No one questions the critical importance of education; certainly not us. Every constitution of every state in the United States identifies education as a constitutional right. The Michigan constitution provides, “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Const 1963, art 8, §1. And, “The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.” Const 1963, art 8, §2.
At the same time, until the Sixth Circuit’s decision in Gary B v Whitmer, summarized here, no one thought education was a “right” under the federal constitution. The word education does not appear in the federal constitution and both the United States Supreme Court and the Sixth Circuit had held, more than once, that education was not a federal constitutional right. Nevertheless, immediately after Gary B was decided and before the dust settled, the Governor authorized a substantial settlement in plaintiffs favor and recommended tens of millions more, subject to legislative approval.
Not so fast. A Sixth Circuit Judge requested a poll of all of the appointed Judges, not just the two (of three) who discovered the new federal constitutional right to education. The resulting order, here, entered on May 19, 2020, vacated the panel’s decision in Gary B. and restored the case to the Court’s docket. Thus, the panel majority’s opinion, now vacated, is meaningless or, in legalese, “null and void.” Stay tuned.