The United States Court of Appeals for the Sixth Circuit issued four en banc decisions in 2024 — the highest number in one year since 2021.

UNITED STATES V. ANTWONE MIGUEL SANDERS¹

The en banc Court affirmed the denial of a motion to suppress evidence in a significant criminal case. After receiving a tip from an anonymous informant that Antwone Sanders was selling drugs from a nearby apartment, police set up two controlled buys. Police watched Sanders travel directly between the sale location and the apartment during both sales. Using an affidavit containing this information, police sought a warrant to search the apartment. The search yielded incriminating items, including heroin, fentanyl, cocaine, handguns, and a large amount of cash. Sanders pleaded guilty to federal heroin and firearm charges and was sentenced to six years in prison. On appeal, he challenged the denial of his motion to suppress the evidence found in his apartment and denial of his discovery motion seeking case reports.

In an opinion by Judge Readler, the majority affirmed denial of Sanders’s motion to suppress because there was probable cause to support the warrant. Challenged the warrant affidavit for not explaining law enforcement’s familiarity with the informant or the informant’s knowledge of the apartment, but these details were unnecessary given all of the other information included. The controlled buys alone were sufficient to find probable cause because police saw Sanders driving directly between the apartment and the sale location. That police also had an anonymous tip, which they considered to be credible, adds further support. Moreover, case law supports an inference that evidence of drug trafficking is typically found in the suspect’s home because of the nature of the offense.

Even if the warrant affidavit fell short of establishing probable cause, the majority explained that the good faith exception to the exclusionary rule would save the search. This exception bars suppression where officers conduct a search with a good faith belief that they have a valid warrant. Here, officers’ good faith belief that they had a valid warrant was reasonable because the supporting affidavit was not bare bones enough to suggest that it could not possibly establish probable cause. Further, the majority rejected Sanders's Franks challenge because while Sanders made general assertions about ethical concerns regarding one of the officers involved in the investigation, he failed to establish that the affidavit contained any falsehoods.

Judge Griffin authored a concurring opinion expressing concern about the majority’s interpretation of case law allowing for an inference that drug traffickers store drugs in their homes. While law enforcement had probable cause to support a warrant here, a search warrant may not be issued without any evidence connecting a home with criminal activity.

In a separate concurrence, Judge Mathis expressed the view that although the officers lacked probable cause because of the missing information about the informant’s credibility, the good faith exception saves the search because the affidavit could not be considered bare bones.

Judge Stranch and Judge Bloomekatz similarly expressed the view that the Court did not need to decide the probable cause issue because the good faith exception would have saved the search anyway.

In dissent, Judge Clay expressed the view that the warrant lacked probable cause and that no exception should save the search. In his view, the controlled buys were insufficient to make up for the missing details about the informant’s credibility, and no reasonable officer could hold a good faith belief that the investigation was sufficient to establish probable cause given these missing details.

Next, the majority affirmed denial of Sanders’s discovery request under Rule 16 of the Federal Rules of Criminal Procedure because the material Sanders sought fell beyond the scope of the rule. Sanders requested “case reports” regarding the investigation leading to issuance of the warrant, and the majority held that this conflicted with another part of Rule 16 that prohibits disclosure of reports connected with an investigation. The purpose of the rule is to allow defendants to obtain evidence to aid them in refuting the government’s case-in-chief, and Sanders’s vague and speculative request for case reports did not make clear how these records would help him to do that. Sanders also requested the drugs exchanged during the controlled buys. The majority held that denial of this request was appropriate because this case relied on the items seized from the apartment, not the drugs sold during the controlled buys.

In a concurrence, Judge Stranch and Judge Bloomekatz expressed the view that Rule 16 required Sanders to show how the requested evidence would materially help him in refuting the government’s case-in-chief, which he failed to do. Thus, the analysis should have stopped there, in these judges’ view, and the majority went too far in speculating about whether the requested materials fell in the scope of the rule.

Finally, Judge Clay dissented and expressed the view that Supreme Court precedent indicates that Rule 16 can serve as a “shield mechanism,” which would encompass the materials sought. In affirming denial of the request, the majority imposed too high a bar by requiring Sanders to show that the evidence would be exculpatory.

On November 25, 2024, the U.S. Supreme Court denied Sanders's petition for a writ of certiorari.

VON DAVIS V. CHARLOTTE JENKINS, WARDEN²

After nearly 40 years of procedural history, the en banc Court affirmed the district court’s denial of Von Clark Davis’s habeas petition challenging his third death sentence for a 1983 murder. Davis was convicted of aggravated murder in Ohio after a bench trial, and the Court sentenced him to death based on a prior conviction for second-degree murder. On direct appeal, the Ohio Supreme Court vacated his death sentence, but on remand, the same panel reimposed the death penalty a second time. Davis’s first habeas petition resulted in a Sixth Circuit panel vacating his death sentence, and by the time of the third sentencing, none of the three judges from his original panel were left on the bench. Pursuant to Ohio law, a new panel was formed and resentenced Davis to death for a third time after a mitigation hearing.

In his second habeas petition, Davis raised six claims based on the enforcement of his jury trial waiver against him at his resentencing hearing before the new panel, along with his counsel’s ineffective performance at resentencing. The district court denied all claims. A panel of the Sixth Circuit reversed, finding merit to three of Davis’s claims. The en banc Court then vacated the panel’s opinion and affirmed the district court’s denial of all six claims.

In his first two claims, Davis argued that because he waived his right to a jury trial in reliance on the court informing him that three particular judges would make up his panel, 1) the enforcement of the 1984 jury waiver denied him due process rights or violated the Sixth and Eighth Amendments and 2) his decision to waive his right to a jury was not knowing, intelligent, and voluntary because he was unaware of the possibility of being resentenced by a new panel. The majority applied Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) deference because a state court adjudicated these issues on the merits. Where AEDPA deference applies, a federal court can grant a writ of habeas corpus only if the state court decision was contrary to federal law, involved an unreasonable application of federal law, or involved an unreasonable determination of facts based on the evidence. The majority found that the state court’s decision comported with federal law on due process, the Sixth and Eighth Amendments, and the knowing, intelligent, and voluntary standard for waivers. The original panel found all of the facts required for conviction, and there was no constitutional right to sentencing by a jury. Accordingly, it was appropriate for the new panel to weigh the aggravating and mitigating factors at resentencing without finding any new facts. Further, unawareness of the possibility that a new panel could resentence him did not prevent the waiver from being knowing, intelligent, and voluntary. Davis knew of his right to a jury trial, the majority held, and there was no constitutional right to be sentenced by a particular judge.

In dissent, Judge Moore argued that AEDPA deference should not apply because Davis waived his jury trial rights in reliance on having a particular panel, and the Court should have treated it as an agreement that was breached when Davis did not receive the benefit of his bargain at resentencing.

Davis’s remaining claims raised issues of ineffective assistance of counsel. He argued that: 1) counsel was ineffective in failing to move for recusal of a judge on the new panel on the grounds that he sought the death penalty while prosecuting Davis’s cousin for an unrelated murder, 2) counsel was ineffective in failing to reasonably prepare and present two mitigation witnesses, 3) counsel was ineffective in failing to investigate and present mitigating evidence, and 4) counsel was ineffective in failing to advise Davis of the collateral consequences of his jury waiver. The Court held that the third claim was procedurally defaulted because Davis did not fairly present it in state court and that the fourth claim might also be procedurally defaulted but that it would fail even on de novo review.

The majority applied AEDPA deference to deny the first two ineffective assistance of counsel claims. Where there is any reasonable argument that counsel satisfied the deferential Strickland standard, AEDPA deference applies to state court decisions on the merits. Here, the majority found that the state court decisions comport with Strickland. The record indicated that counsel was aware of the issues concerning both the potentially biased judge and the witnesses, and the court validly assumed that counsel conducted reasonable investigation resulting in strategic decisions that are entitled to deference.

Again, Judge Moore expressed the view that AEDPA deference should not apply because the state court imposed an unreasonably high bar that did reflect Strickland. The court should have considered the reasonableness of counsel’s actions, in her view, and damaging testimony from both witnesses suggested that counsel did not act reasonably.

On June 2, 2025, the U.S. Supreme Court denied Davis’s petition for a writ of certiorari.

NATIONAL REPUBLICAN SENATORIAL COMMITTEE V. FEDERAL ELECTION COMMISSION³

In September 2024, the Court decided a First Amendment challenge to the Federal Election Campaign Act’s limit on coordinated spending expenditures, which restricts political parties’ spending with input from their candidates. The Supreme Court decided that the same coordinated spending limit did not violate the First Amendment in FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (Colorado II). Over 20 years later, plaintiffs including the senatorial and congressional committees of the Republican Party, J.D. Vance, and Steve Chabot, brought another First Amendment challenge arguing that Colorado II no longer controls because: 1) more recent Supreme Court precedent has strayed from it, 2) Congress has since amended the statute, and 3) the landscape of campaign finance has changed. Plaintiffs argued that the coordinated spending limit violates the First Amendment both facially and as applied.

The district court then certified the constitutional question to the Sixth Circuit. The en banc majority held that the facial challenge must fail because Colorado II controls until the Supreme Court overrules it. Even if a new line of reasoning undermines the foundation of a previous Supreme Court decision, lower courts must follow the decision unless the Supreme Court itself decides otherwise.

However, the majority acknowledged the changed circumstances that plaintiffs identified. First, Supreme Court decisions following Colorado II have rendered the test for determining whether restrictions on campaign spending are constitutional more stringent. Now, the only government interest that justifies such restrictions is the prevention of quid pro quo corruption or its appearance. And the test now requires that restrictions are narrowly tailored to this goal rather than just “closely drawn.” Next, Congress’s amendments to the statute, which exempt certain expenses from the coordinated spending limit, indicate that the restriction is in fact not narrowly tailored. Finally, the rise of super PACs and social media has changed the campaign finance landscape in that political parties are now less powerful players.

Colorado II left open the possibility for successful as-applied challenges regarding specific expenditures. However, the majority held that plaintiffs’ as-applied challenge here also failed because plaintiffs did not show that a specific expenditure does not involve coordination. Instead, they raised a broad challenge to the limit as applied to “the political advertising addressed in 11 CFR § 109.37.” This category encompasses approximately 97% of the committees’ expenditures. Thus, the majority held that the only way to accept this challenge would be to reject Colorado II.

In his concurrence, Judge Bush agreed that Colorado II still controls but expressed the view that the Supreme Court should overrule it and instead adopt a “history and traditions” test as it has done for other constitutional issues, including First Amendment issues.

Judge Stranch wrote a concurring opinion arguing that Colorado II controls and that the majority went too far in validating plaintiffs’ arguments about why it does not. While the Court should not reach the merits, she wrote, coordinated spending limits satisfy both prongs of this test. Finally, Judge Stranch agreed with the majority that the as-applied challenge must fail because of its breadth.

Similarly, Judge Bloomekatz concurred in an opinion stating that Colorado II controls, and nothing more is needed to decide the case.

In dissent, Judge Readler expressed the view that plaintiffs’ claims that Colorado II does not control should prevail. Thus, the Court should have reached the merits and held for plaintiffs. In his view, the coordinated spending limit fails both prongs because the government has not proven that coordinated spending poses a significant risk of quid pro quo corruption, and there are other, less restrictive measures in place to serve the same interest.

On June 30, 2025, the U.S. Supreme Court granted the NRSC’s petition for a writ of certiorari, and the Court heard oral argument on December 9, 2025.

CYNTHIA BROWN V. DAVID YOST⁴

In November 2024, the Court issued an opinion resolving a First Amendment Challenge to Ohio’s ballot initiative procedure for proposed amendments to the state constitution. Ohio’s statutory procedure requires ballot initiative proponents to submit their proposed amendment, a summary of the amendment, and 1,000 signatures to the state attorney general. This procedure authorizes the attorney general to review the summary and determine whether it is a “fair and truthful” statement of the proposal. Proponents whose proposals the attorney general rejects may seek review in the Ohio Supreme Court.

Here, Cynthia Brown submitted her proposal to eliminate state governmental immunities in certain state-law causes of action to the attorney general eight times over a span of nearly two years, and the attorney general rejected the summary each time. After a March 2024 rejection, Brown sought expedited review in the Ohio Supreme Court so that she might still obtain approval in time for her proposal to appear on the November 2024 ballot. The Ohio Supreme Court denied expedited review, and she voluntarily dismissed the action and instead sued the attorney general in federal court. Brown alleged that the review procedure violates the First Amendment both on its face and as applied and sought a preliminary injunction requiring the attorney general to approve her summary.

The district court denied Brown’s motion for a preliminary injunction. A panel of the Sixth Circuit reversed. The en banc Court then vacated the panel’s decision. But because it had become too late for Brown’s proposed amendment to appear on the November 2024 ballot, the en banc Court first had to address whether the request for a preliminary injunction was moot. In a per curiam opinion, the Court held that the request was indeed moot because Brown expressly focused her requested relief on the November 2024 election, and such relief was no longer available. However, the Court explained that the mootness of the preliminary injunction request did not affect the status of the underlying First Amendment challenge, which could still proceed in time for the next election. For this reason, the Court determined that Brown’s request did not fall within the exception to mootness for issues that are capable of repetition but evade review.

In a concurring opinion, Judge Thapar expressed the view that even if Brown’s request was not moot, the preliminary injunction should not be granted because Brown could not show that she was likely to succeed on the merits of her First Amendment claim. In his view, the ballot initiative procedure was not a content-based regulation of speech and thus was not subject to First Amendment scrutiny. More broadly, Judge Thapar expressed that the Court should leave it up to Ohio to structure its own legislative processes.

Judges Moore and Kethledge dissented, separately, contending, based on slightly different reasoning, that mootness should not have prevented the court from ruling on the merits of the case and that the court should have ruled in plaintiff’s favor.

UNITED STATES V. TYREN L. CERVENAK⁵

Judge Andre Mathis in April 2025 authored an en banc opinion vacating the defendant-appellant’s sentence and remanding for resentencing, holding that the defendant’s prior Ohio robbery convictions did not qualify as “crimes of violence” under the Sentencing Guidelines’ career-offender provision.

The appellant pleaded guilty to distributing controlled substances and being a felon in possession of a firearm. The district court enhanced his sentence based on prior convictions, including two for robbery under Ohio state law. The legal dispute centered on whether these robbery convictions satisfied the Guidelines’ enumerated-offenses clause for a “crime of violence” — specifically, whether the elements of robbery under Ohio law categorically matched (or were narrower than) the Guidelines’ reference to “generic” extortion or robbery. This inquiry is performed without any reference to the facts of the party-defendant’s crime. Stated differently, if a hypothetical defendant can possibly commit robbery under Ohio law without necessarily committing “generic” extortion or robbery, he or she is ineligible for the “crime of violence” enhancement in § 4B1.1(a) of the 2021 Guidelines under which Cervenak was sentenced.

The majority considered the “modified categorical approach,” because one can commit “robbery” under Ohio law under several alternative sets of elements. The majority determined that the Ohio robbery statute is divisible by both (1) the type of robbery and (2) the underlying “theft offense,” the latter of which constitutes an element of robbery. Although a divisible statute still does not permit inquiry into the crime’s underlying facts, divisible statutes like Ohio’s do permit courts to reference a limited class of documents (such as the indictment or jury instructions) to determine which of the sets of alternative elements were used. If these documents fail to illuminate which set of alternative elements were applied to the defendant, the court must compare the “generic” offense against the “least serious conduct” of which the defendant could have been convicted.

The defendant’s indictment specified which type of robbery he had committed, but it did not specify the predicate theft offense. Accordingly, the majority presumed the conviction rested on the least serious conduct criminalized by Ohio’s theft-offense statute. It concluded the conviction was not a match for Guidelines extortion because several Ohio theft offenses (e.g., trespass in a habitation, forgery) do not require “obtaining something of value.” Similarly, the court held the defendant’s conviction was broader than generic robbery because it does not necessarily involve the “misappropriation of property.” The majority rejected the government’s argument that Ohio law presumes generic theft when the predicate is unspecified.

Judge John Nalbandian concurred but dissented from the decision not to certify the state-law question regarding theft offenses to the Ohio Supreme Court. Judge Keetan Ritz concurred in part and dissented in part, arguing that Ohio robbery qualifies as generic robbery. Judge Richard Griffin dissented, urging the Supreme Court “to discard the absurd, convoluted, and nonsensical categorical approach.” Judge Amul Thapar also issued a 43-page dissent, arguing that the underlying theft offenses are “means” rather than “elements,” which would make the conviction a categorical match, and criticizing the majority for creating constitutional concerns regarding Ohio indictments without certifying the issue to the state court.

BENNY LEE HODGE V. LAURA PLAPPERT, WARDEN⁶

In May 2025, Judge John Bush authored the en banc Court’s majority opinion affirming the denial of the appellant’s habeas petition, holding that the Kentucky Supreme Court’s rejection of his ineffective-assistance-of-counsel and jury-tampering claims was not unreasonable under the Antiterrorism and Effective Death Penalty Act (AEDPA).

The appellant challenged his conviction and death sentence for the 1985 murder of Tammy Dee Acker and the attempted murder of her father, Dr. Roscoe Acker, during a robbery. The appellant and his accomplices posed as FBI agents to gain entry to the victims’ home, where they bound the victims and stole nearly $2 million from a safe. The appellant stabbed the daughter at least 10 times with a butcher knife, and an accomplice tried (and failed) to kill the father by strangulation.

At the penalty phase, trial counsel presented only a brief stipulation regarding the appellant’s family and work history. In so doing, counsel failed to present extensive available evidence of the appellant’s childhood, which was marred by severe physical and mental abuse at the hands of his stepfather, who was described as a “monster.” Decades later, on post-conviction review, the Kentucky Supreme Court agreed that the appellant’s trial counsel deficiently performed at sentencing under Strickland v. Washington⁷ but that the appellant had not shown prejudice, i.e., a reasonable probability the jury would not have sentenced the appellant to death” had it heard the mitigation evidence regarding the appellant’s childhood.

The majority applied AEDPA deference to the Kentucky Supreme Court’s determination that the appellant failed to show prejudice. The state court had weighed the unpresented mitigation evidence against the “heinous nature” of the calculated crime, the appellant’s violent criminal history, and his lack of remorse, concluding there was no reasonable probability the jury would have spared him the death penalty. Notably, the majority rejected the argument that the state court had applied an improper “nexus” requirement, which allegedly discounted any mitigation evidence that offered “no rationale” for the crime. Instead, the majority held that the state court properly assessed the probative strength of the evidence in light of overwhelming aggravating factors. The majority noted that Thornell v. Jones⁸ permits courts to consider whether mitigation evidence explains a crime when weighing it. Regardless of whether a court may disregard attenuated mitigation evidence in theory, the Kentucky Supreme Court here had merely (and permissibly) used the lack of a “nexus” to inform the weight it gave to the mitigation evidence.

Regarding the appellant’s remaining claims, the court held the state court reasonably determined there was no credible evidence of jury tampering, finding the post-conviction testimony of the trial bailiff unreliable. The court further held that the appellant’s jury bias claim was procedurally defaulted because he failed to raise the issue in state court.

Judge John Nalbandian concurred to emphasize that assessing whether mitigation evidence explains a crime is a necessary part of determining a defendant’s moral culpability under Williams v. Taylor. Judge Rachel Bloomekatz also concurred, noting that while she might have found prejudice on direct review given the “unimaginable” abuse the appellant suffered, AEDPA deference constrained the court to affirm. Judge Helene White dissented, joined by Judges Karen Nelson Moore, Eric Clay, and Jane Branstetter Stranch. The dissent argued that the Kentucky Supreme Court applied a rule contrary to clearly established federal law by dismissing mitigation evidence solely because it failed to provide a “rationale” or causal nexus for the crime. The dissent contended this reasoning conflicted with Supreme Court precedents like Wiggins, Rompilla, and Williams, which establish that mitigation evidence need not explain a crime to alter a jury’s penalty selection.⁹

On November 20, 2025, the appellant petitioned the U.S. Supreme Court for a writ of certiorari. The Court ordered the Warden to respond, and the petition remains pending.

DENNIS SPEERLY V. GENERAL MOTORS, LLC¹⁰

Chief Judge Jeffrey Sutton authored an en banc opinion in June 2025 vacating the district court’s class-certification order and remanding the case for further proceedings, holding that the certified subclasses failed to satisfy the rigorous requirements of Federal Rule of Civil Procedure 23 regarding commonality and predominance.

The plaintiffs represented approximately 800,000 car buyers across 26 statewide subclasses. They alleged defects in General Motors’ eight-speed Hydra-Matic transmissions installed in vehicles from model years 2015 to 2019. The plaintiffs identified two specific problems: a “shudder” caused by moisture in the transmission fluid and a “lurch,” or harsh shift, caused by pressure issues. They brought 59 distinct state-law claims, including breaches of express and implied warranties, violations of consumer-protection statutes, and fraudulent omissions. Addressing threshold jurisdictional issues, the majority concluded that the named plaintiffs had Article III standing because their vehicles actually manifested the defects, constituting an injury in fact.

Regarding Rule 23(a) commonality — which requires that a question of law or fact common to the class is a prerequisite to class certification — the court held that the district court erred by asking generally, and only, whether a “defect” existed. Instead, the court should have conducted an element-by-element analysis to ensure common questions were central to the specific elements of each varied state-law claim.

Regarding Rule 23(b)(3) predominance — which requires that the common questions predominate over questions affecting only individual class members — the majority found that individualized issues overwhelmed common ones across the various causes of action. It first delineated two threshold, general concerns regarding manageability and federalism: First, certifying a class involving 59 causes of action across 26 states forces the federal court to act as a “central planner,” guessing at state law nuances and potentially violating the Seventh Amendment by merging distinct negligence standards into a single jury instruction. Second, the plaintiffs’ decision to aggregate two distinct defects with distinct causes (the “shudder” and the “lurch”) exponentially increased the complexity of the rigorous analysis required, likely eliminating the efficiency promoted by a properly certified class action.

The majority then evaluated predominance as to individual causes of action. For express warranty claims, the court noted that most relevant states require a buyer to present the vehicle for repair, necessitating individualized (i.e., non-common) inquiries into whether each buyer sought repairs and whether those repairs were successful. Similarly, for implied warranty claims, the court reasoned that “merchantability” depends on how a defect manifests — ranging from a slight vibration to a violent lurch — which varied among class members. Concerning consumer-protection and fraud claims, the court distinguished between states that require a defect to manifest or require proof of reliance (creating individualized barriers) and those that do not, instructing the district court to assess these distinctions rigorously. Finally, the court held that the district court must individually assess the impact of arbitration agreements signed by some class members, ruling that General Motors' waiver of arbitration against named plaintiffs did not bind it regarding the unnamed class members.

The majority also criticized the district court’s standard of decision, clarifying that a judge conducting commonality and predominance inquiries must actually make the relevant findings of fact and conclusions of law. It is improper, said the majority, to shy away from determinations that overlap with the ultimate inquiries on the merits, and courts should not indulge in the kinds of presumptions that characterize motions to dismiss.

Judge Amul Thapar concurred, writing separately to address the “disjuncture problem,” in which a named plaintiff has standing but some class members may not. He argued that courts should resolve this issue through Rule 23’s procedural requirements rather than Article III standing doctrine. Judge John Nalbandian, joined by Judge Richard Griffin, concurred but wrote separately to argue that the court should have explicitly held that a class cannot be certified if it contains uninjured members, rejecting the “benefit of the bargain” theory of injury for products with unmanifested defects.

Judge Karen Nelson Moore dissented, joined by Judges R. Guy Cole, Jr., Eric Clay, Jane Branstetter Stranch, Andre Mathis, Rachel Bloomekatz, and Keetan Ritz. The dissent argued that the district court had conducted a proper, rigorous analysis and that the majority erected “insurmountable barriers” to class certification in complaints against national manufacturers. The dissent contended that the majority misinterpreted Wal-Mart Stores, Inc. v. Dukes,¹¹ engaged in an improper merits review, and ignored the central purpose of Rule 23(b)(3) to facilitate the aggregation of small consumer claims.

DEFENDING EDUCATION V. OLENTANGY LOCAL SCHOOL DISTRICT BOARD OF EDUCATION¹²

This November 2025 opinion concerned a local school district’s anti-harassment and bullying policies that prohibited students from referring to transgender or nonbinary classmates using pronouns matching their biological sex if those classmates preferred different pronouns. The plaintiff organization represented parents and students who, believing gender to be an immutable characteristic, wished to express this view by using students’ biological pronouns. Related, they claimed that following the School District’s policy required them to convey falsehoods. The School District interpreted its policies to ban such conduct, classifying the intentional use of biological pronouns contrary to a student’s preference as discriminatory language and harassment.

The district court denied the injunction requested by the plaintiffs. The Sixth Circuit panel affirmed by a 2-1 vote, with Judge Batchelder dissenting. Judge Eric Murphy authored an en banc opinion reversing the district court and remanding for entry of a preliminary injunction in the plaintiffs’ favor.

After agreeing that the plaintiffs established associational standing, the en banc majority applied the standard set forth in Tinker v. Des Moines Independent Community School District,¹³ which permits schools to restrict student speech on matters of public concern only if it causes a “substantial disruption” or infringes on the “rights of others.” The majority concluded that the School District failed to meet this demanding standard because it presented no evidence that the use of biological pronouns had actually disrupted school functions or constituted harassment under Ohio law. Although two exceptions to Tinker’s rule were available — i.e., “offensively lewd and indecent speech” and incitement to illegal acts — neither was available to the School District. Furthermore, the court held that the School District engaged in impermissible viewpoint discrimination by prohibiting the expression of the view that gender is determined by biology while requiring speech that affirms that gender and sex are distinct. The court emphasized that the government may not tip the scales in a sensitive public debate by silencing one side.

Several judges wrote separate concurring opinions. Judge Alice Batchelder argued that the policies were unconstitutional not only under Tinker but also as compelled speech and viewpoint discrimination. Judge Raymond Kethledge, writing separately, advocated for a historical common law approach, noting that the doctrine of in loco parentis does not grant schools the authority to force students to express viewpoints at odds with their parents’ teachings. Judges Amul Thapar and John Nalbandian concurred to emphasize that the policies constituted egregious viewpoint discrimination on a matter of public concern. Judge John Bush also concurred, arguing that the government has no historical authority to regulate grammar or common usage.

Jane Branstetter Stranch dissented, joined by Judges Karen Nelson Moore, Eric Clay, Stephanie Dawkins Davis, Andre Mathis, Rachel Bloomekatz, and Keetan Ritz. The dissent argued that schools must have the leeway to protect students from bullying and harassment to maintain a safe learning environment. The dissenting judges contended that the record supported a reasonable forecast that the intentional, repeated use of non-preferred pronouns causes trauma and educational disruption, thereby satisfying the Tinker standard. The dissent criticized the majority for adopting a “sliding scale” approach that improperly demands more evidence of disruption for speech deemed political.