In August, a panel of the Sixth Circuit heard a challenge to the (now‑rescinded) MDHHS mask order requiring the use of masks in Michigan schools. The Plaintiffs asserted a number of arguments, but their main contention was that the mandate violated their free exercise of religion. The trial court refused to put in place an injunction while the case worked its way through the system. Plaintiffs appealed the denial of an injunction. The Sixth Circuit panel, concluding that Plaintiffs were unlikely to prevail in their action, declined to prohibit MDHHS from issuing any similar orders in the future – leaving the trial court to process the case.
On November 10, 2021, the Sixth Circuit vacated the panel’s opinion and voted to restore the appeal to its docket. In other words, the entire Sixth Circuit will hear the case and issue a new decision – at this time, there is no indication what that decision may hold. We expect that, whatever the result, it will be a noteworthy decision for school districts that continue to grapple with local and state health orders amid the pandemic.