                        [J-82-2016] [M.O. - Wecht, J.]
                IN THE SUPREME COURT OF PENNSYLVANIA
                             MIDDLE DISTRICT



WILLIAM PENN SCHOOL DISTRICT;         :   No. 46 MAP 2015
PANTHER VALLEY SCHOOL DISTRICT;       :
THE SCHOOL DISTRICT OF                :   Appeal from the Order of the
LANCASTER; GREATER JOHNSTOWN          :   Commonwealth Court entered on
SCHOOL DISTRICT; WILKES-BARRE         :   4/21/15 at No. 587 MD 2014
AREA SCHOOL DISTRICT;                 :
SHENANDOAH VALLEY SCHOOL              :
DISTRICT; JAMELLA AND BRYANT          :
MILLER, PARENTS OF K.M., A MINOR;     :   ARGUED: September 13, 2016
SHEILA ARMSTRONG, PARENT OF           :
S.A., MINOR; TYESHA STRICKLAND,       :
PARENT OF E.T., MINOR; ANGEL          :
MARTINEZ, PARENT OF A.M., MINOR;      :
BARBARA NEMETH, PARENT OF C.M.,       :
MINOR; TRACEY HUGHES, PARENT OF       :
P.M.H., MINOR; PENNSYLVANIA           :
ASSOCIATION OF RURAL AND SMALL        :
SCHOOLS; AND THE NATIONAL             :
ASSOCIATION FOR THE                   :
ADVANCEMENT OF COLORED                :
PEOPLE-PENNSYLVANIA STATE             :
CONFERENCE                            :
                                      :
                                      :
                Appellants            :
                                      :
           v.                         :
                                      :
                                      :
PENNSYLVANIA DEPARTMENT OF            :
EDUCATION; JOSEPH B. SCARNATI III,    :
IN HIS OFFICIAL CAPACITY AS           :
PRESIDENT PRO-TEMPORE OF THE          :
PENNSYLVANIA SENATE; MICHAEL C.       :
TURZAI, IN HIS OFFICIAL CAPACITY AS   :
THE SPEAKER OF THE PENNSYLVANIA       :
HOUSE OF REPRESENTATIVES; TOM         :
WOLF IN HIS OFFICIAL CAPACITY AS      :
THE GOVERNOR OF THE                   :
COMMONWEALTH OF PENNSYLVANIA;         :
PENNSYLVANIA STATE BOARD OF                   :
EDUCATION; AND PEDRO A. RIVERA,               :
IN HIS OFFICIAL CAPACITY AS THE               :
SECRETARY OF EDUCATION                        :
                                              :
                    Appellees                 :



                                DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: September 28, 2017


      I respectfully dissent, as I would find that, per this Court’s prior decisions,

resolution of the claim asserted under the Education Clause is entrusted to the political

branches, and that the issue is, accordingly, non-justiciable. Notably, the parties do not

ask that we overrule binding precedent in this regard.

      Separately, I would conclude that the Petition fails to make out a viable cause of

action under the equal protection requirement of the state charter.

      Therefore, I would affirm the Commonwealth Court’s order sustaining the

Respondents’ demurrers and dismissing the Petition.


                                     I. Background

      As the majority notes, several school districts, parents of children attending

public schools, the Pennsylvania Association of Rural and Small Schools (“PARSS”),

and the Pennsylvania State Conference of the NAACP (collectively, “Plaintiffs”) filed a

petition for review in the nature of an action for declaratory and injunctive relief (the

“Petition”) in the Commonwealth Court’s original jurisdiction.         They named as

respondents Pennsylvania’s Governor, Department of Education (the “Department”),

acting Secretary of Education, and Board of Education (the “Board”) (collectively, the




                            [J-82-2016] [M.O. - Wecht, J.] - 2
“Executive Defendants”), as well as the Speaker of the Pennsylvania House and the

President Pro Tempore of the Pennsylvania Senate (the “Legislative Defendants”).1

       The majority sets out the background to this litigation in some detail.         To

summarize, according to the Petition Pennsylvania school districts are supported by a

combination of local, state, and federal funds, with local sources contributing the

greatest portion. In one recent fiscal year, for example, local sources provided 53% of

public-education funding, state appropriations accounted for 34%, and the remaining

13% was furnished by the federal government. Because local school tax revenues

depend on the total value of the real estate in a school district, wealthier districts can

raise more money locally than poorer ones. The state contribution is calculated using a

formula designed to moderate this disparity by providing more money to poor districts

than to wealthy ones.     Significant discrepancies in per-pupil spending nonetheless

persist due to substantial wealth disparities among school districts and the overall

scheme’s heavy reliance on local taxation, even though many less-affluent districts

expend greater tax effort (i.e., impose higher tax rates) than wealthier ones.

       In 2006 the Legislature directed the Board to determine the cost of providing

students with the basic instruction necessary to achieve baseline educational standards

as set forth by the state.2 The resulting costing-out study, conducted by a private


1
  As the Petition was dismissed on a demurrer, the facts as summarized below are
drawn from it and developed favorably to Plaintiffs. See Gresik v. PA Partners, 613 Pa.
303, 304 n.1, 33 A.3d 594, 595 n.1 (2011). We accept all well-pleaded facts in the
Petition and all reasonable inferences drawn from them. See Small v. Horn, 554 Pa.
600, 608, 722 A.2d 664, 668 (1998).

2
  The Board is the Department’s regulatory and policy-making entity for basic and
higher education. It adopts standards to facilitate improved student achievement and
issues reports and recommendations giving guidance to the governor and school
districts. See 24 P.S. §26-2603-B; 22 Pa. Code §4.2.


                            [J-82-2016] [M.O. - Wecht, J.] - 3
contractor with Board oversight, estimated that the per-student cost to attain these

mandates was approximately $11,900, whereas the average amount being spent was

about $9,500. The aggregate cost to meet the standards was determined to be $21.6

billion – 25% more than the amount being spent. The study also found that 94% of

Pennsylvania’s 500 school districts were spending less than their costing-out estimate

and that the poorest 20% of school districts needed to increase spending by 38%,

whereas the wealthiest 20% of school districts only needed to increase spending by 7%.

       To address these shortfalls, the General Assembly passed Act 61 of 2008, which

increased funding for basic education and implemented a new formula for determining

the amount of state funding to be disbursed to each school district. Act 61 also

increased monies for basic education by $275 million in 2008 and was intended to be

the first step of a six-year plan to assist school districts in meeting the state’s adequacy

objectives. The formula was used in 2009 and 2010 to determine both the aggregate

state appropriation and its distribution among school districts. Overall state education

funding increased by $655 million between 2008 and 2010. To supply this increase, the

Commonwealth began relying on federal stimulus dollars available under the American

Recovery and Reinvestment Act of 2009, and it used these funds to replace state-raised

revenue that had previously been appropriated to education.

       The stimulus money expired in 2011. By that time the state had substituted $480

million in federal funds for state revenues targeted to basic education. By June 2011,

Pennsylvania faced the prospect of finding a replacement for approximately $1 billion in

federal stimulus monies in its overall fiscal-year 2011-12 budget. Instead of supplying

$1 billion in new state funds, however, the Legislature implemented $860 million in

budget cuts which encompassed reductions for programs supporting public education.

At this juncture, Act 61’s multi-year funding formula was abandoned in favor of a


                            [J-82-2016] [M.O. - Wecht, J.] - 4
formula to be decided upon annually going forward. Although later spending increases

ameliorated some of the 2011 budget cuts, the present budget reflects a $580-million

reduction in state education spending as compared to the period ending in June 2011,

which is well below the levels reflected in the costing-out study. At the same time,

school districts’ ability to raise new local taxes to fill the void has been limited under the

Taxpayer Relief Act of 2006. Pursuant to that legislation, school districts are generally

precluded from raising real-estate taxes beyond a cost-of-living index as calculated by

the Department.     Because the index is expressed as a percentage, such potential

increases are lower in low-wealth districts than in high-wealth districts.

       Meanwhile, beginning in 1999 and pursuant to legislative authorization, the

Board promulgated regulations setting forth, and ultimately expanding upon, statewide

academic standards which specify what schoolchildren should be taught in a variety of

subjects. Additionally, statewide standardized testing was established in the form of the

Pennsylvania System of School Assessment (“PSSA”) and the Keystone exams.

Although PSSA and other standardized exams had existed before 1999, the 1999

changes made the standards more concrete. Later, in 2014, the Board implemented

the Pennsylvania Common Core Standards, which replaced the academic standards in

math, English, language arts, and literacy, but left in place the pre-existing standards for

other subject areas. The standards are not merely aspirational, as students may have

to retake exams they fail as a requirement for graduation, and school districts, as well

as their teachers and administrators, are evaluated on whether students are meeting

state standards.

       As a result, the gap between state adequacy targets and academic achievement

in the subject school districts (i.e., the plaintiff school districts, PARSS member districts,

and districts containing schools attended by children of individual plaintiffs) has


                             [J-82-2016] [M.O. - Wecht, J.] - 5
widened. In particular, many students in these low-wealth districts are unable to meet

state proficiency standards on the Keystone and PSSA tests, and some districts have

eliminated courses and programs that would otherwise have helped improve student

performance on those exams. Also, some pupils in poor districts require higher-than-

average funding due to conditions associated with poverty or the fact that English is not

their first language. School districts with significant monetary shortfalls, moreover, have

insufficient and undertrained staff, as well as inferior equipment, facilities, and materials.

In these districts, there is often inadequate pre-kindergarten program funding, meaning

that the district must choose between spending less or using general operating funds to

provide such pre-kindergarten programs.

       Based on these allegations, the Petition set forth two counts.            In Count I,

Plaintiffs claimed Defendants had violated their duties under the Education Clause,

which requires that the General Assembly “provide for the maintenance and support of

a thorough and efficient system of public education to serve the needs of the

Commonwealth.” PA. CONST. art. III, §14.3 In this regard, they alleged that Defendants

had defined the content of an adequate education – i.e., one that will “serve the needs

of the Commonwealth” – via the promulgation of academic standards assessed

pursuant to the PSSA and Keystone exams. They added that the state Common Core

standards “set forth a prescribed course of study and a uniform educational progression

from grade to grade, and form a core, fundamental element of the Commonwealth’s

current system of public education.” Petition ¶303. Plaintiffs averred that Defendants

3
  The Education Clause first appeared substantially in its present form in the 1874
Constitution, at which time it directed the Legislature to “provide for the maintenance
and support of a thorough and efficient system of public schools, wherein all the
children of this Commonwealth above the age of six years may be educated, and [to]
appropriate at least one million dollars each year for that purpose.” PA. CONST. art. X,
§1 (1874).


                             [J-82-2016] [M.O. - Wecht, J.] - 6
failed to provide the school districts in question with enough funding to ensure that all

students have an opportunity to receive an adequate education – where adequacy is

measured by whether the students are prepared to “meet state academic standards”

and to achieve “civic, economic, and social success” beyond school. Id. ¶304. Plaintiffs

maintained that the current levels and allocation of school funding “are irrational,

arbitrary, and not reasonably calculated to ensure that all Pennsylvania schoolchildren

have access to an adequate education[.]” Id. ¶305.

      In Count II, Plaintiffs relied on Pennsylvania’s Equal Protection Clause as a basis

for relief. See PA. CONST. art. III, §32.4 They asserted that education is a fundamental

right and, as a corollary, the state government has an obligation to ensure all students

have an equal opportunity to obtain an adequate education. Thus, Plaintiffs alleged that

the state charter prohibits the Legislative Defendants from enacting laws that benefit a

select few. In this respect, Plaintiffs contended that many funding methodologies exist

which would support the state’s interest in preserving local control of public education

without discriminating against students in low-wealth school districts. Plaintiffs alleged

that Defendants had violated Section 32 by adopting a school funding program that

discriminates against students living in such districts by denying them an equal

opportunity to obtain an adequate education. See id. ¶¶308-311.

      In terms of relief, Plaintiffs asked the court to declare that: public education is a

fundamental right of all schoolchildren in Pennsylvania; the Education Clause imposes

on Defendants an obligation to adopt a school-financing arrangement which (i) is

4
  Section 32 prohibits local or special laws in cases that can be provided for by general
laws, and it expressly precludes local or special laws regulating the affairs of school
districts. This Court has stated that Section 32 is substantially coterminous with the
federal Equal Protection Clause. See Balt. & Ohio R. Co. v. Dep’t of Labor & Indus.,
461 Pa. 68, 83, 334 A.2d 636, 643 (1975). In this opinion, all subsequent references to
the Equal Protection Clause pertain to Article III, Section 32, unless otherwise noted.


                            [J-82-2016] [M.O. - Wecht, J.] - 7
reasonably calculated to ensure – and does ensure – that all schoolchildren can obtain

an education which enables them to meet state academic standards and participate

meaningfully in society, and (ii) does not discriminate against students who live in low-

income, low-property-value school districts; the present arrangement violates the

Education Clause as well as Plaintiffs’ rights under the Equal Protection Clause by

giving students in high-wealth districts an opportunity to attain an adequate education

while denying the same opportunity to students in low-wealth districts; and no

compelling state interest justifies the existing funding disparity between those two

categories of school districts. See id. ¶¶312-19.

       Plaintiffs also requested injunctive relief, specifically, permanent injunctions

directing Respondents to develop and maintain a system which provides an equal

opportunity to all students to obtain an education meeting academic standards and

societal participation.   Finally, Plaintiffs asked the Commonwealth Court to retain

jurisdiction to ensure Defendants’ ultimate compliance with the contemplated

injunctions. See id. ¶¶320-24.

       The Legislative and Executive Defendants each filed preliminary objections in the

nature of a demurrer. See Pa.R.C.P. No. 1028(a)(4). Defendants averred primarily that

Plaintiffs’ claims present non-justiciable political questions. They maintained, in this

respect, that there are no judicially manageable standards for granting relief.

Defendants also argued that Plaintiffs failed to state a claim for which relief may be

granted because the existing statutory scheme rationally serves the state’s interest, per

the Education Clause, in maintaining and supporting a thorough and efficient system of

public education. As well, Defendants suggested that Plaintiffs’ claims under the Equal

Protection Clause were legally insufficient because education is not a fundamental right

subject to strict scrutiny, and the present funding system rationally serves the


                            [J-82-2016] [M.O. - Wecht, J.] - 8
government’s interest in preserving local control over public education.         Finally,

Defendants averred that Plaintiffs’ causes of action were barred by sovereign immunity

– to the extent they sought mandatory injunctive relief – as well as the separation of

powers doctrine insofar as they were asking the judicial branch to compel action by the

General Assembly and to subject it to ongoing court supervision.

      In a unanimous, published decision, the Commonwealth Court sustained the

preliminary objections and dismissed the Petition on the grounds that, pursuant to this

Court’s precedent, the claims under both the Education and Equal Protection Clauses

raised non-justiciable political questions. See William Penn Sch. Dist. v. Pa. Dep’t of

Educ., 114 A.3d 456, 464 & n.15 (Pa. Cmwlth. 2015) (en banc).

      Initially, the Commonwealth Court observed that this Court has referenced the

considerations listed in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), to ascertain

whether the political question doctrine counsels in favor of abstention in a given case.

See William Penn Sch. Dist., 114 A.3d at 462 (citing Sweeney v. Tucker, 473 Pa. 493,

375 A.2d 698 (1977), and quoting Robinson Twp. v. Commonwealth, 623 Pa. 564, 608-

09, 83 A.3d 901, 928 (2013)).5 Rather than analyzing the Baker factors, however, the

Commonwealth Court stated that the justiciability issue was decided in Marrero v.

Commonwealth, 559 Pa. 14, 739 A.2d 110 (1999) (“Marrero II”), where this Court held

that the political question doctrine precluded review of an Education Clause challenge to

the state’s public school funding scheme, and Danson v. Casey, 484 Pa. 415, 399 A.2d

360 (1979), in which the Court determined that claims under the Education and Equal

Protection Clauses failed to state a justiciable cause of action. The Commonwealth

Court rejected Plaintiffs’ attempt to distinguish Marrero II based on subsequently-

5
 See also Majority Opinion, slip op. at 29 n.28 (enumerating the Baker factors and
observing that the presence of any one factor is sufficient for abstention under the
political question doctrine).


                           [J-82-2016] [M.O. - Wecht, J.] - 9
adopted education standards and assessments, reasoning that such factors may

establish policy-related benchmarks, but they cannot supply courts with judicially

manageable standards to determine whether the Legislature has fulfilled its

constitutional duties. See William Penn Sch. Dist., 114 A.3d at 463.

       Plaintiffs appealed, primarily questioning whether the political question doctrine

should be understood to preclude a merits disposition of a petition which: alleges that

the state government is in violation of the Education Clause because its school-funding

scheme “bears no relationship” to the cost of preparing students to meet state academic

standards; and avers, as well, that the existing funding system violates the Equal

Protection Clause due to “gross and irrational disparities” in funding between low-wealth

and high-wealth school districts. Brief for Appellants at 2.6

       This Court has exclusive appellate jurisdiction. See 42 Pa.C.S. §723(a). We

undertake de novo review, assessing whether the law says with certainty that relief is

unavailable. See Bruno v. Erie Ins. Co., 630 Pa. 79, 91, 106 A.3d 48, 56 (2014).


                            II. The Education Clause Claim

       Plaintiffs contend that the Commonwealth Court’s decision should be reversed

because this Court has never adopted a per se rule that Education Clause claims are

non-justiciable, and hence, the Commonwealth Court erred by interpreting Marrero II as

establishing such a rule. They suggest that the Baker factors do not support abstention

in this case, and even if they did, any separation-of-powers concerns are overridden by

6
  The City of Philadelphia, as well as several individuals and organizations have filed
amicus briefs supporting Plaintiffs’ position, including: the Philadelphia Federation of
Teachers, Local 3, of the American Federation of Teachers, AFL-CIO, together with the
American Federation of Teachers Pennsylvania AFT, AFL-CIO; two separate groups of
youth, education, and civil rights advocacy associations led, respectively, by Public
Citizens for Children and Youth and the Consortium for Public Education; and a group
of individual law professors.


                            [J-82-2016] [M.O. - Wecht, J.] - 10
the need to vindicate what they describe as the fundamental right of schoolchildren to

receive an adequate public education. See Brief for Appellants at 27, 43-44.

         As to the Baker factors specifically, Plaintiffs make three arguments.7 Regarding

the first factor – whether there is a “textually demonstrable constitutional commitment of

the issue to a coordinate political department” – Plaintiffs assert that the wording of the

Education Clause does not authorize the General Assembly to monitor the propriety of

its own education-funding scheme. Plaintiffs also posit that the history underlying the

Clause does not support such self-monitoring because its language was developed in

response to public discontent with the lack of state support for schools in poor

communities, which was having an adverse effect on the quality of education delivered

in those geographical areas. See id. at 29-32.

         Addressing the second Baker factor – whether there are “judicially manageable

standards for resolving” the constitutional challenge – Plaintiffs argue that, unlike when

Marrero II was decided, academic criteria and assessments now supply judicial

standards to determine whether education funding levels bear a reasonable relation to

satisfying the Education Clause’s dictates.       They note that other states have used

similar educational benchmarks in determining whether their respective legislatures

have complied with their constitutional duties. Acknowledging that a small number of

underperforming school districts could reflect local mismanagement or ineffective

teachers, Plaintiffs reason that the systemic failure of Pennsylvania’s school districts to

satisfy established academic criteria proves that the current funding scheme violates the

Education Clause. See id. at 14-15, 36 (providing student pass-rates on the Keystone

and PSSA exams). Plaintiffs also reference the costing-out study as evidence that the



7
    Generally, only the first three Baker factors are at issue in Education Clause cases.


                              [J-82-2016] [M.O. - Wecht, J.] - 11
cost of providing each student with an opportunity to meet state standards is now

measurable. See id. at 32-39.

       With respect to the third Baker factor – whether it is “impossibl[e]” for the court to

decide the issue “without an initial policy determination of a kind clearly for nonjudicial

discretion” – Plaintiffs argue that resolving their claim would not require this Court to

make a policy judgment as to what constitutes an adequate education since Defendants

have already done so by adopting the referenced standards and assessments. Further,

they advance that the type of declaration they are seeking would not immerse the

judiciary in the minutiae of educational policy choices such as class sizes or textbook

requirements. Rather, in Plaintiffs’ view, since they are seeking a declaratory judgment

that Defendants have failed to meet their obligations under the Education Clause, the

Court can simply decide whether the public school funding scheme Defendants have

adopted is constitutional – an inherently judicial task. See id. at 39-41.

       Insofar as Plaintiffs are also seeking injunctive relief, they propose that this Court

follow the lead of other state courts which have imposed deadlines for compliance, as

well as consequences, such as large daily fines levied against the legislative body for

failure to comply in a timely manner, and required ongoing judicial monitoring of that

body. They contend that, in a number of cases, the judicial finding of a constitutional

violation has itself motivated the political branches to formulate and implement a

solution within a reasonable timeframe. See id. at 41-43.

       In response, the Executive Defendants reference pronouncements from the

United States Supreme Court and this Court reflecting that the judicial branch is

institutionally ill-suited to formulate or evaluate policy choices relating to local public

schools, as it is unable to gauge what constitutes an adequate education or what funds

are necessary to meet educational goals. See Brief for Executive Appellees at 17-20


                            [J-82-2016] [M.O. - Wecht, J.] - 12
(quoting, inter alia, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41, 93 S. Ct.

1278, 1301 (1973), and Wilson v. Sch. Dist. of Phila., 328 Pa. 225, 236-37, 195 A. 90,

97 (1937)).   Based on Danson and Marrero II, they reason, more particularly, that

issues implicating the design and funding of the public education system are committed

solely to the General Assembly. The Executive Defendants observe that, unlike some

of the amici, Plaintiffs do not ask that Marrero II be reconsidered, but rather, attempt to

distinguish it based on educational assessments and standards adopted after 1999.

They therefore posit that reconsidering Marrero II is not before this Court, as arguments

made by amici do not comprise party arguments. See id. at 20-22.

       With regard to Plaintiffs’ contention that this case may be distinguished from

Danson and Marrero II because the latest educational assessments and the monetary

amounts in the costing-out study can serve as judicially manageable standards, the

Executive Defendants note that, as reflected in administrative regulations, statewide

assessments and standards have existed since the late 1960s, well before Danson and

Marrero II. According to the Executive Defendants, such items are imbued with political

judgments subject to change by future policymakers – and this includes the costing-out

study, which incorporates policy choices regarding acceptable proficiency levels in

various academic subjects. See id. at 25 (quoting Hancock v. Comm’r of Educ., 822

N.E.2d 1134, 1136 (Mass. 2005) (plurality) (suggesting that costing-out studies are “rife

with policy choices that are properly the Legislature’s domain”)).

       More generally, the Executive Defendants reason that utilizing the most recent

standards issued by the political branches as judicial guides would be unmanageable

and would bind future legislators to current legislative thinking – contrary to the precept

that the “essence” of the Education Clause is to enable free experimentation by the

Legislature. Teachers’ Tenure Act Cases, 329 Pa. 213, 224, 197 A. 344, 352 (1938);


                           [J-82-2016] [M.O. - Wecht, J.] - 13
Danson, 484 Pa. at 426, 399 A.2d at 366. They state that, in view of Plaintiffs’ request

for continuing court oversight, a failure to abstain would cause courts to supervise ever-

changing educational standards, thus entangling courts with policy matters such as

exam cut-off scores and acceptable district-wide pass rates. See Brief for Executive

Appellees at 23-29. Along these lines, the Executive Defendants contend that courts

which have used educational assessments as judicial guides have become mired in

education policy and have extended their reach beyond the constitutionality of public-

school funding schemes. See id. at 29-31 (discussing the experiences of courts in

California, New Jersey, New Hampshire, Kansas, and Nebraska).

      Alternatively, the Executive Defendants argue that the Petition fails to state a

claim upon which relief can be granted, as there is no reasonable argument that the

Commonwealth’s public education scheme does not bear a reasonable relation to

complying with the Education Clause.       See id. at 37-39.     They also contend that,

because Plaintiffs seek a mandatory injunction compelling a new public education

framework, their suit is barred under the doctrine of sovereign immunity. See id. at 39-

41. Finally, the Executive Defendants assert that granting Plaintiffs’ request to compel

the General Assembly to enact specific legislation would violate the separation-of-

powers doctrine. See id. at 41-42.

      The Legislative Defendants add that the crux of Plaintiffs’ complaint – i.e., that

Pennsylvania’s public-education funding system is irrational and underfunded, and

discriminates against certain students – is the same claim that Danson and Marrero II

rejected. They view Danson and Marrero II, together, as standing for the position that,

so long as the established funding scheme bears a reasonable relation to the provision




                           [J-82-2016] [M.O. - Wecht, J.] - 14
of a thorough and efficient system of education, courts may not intrude on that scheme.8

Because Marrero II, which built upon Danson, concluded that a reasonable relation did,

in fact, exist by virtue of the present system of funding schools via a combination of

local taxes, state appropriations, and federal grants, the Legislative Branch Defendants

contend Plaintiffs raise no new issue to consider.

       The Legislative Defendants advance, in this regard, that the extra-jurisdictional

judicial decisions which Plaintiffs reference are immaterial since Danson and Marrero II

are dispositive in relation to Pennsylvania’s system. To the degree Plaintiffs rely on

such decisions to imply Danson and Marrero II should be reconsidered, the Legislative

Defendants submit that the doctrine of stare decisis weighs against reconsideration.

They indicate this is true generally, and in this case particularly so, since various

education stakeholders have acted in reliance on Danson and Marrero II, and these

actors would only have a voice concerning contemplated changes in a legislative forum.

See Brief for Legislative Appellees at 10-27. Regardless, the Legislative Defendants

maintain, in recent years a number of appellate courts in other jurisdictions have issued

holdings in line with Marrero II because, although the text and history of their

constitutional provisions may vary, they have developed a “keen awareness of the perils

of supplanting [the] legislative process with judicial activism.” Id. at 23.

       Finally, the Legislative Defendants refute any suggestion that this Court has

altered its analysis of political-question claims, asserting the Baker factors remain the

central focus of such claims, and the circumstance that this Court has declined to

8
  The Legislative Defendants fault Plaintiffs for allegedly attempting to change the issue
to whether the funding scheme bears a reasonable relation to providing students with
an opportunity to meet state standards, rather than providing for the maintenance and
support of a thorough and efficient system of public schools. See Brief for Legislative
Appellees at 12 n.6. In light of the treatment of the “reasonable relation” standard
below, any such distinction is immaterial to the present appeal.


                             [J-82-2016] [M.O. - Wecht, J.] - 15
abstain under the political-question doctrine in other contexts bears little relevance to

the continuing vitality of Danson and Marrero II. They note that, except with respect to

judicial funding issues, Pennsylvania courts have shown a strong predisposition against

“second guessing” the General Assembly’s budgetary decisions. Id. at 21 (citing Pa.

Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 166 (Pa. Cmwlth. 2015)).

       After oral argument Governor Wolf filed a supplemental brief addressing recent

legislation, namely, the Act of June 1, 2016, P.L. 252, No. 35 (“Act 35”), which added

provisions to the Public School Code of 1949,9 see 24 P.S. §§1-124, 25-2502.53, 25-

2502.54, and appropriated supplemental funds for basic education. According to the

Governor, Act 35 works a significant change to the school-funding landscape because

school districts will now receive from the state both a basic subsidy and an additional

substantial grant pursuant to a “fair-funding formula” which accounts for “district-specific

factors, such as local taxing/revenue-generating capacity, student population size and

density, and specific student-related indices, including the number of children . . . who

live in poverty.” Supplemental Brief for Governor Wolf at 3. He represents that every

new dollar in state education funding going forward will be distributed per the fair-

funding formula. The Governor concludes that Act 35 illustrates that appropriating and

distributing education funds involves “inherently and necessarily political questions that

are beyond the jurisdiction of this Court,” and, as such, Plaintiffs seek relief which would

intrude on the prerogatives of the government’s political branches. Id. at 5.

       In a responsive brief, Plaintiffs agree that the fair-funding formula distributes

funds equitably, but they contend that the percentage of state education money subject

to the formula is too small to remediate the underlying circumstance that public school


9
 Act of Mar. 10, 1949, P.L. 30 (as amended 24 P.S. §§1-101 to 27-2702) (the “School
Code”).


                            [J-82-2016] [M.O. - Wecht, J.] - 16
funding is overly reliant on property taxes – with the result that such funding remains

inequitable and inadequate even in the wake of Act 35. Overall, Plaintiffs argue that the

Governor’s advocacy shows that the needs of each school district are, in fact, capable

of objective determination (thus undercutting Defendants’ non-justiciability argument),

and that the issue of whether Act 35 provides for an adequate education for the state’s

schoolchildren is fundamentally a question of fact to be resolved at trial.

       “Ordinarily, the exercise of the judiciary’s power to review the constitutionality of

legislative action does not offend the principle of separation of powers,” Sweeney, 473

Pa. at 508, 375 A.2d at 705 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)),

inasmuch as it is “emphatically the province and duty of the judicial department to say

what the law is.” Marbury, 5 U.S. (1 Cranch) at 177. “Sometimes, however, the law is

that the judicial department has no business entertaining the claim of unlawfulness –

because the question is entrusted to one of the political branches[.]” Veith v. Jubelirer,

541 U.S. 267, 277, 124 S. Ct. 1769, 1776 (2004) (plurality).10

       Pennsylvania courts have historically been reluctant to intervene when faced with

complaints alleging the General Assembly has failed to fulfill its Education Clause

obligations. Abstention as to questions concerning the adequacy of public education

generally dates as far back as the mid-1800s. The concept was invoked relative to the

earlier version of the Education Clause which appeared in the Constitutions of 1790 and

1838 and directed that “[t]he legislature shall, as soon as conveniently may be, provide

by law for the establishment of schools throughout the state, in such manner that the

poor may be taught gratis.” PA. CONST. art VII, §1 (1790, 1838). In Commonwealth v.

10
   The political question doctrine is one of several that “have evolved to give body to the
general notions of case or controversy and justiciability.” Rendell v. Pa. State Ethics
Comm’n, 603 Pa. 292, 307, 983 A.2d 708, 717 (2009). Others include standing,
ripeness, and mootness. See id.


                            [J-82-2016] [M.O. - Wecht, J.] - 17
Hartman, 17 Pa. (5 Harris) 118, (1851), the Court noted that the Constitution permitted

the Legislature to “provide for a system of general education in any way which they, in

their own wisdom, may think best,” and added that even if an education-related statute

was “unjust in its operation,” “the remedy lies, not in an appeal to the judiciary, but to the

people, who must apply the corrective themselves[.]” Id. at 119, quoted in Marrero v.

Commonwealth, 709 A.2d 956, 966 n.21 (Pa. Cmwlth. 1998) (“Marrero I”), aff’d, 559 Pa.

14, 739 A.2d 110 (1999).11

       With regard to the 1874 Education Clause – the first version to require support

for a “thorough and efficient” system, see supra note 3 – litigation initially focused on

whether school board decisions were judicially reviewable, with the Court concluding

that they were not, at least absent a gross abuse of discretion such as an unexcused

failure to provide for any public education.12 See Nicklas v. Kaltenbaugh, 146 Pa. 212,

220, 23 A. 316, 316 (1892); see also Roth v. Marshall, 158 Pa. 272, 273-74, 27 A. 945,

945 (1893) (expressing that a school board’s exercise of its discretion is generally a



11
   See also Pa. Ass’n of Rural & Small Schs. v. Ridge, No. 11 M.D. 1991, slip op. at 118
n.70 (Pa. Cmwlth. July 9, 1998) (“PARSS”) (single-judge opinion) (observing that the
judiciary’s reluctance to involve itself in the public school system “has a long history”
(citing Wharton v. Cass Twp. Sch. Dirs., 42 Pa. 358, 364 (1862))), aff’d per curiam, 558
Pa. 374, 737 A.2d 246 (1999), reprinted in Brief for Appellants at Addendum B.

The PARSS case and the Marrero litigation raised similar issues, and PARSS was also
substantively similar to the present matter in that it raised Education Clause and Equal
Protection Clause claims based on disparities in school funding. The Commonwealth
Court in PARSS held a four-week trial, but it ultimately dismissed the claims as non-
justiciable based on the intervening decision in Marrero I. This Court summarily
affirmed PARSS the same day it decided Marrero II.

12
   Although the Education Clause places obligations upon the Legislature, school
districts (which are legislatively created), including their governing boards, comprise an
important means by which that body fulfills such obligations.


                             [J-82-2016] [M.O. - Wecht, J.] - 18
political matter to be remedied, if necessary, at the ballot box). See generally Wilson,

328 Pa. at 236-37, 195 A. at 97 (elaborating on these observations).

       Later, in Teachers’ Tenure Act, several school districts challenged the validity of

the Teachers’ Tenure Act of 1937 as impairing, in violation of the Contracts Clause, the

obligations of their existing contracts with professional school employees. This Court

found that the Education Clause saved the statute because the Clause embodies the

concept that public-school teacher contracts are impliedly qualified by the possibility of

future legislative modification. See Teachers’ Tenure Act, 329 Pa. at 228, 197 A. at

354. In reaching this holding, the Court discussed the nature of public education in

Pennsylvania and the judiciary’s role in evaluating statewide enactments (as opposed to

local school board decisions) under the Education Clause. It explained initially that the

electorate, in approving the Clause, had given an affirmative mandate to the Legislature

which the latter had no discretion to ignore. The Court then developed that, by their

nature, educational methodologies evolve over time, and any given General Assembly

lacks the power to constrain future legislatures in matters of educational policy:

       [E]verything directly related to the maintenance of a ‘thorough and efficient
       system of public schools,’ must at all times be subject to future legislative
       control. One Legislature cannot bind the hands of a subsequent one;
       otherwise we will not have a thorough and efficient system of public
       schools.
Id. at 225, 197 A. at 352.

       Thus, in light of the need for “successive Legislatures to adopt a changing

program to keep abreast of educational advances,” id. at 224, 197 A. at 352, the Court

reasoned that, rather than inquiring into the wisdom or expediency of existing policy in

matters of public education, the judiciary should limit itself to assessing whether the

Commonwealth’s education laws bear a “reasonable relation” to the purpose of the

Education Clause – namely, providing for a thorough and efficient system of public

                             [J-82-2016] [M.O. - Wecht, J.] - 19
schools – and whether the “fruits or effects” of such laws might limit the ability of future

legislatures to modify the school system in an effort to make it thorough and efficient.

Id.

       With the above as background, this Court first addressed a challenge brought

directly pursuant to the Education Clause in Danson.13 There, the Philadelphia School

District and several parents commenced an action against state education officials,

alleging the district was underfunded to the point it would not be able to offer a “normal”

educational program to its students. They argued the statutory formula for state-level

educational funding was unconstitutional and that no state money should be distributed

until the formula was revised to ensure the school district received the funds it needed

to operate its schools. More broadly, the plaintiffs suggested that the state school-

financing system failed to provide Philadelphia’s schoolchildren with a thorough and

efficient education and denied them equal educational opportunities solely due to their

residence in Philadelphia. See Danson, 484 Pa. at 420, 399 A.2d at 363.

       The Danson Court responded by emphasizing that the Education Clause

contemplates that future legislatures must always be free to experiment and adjust the

state’s public-education system, see id. at 426, 399 A.2d at 366 (describing this as “the

very essence” of the Clause (quoting Teachers’ Tenure Act, 329 Pa. at 224, 197 A. at

352)), and thus, it would be improper for a reviewing court to bind such legislatures to “a

13
   This description of Danson as constituting the first Education-Clause-based challenge
is in tension with the majority’s suggestion that Teachers’ Tenure Act “implicitly and
necessarily treat[ed] a claimed violation of the Education Clause as justiciable.”
Majority Opinion, slip op. at 51. Notably, Teachers’ Tenure Act relied on the broad
authority given to the legislative branch under the Education Clause as a basis for
concluding that that branch remained free to alter education statutes in the future. As
such, Teachers’ Tenure Act does not constitute precedent indicating that the type of
claim asserted here – dealing with the Legislature’s alleged failure to fulfill its affirmative
obligations under the Education Clause – is justiciable. See infra note 18.


                             [J-82-2016] [M.O. - Wecht, J.] - 20
present judicial view of a constitutionally required ‘normal’ program of educational

services.” Id. Danson added that, even if the Court were inclined to define a thorough

and efficient education, the only judicially-manageable standard would be that the same

dollar amount be expended on each student in the state. This, however, would read

into the Education Clause a uniformity component which the framers expressly rejected

in favor of local variation and control according to the needs of particular school

districts, as well as the right of localities to raise additional taxes to expand their school

offerings. See id. at 427, 399 A.2d at 366-67. See generally Rodriguez, 411 U.S. at 49-

50, 93 S. Ct. at 1305 (expounding on the historical importance of local control and

noting that it promotes “experimentation, innovation, and a healthy competition for

educational excellence”).14 The Court thus held that

       the General Assembly has fulfilled its constitutional duty to the public
       school students of Philadelphia. The Legislature has enacted a financing
       scheme reasonably related to maintenance and support of a system of
       public education in the Commonwealth of Pennsylvania. The framework
       is neutral with regard to the School District of Philadelphia and provides it
       with its fair share of state subsidy funds.
Danson, 484 Pa. at 427-28, 399 A.2d at 367. Evidently applying the above reasonable-

relation standard as a kind of minimal check as to legislative purpose (discussed in

more detail below), Danson concluded that the plaintiffs had otherwise “failed to state a

justiciable cause of action.” Id. at 420, 399 A.2d at 363.

       Twenty years later in Marrero II, another group of Philadelphia plaintiffs, again

including the Philadelphia School District, lodged a similar complaint, asserting that the


14
  See PARSS, No. 11 M.D. 1991, slip op. at 98-100, 103-04 (discussing the proposed
uniformity requirement and describing that the delegates at the 1873 Constitutional
Convention rejected it in favor of a flexible system adaptable to the diverse local needs
and conditions of Pennsylvania’s school districts (citing and quoting II DEBATES OF THE
CONVENTION TO AMEND THE CONSTITUTION OF PENNSYLVANIA 419-26 (1873))).


                            [J-82-2016] [M.O. - Wecht, J.] - 21
state had violated the Education Clause by failing to provide enough funding to the

district. They argued that, due to its urban setting, the district was already financially

overburdened and it was required to educate a disproportionate number of students

living in poverty – students whose unique needs were alleged to require additional

expenditures above and beyond the statewide norm. The plaintiffs claimed that the

school district had a weak tax base which it could not rely on to generate the extra

monies needed for its students, and thus, the General Assembly should be directed

pursuant to the Education Clause to appropriate more funding to the district.

       Drawing on Danson, Marrero II expounded that the Education Clause is limited in

scope in that it only requires the Legislature to provide for a thorough and efficient

system of public education, but it does not give students an individual right to a

particular level or quality of education. See Marrero II, 559 Pa. at 17, 739 A.2d at 112.

Marrero II also reiterated that: successive legislatures must remain at liberty to alter

educational policy; the only judicially-manageable standard would be to require the

same dollar expenditure per student (which would improperly import into the Education

Clause a uniformity mandate); the deferential reasonable-relation standard governs

such challenges; and courts should refrain from involvement as long as that standard is

met. See id. at 17-19, 739 A.2d at 112-13. Marrero II found that the standard was met

because the General Assembly had enacted a number of laws governing the funding

and operation of the public school system throughout the Commonwealth, including in

Philadelphia. See id. at 20, 739 A.2d at 113.

       As to the political question doctrine, Marrero II observed that the Commonwealth

Court had held that the first three Baker factors all required abstention. In particular, the

Commonwealth Court determined that the Education Clause places sole responsibility

for maintaining the state’s public school system in the hands of the Legislature and, as


                            [J-82-2016] [M.O. - Wecht, J.] - 22
such, questions relating to what constitutes an “adequate” education or how much

funding is needed are exclusively within the General Assembly’s purview and “are not

subject to intervention by the judicial branch[.]” Marrero I, 709 A.2d at 965-66. As a

consequence, the court found that “prominent on the surface of the case” was a

“textually demonstrable constitutional commitment of the issue to” the Assembly, there

was a “lack of judicially manageable standards for resolving” the claims, and it would be

impossible to resolve them “without making an initial policy determination of a kind

which is clearly of legislative, and not judicial, discretion.” Id. at 966 (citations omitted).

       Notably, this Court approved and, in effect, adopted these determinations as its

own. See Marrero II, 559 Pa. at 19-20, 739 A.2d at 113-14 (stating the Commonwealth

Court’s reasoning “discloses no error, but rather a conscientious adherence to

precedent”). In concluding, Marrero II quoted with approval from Marrero I as follows:

       Thus, this court will not inquire into the reason, wisdom, or expediency of
       the legislative policy with regard to education, nor any matters relating to
       legislative determinations of school policy or the scope of educational
       activity. In short, as the [Pennsylvania] Supreme Court was unable to
       judicially define what constitutes a “normal program of educational
       services” in Danson, this court is likewise unable to judicially define what
       constitutes an “adequate” education or what funds are “adequate” to
       support such a program. These are matters which are exclusively within
       the purview of the General Assembly’s powers, and they are not subject to
       intervention by the judicial branch of our government.
Marrero II, 559 Pa. at 20, 739 A.2d at 113-14 (quoting Marrero I, 709 A.2d at 965-66)

(citation omitted, emphasis added); see also Pa. Sch. Bds. Ass’n v. Commonwealth

Ass’n of Sch. Adm’rs, 569 Pa. 436, 461-62, 805 A.2d 476, 490-91 (2002) (rejecting an

Education Clause challenge to a statute giving certain school administrators collective-

bargaining rights because determining whether the statute would result in a failure to

provide for a thorough and efficient system of education involved education-policy

questions beyond the realm of the judiciary); Reichley v. N. Penn Sch. Dist., 533 Pa.

                             [J-82-2016] [M.O. - Wecht, J.] - 23
519, 529, 626 A.2d 123, 129 (1993) (same as to an Education Clause challenge to a

Public Employee Relations Act provision allowing labor strikes by teachers and other

professional school employees). See generally Ehret v. Sch. Dist. of Kulpmont, 333 Pa.

518, 525, 5 A.2d 188, 192 (1939) (noting that under the Education Clause the

Legislature is “empowered to determine what is ‘efficient’ in school management”). But

cf. Sch. Dist. of Phila. v. Twer, 498 Pa. 429, 435, 447 A.2d 222, 225 (1982) (clarifying

that courts are competent to review administrative interpretations of school-related

legislation within the context of the Assembly’s Education Clause responsibilities).


            A. The “thorough and efficient” requirement and justiciability

       As can be seen from the brief history given above, the justiciability of claims

asserting that the legislative scheme governing the amount and distribution of state

public-education funding works an Education Clause violation is now well-trodden

territory in Pennsylvania. There have been repeated pronouncements by this Court

over eight decades that future Legislatures cannot be bound by a present judicial view

of what constitutes a thorough and efficient system of public education. Accord 78

C.J.S. Schs. & Sch. Dists. §6 (“[A school] system may be changed, or one system

substituted for another, as often as the legislature deems it necessary or expedient so

to do.”).   When the Legislature adopts statewide academic standards, it bases its

decisions on intensive scientific, fiscal, and practical considerations, as well as evolving

political values.   Because the General Assembly is institutionally better suited to

understand and respond to those concerns than the judiciary, academic standards,

which necessarily must change over time, do not provide a judicially manageable

mechanism for oversight. In light of the reasoning and holdings reflected in Danson,

Marrero, Pennsylvania School Boards Association, and Reichley, moreover, it is now




                            [J-82-2016] [M.O. - Wecht, J.] - 24
established that Education Clause claims generally raise political questions to be

resolved through the political process.15

       Nevertheless, Plaintiffs seek to distinguish Danson and Marrero II primarily on

the basis that those decisions only found the issue before the Court non-justiciable

under the specific facts alleged, whereas here, the Baker factors militate in favor of

merits review since standards have now emerged – in the form of statewide academic

performance goals and the costing-out study – by which to measure whether the

General Assembly has fulfilled its duties under the Education Clause. Thus, as noted,

Plaintiffs argue that the components of an adequate education have now been supplied

legislatively and administratively, and that the costing-out study indicates the cost of

providing all schoolchildren in Pennsylvania with a constitutionally-adequate education.

       Initially, I would find Plaintiffs’ reading of Danson and Marrero II unduly narrow.

As reflected in the above-quoted passage, Marrero II clarified that the judiciary is not in

a position to determine what constitutes an “adequate” education or how much money is

needed to support a system capable of giving all schoolchildren in the state an

opportunity to obtain one; these issues are within the exclusive province of the

legislative branch. See Marrero II, 559 Pa. at 20, 739 A.2d at 113-14. As for Danson,

that decision emphasized that, even if the judiciary could foresee future needs and

“define the specific components of a thorough and efficient education,” it would lack

judicially-manageable standards to enforce legislative compliance because the only

available measurement would be the dollar amount spent per pupil, whereas the

education which students receive depends on other factors, including the way money is




15
  My conclusion in this regard is limited to the issue of justiciability and should not be
understood as suggesting the Education Clause is permissive rather than mandatory.


                           [J-82-2016] [M.O. - Wecht, J.] - 25
spent and the manner in which the purchased resources are utilized. Danson, 484 Pa.

at 427, 399 A.2d at 366 (internal quotation marks omitted).

       To the extent Plaintiffs’ position rests on the concept that legislative and

administrative action in setting academic goals, implementing standardized tests, and

commissioning a costing-out study can operate to create judicially-enforceable

constitutional standards, I find such a premise problematic.        The difficulty becomes

apparent when one considers how these measures may translate into a judicial litmus

capable of determining whether the Legislature’s funding scheme, at a particular point in

time, complies with the Education Clause. One possibility would be to constitutionalize

the academic standards in place when the Petition was filed.            This would mean

overlaying the PSSA, Keystone, and Common Core targets onto the Education Clause

as part of its substantive mandate. Such a holding would be in tension with the precept

that future legislatures are always free to adopt new educational methodologies and

alter their conception of what constitutes a thorough and efficient system of education.

For their part, Petitioners clarify that this is not what they are requesting. See Reply

Brief for Appellants at 12.

       Another option – the one Plaintiffs do propose, see id. at 12-14 – is to conclude

that, whenever the General Assembly and relevant state administrative bodies establish

academic standards and associated assessment vehicles, those items reflect such

entities’ “current pronouncement of what a thorough and efficient system of public

education should teach students[.]” Id. at 12 (internal quotation marks omitted). While

this is certainly more plausible than the first option, judicial enforcement on such terms

has multiple conceptual difficulties.      It would read too much into legislative and

administrative actions. Absent some indication by the political branches, it cannot be

assumed that they view such items as reflecting the constitutional minimum (as


                              [J-82-2016] [M.O. - Wecht, J.] - 26
opposed to, for example, a system significantly exceeding that minimum). Thus, a

holding along these lines would ascribe constitutional significance to educational policy

decisions made at a specific time. But cf. Idaho Schs. for Equal Educ. Opportunity v.

Evans, 850 P.2d 724, 734 (Idaho 1993) (upon examination of educational standards

promulgated by the executive branch of the state government, holding that the

standards’ requirements as to textbooks, facilities, transportation, and instructional

programs “are consistent with our view of thoroughness”).

      Neither the Education Clause, nor any other constitutional provision, indicates

that standards set forth legislatively or administratively are to be viewed as subsuming a

constitutional dimension.   The Clause states in full:     “The General Assembly shall

provide for the maintenance and support of a thorough and efficient system of public

education to serve the needs of the Commonwealth.” PA. CONST. art. III, §14. This may

be compared with other state charters, some of which expressly constitutionalize

standards set forth by law or regulation.       See OR. CONST. art. VIII, §8(1) (“The

Legislative Assembly shall appropriate in each biennium a sum of money sufficient to

ensure that the state’s system of public education meets quality goals established by

law . . ..” (emphasis added)); VA. CONST. art. VIII, §1, 2 (requiring the legislature to

maintain a system of free schools with “high quality” educational programs, and

specifying that quality standards are to be “determined and prescribed from time to time

by the Board of Education, subject to revision only by the General Assembly”); cf. MISS.

CONST. art. VIII, §201 (directing that the legislature provide for the maintenance of “free

public schools upon such conditions and limitations as the Legislature may prescribe”).

      Unlike these provisions, our own Education Clause does not tether the required

funding scheme to legislative or administrative “quality goals,” “conditions,” or “quality

standards,” nor does it otherwise contain descriptors beyond the adjectives “thorough”


                            [J-82-2016] [M.O. - Wecht, J.] - 27
and “efficient.” See Neb. Coal. for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d

164, 180 (Neb. 2007) (interpreting the “paucity of standards” in Nebraska’s education

clause as reflecting the framers’ “intent to commit the determination of adequate school

funding solely to the Legislature’s discretion, greater resources, and expertise”). Thus,

although some other jurisdictions have relied on legislatively-devised benchmarks to

provide constitutional content, see, e.g., Montoy v. State, 120 P.3d 306, 309 (Kan.

2005), I believe this would read more into the Clause than the framers intended.

      Another analytical difficulty involves the assumption that educational outcomes

reflect the Assembly’s efforts in providing for a thorough and efficient system. A range

of student scores will inevitably be reflected on standardized tests, and overall

achievement levels will inevitably vary by district. Sound reasoning dictates that student

performance is determined, at least in part, by intangible factors such as parental

support, a school environment conducive to learning, teacher quality, peer pressure,

and effective administration. See City of Pawtucket v. Sundlun, 662 A.2d 40, 59 (R.I.

1995) (“Recent studies have indicated that educational achievement by students is most

clearly a function of parental involvement, not necessarily increased spending.”

(footnote omitted)); cf. Rodriguez, 411 U.S. at 42-43, 93 S. Ct. at 1302 (remarking on

the controversy surrounding the correlation between spending and educational

quality).16 Although additional funding may help, within this context it seems possible

for the Legislature to fulfill its duty to “provide for” the maintenance and support of a

thorough and efficient system and still be left with a system that underperforms due to


16
   See generally Danson, 484 Pa. at 427, 399 A.2d at 366 (“It must indeed be obvious
that the same total educational and administrative expenditures by two school districts
do not necessarily produce identical educational services. The educational product is
dependent upon many factors, including the wisdom of the expenditures as well as the
efficiency and economy with which available resources are utilized.”).


                           [J-82-2016] [M.O. - Wecht, J.] - 28
intractable social factors rather than constitutionally inadequate funding.         Thus, to

measure constitutional compliance (aside from mandating uniform per-pupil spending),

Pennsylvania courts would have to account for these types of influences and determine

whether identified performance shortfalls are due to inadequate funding or other factors

beyond legislative control – a task it is ill-suited to perform.

       To the extent accommodations in the standards are needed for districts with

acute socioeconomic problems, the courts would need to engage in the legislative and

administrative task of selecting acceptable threshold scores for each tested subject area

as well as minimum district-wide proficiency rates based on a comprehensive picture of

such conditions as they exist in each school district.             Courts would also need to

entertain debates concerning what is necessary, or merely optional, for an education to

be considered adequate. See generally Thompson v. Engelking, 537 P.2d, 635, 656

(Idaho 1975) (Shepard, J., concurring) (“Arguments erupt at the drop of a hat as to what

is or is not necessary in an educational system, what is or is not a frill . . . [; w]hat some

denominate frills are asserted by others as necessary to the fullrounded education

experience and enrichment of the future life of our children.”) The judicial branch lacks

the wherewithal to resolve these kinds of disputes. See Michael Heise, The Courts,

Educational Policy, & Unintended Consequences, 11 CORNELL J.L. & PUB. POL’Y 633,

654 (2002) (hereinafter Unintended Consequences) (“Courts are structurally ill-

equipped to make the sometimes delicate policy tradeoffs incident to the school finance

enterprise.”); Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1193 (Ill. 1996)

(“[T]he question of whether the educational institutions and services in Illinois are ‘high

quality’ is outside the sphere of the judicial function.”). Additionally, and as the highest

court of one of our sister states has expressed,

       there are a multitude of policy decisions that go into state funding
       decisions, including consideration of federal mandates, the school

                             [J-82-2016] [M.O. - Wecht, J.] - 29
       district’s local efforts and ability to support its schools, and the State’s
       ability to provide funding. In brief, it is beyond our ken to determine what
       is adequate funding for public schools.
Heineman, 731 N.W.2d at 181.

       To the degree the costing-out study is claimed to have already taken into account

the pertinent social, administrative, and other components and resolved these types of

issues – thereby relieving the judiciary of any responsibility save directing the

government to fund school districts at the levels reflected in the study – the Petition

alleges that the study demonstrates the per-pupil cost of an education permitting

students to meet the established performance standards. See Petition ¶¶3, 6, 12, 120,

121, 124, 126. As explained, however, those performance objectives cannot simply be

equated with constitutional norms in relation to thoroughness and efficiency.

       Plaintiffs’ suggested approach has practical drawbacks as well. It would give rise

to a situation in which a finding of unconstitutionality could be remedied by a lowering of

the achievement parameters without altering the educational program being delivered.

Relatedly, it could incentivize the political branches to set targeted proficiency levels

artificially low, or dispense with them entirely, as a means of narrowing their legal

exposure and avoiding judicial intervention.        See Unintended Consequences, 11

CORNELL J.L. & PUB. POL’Y at 657-58 (referring to this phenomenon as “policymaking

chill” and positing that “[r]ational assessments of otherwise desirable [education]

policies could plausibly change if the effective cost of such a policy reaches the levels

suggested by recent [judicial] finance decisions” in other states where the court used

present educational standards as a baseline for determining constitutionally-required

funding levels).17 In this regard, and as noted, nothing in the text or history of the

17
   Plaintiffs contend it is unrealistic to suppose the legislative body would lower or
eliminate statewide standards “to avoid its constitutional obligations.” Reply Brief for
Appellants at 13 n.8. Plaintiffs overlook that the Legislature may do so to free itself from
(continued…)
                            [J-82-2016] [M.O. - Wecht, J.] - 30
Education Clause commands that the General Assembly enact statewide academic

achievement standards or require school districts to administer standardized tests

provided by the state. The approach suggested by Plaintiffs might thus do little to

enforce Education Clause compliance and could ultimately prove counterproductive.

       Finally, it should not be overlooked that any declaration that the Legislature is in

violation of the Education Clause would have little practical effect absent judicial

monitoring to ensure compliance with judicial directives. This circumstance is reflected

in Plaintiffs’ prayer for relief, in which they ask that the Commonwealth Court “[r]etain

continuing jurisdiction over this matter until such time as [it] has determined that

[Defendants] have, in fact, fully and properly fulfilled its orders.” Petition ¶322. The

judicial branch would then become entangled in ongoing school-funding litigation,

requiring continuing oversight of a co-equal branch of government, see, e.g., Claremont

Sch. Dist. v. Governor, 794 A.2d 744, 760 (N.H. 2002) (noting that the parties had

availed themselves of the court’s continuing jurisdiction, resulting in eight subsequent

state supreme court opinions in nine years), which, in turn, would be in tension with the

separation-of-powers doctrine. See Okla. Educ. Ass’n v. State, 158 P.3d 1058, 1066

(Okla. 2007) (expressing that the plaintiffs’ request to have the court monitor and

oversee the legislative body would cause the court to invade that body’s power to

determine policy); Ex Parte James, 836 So. 2d 813, 819 (Ala. 2002) (per curiam) (“[A]ny




(…continued)
judicial oversight as it attempts to fulfill its obligations, or that it may ultimately conclude
as a policy matter that standardized testing is counterproductive. See Lisa Kelly,
Yearning for Lake Wobegon: The Quest for the Best Test at the Expense of the Best
Education, 7 S. CAL. INTERDISC. L.J. 41, 42, 64-79 (1998) (arguing that a focus on
standardized test results harms educational outcomes and deepens racial and class
differences in academic achievement).


                             [J-82-2016] [M.O. - Wecht, J.] - 31
specific remedy that the judiciary could impose would, in order to be effective,

necessarily involve a usurpation of that power entrusted exclusively to the Legislature.”).

       Upon review of similar disputes leading to protracted judicial oversight and

litigation in other jurisdictions, I find resonance in the Nebraska Supreme Court’s

description that “[t]he landscape is littered with courts that have been bogged down in

the legal quicksand of continuous litigation and challenges to their states’ school funding

systems.”   Heineman, 731 N.W.2d at 183; see also id. at 182-83 (discussing the

difficulties encountered by courts in Arkansas, Kansas, Texas, Alabama, and New

Jersey); Sundlun, 662 A.2d at 63 (expressing that the New Jersey Supreme Court’s

attempt to define what constitutes a “thorough and efficient” education has plunged that

tribunal into a “morass,” and concluding that the “volume of litigation [in New Jersey]

and the extent of judicial oversight provide a chilling example of the thickets that can

entrap a court that takes on the duties of a Legislature”).

       Accordingly, I believe we should continue to view the concept of an adequate

education attainable via a thorough and efficient system as being a function of

educational policy choices made by the Legislature and involving public policy concerns

which are properly the domain of legislative discretion. Accord Edgar, 672 N.E.2d at

1191. Consistent with our precedent, therefore, I would hold that such matters are

“exclusively within the purview of the General Assembly’s powers, and they are not

subject to intervention by the judicial branch of our government.” Marrero II, 559 Pa. at

20, 739 A.2d at 114 (internal quotation marks and citation omitted).


                          B. The reasonable-relation standard

       As outlined above, the parties differ over whether the present education-funding

legislation bears a “reasonable relation” to the provision of a thorough and efficient

system of education. A review of the reasonable-relation standard as it developed for

                            [J-82-2016] [M.O. - Wecht, J.] - 32
Education Clause purposes reveals that its purpose has become distorted.             In its

phrasing it is similar to the “rational basis” standard applied in the equal protection and

due process contexts – which pertains to whether a legislative classification is rationally

related to the advancement of a legitimate state interest. The Court has indicated,

however, that the reasonable-relation standard is even more deferential as it is only

concerned with whether the legislation “relates to the purpose of” the Education Clause

“without regard to the way the legislature has chosen to fulfill” that purpose. Reichley,

533 Pa. at 527, 626 A.2d at 128 (emphasis added).

       Thus, beginning in Danson and continuing through Marrero II, the Court has

employed the reasonable-relation litmus as a minimal test of legislative purpose – that

is, to assess whether a conceptual or logical connection exists between the legislative

scheme and the implementation of a statewide system of education. See, e.g., Danson,

484 Pa. at 427, 399 A.2d at 367. Further, the Court has never invalidated an education-

funding scheme on the grounds that it failed the reasonable-relation test. Marrero II, for

example, held that the Legislature had satisfied the standard by enacting a number of

laws directly relating to the operation and funding of the state’s public school system. It

did not undertake any analysis of whether the particular funding scheme was likely to

make the system “thorough and efficient,” as it considered that question to be political in

nature and unsuitable to judicial determination. See Marrero II, 559 Pa. at 17-20, 739

A.2d at 112-14.     Applied in this way, the reasonable-relation standard amounts to

virtually no standard at all because any legislative scheme purportedly enacted to

discharge the General Assembly’s obligations under the Education Clause – including

the School Code, see Burger v. Bd. of Sch. Dirs. of McGuffey Sch. Dist., 576 Pa. 574,

584, 839 A.2d 1055, 1061 (2003) – will pass scrutiny regardless of whether a thorough

and efficient system exists in reality or in name only.


                            [J-82-2016] [M.O. - Wecht, J.] - 33
       This state of affairs raises doubts about whether the reasonable-relation standard

was intended to be used in such a fashion. It is thus helpful to inquire how the standard

originated in the Education Clause context and ascertain whether its later use comports

with its initial purpose.

       As discussed, Teachers’ Tenure Act – the seminal case in this regard – involved

a challenge to the Tenure Act based on a contention that the enactment impaired

contractual obligations. See Teachers’ Tenure Act, 329 Pa. at 223 & n.8, 197 A. at 352

& n.8 (quoting PA. CONST. art. I, §17 (“No . . . law impairing the obligation of contracts . .

. shall be passed.”)). The Court discussed the “power” conferred upon the Legislature

by the Education Clause and determined that the Tenure Act was valid because it bore

a “reasonable relation” to the purpose for which that power was given. Id. at 223-25,

197 A. at 352-53. Teachers’ Tenure Act, in other words, used the reasonable-relation

standard to assess whether the challenged legislation fell within the scope of legislative

authority, not whether it fulfilled legislative obligations.18

       The same dynamic was at work in Reichley. In that matter, the trial court found

that labor strikes tend to disrupt public education. As a consequence, the trial court

invalidated a portion of the Public Employee Relations Act permitting such strikes.

Relying on the reasonable-relation standard, this Court reversed. The Court concluded

that, because the legislation was aimed at resolving injurious labor disputes, it bore a

reasonable relation to legislative authority as granted under the Education Clause.

       This type of evaluation is not limited to the education arena. It has also been

undertaken to evaluate whether a state statute constitutes an appropriate exercise of

the state’s police powers. To be a valid exercise, the act must bear a “rational relation

18
  By assigning a duty to the General Assembly, the Education Clause “both empowers
and obligates.” Neely v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746,
778 (Tex. 2005) (internal quotation marks and citation omitted).


                              [J-82-2016] [M.O. - Wecht, J.] - 34
to public safety, health, morals or general welfare[.]” Appeal of Rolling Green Golf Club,

374 Pa. 450, 454, 97 A.2d 523, 525 (1953) (internal quotation marks and citation

omitted); see also Price v. Smith, 416 Pa. 560, 562-63, 207 A.2d 887, 888 (1965) (same

as to local ordinances).

       The federal cases are similar. In National Railroad Passenger Corp. v. Boston &

Maine Corp., 503 U.S. 407, 112 S. Ct. 1394 (1992), a taking accomplished pursuant to

a federal statute was permissible so long as it was “rationally related” to a public use as

required under the Fifth Amendment. Id. at 422, 112 S. Ct. at 1404 (quoting Hawaii

Hous. Auth. v. Midkiff, 467 U.S. 229, 240-41, 104 S. Ct. 2321, 2329-30 (1984)).19 More

recently, the Supreme Court noted that, “in determining whether the Necessary and

Proper Clause grants Congress the legislative authority to enact a particular federal

statute, we look to see whether the statute constitutes a means that is rationally related

to the implementation of a constitutionally enumerated power.”          United States v.

Comstock, 560 U.S. 126, 134, 130 S. Ct. 1949, 1956 (2010); see also id. at 134-35, 130

S. Ct. at 1956-57 (citing cases). See generally Kennedy v. Mendoza-Martinez, 372 U.S.

144, 211, 83 S. Ct. 554, 589 (1963) (Stewart, J., dissenting) (“As with any other

exercise of congressional power, a law which imposes deprivation of citizenship, to be

constitutionally valid, must bear a rational relationship to an affirmative power

possessed by Congress under the Constitution.”).

       In summary, then, the reasonable-relation test was not designed to evaluate

whether a branch of state government has fulfilled its constitutional obligations. It was


19
   See also United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006) (same as to
Commerce Clause); SEPTA v. PUC, 826 F. Supp. 1506, 1520-21 (E.D. Pa. 1993)
(same); cf. Wisconsin v. City of N.Y., 517 U.S. 1, 19, 116 S. Ct. 1091, 1101 (1996)
(evaluating whether administrative action was constitutional by asking whether it was
reasonably related Congress’s constitutionally-conferred authority).


                           [J-82-2016] [M.O. - Wecht, J.] - 35
wrongly applied in this way in Danson and Marrero II, and the experience of those

cases teaches that the standard has little efficacy as means of enforcing legislative

obligations in any event.    Instead, the litmus, when applied properly, is utilized to

ascertain whether the government has the authority to legislate, or otherwise act, in the

manner subject to challenge, as reflected in Teachers’ Tenure Act, Reichley, and

federal cases such as those discussed above.

       In the present controversy, the substance of Plaintiffs’ allegations is that the

political branches have not acted sufficiently to fulfill their duties, not that they have

acted beyond the authority assigned to them by the state charter. The parties’ opposing

arguments concerning whether the reasonable-relation standard is currently satisfied

are therefore misplaced.    I would thus conclude that any present reference to the

reasonable-relation standard cannot provide an independent basis for relief.


                        III. The Equal Protection Clause Claim

       Plaintiffs also contend that the Commonwealth Court erred in holding that their

equal protection claim was barred under the political question doctrine. They note that,

although Danson denied relief on such a claim, its analysis reflects a merits disposition

based on the challengers’ failure to assert gross disparities in funding among school

districts. Plaintiffs argue they, by contrast, allege that these types of disparities exist

because poorer school districts have a pronounced disadvantage in raising local

revenue as compared to wealthier ones notwithstanding that the former often have

higher tax rates. They note that their ability to boost local taxes is impeded further by a

dearth of high-value properties combined with limitations on yearly property tax

increases imposed pursuant to the Taxpayer Relief Act. See Brief for Appellants at 21.

       More generally, Plaintiffs offer that education-related equal protection challenges

are ordinarily justiciable because courts are able to discern from the established method

                            [J-82-2016] [M.O. - Wecht, J.] - 36
of raising and distributing funds whether less-affluent school districts are subject to

inferior treatment as compared to wealthier ones.       They continue that this may be

accomplished without delving into questions of funding “adequacy” or otherwise

implicating the Baker factors. As an example, Plaintiffs suggest a hypothetical example

in which the state arbitrarily allocates a higher sum to wealthy districts than to poor

ones. See Brief for Appellants at 23. Therefore, Plaintiffs contend that Marrero II’s

focus on determining what constitutes an adequate education and appropriate funding

for such an education is immaterial to the present issue. They add that, in any event,

the political question doctrine is disfavored where a claim involves an alleged

infringement of individual rights – here, the right to receive an education. See id. at 23-

24, 43-44; Reply Brief for Appellants at 8 n.5, 20 (quoting Sch. Dist. of Wilkinsburg v.

Wilkinsburg Educ. Ass’n, 542 Pa. 335, 343, 667 A.2d 5, 9 (1995) (stating that, under the

Education Clause, public education is a “fundamental right” in Pennsylvania)). Finally,

Plaintiffs reference decisions from other states in which an education-funding equal

protection challenge was sustained on its merits. See Brief for Appellants at 25.

       The Executive Defendants respond that Plaintiffs’ Equal Protection Clause claim

is intertwined with their Education Clause claim. They assert, as well, that the Petition’s

allegations do not support Plaintiffs’ contention that determining what constitutes an

adequate education is unnecessary within the equal protection context; they state that

such allegations are, instead, framed in terms of an equal opportunity to obtain an

“adequate” education.    More generally, the Executive Defendants maintain that the

framers considered the potential for inequalities between school districts, but they

specifically rejected uniform funding in favor of local control.     Thus, the Executive

Defendants reason that it would be illogical to hold that the Equal Protection Clause




                           [J-82-2016] [M.O. - Wecht, J.] - 37
“forbids what the Education Clause was specifically designed to permit[.]” Brief for

Executive Appellees at 32.

       They also contend that Plaintiffs misconstrue Danson, which held that the

appellants failed to state a justiciable cause of action without distinguishing between the

Equal Protection and Education Clause claims raised. They remark, moreover, that no

authority exists for Plaintiffs’ position that the political question doctrine does not apply

to equal protection claims, noting that Baker itself involved an equal protection

challenge.   Lastly, as to whether education is a fundamental right, the Executive

Defendants argue that the statement to this effect in Wilkinsburg is mere dicta. They

observe that the Wilkinsburg Court did not reach the merits of the issue raised in that

dispute, which involved a challenge to a school board’s authority to enter into a contract

with a private company; the Court instead simply held that the trial court had erred by

issuing a preliminary injunction without first holding an evidentiary hearing.

       The Legislative Defendants also disagree with Plaintiffs as regards the Danson

decision, suggesting that its holding – that the judiciary may not intrude upon an

education funding scheme that bears a reasonable relation to complying with the

Education Clause – applies to Plaintiffs’ equal protection claim. As well, they disagree

that Danson reached the merits of the question raised, observing that Danson, like the

Commonwealth Court in the present matter, dismissed the case on preliminary

objections. They also raise several alternative arguments, asserting, for example, that

the equal-protection claim is conceptually deficient because it fails to identify a statutory

classification. See Brief for Legislative Appellees at 44-52.

       Plaintiffs’ argument is not based on the Fourteenth Amendment’s Equal

Protection Clause, but on Article III, Section 32 of the state charter.          That section




                             [J-82-2016] [M.O. - Wecht, J.] - 38
prohibits special laws regulating the affairs of school districts. See PA. CONST. art. III,

§32(1); see also supra note 4.20

      Pennsylvania courts do not, as a rule, decline to reach the merits of Section 32-

based challenges to laws regulating education. See, e.g., W. Mifflin Area Sch. Dist. v.

Zahorchak, 607 Pa. 153, 164-65, 4 A.3d 1042, 1049 (2010) (sustaining an Article III,

Section 32 challenge to a state law enacted to aid a single school district); Harrisburg

Sch. Dist. v. Zogby, 574 Pa. 121, 141, 828 A.2d 1079, 1091 (2003) (rejecting, on its

merits, an Article III, Section 32 challenge to an act designed to aid a small, but open,

class of school districts). Here, Plaintiffs’ contention does not rest on Section 32’s

preclusion of special laws as such. Instead, it is based on the provision’s more general

guarantee, as developed through judicial interpretation, that the citizens of this state

enjoy equal protection under the law. See Pa. Tpk. Comm’n v. Commonwealth, 587 Pa.

347, 363, 899 A.2d 1085, 1094 (2006). In this sense, although Plaintiffs’ position is not

expressly based on federal equal protection guarantees, it is similar to an equal-

protection claim brought under the Fourteenth Amendment. See supra note 4.

      In reference to such claims, where the challenged governmental action does not

restrict “fundamental” or “important” rights and does not burden a suspect or a quasi-

suspect classification, it does not violate the Equal Protection Clause as long as it is

rationally related to a legitimate governmental interest. See Small, 554 Pa. at 615, 722

A.2d at 672. However, if a statutory classification disadvantages a suspect class or




20
    Article I, Sections 1 and 26 have been identified as constituting the other equal
protection provisions of the Pennsylvania Constitution. See Klein v. SERS, 521 Pa.
330, 344-45, 555 A.2d 1216, 1223 (1989). Here, however, Plaintiffs rely only on Article
III, Section 32.


                           [J-82-2016] [M.O. - Wecht, J.] - 39
burdens a fundamental right, it will only be sustained if it survives strict scrutiny. See

Smith v. Coyne, 555 Pa. 21, 29, 722 A.2d 1022, 1025 (1999).21


                 A. The fundamental-right/strict-scrutiny argument

      Plaintiffs’ argument implicates two conceptual bases for equal protection scrutiny.

The first rests on the premise that education is a fundamental constitutional right which

has been unduly burdened by insufficient funding; thus, any statutory classification must

be subjected to strict scrutiny. Regardless of whether Plaintiffs’ description of education

as a “fundamental” right is valid in a general or colloquial sense, from a legal

perspective – that is, in terms of the applicable level of judicial scrutiny – it cannot be

supported. As this Court observed in Danson, the Rodriguez Court specified that

      the key to discovering whether education is ‘fundamental’ is not to be
      found in comparisons of the relative societal significance of education as
      opposed to subsistence or housing. Nor is it to be found by weighing
      whether education is as important as the right to travel. Rather, the
      answer lies in assessing whether there is a right to education explicitly or
      implicitly guaranteed by the Constitution.
Rodriguez, 411 U.S. at 33, 93 S. Ct. at 1297. Rodriguez continued that education is not

among the rights expressly protected by the United States Constitution, and that its

“undisputed importance” cannot alone supply a “basis for saying it is implicitly so

protected.” Rodriguez, 411 U.S. at 35, 93 S. Ct. at 1297; see also Plyler v. Doe, 457




21
   Under strict scrutiny a classification must be narrowly tailored to a compelling state
interest. See D.P. v. G.J.P., ___ Pa. ___, ___, 146 A.3d 204, 210 (2016).
Classifications which are “quasi-suspect” (sometimes referred to as “sensitive”), trigger
an intermediate level of review in which the classification must be substantially related
to an important government interest. See Commonwealth v. Bell, 512 Pa. 334, 344-45,
516 A.2d 1172, 1178 (1986) (summarizing the three levels of scrutiny under
Pennsylvania law).


                           [J-82-2016] [M.O. - Wecht, J.] - 40
U.S. 202, 223, 102 S. Ct. 2382, 2398 (1982) (acknowledging that education is not a

fundamental right under the federal Constitution).

         Similarly, Article I of the Pennsylvania Constitution, known as the Declaration of

Rights, enumerates various rights and freedoms as being inherent to mankind, including

life, liberty, property, and reputation. See PA. CONST. art. I, §1; see also id. §§3-10

(listing other rights such as religious freedom, the right to vote, trial by jury, freedom of

expression, freedom from unreasonable searches and seizures, and rights associated

with criminal defendants).22 Article I rights are carved out of the government’s general

powers, see id. §25, and, being inherent, they are secured rather than bestowed by the

Constitution. See Driscoll v. Corbett, 620 Pa. 494, 511, 69 A.3d 197, 208 (2013).23

         Although there cannot be any doubt that education is of vital social importance to

the Commonwealth of Pennsylvania, from a constitutional standpoint the Education

Clause stands on a different footing in terms of individual rights. The text of that clause

lacks any language indicating that a right to education is either granted to the people or

inherent to mankind. Cf. Robinson Twp., 623 Pa. at 607, 83 A.3d at 927 (noting that the

Legislature’s Article III duties are “limited fundamentally” by the rights “reserved to the

people” in Article I). Also, Article I does not itself mention education, nor does any other

aspect of the state charter suggest that a free public education was intended by the

framers to be a fundamental right. It is not within this Court’s purview to declare it so

based on our own estimation of its critical social importance. See generally Rodriguez,



22
     This list is not meant to be exclusive.

23
   I do not mean to suggest that any and all burdens upon Article I rights must be
justified by a compelling state interest. See generally Robinson v. Cahill, 303 A.2d 273,
282 (N.J. 1973) (criticizing the concept that the burdening of fundamental rights as
defined in Rodriguez should always invoke strict scrutiny).


                               [J-82-2016] [M.O. - Wecht, J.] - 41
411 U.S. at 33, 93 S. Ct. at 1297 (“It is not the province of this Court to create

substantive constitutional rights in the name of guaranteeing equal protection[.]”).

       Moreover, Marrero II stated expressly that the Education Clause does not confer

individual rights upon students, but rather, imposes a duty on the Legislature. See

Marrero II, 559 Pa. at 17, 739 A.2d at 112. Thus, to the extent an individual right to

public education exists in Pennsylvania, it is statutorily conferred and, as such, “it is

limited by statutory provisions.” Lisa H. v. State Bd. of Educ., 67 Pa. Cmwlth. 350, 356,

447 A.2d 669, 673 (1982), aff’d per curiam, 502 Pa. 613, 467 A.2d 1127 (1983); accord

24 P.S. §13-1301. Notably, there is no present claim before this Court that a statutory

violation has occurred.

       As for the tension between Marrero II and Wilkinsburg, the former rejected an

explicit request for a declaratory judgment stating that the Education Clause confers an

individual right to a thorough and efficient system of education. See Marrero I, 709 A.2d

at 958.   Thus, in Marrero II the constitutional issue was joined and a holding was

reached. By contrast, Wilkinsburg’s indication that education constitutes a fundamental

right comprised dicta unsupported by authority.24         I would now disapprove that

statement and hold, consistent with Marrero II, that the Education Clause imposes an

24
   As the Executive Defendants observe, individual rights in education were not at issue
in Wilkinsburg. The underlying dispute related to whether a school board could contract
with a private company to operate a school. The issue directly before the Court was
whether an evidentiary hearing was needed before a preliminary injunction could issue
in favor of the plaintiff union. A responsive opinion which garnered majority support
clarified that, per the doctrine of constitutional avoidance, the Court’s ruling was limited
to remanding for such a hearing so that any statutory or constitutional questions which
may arise could be resolved by the common pleas court on a developed record. See
Wilkinsburg, 542 Pa. at 346, 667 A.2d at 10 (Zappala, J., concurring). Finally, the only
purpose served by the majority’s sua sponte declaration that education is a fundamental
right was to bolster its directive that, on remand, the best interests of the students
should serve as the polestar of the county court’s ultimate decision as to whether to
grant the union’s request for a preliminary injunction.


                            [J-82-2016] [M.O. - Wecht, J.] - 42
obligation on the Legislature, but it does not confer a fundamental constitutional right

upon individuals capable of triggering strict scrutiny within an equal protection context.25

       Moreover, Plaintiffs do not assert that the government has burdened a suspect

class. See D.P., ___ Pa. at ___ n.8, 146 A.3d at 210 n.8 (“Strict scrutiny is separately

triggered under the Equal Protection Clause if the legislation employs a suspect

classification.”). The Petition’s averments suggest that, to the extent a class exists, it is

comprised of a number of low-wealth school districts which are unable to raise as much

money through taxation as other school districts. See, e.g., Petition ¶287 (alleging that

the 2011 funding cuts and dependence on local taxes have disproportionately impacted

the state’s 50 poorest districts). Thus, the purported class is based on wealth and

geography.    See id. ¶8 (alleging that the funding system violates equal protection

“because it turns the caliber of public education into an accident of geography”).

       These types of identifying characteristics do not give rise to a suspect or quasi-

suspect classification. See Small, 554 Pa. at 615 nn.14-15, 722 A.2d at 672 nn.14-15

25
  Accord, e.g., Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1016-19 (Colo. 1982);
McDaniel v. Thomas, 285 S.E.2d 156, 166-67 (Ga. 1981); Bd. Of Educ. of Cincinnati
Sch. Dist. v. Walter, 390 N.E.2d 813, 817-19 (Ohio 1979); cf. Kukor v. Grover, 436
N.W.2d 568, 579 (Wis. 1989) (determining that an “equal opportunity for education” is a
fundamental right under the state’s education clause, but holding that the state’s
education funding system was subject to rational basis review); Skeen v. State, 505
N.W.2d 299, 313 (Minn. 1993) (similarly finding that education is a fundamental right
under the state charter and, while strict scrutiny should apply “in determining whether
the legislature has met a student’s fundamental right to a general and uniform system of
public schools, a lesser standard, such as a rational basis test, should apply to the
determination of whether the financing of such a system is ‘thorough and efficient.’”).
But see, e.g., Washakie Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 333-35
(Wyo. 1980) (expressing that because education is a fundamental right under the state
constitution, the government’s funding scheme must satisfy strict scrutiny); Pauley v.
Kelley, 255 S.E.2d 859, 878 (W. Va. 1979) (same); Seattle Sch. Dist. No. 1 of King
Cnty. v. State, 585 P.2d 71, 91 (Wash. 1978) (same where the state charter prioritized
education over other legislative obligations by expressly making it the legislature’s
“paramount duty”).


                            [J-82-2016] [M.O. - Wecht, J.] - 43
(observing that suspect classes are race, national origin, and, for state-law purposes,

alienage, and that quasi-suspect classes are gender and legitimacy).           Because no

fundamental right or suspect class is involved, I would conclude that Plaintiffs cannot

prevail on their contention that, to be valid, the purported classification must survive

strict scrutiny, i.e., be justified by a compelling government interest and be narrowly

tailored to serve that interest.


                            B. The no-rational-basis argument

       In the alternative, Plaintiffs maintain that, even if strict scrutiny does not apply,

the manner in which the Legislature funds public education fails the more deferential

rational basis test because it is arbitrary and irrational. See Petition ¶305 (describing

the “levels and allocation” of state public-school funding as “irrational, arbitrary, and not

reasonably calculated to ensure that all Pennsylvania school children have access to an

adequate education”). Under the rational-basis framework, the question is whether the

legislative classification is rationally related to the promotion of a legitimate state

interest. See Kramer v. WCAB (Rite Aid), 584 Pa. 309, 335, 883 A.2d 518, 534 (2005).

See generally Brief for Appellants at 26 (implying that the school funding scheme does

not “serve[] a legitimate government interest”).

       Although, as noted, there is no per se rule against reaching the merits of an

Article III, Section 32 challenge to state laws regulating education, I agree with

Defendants’ suggestion that, here, the claim is intertwined, or “enmeshed,” with the

Education Clause claim. Brief for Legislative Appellees at 24 n.9; see also Brief for

Executive Appellees at 31 (asserting that the two claims cannot be “disentangled”). The

Supreme Court has recognized that an equal protection claim is not justiciable if, in

substance, it is enmeshed with “political question elements” which cause claims under a

separate constitutional provision to implicate the political question doctrine. Baker, 369

                             [J-82-2016] [M.O. - Wecht, J.] - 44
U.S. at 227, 82 S. Ct. at 715. For its part, Baker held that the one-man-one-vote equal-

protection claim raised in that matter was not enmeshed with the political question

elements involved in a cause of action brought under the Article IV, Section 4, known as

the Guaranty Clause.     See U.S. CONST. art. IV, §4 (guaranteeing to each state a

republican form of government); Baker, 369 U.S. at 232, 82 S. Ct. at 718. Baker noted,

however, that 50 years earlier the Court did recognize such an entanglement in Pacific

States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224 (1912).

      In Pacific States, a corporation challenged a tax levied by popular initiative, a

process that had been included in the Oregon charter via constitutional amendment

several years earlier.   The company claimed that the initiative process itself was

contrary to the Guaranty Clause, and that as such, the tax violated several other

constitutional rights, including the right to equal protection. The Supreme Court denied

relief. It expressed that the latter contention rested on a preliminary finding that the

initiative procedure violated the Guaranty Clause, which in turn implicated a non-

justiciable claim. As a consequence, the equal protection cause of action was deemed

non-justiciable. See id. at 150-51, 32 S. Ct. at 231. See generally Cantor v. Supreme

Court of Pa., 353 F. Supp. 1307, 1316-17 (E.D. Pa. 1973) (comparing the analyses in

Baker and Pacific States).

      A review of the Petition here indicates that the averments relating to equal

protection are framed in terms of whether the students in poorer school districts have

been denied an equal opportunity to obtain an “adequate” education. See Petition ¶¶8,

13, 94, 262, 290-92, 308-10, 313-14, 317, 320-21. Addressing that question requires a

prior agreement that the premise – that the lower total expenditures per student in the

poorer districts were depriving the students in those districts of an adequate education –

is susceptible of judicial determination.        Given my earlier conclusion that the


                             [J-82-2016] [M.O. - Wecht, J.] - 45
ascertainment of what constitutes a constitutionally adequate education is a matter of

public policy left to the political branches and lies outside the realm of the judiciary, I

would find that, as in Pacific States, the equal-protection claim as stated here is

enmeshed with the initial, non-justiciable, claim.

       Still, Plaintiffs argue that, regardless of the wording in the Petition, their equal

protection argument, in fact, rests solely on disparities in funding as between poorer and

wealthier districts, and not on the premise that students in poorer districts are failing to

receive an “adequate” education. They suggest the alleged equal protection violation

arises solely from the fact that poorer school districts have less total education funding,

meaning students in those districts are receiving an inferior education. See Brief for

Appellants at 22. Also, according to Plaintiffs, the complained-of funding discrepancies

are due to legislative choices because, under state law, the overall funding arrangement

relies heavily on local taxes.26 For the sake of decision, I would afford Plaintiffs the

benefit of any doubt on this question and consider their equal protection claim on the

terms they now advance. Stated thus, the question is justiciable and its substance can

be analyzed without reference to the concept of educational adequacy.

       Legislation duly enacted by the General Assembly enjoys a strong presumption

of validity. It will only be declared void if it clearly, palpably, and plainly violates the

Constitution.   Any doubts about its validity are resolved in favor of a finding of

constitutionality. See Commonwealth v. Bullock, 590 Pa. 480, 487, 913 A.2d 207, 211-

26
  Plaintiffs argue that the General Assembly is to blame for the additional reason that
that body draws school district boundaries and decides what types of properties,
business transactions, and services may be locally taxed. See Petition ¶289. The
Supreme Court has rejected an identical argument. See Rodriguez, 411 U.S. at 53-54,
93 S. Ct. at 1307 (noting that the existence of local government units requires the
drawing of arbitrary boundaries, and the amount of taxable wealth within those
boundaries will invariably differ, fluctuate, and depend on the decisions of actors other
than state officials, including local officials, local residents, and private enterprises).


                            [J-82-2016] [M.O. - Wecht, J.] - 46
12 (2006). The overall question for purposes of a Defendants’ demurrer is whether the

Petition’s averments are legally sufficient to state a claim for relief. See Pa.R.C.P. No.

1028(a)(4); Mazur v. Trinity Area Sch. Dist., 599 Pa. 232, 240, 961 A.2d 96, 101 (2008).

As applied here, the issue is whether such averments identify a statutory classification

which bears no rational relationship to a legitimate state interest.

       As discussed, the classification identified in the Petition involves geography and

wealth. It consists of a group of school districts which have a diminished ability to raise

local revenues as compared to wealthier districts. If the school financing arrangement

were to discriminate against these districts, for example, by allocating less state money

to them due to their lower wealth (as in the hypothetical example Plaintiffs propose),

such discrimination would clearly be unrelated to a legitimate government interest.

       According to the Petition, however, the state uses a formula which provides more

aid to poorer districts than to wealthier ones. See Petition ¶¶262-67. This is entirely

rational: such districts need more aid than wealthier ones, and the provision of more

money rationally relates to the legitimate governmental interest in lessening the funding

disparity between the two groups of school districts and helping poorer districts with

costs associated with disadvantaged students. While the Petition alleges that the state

should provide even more aid than it currently does, see Petition ¶11 (“Although the

state has made some effort to close that gap, contributing twice as much per student to

Panther Valley as it did to Lower Merion, that still left Panther Valley with less than half

the combined state and local funding of Lower Merion[.]”), the government’s failure to do

so does not suggest it is treating poorer districts in an inferior manner to wealthier ones

or that its funding formula is not rationally to a legitimate state interest.

       Insofar as the claim is based on the predicate that the statutory scheme depends

too heavily on local tax revenue, our precedent and that of the United States Supreme


                             [J-82-2016] [M.O. - Wecht, J.] - 47
Court establish that the government has a rational basis for relying to a large degree on

such revenue as a means of conforming with the framers’ intent to maintain local

decisional authority over the affairs of school districts.27 The Petition discounts such

local authority as “illusory” under the current arrangement because poorer school

districts do not control the standards to which their students are held or the amount of

money at their disposal. Petition ¶¶9, 294. Such a contention, even if accepted as true,

speaks to a circumstance – possibly a temporary one in light of recent legislation such

as Act 35 – which does not undermine the validity of the state’s overall interest in

preserving such oversight at the local level. I do not disallow that some school districts,

especially poorer ones, may be willing to sacrifice local control for more state funding.

Again, however, such a circumstance, even if proved, would not speak to the legitimacy

of the government’s overall interest as it pertains to school districts generally.

       I would conclude, then, that the averments in the Petition are legally insufficient

to make out a viable cause of action under the Equal Protection Clause – and,

consequently, that the Commonwealth Court acted properly in sustaining Defendants’

demurrer to that count of the Petition.




27
   See Danson, 484 Pa. at 427, 399 A.2d at 367; see also Wright v. Council of City of
Emporia, 407 U.S. 451, 469, 92 S. Ct. 2196, 2206 (1972) (“Direct control over decisions
vitally affecting the education of one’s children is a need that is strongly felt in our
society[.]”); Papasan v. Allain, 478 U.S. 265, 284-85, 106 S. Ct. 2932, 2943-44 (1986)
(acknowledging the state has a rational interest in accommodating two separate forces
via a funding system involving local and state elements: society’s desire that all
children receive an education, and parents’ desire that their own children receive the
best affordable education); Rodriguez, 411 U.S. at 51-53 & n.109, 93 S. Ct. at 1306-07
& n.109 (explaining how local funding allows for the retention of local decision-making).
See generally Rodriguez, 411 U.S. at 48-51 & nn.102-08, 93 S. Ct. at 1304-06 &
nn.102-08 (discussing the history and importance of local decision-making in the public-
education arena).


                            [J-82-2016] [M.O. - Wecht, J.] - 48
                                       IV. Conclusion

       For the foregoing reasons, I would affirm the order of the Commonwealth Court.

Accordingly, I respectfully dissent.




                            [J-82-2016] [M.O. - Wecht, J.] - 49
