                        STATE OF MICHIGAN

                           COURT OF APPEALS



SS Next Friend of Minor LM, DS Next Friend of   FOR PUBLICATION
Minor SD, MJ Next Friend of Minor MS, DC Next   November 6, 2014
Friend of Minor LB, TF Next Friend of Minors
DF, ID, and FC, LH Next Friend of Minor CM,

             Plaintiffs-Appellees,

v                                               Nos. 317071; 317072
                                                Wayne Circuit Court
STATE OF MICHIGAN, STATE BOARD OF               LC No. 12-009231-CZ
EDUCATION, DEPARTMENT OF
EDUCATION, and STATE SUPERINTENDENT
OF PUBLIC INSTRUCTION,

             Defendants-Appellants,

and

HIGHLAND PARK SCHOOL DISTRICT,
HIGHLAND PARK SCHOOL DISTRICT
EMERGENCY MANAGER, HIGHLAND PARK
PUBLIC SCHOOL ACADEMY SYSTEM, and
LEONA GROUP, L.L.C.,

             Defendants.


SS Next Friend of Minor LM, DS Next Friend of
Minor SD, MJ Next Friend of Minor MS, DC Next
Friend of Minor LB, TF Next Friend of Minors
DF, ID, and FC, and LH Next Friend of Minor
CM,

             Plaintiffs-Appellees,

v                                               No. 317073
                                                Wayne Circuit Court
                                                LC No. 12-009231-CZ



                                         -1-
STATE OF MICHIGAN, STATE BOARD OF
EDUCATION, DEPARTMENT OF
EDUCATION, STATE SUPERINTENDENT OF
PUBLIC INSTRUCTION, HIGHLAND PARK
PUBLIC SCHOOL ACADEMY SYSTEM, and
LEONA GROUP, L.L.C.,

               Defendants,

and

HIGHLAND PARK SCHOOL DISTRICT and
HIGHLAND PARK SCHOOL DISTRICT
EMERGENCY MANAGER,

               Defendants-Appellants.


Before: MURRAY, P.J., and JANSEN and SHAPIRO, JJ.

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, 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.
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.1 It is plain that nothing in either § 1 or § 2 of Article 8 even touches
upon the specific issues about which plaintiffs complain. Instead, as the majority opinion makes
clear, those provisions only articulate general aspirational propositions that are to guide the
Legislature’s enactment of legislation containing more specific education policy choices.2 In no




1
 To prevail against the state, plaintiffs would also have to show that any injury they suffered was
caused by a state custom or policy, Jones v Powell, 462 Mich 329, 336; 612 NW2d 423 (2000),
but that issue need not be addressed because there is no basis in the text for these claims.


                                                 -2-
way can they be legitimately read to support a constitutional right to specific educational results
or to a guarantee of a certain level of education.

        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 NW2d 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. But, in our decision
today, we are assuming a direct cause of action can be brought under this provision. The
question is whether plaintiffs’ allegations make out a potential violation of these constitutional
provisions, and in that regard Bond is of no assistance. Bond addressed a challenge invoking
precise language in the constitutional provision—what was meant by a “free” public education—
while plaintiffs in this case can point to no language in the text that supports their challenge
seeking to establish a specific level or quality of education through the provision of a free public
education. Thus, Bond’s analysis does not help here.3

         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
US 701, 849; 127 S Ct 2738; 169 L Ed2d 508 (2007), citing inter alia, San Antonio Indep Sch
Dist v Rodriguez, 411 US 1, 49-50; 93 S Ct 1278; 36 L Ed 2d 16 (1973); Wisconsin v Yoder, 406
US 205, 235; 92 S Ct 1526; 32 L Ed 2d 15 (1972); Page v Klein Tools, Inc, 461 Mich 703, 715-
716; 610 NW2d 900 (2000); Larson v Burmaster, 295 Wis 2d 333, 368; 720 NW2d 134; 2006
Wis App 142 ( 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
2
 Indeed, Article 8, § 2 states that the Legislature shall maintain and support free public schools
“as defined by law,” which means that the public school system called for in § 2 is to be
implemented by the Legislature. See Midland Cogeneration Venture Ltd Partnership v Naftaly,
489 Mich 83, 93-94; 803 NW2d 674 (2011); People v Perks (On Remand), 259 Mich App 100,
113; 672 NW2d 902 (2003). This implies that a judicial monetary remedy for a violation of the
general standards of § 2 would be inappropriate to recognize. Lewis v Michigan, 464 Mich 781,
787; 629 NW2d 868 (2001).
3
  The dissent asserts that Bond applies to plaintiffs’ allegation that “[t]here is a critical lack of
textbooks in most classrooms.” Bond, however, only addressed whether under Article 8, § 2 a
school district could require parents to pay for required textbooks, not the unrelated and policy
driven question as to how many textbooks are sufficient for a particular class. And, plaintiffs do
not allege that the school district is charging them for any of the textbooks.


                                                -3-
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 NW2d
607 (1988); Sheridan Road Baptist Church v Dep’t of Ed, 132 Mich App 1, 21; 348 NW2d 263
(1984), aff’d 426 Mich 462 (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 or against specific educational programs, 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 NW2d 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 those courts recognize, these decisions are “necessarily controlled in large measure by the
particular wording of the constitutional provisions of those states’ charters regarding
education . . . .” Tennessee Small Sch Sys v McWherter, 851 SW2d 139, 148 (Tenn, 1993). As
the Iowa Supreme Court highlighted, many state constitutions’ education clauses contain words
like “adequate,” “efficient,” “quality” or “thorough” that denote a level of quality to the
education provided, King v Iowa, 818 NW2d 1, 20-21, 21 n 16 (Iowa, 2012), but as discussed
our provisions contain no such verbiage. Many of the other cases relied upon by plaintiffs
address funding level issues, and that issue—as plaintiffs have argued—is not a part of this
lawsuit.4 And if that issue was raised, plaintiffs would have a tough hurdle to overcome. See
Governor v State Treasurer, 390 Mich 389; 212 NW2d 711 (1973) (Governor II) and East
Jackson Pub Schs v Michigan, 133 Mich App 132, 137-138; 348 NW2d 303 (1984).

        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,5 when those words
were not ratified by the people themselves. Nat’l Pride At Work, Inc v Governor, 481 Mich 56,
68; 748 NW2d 524 (2008). That is not the proper function of the judiciary. We are neither
equipped with the power nor the expertise to determine what courses, teaching credentials,
staffing levels, etc., are necessary to provide whatever would be determined to be an “adequate


4
  The following cases are therefore not analogous to the present controversy, at least in so far as
they deal with the adequacy of legislative funding: Leandro v North Carolina, 346 NC 336, 342-
343; 488 SE2d 249 (1997), Tennessee Small Sch Sys, 851 SW2d at 148-149, Abbott v Burke, 119
NJ 287, 314; 575 A2d 359 (1990), and Rose v Council for Better Ed, Inc, 790 SW2d 186 (Ky,
1989).
5
  After all, no sane individual would oppose the proposition that Michigan schools should
provide a quality education for all, particularly when so many financial resources are already
provided to K-12 public education.


                                                 -4-
education.” In the end, the constitutionally appropriate forum for plaintiffs is the ballot box, not
the courts. “Voters elect our governor, legislators, and school board members. If these plaintiffs
do not like how [Highland Park] schools are run, they should turn to the ballot box, not the
courts.” King, 818 NW2d at 43 (WATERMAN, J., concurring).6 See, also, Smith v Henderson,
___ F Supp 2d ___, ___ (D DC, 2014) (“The core problem here is that the parents’ fight is one
for the ballot box—not the courts.”).

        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. Planned Parenthood of Greater Iowa, Inc v
Miller, 30 F Supp 2d 1157, 1160 (SD Iowa, 1998), aff’d 195 F3d 386 (CA 8, 1999). That said,
several points must be made in response to the dissenting opinion.

        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 provided by law,” indicates. See footnote 2 and
King v Oakland Co Prosecutor, 303 Mich App 222, 241; 842 NW2d 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, 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.7 And this again highlights the
significant obstacle that plaintiffs face in this case: the remedy. To judicially impose a remedy


6
  At least one elected official, Governor Snyder, has acted pursuant to legislation (MCL
141.1541 et seq.) by appointing an emergency manager to oversee certain of the school district’s
operations in an attempt to remedy many of the problems that have plagued the district.
7
  Moreover, the dissent’s reliance upon the “adequate education” phrase from Governor II, 390
Mich at 389, is greatly misplaced. That second decision was simply an order declaring that the
prior opinion addressing the governor’s request for answers to certified questions, Governor v
State Treasurer, 389 Mich 1; 203 NW2d 457 (1972) (Governor I), opinions vacated 390 Mich
389, had been improvidently granted. The opinion issued with the order that contains the phrase
cited by the dissent, was signed by only two justices who agreed with the dismissal and vacating
of the prior opinion, and thus their opinion was plainly dicta that commanded no majority.


                                                -5-
will either immediately, or inevitably, lead the courts into the forbidden territory of educational
policy making.

        For example, say a school district’s seventh graders average 55 percent 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 percent average? What about a 100 percent 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 US at 235; Page, 461 Mich at 715-716. The Illinois
Supreme Court properly articulated these same constitutional concerns in Lewis E v Spagnolo,
186 Ill 2d 198, 209; 238 Ill Dec 1; 710 NE2d 798 (1999):

               Attempting to distinguish “high quality” from “minimally adequate” in
       this context is nothing more than semantics. No matter how the question is
       framed, recognition of the plaintiffs’ cause of action under the education article
       would require the judiciary to ascertain from the constitution alone the content of
       an “adequate” education. The courts would be called upon to define what
       minimal standards of education are required by the constitution, under what
       conditions a classroom, school, or district falls below these minimums so as to
       constitute a “virtual absence of education,” and what remedy should be imposed.
       Our decision in Committee for Educational Rights [v Edgar, 174 Ill 2d 1; 220 Ill
       Dec 166; 672 NE2d 1178 (1996)] made clear that these determinations are for the
       legislature, not the courts, to decide.

See, also, Nebraska Coalition for Educational Equity & Adequacy v Heineman, 273 Neb 531,
553-554; 731 NW2d 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




                                                -6-
“special assistance” under the statute8. As a consequence, the children—through their parents—
have a remedy; it is just not with the courts under the claims pleaded by plaintiffs.



                                                         /s/ Christopher M. Murray




8
  Hence, this case is a far cry from what was at issue in Teasal v Dep’t of Mental Health, 419
Mich 390, 410; 355 NW2d 75 (1984), where no decision had been made by defendant under
established criteria.


                                             -7-
