JANSEN, J.
In Docket No. 317071, defendants state of Michigan, State Board of Education, Michigan Department of Education, and state Superintendent of Public Instruction (hereinafter "the state defendants") appeal by right the denial of their motion for summary disposition, which was based on governmental immunity. In Docket No.
This litigation arises from a complaint filed by the American Civil Liberties Union ("ACLU") on behalf of eight minor plaintiffs, who are students in Highland Park, asserting plaintiffs received inadequate and deficient instruction from the Highland Park public schools. According to plaintiffs, this inadequate and deficient instruction has resulted in their failure to obtain basic literacy skills and reading proficiency as required by the state. Specifically, plaintiffs sought special assistance in accordance with MCL 380.1278(8), premised on their demonstrated lack of proficiency on the reading portion of the standardized Michigan Educational Assessment Program ("MEAD") test.
The state defendants argue that the trial court erred by denying their motion for summary disposition based on governmental immunity. ` We review de novo the trial court's grant or denial of summary disposition. Wilson v. King, 298 Mich.App. 378, 381, 827 N.W.2d 203 (2012).
The state defendants assert that they were entitled to immunity premised on MCL 141.1572,
or employee of this state, or any member of a receivership transition advisory board, for any action taken by any local government under this act, for any violation of the provisions of this act by any local government, or for any failure to comply with the provisions of this act by any local government. A cause of action against this state or any department, agency, or entity of this state, or any officer or employee of this state acting in his or her official capacity, or any membership of a receivership transition advisory board acting in his or her official capacity, may not be maintained for any activity authorized by this act, or for the act of a local government filing under chapter 9, including any proceeding following a local government's filing.
Specifically, the state defendants argue that this statutory provision, part of the Local Financial Stability and Choice Act, MCL 141.1541 et seq., is applicable because plaintiffs' claims are premised on the state's liability through appointment of an emergency manager for the Highland Park schools. We note that the immunity provision contained in MCL 141.1572 is, in accordance with MCL 141.1544(6), applicable to any acts or failures occurring under any predecessor emergency manager laws as well.
In support of their assertion, the state defendants cite three paragraphs of plaintiffs' amended complaint, which consists of 125 separate, numbered paragraphs of allegations. Plaintiffs' original and amended complaints assert state responsibility for the failure to provide a bare or minimal level of education as allegedly mandated by Article 8 of the Michigan Constitution and adequate remedial services as delineated in MCL 380.1278(8). While plaintiffs allege that the state and district
The trial court was partially correct in its denial of summary disposition premised on immunity under MCL 141.1572. The stated purpose of the Local Financial Stability and Choice Act is "to safeguard and assure the financial accountability of local units of government and school districts...." 2012 PA 436, title. Given the financial purpose of the act, it is difficult to sustain the state defendants' contention that it is applicable to all actions undertaken by an emergency manager or those entities associated with him or her, involving the violation of any other statutory provisions not specifically encompassed within the act, such as MCL 380.1278(8). At the outset, MCL 141.1572 specifically, limits imposition of liability "for any action taken by any local government under this act, for any violation of the provisions of this act by any local government, or for any failure to comply with the provisions of this act by any local government." (Emphasis added.) While an emergency manager is authorized by MCL 141.1551(1)(e) to include in a "financial and operating plan" "an educational plan" for school districts, MCL 141.1554 suggests that the role is financial in nature, encompassing the negotiation of contracts, disbursement of funds, reductions in class schedules, closing of schools, and related actions.
In Tellin v. Forsyth Twp., 291 Mich.App. 692, 700-701, 806 N.W.2d 359 (2011), this Court recognized:
The Legislature's use of the phrases "under this act" and "of this act" denotes restriction of liability to the specific provisions of the Local Financial Stability and Choice Act and cannot be construed, as suggested by the state defendants, to encompass a completely separate statutory provision, MCL 380.1278(8). Therefore, although any approvals provided by the state and district defendants of an educational plan by and through the appointment of the emergency manager and system defendants may be a proper subject for immunity under MCL 141.1572, claims of constitutional and separate statutory violations are not encompassed.
The question, then, is whether the state defendants are otherwise entitled to governmental immunity. To answer this
As this Court stated in Co. Road Ass'n of Mich. v. Governor, 287 Mich.App. 95, 121, 782 N.W.2d 784 (2010):
Specifically, "[T]he state will be liable for a violation of the state constitution only in cases where a state custom or policy mandated the official's or employee's actions." Reid v. Michigan, 239 Mich.App. 621, 629, 609 N.W.2d 215 (2000); see also Carlton v. Dep't of Corrections, 215 Mich.App. 490, 504-505, 546 N.W.2d 671 (1996). As this Court explained in Burdette v. Michigan, 166 Mich.App. 406, 408-409, 421 N.W.2d 185 (1988), citing Smith, 428 Mich. 540, 410 N.W.2d 749:
The state and district defendants contend that the trial court erred by denying them summary disposition because plaintiffs cannot demonstrate a viable cause of action under the Michigan Constitution or MCL 380.1278(8). In contrast, plaintiffs contend that the violation and basis for liability is premised on Const. 1963, art. 8, §§ 1 and 2, which provide:
There is no language within the cited constitutional provisions to support plaintiffs' claims. Article 8, § 1 merely "encourage[s]" education, but does not mandate it. Article 8, § 2 is specifically contrary to plaintiffs' position as it only requires the "legislature" to "maintain and support a system of free public elementary and secondary schools," with a local school district having the responsibility to "provide for the education of its pupils...." It has been recognized that the State Board of Education falls within the executive, not the legislative, branch of our government, Straus v. Governor, 459 Mich. 526, 537, 592 N.W.2d 53 (1999), and it is therefore not a part of the branch of government referred to in Article 8, § 2. Given the language of the cited constitutional provisions, the role of the state in education is neither as direct nor as encompassing as argued by plaintiffs. The trial court should have
Although not cited by plaintiffs, Const. 1963, art. 8, § 3 defines the duties of the State Board of Education, and provides additional insight:
Like the constitutional provisions considered previously, this language provides support for our conclusion that plaintiffs do not have a direct cause of action arising under the Michigan Constitution.
The courts have long recognized that, for constitutional purposes, "[e]ducation, as important as it may be, has been held not to be a fundamental interest." Martin Luther King Junior Elementary Sch. Children v. Mich. Bd. of Ed., 451 F.Supp. 1324, 1328 (E.D.Mich., 1978), citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Further, as Justices T.G. KAVANAGH and LEVIN observed in a concurring statement in Governor v. State Treasurer, 390 Mich. 389, 406, 212 N.W.2d 711 (1973) (Governor II):
In sum, the cited provisions of the Michigan Constitution require only that the Legislature provide for and finance a system of free public schools. The Michigan Constitution leaves the actual intricacies of the delivery of specific educational services to the local school districts. We conclude that plaintiffs have not stated a claim or cause of action arising directly under the Michigan Constitution.
Plaintiffs further argue that they have stated a claim under MCL 380.1278, with particular emphasis on MCL 380.1278(8), which provides:
The language of this statute indicates the dichotomy in responsibility between the state and local school districts in the provision of educational services. Specifically, MCL 380.1278(3) refers to the local district's responsibility to establish an actual curriculum for implementation with students. Any role of the state is merely advisory in suggesting a model curriculum subject to adoption by the local districts. MCL 380.1278(2). Similarly, Subsection (8) leaves the determination of students
In turn, MCL 380.1282 provides in relevant part:
Finally, the statutory provision establishing MEAP testing, MCL 388.1081, indicates the very general oversight and informational nature of the state's role in educational services, providing:
Read together with these related statutory provisions, it is clear that MCL 380.1278(8) does not impose a duty on the state defendants to directly provide services for students who do not perform satisfactorily on the MEAP test.
We acknowledge that the applicability of this provision is different with regard to the district defendants. MCL 380.1278(8) mandates "school officials" identify pupils that fail to "score satisfactorily on the 4th or 7th grade [MEAP] reading test" and to provide these individuals with "special assistance reasonably expected to enable the pupil[s] to bring [their] reading skills to grade level within 12 months." However, there remain at least two problems with plaintiffs' argument. First, the trial court denied plaintiffs' request to certify two classes of students. Accordingly, any remedy or outcome of this litigation is restricted to the eight identified students. Second, plaintiffs' pleadings are only sufficient with regard to two of the eight students named, FC and ID, who have deficient MEAP scores in reading for the relevant grade levels. Three students, CM, LB and MS, do not necessarily fall within the purview of MCL 380.1278(8). CM was in the third grade at the time and, therefore, did not have MEAP scores for fourth and seventh grade reading proficiency. Although LB and MS had progressed further in school, there are no specific MEAP scores identified for them that are consistent with the grade levels specified in MCL 380.1278(8). Finally, although SD, DF, and LM have deficient reading scores on the MEAP for the relevant grade levels, they have already been provided additional instruction. Further, it remains to be determined whether the qualifying students are subject to exclusion from additional instruction premised on "extenuating circumstances as determined by school officials...." MCL 380.1278(8). While the form of the additional instruction may be deemed insufficient given the lack of progress in developing reading proficiency for these students, this Would constitute a separate and distinct claim.
With respect to the district defendants, then, the question is whether MCL 380.1278(8) authorizes, for the qualified students, a private cause, of action and whether such an action would be subject to immunity. MCL 380.1278 contains no express authorization permitting a private cause of action against a local school district for failing to comply with the statutory requirements; nor is there any evidence that the Legislature intended such a remedy. See Lash v. Traverse City, 479 Mich. 180, 194, 735 N.W.2d 628 (2007). Given the absence of any express legislative authorization, the statutory provision does not provide a private cause of action for monetary damages. Id.
In addition, we note that a school district, its board members, and its employees are generally protected by governmental immunity. See MCL 691.1407(1) and (2); MCL 691.1401(b) and (d); Lansing Schs. Ed. Ass'n v. Lansing Bd. of Ed., 487 Mich. 349, 400 n. 8, 792 N.W.2d 686 (2010) (CORRIGAN, J., dissenting). Immunity, however, would not be available under the circumstances. As explained by Justice CORRIGAN:
Plaintiffs in this matter contend that they are not seeking economic damages, but rather a writ of mandamus to enforce the statutory provision, precluding the district defendants' claim of immunity. They assert that although the additional services required under MCL 380.1278(8) may require an ancillary expenditure of funds, the relief sought is primarily equitable and nonmonetary in nature.
A trial court's grant or denial of a writ of mandamus is reviewed for an abuse of discretion. Casco Twp. v. Secretary of State, 472 Mich. 566, 571, 701 N.W.2d 102 (2005). "A court by definition abuses its discretion when it makes an error of law." In re Waters Drain Drainage Dist., 296 Mich.App. 214, 220, 818 N.W.2d 478 (2012). Although the underlying question whether the writ should be issued is reviewed for an abuse of discretion, "this Court reviews de novo as questions of law whether a defendant has a clear legal duty to perform and whether a plaintiff has a clear legal right to performance." Barrow v. Detroit Election Comm., 301 Mich.App. 404, 411, 836 N.W.2d 498 (2013).
"`[A] writ of mandamus is an extraordinary remedy and will only be issued where (1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result.'" Sal-Mar Royal Village, LLC v. Macomb Co. Treasurer, 301 Mich.App. 234, 237, 836 N.W.2d 236 (2013), quoting Citizens Protecting Michigan's Constitution v. Secretary of State, 280 Mich.App. 273, 284, 761 N.W.2d 210 (2008) (alteration in original).
In Hanlin v. Saugatuck Twp., 299 Mich.App. 233, 248, 829 N.W.2d 335 (2013), this Court explained:
With regard to plaintiffs' request for a writ of mandamus, MCL 380.1278(8) indicates that plaintiffs had a legal right to receive "special assistance" in specifically defined or restricted circumstances. In turn, the district defendants had a statutory duty under MCL 380.1278(8) to provide "special assistance" to otherwise-qualified students who did "not score satisfactorily on the 4th or 7th grade [MEAP] reading test...."
What precludes issuance of such a writ, however, is that the act to be performed cannot be considered ministerial in nature, as the school district is afforded wide-ranging discretion. Initially, the school district is permitted to identify the qualifying students, but the statute fails to define which pupils may have "extenuating circumstances" and thus may not be encompassed within the statute. In addition, the service to be provided is comprised of "special assistance reasonably expected to enable the pupil to bring his or her reading
The district defendants further assert that the trial court erred by failing to dismiss plaintiffs' claims because the claims were nonjusticiable and, in the alternative, the claims were rendered moot by the appointment of an emergency manager.
Given the lack of a remedy specified by the statute at issue, MCL 380.1278(8), we conclude that enforcement of this provision is not a matter for the courts, but rather an administrative matter better resolved between individuals seeking to obtain or enforce services and the pertinent school district. Moreover, it would be difficult, if not impossible, for the courts to fashion innumerable individual remedies. Indeed, determinations regarding the type of services that are necessary for individual pupils to meet the statutory reading-skills requirements fall within the expertise of the schools — not the courts. As observed in a slightly different context, "`[g]iven the nature of the case;'" it is incumbent on the courts to "`take note of the limits of judicial competence in such matters.'", Straus, 459 Mich. at 531, 592 N.W.2d 53 (citation omitted). Courts "`cannot serve as ... overseers ... weighing the costs and benefits of competing ... ideas or the wisdom of ... taking certain actions, but may only determine whether some ... provision has been violated....'" Id. (citation omitted). While there is little genuine controversy that the district defendants have abysmally failed their pupils, the mechanism to correct this failure is not through the court system, particularly given the remedy sought by plaintiffs. The problem is multifaceted, comprised of deficiencies in the manner and type of academic instruction received, but also impacted by a variety of social and economic forces unique to the circumstances of each student. Consequently, there is no one-size-fits-all solution, and the greatest impact for each student will be one that is made up of several components and addresses his or her individual needs. Such a solution is not available through judicial intervention. We conclude that the specific dispute at issue in this case, calling for the implementation of individualized reading programs and complex educational services, perhaps over a long period of time, is nonjusticiable in nature as it would necessitate undue intrusion upon the other branches of government and would require us to move beyond our area of judicial expertise. See House Speaker v. Governor, 443 Mich. 560, 574, 506 N.W.2d 190 (1993).
Given our conclusion that the trial court improperly denied summary disposition for the state and district defendants, we need not decide whether the issues in this case have been rendered moot by the appointment of an emergency manager and the subsequent contracting for charter schools. For the same reason, we decline to consider the district defendants' claims regarding the issuance of an amended scheduling order.
MURRAY, P.J., concurred with JANSEN, J.
MURRAY, P.J. (concurring).
In their briefs filed with this Court plaintiffs have set forth evidence that they are not educated to the level that would be reasonably expected given their ages. This evidence should be of great concern to their parents, school authorities, and frankly any taxpayer or other concerned citizen. But those important educational concerns are not what we, judges of a court of law, are addressing today, for our exclusive task is to determine whether plaintiffs can pursue the legal theories set forth in their complaint. The majority opinion adequately explains why they cannot, and therefore I join that opinion. I write separately to briefly address some of the more specific arguments put forth by plaintiffs.
First, as made clear during oral argument before this Court, plaintiffs' constitutional arguments are not anchored in the text of either Const. 1963, art. 8 § 1 or § 2, yet it is that text that we must apply in determining whether plaintiffs can maintain a claim under these state constitutional provisions.
Second, plaintiffs maintain that their argument is supported by the text, as least in so far as the Michigan Supreme Court has construed § 2. In that regard, plaintiffs argue that in Bond v. Ann Arbor Sch. Dist., 383 Mich. 693, 178 N.W.2d 484 (1970), our Supreme Court recognized a cause of action under Article 8, § 2. It is certainly true that the Bond Court upheld the plaintiffs' challenge under Article 8, § 2, that the school district was required to pay for books their children would use in public school. See Bond, 383 Mich. at 699-702, 178 N.W.2d 484. But, in our decision today, we are assuming a direct
Third, as the majority opinion makes clear, the statutory provision raised by plaintiffs, MCL 380.1278(8), is not amenable to mandamus relief. To implement that provision, which is itself a legislative remedy for poor reading performances as it compels school districts to provide "special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months," requires an enormous amount of discretion on the part of educators. On this point, it bears emphasizing what both the United States Supreme Court and our state Supreme Court have repeatedly held: judges are not equipped to decide matters of educational policy. See, e.g., Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 749, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (Breyer, J., dissenting), citing, inter alia, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 49-50, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); See also Wisconsin v. Yoder, 406 U.S. 205, 234-235, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Page v. Klein Tools, Inc., 461 Mich. 703, 714-716, 610 N.W.2d 900 (2000); Larson v. Burmaster, 2006 WI App 142, ¶ 42, 295 Wis.2d 333, 720 N.W.2d 134 (2006).
This holds true whether we are addressing mandamus relief or trying to define what specific level of education is required by the Constitution. Indeed, in Michigan — like most states — what type of programs should be utilized to implement the general guarantees of Article 8, §§ 1 and 2, is a decision primarily left to either the state legislature or locally elected school district boards of education. Slocum v. Holton Bd. of Ed., 171 Mich.App. 92, 95-96, 429 N.W.2d 607 (1988); Sheridan Rd. Baptist Church v. Dep't of Ed., 132 Mich.App. 1, 21, 348 N.W.2d 263 (1984), aff'd 426 Mich. 462, 396 N.W.2d 373 (1986). Those elected bodies have the capacity to conduct a number of tasks to address these important issues, including the ability to hear different `policy arguments, listen to arguments for and against specific educational programs, to allow the taking of testimony, and to receive input from teachers and constituents, to name just a few. See, e.g., Henry v. Dow Chem. Co., 473 Mich. 63, 92 n. 24, 701 N.W.2d 684 (2005). We, the judiciary, do not have that same capacity, ability, or role, as we serve a significantly different and limited function in state government. Id.
Fourth, and finally, plaintiffs offer a number of decisions from our sister states holding that their state constitutions provide a guaranteed minimal level of education. It is certainly true that some state appellate courts have come to that conclusion. But it is just as true that, as most of
To the extent some courts have concluded that general, "aspirational" language similar to our language does call for minimum levels of educational results, I simply disagree with those decisions. I cannot by judicial fiat read words like "sufficient," "adequate" or "quality" into the text of Article 8, § 2, no matter how sound the result of doing so might seem,
The dissent's vituperative opinion glosses over many of the important legal distinctions that control the outcome of this case as framed by plaintiffs. Though all of us agree that the evidence of prior performance in the school district amongst this segment of students was poor, as members of the judiciary we cannot let our moral, political or emotional views of that situation obscure the rule of law that we must apply. See Planned Parenthood of Greater Iowa, Inc. v. Miller, 30 F.Supp.2d.
First, the majority opinion is not leaving plaintiffs without a remedy. A remedy exists, it is simply not to be found, under these constitutional provisions and statute, in the court system. Instead, as previously made clear, the Michigan Constitution itself indicates that it is the Legislature that is to define the scope of the public education that Michigan children are entitled to, as the key phrase within Article 8, § 2, "as defined by law," indicates. See note 2 of this opinion and King v. Oakland Co. Prosecutor, 303 Mich.App. 222, 241, 842 N.W.2d 403 (2013). That delegation, coupled with the generalized language of the provision itself, compels the conclusion that what level of education is mandated by the Constitution is for the legislative branch to decide.
Second, and relatedly, the dissent offers a definition of "education" that we should utilize to define that term in Article 8, § 2. Assuming that definition was the common meaning at the time the Constitution was ratified in 1963, Nat'l Pride At Work, 481 Mich. at 67, 748 N.W.2d 524, the definition offered by the dissent does not itself speak to a particular level of education required. Rather, it merely defines the ultimate goal of education, i.e., "developing" the knowledge, skills, minds and character of our youth. It provides' no gauge as to the level of education to be provided and, as a result, how courts are to enforce such vague provisions.
For example, say a school district's seventh graders average 55% on a math assessment test, and a court concluded that the district (not the state) was not sufficiently "developing" the students' minds, at least as it pertained to math. The dissent opines that an order simply declaring that the minimum level was not attained would suffice, and the school district — perhaps with assistance from the state — could develop ways to improve. But to what level? A 60%, 70% or 80% average? What about a 100% passing average? What curriculum should be used to obtain these higher averages? Should there be a lower teacher to student ratio for those students who have performed below the average? And, if the first attempt is unsuccessful in reaching that subjective goal, when will the court — through use of experts — start deciding what method would be more appropriate for the district to implement next in the name of complying with its order? Court supervision of the district's teaching methods and curriculum would be inevitable, yet that is precisely what the Supreme Courts of this state and nation have warned against. See Yoder, 406 U.S. at 234-235, 92 S.Ct. 1526; Page, 461 Mich. at 714-716, 610 N.W.2d 900. The Illinois Supreme Court properly
See, also, Nebraska Coalition for Ed. Equity & Adequacy v. Heineman, 273 Neb. 531, 553-554, 731 N.W.2d 164 (2007).
In sum, whether it is a good or bad policy choice, the ratifying voters in 1963 gave the Legislature full authority to define the public education to be provided by school districts. The Legislature responded with, amongst other things, the very detailed Revised School Code. See MCL 380.1 et seq. Many of the statutes in that code contain remedies to be employed by districts once certain low scores occur, as is the case with MCL 380.1278(8). But mandamus is not an appropriate way to enforce that provision because of the built-in discretion required to implement that statute and because a decision by the school district as to those qualifying plaintiffs has been made and implemented; plaintiffs are challenging the decision made and asserting that there are better programs for the school district to utilize in implementing the "special assistance" required under the statute
SHAPIRO, J. (dissenting).
In one of the most significant cases of the last century, the United States Supreme Court declared that "education is perhaps the most important function of state and local governments." Brown v. Topeka Bd. of Ed., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Nine years after that decision, the people of this state approved a new Constitution providing that local school districts "shall" provide an education to all students and that the Legislature "shall" maintain and support such schools. Const. 1963, art. 8, §§ 1 and 2. Sadly, my colleagues in the majority have judicially repealed these provisions with their decision today. They have also, by judicial fiat, repealed a legislative enactment that requires school districts to take specific action when pupils fail to attain basic competencies. MCL 380.1278(8).
I reject the majority's miserly view of the education constitutionally due Michigan's children. I agree with the majority that the judiciary is not suited to, and should avoid attempting to, manage school administration or fine-tune educational policy. However, this does not excuse the majority's abandonment of our essential
Plaintiffs, students of defendant Highland Park School District (HPSD), allege that the government defendants violated plaintiffs' constitutional rights under Const. 1963, art. 8, §§ 1 and 2, and violated their own statutory duties under MCL 380.1278(8). Defendants assert that plaintiffs' complaint does not state a cause of action. That complaint, as noted by the trial court when it denied defendants' motion for summary disposition, contains a lengthy list of factual assertions that can only be fairly described as shocking and which, for purposes of this motion, we must adopt as true.
A few of the more disturbing accusations are as follows:
Failing to refer to these, or any of the other equally disturbing allegations in plaintiffs' complaint, the majority reaches the following conclusions: (1) the provision in the Michigan Constitution that guarantees that every school district "shall provide for the education of its pupils," Const. 1963, art. 8, § 2, has neither meaning nor effect and no level of failure by a school district to provide these requirements can ever constitute a violation of this provision; (2) the language in Article 8, §§ 1 and 2 of the Michigan Constitution providing that the state shall "maintain and support" a system of public schools and that "the means of education shall forever be encouraged," are merely aspirational and have no force of law; (3) that no child, parent, or citizen has the authority to seek judicial enforcement of the statutory mandate contained within MCL 380.1278(8) that a student whose reading ability is below grade level "shall be provided special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months." All these conclusions are erroneous.
Plaintiffs' constitutional claims arise solely under the education provisions of the 1963 Michigan Constitution. Specifically, plaintiffs' complaint alleges that defendants have violated Const. 1963, art. 8, §§ 1 and 2, which provide:
By virtue of their employment of the word "shall," these constitutional provisions are mandatory and require compliance. See Port Huron v. Amoco Oil Co., Inc., 229 Mich.App. 616, 631, 583 N.W.2d 215 (1998) (stating that it is a well-established rule of statutory interpretation that "[w]hile the word `shall' is generally used to designate a mandatory provision, `may' designates discretion"). Nonetheless, the majority dispenses with these constitutional provisions in conclusory fashion with little, if any, analysis or consideration of the law. Its analysis falters at the very first step by relying on the fact that education is not a "fundamental interest" under the equal protection clause. See Martin Luther King Jr. Elementary Sch. Children v. Mich. Bd. of Ed., 451 F.Supp. 1324, 1328 (E.D.Mich., 1978) (MLK).
The balance of the majority's consideration of § 1 is limited to a single conclusory sentence reading: "Article 8, § 1 merely `encourage[s]' education, but does not mandate it."
As for § 2, the majority ignores the use of the mandatory word "shall" in the provision's first and second sentences, applying to the Legislature and the relevant school district respectively.
Contrary to the majority in this case, Michigan courts have been willing to address such questions in the past. In Bond v. Ann Arbor Sch. Dist., 383 Mich. 693, 178 N.W.2d 484 (1970), the plaintiffs attended free public schools, i.e., no tuition was charged. The plaintiffs nevertheless argued that the modest fee charged by the defendant school district for books and supplies, along with various other fees imposed by the district, violated the constitutional requirement that the Legislature "maintain and support a system of free public elementary and secondary schools...." Const. 1963, art. 8, § 2. The, case was tried without a jury, and the circuit court ruled, in part, that the fees charged for books and supplies were constitutional. The Court of Appeals affirmed.
Our Supreme Court unanimously reversed that portion of the lower courts' rulings. Bond, 383 Mich. 693, 178 N.W.2d 484. It held that a system of free public schools requires the free provision of the "necessary elements of any school's activity," alternatively stated as the materials that "are an essential part of a system of free public elementary and secondary schools." Id. at 702, 178 N.W.2d 484 (quotation marks omitted). Most important for purposes of the instant appeal is the Court's statement that "`[n]o education of any value is possible without school books.'" Id. at 701-702, 178 N.W.2d 484, quoting Crowley v. Bressler, 41 N.Y.S.2d 441, 445-446, 181 Misc. 59 (1943). The Bond Court's analysis makes clear that when public educational services fall below some minimal level, Const. 1963, art. 8, § 2 has been violated. When the education provided, like one without textbooks, is not "of any value," the state has not met its constitutional obligation
In Snyder v. Charlotte Pub. Sch. Dist., 421 Mich. 517, 525, 365 N.W.2d 151 (1984), our Supreme Court stated in more general terms:
The majority quotes the concurrence in Governor v. State Treasurer, 390 Mich. 389, 406, 212 N.W.2d 711 (1973) (Governor II) (T.G. KAVANAGH and LEVIN, JJ., concurring), for the proposition that "no system of public schools can provide equality of educational opportunity in all its diverse dimensions," but gives no weight to the sentence immediately following, which provides: "All that can properly be expected of the state is that it maintain and support a system of public schools that furnishes adequate educational services to all children." (Emphasis added.) While there is no constitutional requirement that schools provide an optimal education nor that all educational services, be provided with perfect equality, for the educational provisions of our Constitution to have any meaning, schools must provide "adequate educational services to all children." Id.
Moreover, in Governor II, which concerned a challenge to Michigan's entire system of public school funding, id. at 391, 212 N.W.2d 711, the concurrence stated:
In this case, the plaintiff schoolchildren have asked the courts to make good on this commitment not to abandon them. Unlike Governor II, this case is not one based on "generalized arguments" about educational opportunity, but rather on objective tests that support the allegation that the overwhelming majority of students in the HPSD are not receiving a minimally adequate education. Ironically, in Governor II, the defendants argued that the proper way to demonstrate denial of a constitutionally required education would be to evaluate the districts "in terms of `output,' as measured by pupil accomplishment on certain achievement tests." Id. at 398, 212 N.W.2d 711. This is precisely what the instant plaintiffs have done, and the testing administered by state law is their best evidence.
Plaintiffs also cite several cases from our sister states that have considered this question and provide helpful analyses.
The South Carolina Supreme Court, in Abbeville Co. Sch. Dist. v. South Carolina, 335 S.C. 58, 63-64, 515 S.E.2d 535 (1999), considered whether the state's public school funding scheme violated either the Equal Protection Clause or the state constitution's education clause. It found no equal protection violation, id. at 65, 515 S.E.2d 535, but concluded that the funding scheme violated the state constitution, id. at 68, 515 S.E.2d 535. The relevant clause closely resembles Const. 1963, art. 8, § 2 and provides:
The trial court in Abbeville had concluded that the language of the provision was nonspecific and that "judicial restraint, separation of powers, and/or the political question doctrine prevented it from considering this education clause claim." Id. at 67, 515 S.E.2d 535. The South Carolina Supreme Court reversed that holding, ruling that the constitutional mandate required the state to "provide the opportunity for each child to receive a minimally adequate education," which it defined as follows:
The court went on to state:
This holding is consistent with the holdings of other courts that have addressed the requirements of state constitutional provisions similar to Const. 1963, art. 8, § 2.
In Lake View Sch. Dist. No. 25 of Phillips Co. v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), the Arkansas Supreme Court held that the legislative and executive branches were in violation of the state constitution's education provision. See also Ark. Const. 1874, art. 14, § 1. In rejecting a justiciability argument similar to that made in the instant case, the court noted that "[t]he State's argument appears to be that not only are legislative acts presumed to be constitutional, but that they are per se constitutional and not subject to judicial review." Lake View, 351 Ark. at 53, 91 S.W.3d 472 (citation omitted).
The high court of New York State, the Court of Appeals, reached the same conclusion. In Campaign for Fiscal Equity, Inc. v. New York, 86 N.Y.2d 307, 631 N.Y.S.2d 565, 655 N.E.2d 661 (1995), that court interpreted New York's constitutional education provision, which is nearly identical to Michigan's and mandates that "[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." Id. at 314, 631 N.Y.S.2d 565, 655 N.E.2d 661 (quotation marks and citation omitted). The court held that this provision "requires the State to offer all children the opportunity of a sound basic education. Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants...." Id. at 316, 631 N.Y.S.2d 565, 655 N.E.2d 661 (citation omitted).
In Claremont Sch. Dist. v. Governor, 142 N.H. 462, 472, 703 A.2d 1353 (1997), the New Hampshire Supreme Court, relying on a constitutional education clause even less specific than Michigan's,
In Tennessee, the state constitutional education clause contains language resembling Michigan's, providing:
Relying on dictionary definitions of the word "education," the Tennessee Supreme Court held that the clause required "that the General Assembly shall maintain and support a system of free public schools that provides, at least, the opportunity to acquire general knowledge, develop the powers of reasoning and judgment, and generally prepare students intellectually for a mature life." Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 150-151 (Tenn., 1993).
Similarly, in Rose v. Council for Better Ed., Inc., 790 S.W.2d 186 (Ky., 1989), the Kentucky Supreme Court addressed a Kentucky constitutional provision requiring that "[t]he General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State." Ky. Const. 1891, § 183. The court found the question justiciable and determined that the school system was constitutionally deficient:
In Pauley v. Kelly, 162 W.Va. 672, 705-706, 255 S.E.2d 859 (1979), the West Virginia Supreme Court of Appeals held that their constitution required the state to prepare students for useful occupations and citizenship including the development of literacy and the "ability to add, subtract, multiply and divide numbers[.]"
In Seattle Sch. Dist. No. 1 of King Co. v. State of Washington, 90 Wn.2d 476, 585 P.2d 71 (1978), the Washington Supreme Court interpreted that state's constitutional education clause, which provides that "[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders," Wash. Const. 1889, art. IX, § 1. The court held that, under this clause, "the State's constitutional duty goes beyond mere reading, writing and arithmetic. It also embraces broad educational opportunities needed in the contemporary setting to equip our children for their role as citizens and as potential competitors in today's market as well as in the market place of ideas." Seattle Sch. Dist. No. 1, 90 Wash.2d at 517, 585 P.2d 71. The court explained that, "[t]he constitutional right to have the State `make ample provision for the education of all (resident) children' would be hollow indeed if the possessor of the right could not compete adequately in our open political system, in the labor market, or in the market place of ideas." Id. at 518, 585 P.2d 71.
Given these holdings from our sister states, which favor plaintiffs, it is difficult to see why the majority finds judicial overreach in addressing whether our Constitution's education provision is violated when the overwhelming majority of students in the subject district cannot read or perform mathematics at grade level.
Defendants rely heavily on King v. Iowa, 818 N.W.2d 1 (Iowa, 2012). However, the Iowa constitution's education clause
The relevant clause of the Iowa constitution, by contrast, does not even contain the word "education." It reads, in relevant part, as follows: "The General Assembly shall encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement." Iowa Const. 1857, art. IX, div. 2, § 3. See also King, 818 N.W.2d at 12.
In King, the Iowa high court referenced its state's unusual history of rejecting any constitutional provisions to mandate free public schools. The court noted that as far back as 1859 it had "reached the conclusion that no aspect of the Iowa Constitution, including the education clause, authorized the legislature to provide for public schools," and that the state's 1857 constitutional convention had voted down a proposed amendment to provide for tuition-free schools. King, 818 N.W.2d at 14-15. Given that particular constitutional history, the King court concluded that if the Iowa constitution "did not assure a right to a free public education, it seems untenable to argue that [it] contained a judicially enforceable right to a free public education with certain minimum standards of quality." Id. at 15 (emphasis omitted).
The Michigan Constitution's education clauses read very differently than the Iowa constitution's education clauses. And the other states that have addressed this question have consistently held that a cause of action may be brought and argued, and that a court may find, that the state has failed to satisfy an education clause of the state's constitution when the state has failed to provide an adequate education to its children.
The majority's rejection of plaintiffs' statutory claims against the school district defendants is even more difficult to understand. MCL 380.1278(8), part of the Revised School Code,
Like the previously discussed constitutional provisions, this statute employs the word "shall," denoting required compliance on the part of the subject school district. See Port Huron, 229 Mich.App. at 631, 583 N.W.2d 215. Defendants do not appear to dispute that a majority of the relevant fourth-grade students did not score satisfactorily on the reading test, nor do they dispute that an overwhelming majority of seventh-grade students failed to do so as well. Thus, the district essentially concedes that it has violated the plain terms of the statute.
The majority nevertheless reverses the trial court's denial of defendants' motion for summary disposition, concluding that "it remains to be determined whether the [individual plaintiffs] are subject to exclusion from additional instruction premised on `extenuating circumstances as determined by school officials....'" (Citation omitted.) The fact that this issue "remains to be determined" is grounds for affirming the trial court's denial of summary disposition, not for reversing it. Moreover, defendants have not alleged or offered any evidence that the students fall within the exception for "pupils with extenuating circumstances as determined by school officials...." MCL 380.1278(8).
The majority also states, "While the form of the additional instruction may be deemed insufficient given the lack of progress in developing reading proficiency for these students, this would constitute a separate and distinct claim." It offers no basis for this statement, likely because there is none. Essentially, the majority states that if the services provided to these students are inadequate, it constitutes a "separate and distinct claim." In fact, that is exactly the letter and spirit of the claim now before us. To direct these minor plaintiffs, who have litigated these cases for over two years and are, therefore, two years closer to "graduation," to start over with a new case, premised on defendants' failure to remedy their educational shortcomings, mocks these children.
The majority further concludes that MCL 380.1278(8) does not provide a private cause of action. In reaching this conclusion, it cites only Lash v. Traverse City, 479 Mich. 180, 194, 735 N.W.2d 628 (2007), but does not refer to that case's reasoning. Rather, the majority implies that Lash held that, in the absence of an express statutory authorization of a private cause of action, no statute can ever give rise to a private cause of action. This is simply false. In Lash, our Supreme Court reiterated that
That is, a cause of action may be created to redress a statutory violation when the purpose of the statute at issue is held to be exclusively or in part (1) to protect a class of persons that includes the one whose interest has been invaded, (2) to protect the particular interest that has been invaded, (3) to protect that interest against the kind of harm that has resulted, and (4) to protect that interest against the particular hazard from which the harm has resulted. Lash, 479 Mich. at 192-193, 735 N.W.2d 628.
All these requirements are plainly met in this case. MCL 380.1278(8) explicitly defines the class of persons intended to be protected as "[non-special education pupils] who do[] not score satisfactorily on the 4th or 7th grade [MEAP] . reading test...." The particular interest is obtaining a minimum level of education that will enable these children to become functioning members of society. The kind of harm is the denial of the "special assistance reasonably expected to enable the pupil to bring his or her, reading skills to grade level within 12 months." The hazard is the failure to provide that assistance.
The majority's willingness to ignore the statute is particularly odd given the majority's repeated assertion that education policy is a matter for the Legislature. In enacting MCL 380.1278(8), the Legislature set education policy. It is merely a question of whether that policy, and the statute enacting it, will be enforced by the courts. The majority wrongly declines to do so.
In large measure, my colleagues base their dismissal of this case on the ground that if plaintiffs were to prevail at trial on either their statutory or constitutional claims, relief might not be easily fashioned and some forms of relief might constitute an overextension of judicial authority. In my view, there is no basis for this concern as to plaintiffs' statutory claim and any such concern as to the constitutional claims is both premature and exaggerated.
With regard to the statutory claim, if plaintiffs were to prevail at trial, the remedy would be straightforward. Defendants would be ordered to provide the service that is specified in MCL 380.1278(8). Moreover, contrary to defendants' argument, a writ of mandamus would be available to so direct. The statute, using the word "shall" imposes a duty on the district to provide assistance to the relevant students. I agree that the precise nature of that assistance is left to the discretion of the district, but "the writ will lie to require a body or an officer charged with a duty to take action in the matter, notwithstanding the fact that the execution of that duty may involve some measure of discretion." Teasel v. Dep't of Mental Health, 419 Mich. 390, 410, 355 N.W.2d 75 (1984). As defendants have acknowledged in their briefs, "mandamus will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner." Id.
Defendants essentially argue that they are above the law. They claim to possess the authority to violate a statutory mandate and insist that no action may be taken in the courts to enforce that mandate. This is precisely the situation that Justice RYAN cautioned against in Teasel:
In this case, plaintiffs allege that defendants have violated a statutory mandate, i.e., that they "shall" provide "special assistance" to students that fail the fourth- or seventh-grade MEAP reading test. While the precise nature of that required assistance remains discretionary, the government entity may not use that discretion as an excuse to simply take no action at all. In other words, a government entity may not wholly avoid compliance with a statutory mandate on the ground that it retains some discretion as to the particular method of compliance.
I agree with my colleagues that defining a judicial remedy for the constitutional claim, should it be shown to be meritorious, may pose challenges. However, it is likely that a judicially crafted remedy would not be necessary. The parties may, and I believe likely would, design a remedy to which they can agree. If that does not occur, the question of remedy can be referred to the legislative branch for first consideration. Many state courts that have ruled in favor of plaintiffs on claims like the one now before us have declared the status quo unconstitutional and, rather than attempting to define what must be done, have simply directed the legislative
I reject the majority's view that the possibility that such challenges might be faced if and when plaintiffs prove their case is grounds to not hear their case at all. It is the very rare case in which the judiciary is able to impose a perfect remedy: the issuance of a personal protection order does not automatically insulate an individual from further harassment, the imprisonment of a convicted murderer does not bring the victim back to life or heal the victim's loved ones, and civil judgments often fail to make the prevailing party whole. In sum, the role of the courts is to determine the rights of the parties under the rule of law and, based on that determination, fashion a reasonable, albeit often imperfect, remedy when the parties cannot agree on one. In that respect, this case is no different than many others that come before our courts.
At minimum, it is clear that a declaratory judgment
My colleagues offer kindly worded sympathy to the children whose futures are in jeopardy through no fault of their own. But the schoolchildren who brought this claim are not requesting this Court's sympathy. They are asking that we allow their case to be heard.
I wish to stress that I do not assert that this Court should now conclude that the state and school district are in violation of either statutory or constitutional standards. However, I do assert, consistent with precedent, that this is a justiciable matter, that plaintiffs have stated viable claims, and that the trial court, after hearing the relevant proofs, may render a decision subject to appellate review.
Accordingly, I respectfully dissent.
