During the coronavirus public health emergency, the U.S. Court of Appeals for the Sixth Circuit issued a published decision in Gary B. v. Whitmer, recognizing a right to “basic minimum education.” Less than a month later, the Sixth Circuit granted review by the entire court and vacated the earlier decision. What happened in between those decisions is a tale of political conflict, a settlement that sought to head off further appellate review, and a decision by a majority of the Sixth Circuit to overturn the panel’s decision before the parties’ maneuverings made it impossible to do so.
The story begins with a deplorable situation. The plaintiffs are seven students of public schools in the city of Detroit. In their complaint, they describe how “not even the pretense of education takes place” in their schools, which lack “the capacity to deliver basic access to literacy.” The plaintiffs cite examples of seventh- and eighth-grade math classes being entrusted to an eighth-grade student for a month because no math teacher was available. They also note vermin infestations, malfunctioning furnaces that make classrooms both too hot and too cold, and sharing one textbook among four students. The plaintiffs explain these conditions result in illiteracy being the norm among the schools’ students.