-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

SS Next Friend of Minor LM, DS Next Friend of 

Minor SD, MJ Next Friend of Minor MS, DC Next 

Friend of Minor LB, TF Next Friend of Minors 

DF, ID, and FC, LH Next Friend of Minor CM, 

 Plaintiffs-Appellees, 

FOR PUBLICATION 

November 6, 2014 

v Nos. 317071; 317072 

Wayne Circuit Court 

STATE OF MICHIGAN, STATE BOARD OF 

EDUCATION, DEPARTMENT OF 

EDUCATION, and STATE SUPERINTENDENT 

OF PUBLIC INSTRUCTION, 

LC No. 12-009231-CZ 

 Defendants-Appellants, 

and 

HIGHLAND PARK SCHOOL DISTRICT, 

HIGHLAND PARK SCHOOL DISTRICT 

EMERGENCY MANAGER, HIGHLAND PARK 

PUBLIC SCHOOL ACADEMY SYSTEM, and 

LEONA GROUP, L.L.C., 

 Defendants. 

SS Next Friend of Minor LM, DS Next Friend of 

Minor SD, MJ Next Friend of Minor MS, DC Next 

Friend of Minor LB, TF Next Friend of Minors 

DF, ID, and FC, and LH Next Friend of Minor 

CM, 

 Plaintiffs-Appellees, 

v No. 317073 

Wayne Circuit Court 

LC No. 12-009231-CZ 
-2- 

STATE OF MICHIGAN, STATE BOARD OF 

EDUCATION, DEPARTMENT OF 

EDUCATION, STATE SUPERINTENDENT OF 

PUBLIC INSTRUCTION, HIGHLAND PARK 

PUBLIC SCHOOL ACADEMY SYSTEM, and 

LEONA GROUP, L.L.C., 

 Defendants, 

and 

HIGHLAND PARK SCHOOL DISTRICT and 

HIGHLAND PARK SCHOOL DISTRICT 

EMERGENCY MANAGER, 

 Defendants-Appellants. 

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

MURRAY, P.J. (concurring). 

 In their briefs filed with this Court plaintiffs have set forth evidence that they are not 

educated to the level that would be reasonably expected given their ages. This evidence should 

be of great concern to their parents, school authorities, and frankly any taxpayer or other 

concerned citizen. But those important educational concerns are not what we, a court of law, are 

addressing today, for our exclusive task is to determine whether plaintiffs can pursue the legal 

theories set forth in their complaint. The majority opinion adequately explains why they cannot. 

I write separately to briefly address some of the more specific arguments put forth by plaintiffs. 

 First, as made clear during oral argument before this Court, plaintiffs’ constitutional 

arguments are not anchored in the text of either Const 1963, art 8 § 1 or § 2, yet it is that text that 

we must apply in determining whether plaintiffs can maintain a claim under these state 

constitutional provisions.1

 It is plain that nothing in either § 1 or § 2 of Article 8 even touches 

upon the specific issues about which plaintiffs complain. Instead, as the majority opinion makes 

clear, those provisions only articulate general aspirational propositions that are to guide the 

Legislature’s enactment of legislation containing more specific education policy choices.2

 In no 

 

1

 To prevail against the state, plaintiffs would also have to show that any injury they suffered was 

caused by a state custom or policy, Jones v Powell, 462 Mich 329, 336; 612 NW2d 423 (2000), 

but that issue need not be addressed because there is no basis in the text for these claims. 
-3- 

way can they be legitimately read to support a constitutional right to specific educational results 

or to a guarantee of a certain level of education. 

 Second, plaintiffs maintain that their argument is supported by the text, as least in so far 

as the Michigan Supreme Court has construed § 2. In that regard, plaintiffs argue that in Bond v 

Ann Arbor Sch Dist, 383 Mich 693; 178 NW2d 484 (1970), our Supreme Court recognized a 

cause of action under Article 8, § 2. It is certainly true that the Bond Court upheld the plaintiffs’ 

challenge under Article 8, § 2, that the school district was required to pay for books their 

children would use in public school. See Bond, 383 Mich at 699-702. But, in our decision 

today, we are assuming a direct cause of action can be brought under this provision. The 

question is whether plaintiffs’ allegations make out a potential violation of these constitutional 

provisions, and in that regard Bond is of no assistance. Bond addressed a challenge invoking 

precise language in the constitutional provision—what was meant by a “free” public education—

while plaintiffs in this case can point to no language in the text that supports their challenge 

seeking to establish a specific level or quality of education through the provision of a free public 

education. Thus, Bond’s analysis does not help here.3

 Third, as the majority opinion makes clear, the statutory provision raised by plaintiffs, 

MCL 380.1278(8), is not amenable to mandamus relief. To implement that provision, which is 

itself a legislative remedy for poor reading performances as it compels school districts to provide 

“special assistance reasonably expected to enable the pupil to bring his or her reading skills to 

grade level within 12 months,” requires an enormous amount of discretion on the part of 

educators. On this point, it bears emphasizing what both the United States Supreme Court and 

our state Supreme Court have repeatedly held: judges are not equipped to decide matters of 

educational policy. See, e.g., Parents Involved In Community Schs v Seattle Sch Dist No 1, 551 

US 701, 849; 127 S Ct 2738; 169 L Ed2d 508 (2007), citing inter alia, San Antonio Indep Sch 

Dist v Rodriguez, 411 US 1, 49-50; 93 S Ct 1278; 36 L Ed 2d 16 (1973); Wisconsin v Yoder, 406 

US 205, 235; 92 S Ct 1526; 32 L Ed 2d 15 (1972); Page v Klein Tools, Inc, 461 Mich 703, 715-

716; 610 NW2d 900 (2000); Larson v Burmaster, 295 Wis 2d 333, 368; 720 NW2d 134; 2006 

Wis App 142 ( 2006). 

 This holds true whether we are addressing mandamus relief or trying to define what 

specific level of education is required by the Constitution. Indeed, in Michigan—like most 

2

 Indeed, Article 8, § 2 states that the Legislature shall maintain and support free public schools 

“as defined by law,” which means that the public school system called for in § 2 is to be 

implemented by the Legislature. See Midland Cogeneration Venture Ltd Partnership v Naftaly, 

489 Mich 83, 93-94; 803 NW2d 674 (2011); People v Perks (On Remand), 259 Mich App 100, 

113; 672 NW2d 902 (2003). This implies that a judicial monetary remedy for a violation of the 

general standards of § 2 would be inappropriate to recognize. Lewis v Michigan, 464 Mich 781, 

787; 629 NW2d 868 (2001). 

3

 The dissent asserts that Bond applies to plaintiffs’ allegation that “[t]here is a critical lack of 

textbooks in most classrooms.” Bond, however, only addressed whether under Article 8, § 2 a 

school district could require parents to pay for required textbooks, not the unrelated and policy 

driven question as to how many textbooks are sufficient for a particular class. And, plaintiffs do 

not allege that the school district is charging them for any of the textbooks. 
-4- 

states—what type of programs should be utilized to implement the general guarantees of Article 

8, § 1 and § 2, is a decision primarily left to either the state legislature or locally elected school 

district boards of education. Slocum v Holton Bd of Ed, 171 Mich App 92, 95-96; 429 NW2d 

607 (1988); Sheridan Road Baptist Church v Dep’t of Ed, 132 Mich App 1, 21; 348 NW2d 263 

(1984), aff’d 426 Mich 462 (1986). Those elected bodies have the capacity to conduct a number 

of tasks to address these important issues, including the ability to hear different policy 

arguments, listen to arguments for or against specific educational programs, allow the taking of 

testimony, and to receive input from teachers and constituents, to name just a few. See, e.g., 

Henry v Dow Chem Co, 473 Mich 63, 92 n 24; 701 NW2d 684 (2005). We, the judiciary, do not 

have that same capacity, ability, or role, as we serve a significantly different and limited function 

in state government. Id. 

 Fourth, and finally, plaintiffs offer a number of decisions from our Sister States holding 

that their state constitutions provide a guaranteed minimal level of education. It is certainly true 

that some state appellate courts have come to that conclusion. But it is just as true that, as most 

of those courts recognize, these decisions are “necessarily controlled in large measure by the 

particular wording of the constitutional provisions of those states’ charters regarding 

education . . . .” Tennessee Small Sch Sys v McWherter, 851 SW2d 139, 148 (Tenn, 1993). As 

the Iowa Supreme Court highlighted, many state constitutions’ education clauses contain words 

like “adequate,” “efficient,” “quality” or “thorough” that denote a level of quality to the 

education provided, King v Iowa, 818 NW2d 1, 20-21, 21 n 16 (Iowa, 2012), but as discussed 

our provisions contain no such verbiage. Many of the other cases relied upon by plaintiffs 

address funding level issues, and that issue—as plaintiffs have argued—is not a part of this 

lawsuit.4

 And if that issue was raised, plaintiffs would have a tough hurdle to overcome. See 

Governor v State Treasurer, 390 Mich 389; 212 NW2d 711 (1973) (Governor II) and East 

Jackson Pub Schs v Michigan, 133 Mich App 132, 137-138; 348 NW2d 303 (1984). 

 To the extent some courts have concluded that general, “aspirational” language similar to 

our language does call for minimum levels of educational results, I simply disagree with those 

decisions. I cannot by judicial fiat read words like “sufficient,” “adequate” or “quality” into the 

text of Article 8, § 2, no matter how sound the result of doing so might seem,5

 when those words 

were not ratified by the people themselves. Nat’l Pride At Work, Inc v Governor, 481 Mich 56, 

68; 748 NW2d 524 (2008). That is not the proper function of the judiciary. We are neither 

equipped with the power nor the expertise to determine what courses, teaching credentials, 

staffing levels, etc., are necessary to provide whatever would be determined to be an “adequate 

 

4

 The following cases are therefore not analogous to the present controversy, at least in so far as 

they deal with the adequacy of legislative funding: Leandro v North Carolina, 346 NC 336, 342-

343; 488 SE2d 249 (1997), Tennessee Small Sch Sys, 851 SW2d at 148-149, Abbott v Burke, 119 

NJ 287, 314; 575 A2d 359 (1990), and Rose v Council for Better Ed, Inc, 790 SW2d 186 (Ky, 

1989). 

5

 After all, no sane individual would oppose the proposition that Michigan schools should 

provide a quality education for all, particularly when so many financial resources are already 

provided to K-12 public education. 
-5- 

education.” In the end, the constitutionally appropriate forum for plaintiffs is the ballot box, not 

the courts. “Voters elect our governor, legislators, and school board members. If these plaintiffs 

do not like how [Highland Park] schools are run, they should turn to the ballot box, not the 

courts.” King, 818 NW2d at 43 (WATERMAN, J., concurring).6

 See, also, Smith v Henderson, 

___ F Supp 2d ___, ___ (D DC, 2014) (“The core problem here is that the parents’ fight is one 

for the ballot box—not the courts.”). 

 The dissent’s vituperative opinion glosses over many of the important legal distinctions 

that control the outcome of this case as framed by plaintiffs. Though all of us agree that the 

evidence of prior performance in the school district amongst this segment of students was poor, 

as members of the judiciary we cannot let our moral, political or emotional views of that 

situation obscure the rule of law that we must apply. Planned Parenthood of Greater Iowa, Inc v 

Miller, 30 F Supp 2d 1157, 1160 (SD Iowa, 1998), aff’d 195 F3d 386 (CA 8, 1999). That said, 

several points must be made in response to the dissenting opinion. 

 First, the majority opinion is not leaving plaintiffs without a remedy. A remedy exists, it 

is simply not to be found, under these constitutional provisions and statute, in the court system. 

Instead, as previously made clear, the Michigan Constitution itself indicates that it is the 

Legislature that is to define the scope of the public education that Michigan children are entitled 

to, as the key phrase within Article 8, § 2, “as provided by law,” indicates. See footnote 2 and 

King v Oakland Co Prosecutor, 303 Mich App 222, 241; 842 NW2d 403 (2013). That 

delegation, coupled with the generalized language of the provision itself, compels the conclusion 

that what level of education is mandated by the Constitution is for the legislative branch to 

decide. 

 Second, and relatedly, the dissent offers a definition of “education” that we should utilize 

to define that term in Article 8, § 2. Assuming that definition was the common meaning at the 

time the Constitution was ratified in 1963, Nat’l Pride At Work, 481 Mich at 67, the definition 

offered by the dissent does not itself speak to a particular level of education required. Rather, it 

merely defines the ultimate goal of education, i.e., “developing” the knowledge, skills, minds 

and character of our youth. It provides no gauge as to the level of education to be provided and, 

as a result, how courts are to enforce such vague provisions.7

 And this again highlights the 

significant obstacle that plaintiffs face in this case: the remedy. To judicially impose a remedy 

 

6

 At least one elected official, Governor Snyder, has acted pursuant to legislation (MCL 

141.1541 et seq.) by appointing an emergency manager to oversee certain of the school district’s 

operations in an attempt to remedy many of the problems that have plagued the district. 

7

 Moreover, the dissent’s reliance upon the “adequate education” phrase from Governor II, 390 

Mich at 389, is greatly misplaced. That second decision was simply an order declaring that the 

prior opinion addressing the governor’s request for answers to certified questions, Governor v 

State Treasurer, 389 Mich 1; 203 NW2d 457 (1972) (Governor I), opinions vacated 390 Mich 

389, had been improvidently granted. The opinion issued with the order that contains the phrase 

cited by the dissent, was signed by only two justices who agreed with the dismissal and vacating 

of the prior opinion, and thus their opinion was plainly dicta that commanded no majority. 
-6- 

will either immediately, or inevitably, lead the courts into the forbidden territory of educational 

policy making. 

 For example, say a school district’s seventh graders average 55 percent on a math 

assessment test, and a court concluded that the district (not the state) was not sufficiently 

“developing” the students’ minds, at least as it pertained to math. The dissent opines that an 

order simply declaring that the minimum level was not attained would suffice, and the school 

district—perhaps with assistance from the state—could develop ways to improve. But to what 

level? A 60, 70 or 80 percent average? What about a 100 percent passing average? What 

curriculum should be used to obtain these higher averages? Should there be a lower teacher to 

student ratio for those students who have performed below the average? And, if the first attempt 

is unsuccessful in reaching that subjective goal, when will the court—through use of experts—

start deciding what method would be more appropriate for the district to implement next in the 

name of complying with its order? Court supervision of the district’s teaching methods and 

curriculum would be inevitable, yet that is precisely what the Supreme Courts of this state and 

nation have warned against. See Yoder, 406 US at 235; Page, 461 Mich at 715-716. The Illinois 

Supreme Court properly articulated these same constitutional concerns in Lewis E v Spagnolo, 

186 Ill 2d 198, 209; 238 Ill Dec 1; 710 NE2d 798 (1999): 

 Attempting to distinguish “high quality” from “minimally adequate” in 

this context is nothing more than semantics. No matter how the question is 

framed, recognition of the plaintiffs’ cause of action under the education article 

would require the judiciary to ascertain from the constitution alone the content of 

an “adequate” education. The courts would be called upon to define what 

minimal standards of education are required by the constitution, under what 

conditions a classroom, school, or district falls below these minimums so as to 

constitute a “virtual absence of education,” and what remedy should be imposed. 

Our decision in Committee for Educational Rights [v Edgar, 174 Ill 2d 1; 220 Ill 

Dec 166; 672 NE2d 1178 (1996)] made clear that these determinations are for the 

legislature, not the courts, to decide. 

See, also, Nebraska Coalition for Educational Equity & Adequacy v Heineman, 273 Neb 531, 

553-554; 731 NW2d 164 (2007). 

 In sum, whether it is a good or bad policy choice, the ratifying voters in 1963 gave the 

Legislature full authority to define the public education to be provided by school districts. The 

Legislature responded with, amongst other things, the very detailed Revised School Code. See 

MCL 380.1 et seq. Many of the statutes in that code contain remedies to be employed by 

districts once certain low scores occur, as is the case with MCL 380.1278(8). But, mandamus is 

not an appropriate way to enforce that provision because of the built-in discretion required to 

implement that statute and because a decision by the school district as to those qualifying 

plaintiffs has been made and implemented; plaintiffs are challenging the decision made and 

asserting that there are better programs for the school district to utilize in implementing the 
-7- 

“special assistance” under the statute8

. As a consequence, the children—through their parents—

have a remedy; it is just not with the courts under the claims pleaded by plaintiffs. 

/s/ Christopher M. Murray 

 

8

 Hence, this case is a far cry from what was at issue in Teasal v Dep’t of Mental Health, 419 

Mich 390, 410; 355 NW2d 75 (1984), where no decision had been made by defendant under 

established criteria.