects a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. The Sixth Circuit has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.

Judge Clay, who wrote the majority opinion, summarized the crux of the Plaintiff’s case. The Plaintiffs are students at several of Detroit’s worst-performing public schools. They credit this substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Taken together, the Plaintiffs say these conditions deprive them of basic minimum education, meaning one that provides a chance at foundational literacy.

In 2016, the Plaintiffs sued several Michigan state officials, who they say are responsible for these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as opposed to local entities, based on the state’s general supervision of all public education, and also on the state’s specific interventions in Detroit’s public schools.

The Plaintiffs’ claims are all based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan students receive an adequate education, the students in Plaintiffs’ schools do not, amounting to a violation of their right to equal protection of the laws. They also argue that the schools they are forced to attend are schools in name only, and so the state cannot justify the restriction on their liberty imposed by compulsory attendance. And in their most significant claim, Plaintiffs ask this Court to recognize a fundamental right to basic minimum education, an issue the Supreme Court has repeatedly discussed but never decided.

The District Court found that the Defendants (various state officials including the Governor, Members of the State Board of Education, the State Interim Superintendent of Public Instruction, Director of the MI Dept of Technology, and the State School Reform/Redesign Officer, in their official capacities) were in fact the proper parties to sue, but it dismissed Plaintiffs’ complaint on the merits.

First, it found that the Plaintiffs had not alleged a proper comparator for their equal protection claim, nor had they highlighted any state policy or action that was not supported by a rational basis. Second, it found that the Plaintiffs had not sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due process claim as seeking an affirmative fundamental right. Third, the court held that basic minimum education is not a fundamental right, and so Plaintiffs’ due process claim was dismissed. The plaintiffs then appealed.

The Sixth Circuit panel agreed that the Plaintiff’s equal protection and compulsory education claims were not properly pleaded and were therefore rightfully dismissed by the District Court. However, the panel agreed that the Plaintiffs had “been denied basic minimum education, and thus have been deprived of access to literacy.”

Judge Clay, seeming to understand the gravity of declaring a new fundamental constitutional right, wrote the following:

The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.

Access to literacy is such a right. Its ubiquitous presence and evolution through our history have led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government. Education has long been viewed as a great equalizer, giving all children a chance to meet or outperform society’s expectations, even when faced with substantial disparities in wealth and with past and ongoing racial inequality.

Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.

The dissent argued that a holding such as this is beyond the court’s role and is something best left to the Legislature and the citizens at-large. Judge Murphy wrote in dissent: “The Due Process Clause has historically been viewed, consistent with its plain text, as a negative limit on the states’ power to “deprive” a person of “liberty” or “property.” U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for the states to protect liberty or provide property. A state’s decision “not to subsidize the exercise of a fundamental right” has never been thought to “infringe the right,” even in areas where the states have long provided that assistance.”

Judge Murphy also noted the practical difficulties with attempting to enforce a right and its impact on the separation of powers issues. “How should those courts remedy the schools that they conclude are not meeting the constitutionally required quality benchmarks? May they compel states to raise their taxes to generate the needed funds? Or order states to give parents vouchers so that they may choose different schools? How old may textbooks be before they become constitutionally outdated? What minimum amount of training must teachers receive? Which HVAC systems must public schools use?”

The U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to 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.” Accordingly, there is good reason to speculate that this decision would not survive an appeal to the U.S. Supreme Court. However, it is not certain where the case goes from here. The State Attorney General could seek a re-hearing before the entire Sixth Circuit bench (en banc). This may not occur as the Michigan Attorney General has already praised the decision. It is also possible that the State Legislature may seek to intervene and ask for a re-hearing. That request may have to go to the same panel that made this decision. Finally, the Sixth Circuit could decide itself (sua sponte) to re-hear the matter en banc.

We will, of course, keep you apprised of this matter as it progresses. While this case focuses on State officials, the next suit to enforce this new right could include local and County officials as well. This would put courts in the role of making independent judgments about the adequacy of all aspects of the educational services provided by schools in Ohio. This would be a significant break from the normal legal environment in which courts are reluctant to second guess the discretionary decisions of elected officials in the state, focusing instead on whether there are procedural violations to remedy.

Gary B., et al. v. Whitmer, et al 2:16-cv-13292