“Right to Literacy” Decision Vacated, But Settlement Still Stands

As reported in the April 30, 2020 edition of School Law Notes, a panel of the Sixth Circuit Court of Appeals issued a groundbreaking decision, ruling 2-1 that stu­dents have a constitutional right to a basic minimum education (i.e., a right to foundational literacy). Gary B. v Whitmer, Case No. 18-1855/1871 (CA 6, 2020). The Sixth Circuit did not award the students their requested relief. Instead, it sent the lawsuit back to the federal district court for a determination consistent with this newly recognized constitutional right.

Before the federal district court could proceed, Governor Whitmer settled the case by agreeing to pay $280,000 to be shared among the named students for literacy programs and $2.7 million to Detroit Public Schools for literacy-related supports. The Governor also agreed to create two non-governmental educational task forces for the district and to request MDE guidance on how to improve access to literacy and reduce class, ra­cial, and ethnic disparities. Lastly, the Governor agreed to propose legislation that would provide $94.4 million in additional funding for literacy programs in the district.

On May 19, 2020, five days after the settlement was announced, the full Sixth Circuit issued an order granting a rehearing en banc (a review by all 16 judges on the court, as opposed to a panel). The Sixth Circuit thus re­stored the case to the court’s docket and vacated its original decision.

On June 10, 2020, however, the full Sixth Circuit reversed course and issued an order dismissing all pending claims as moot due to the settlement agreement.

Although the Sixth Circuit’s original decision is not binding precedent, the named students received a historic settlement and the decision cast a national spotlight on educational rights. In addition, the lack of a binding precedent does not preclude future courts from drawing guidance from the Sixth Circuit’s original decision.