-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 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 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 
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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. 

SHAPIRO, J. (dissenting). 

 In one of the most significant cases of the last century, the United States Supreme Court 

declared that, “education is perhaps the most important function of state and local governments.” 

Brown v Topeka Bd of Ed, 347 US 483, 493; 74 S Ct 686; 98 L Ed 873 (1954). Nine years after 

that decision, the people of this state approved a new Constitution providing that local school 

districts “shall” provide an education to all students and that the legislature “shall” maintain and 

support such schools. Const 1963, art 8, §§ 1-2. Sadly, my colleagues in the majority have 

judicially repealed these provisions with their decision today. They have also, by judicial fiat, 

repealed a legislative enactment that requires school districts to take specific action where pupils 

fail to attain basic competencies. MCL 380.1278(8). 

 I reject the majority’s miserly view of the education constitutionally due Michigan’s 

children. I agree with the majority that the judiciary is not suited to, and should avoid attempting 

to, manage school administration or fine tune educational policy. However, this does not excuse 

the majority’s abandonment of our essential judicial roles, that of enforcement of the rule of law 

even where the defendants are governmental entities, and of protecting the rights of all those who 

live within Michigan’s borders, particularly those, like children, who do not have a voice in the 

political process. While the judiciary is not suited to selecting and executing educational policy, 

it is suited to determining whether defendants are complying with their constitutional and 

statutory duties and ordering them to take timely action to do so. 
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I. PLAINTIFFS’ ALLEGATIONS AND THE MAJORITY’S CONCLUSIONS 

 Plaintiffs, students of defendant Highland Park School District (HPSD), allege that the 

government defendants violated their constitutional rights under Const 1963, art 8, §§ 1 and 2, 

and violated their own statutory duties under MCL 380.1278(8). Defendants assert that 

plaintiffs’ complaint does not state a cause of action. That complaint, as noted by the trial court 

in denying defendants’ motion for summary disposition, contains a lengthy list of factual 

assertions that can only be fairly described as shocking and which, for purposes of this motion, 

we must adopt as true.1

 The majority concludes that even if these allegations and other equally 

disturbing ones are true, no court may even consider whether the education being provided to the 

children of Highland Park fails to meet constitutional and statutory requirements. 

 A few of the more disturbing accusations are as follows: 

• There are 973 students enrolled in the HPSD; 

• 65% of fourth grade students tested below “proficient” on the Michigan Educational 

Assessment Program (MEAP) Reading test and 87% scored below “proficient” on the 

MEAP math test;2

• 75% of seventh grade students scored below “proficient” on the MEAP Reading test and 

93% scored below “proficient” on the MEAP Math test; 

• At the high school level, 90% of students failed the Michigan Merit Examination3

Reading test; 97% failed the Math test; 94% failed the Writing test; 100% failed the 

Social Studies test; 100% failed the Science test; 

• A lack of textbooks exists such that students are rarely able to take home textbooks; 

• Many classrooms have inadequate heat or no heat at all; 

• School buildings are unsecured such that a homeless man was able to live and sleep in the 

facilities without detection by school officials; 

• Student files do not contain assessments of grade level performance, current and post 

MEAP assessment, counseling records, attendance records, or discipline records; 

• By contrast, in the demographically similar school district of Inkster, 98% of students 

met reading and math standards on the 2010 MEAP. 

 

1

Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004) (citation omitted) (“In 

determining whether summary disposition was properly granted under MCR 2.116(C)(7), this 

Court consider[s] all documentary evidence submitted by the parties, accepting as true the 

contents of the complaint unless affidavits or other appropriate documents specifically contradict 

them.”). In addition, defendants do not, at least for purposes of this motion, dispute the accuracy 

of plaintiffs’ factual allegations. 

2

 Student performance on the MEAP is calculated to fall in one of four categories: “advanced,” 

“proficient,” “partially proficient,” and “not proficient.” 

3

 This is the final standardized test administered to Michigan students. 
-4- 

 Failing to reference these, or any of the other equally disturbing allegations in plaintiffs’ 

complaint, the majority reaches the following conclusions: (1) the provision in the Michigan 

Constitution that guarantees that every school district “shall provide for the education of pupils,” 

Const 1963, art 8, § 2, has neither meaning nor effect and that no level of failure by a school 

district to provide these requirements can ever constitute a violation of this provision; (2) the 

Michigan Constitution’s provisions in Article 8, Sections 1 and 2 that the state shall “support and 

maintain” a system of public schools and that “the means of education shall forever be 

encouraged,” are merely “aspirational” and have no force of law; (3) that no child, parent, or 

citizen has the authority to seek judicial enforcement of the statutory mandate contained within 

MCL 380.1278(8) that non-special education students whose reading level is below grade level 

“shall be provided special assistance reasonably expected to enable the pupil to bring his or her 

reading skills to grade level within 12 months.” 

 All of these conclusions are erroneous. 

II. CONSTITUTIONAL CLAIMS 

 Plaintiffs’ constitutional claims arise solely under the education provisions of the 1963 

Michigan Constitution. Specifically, plaintiffs’ complaint alleges that defendants have violated 

Const 1963, art 8, §§ 1 and 2, which respectively provide: 

 Religion, morality and knowledge being necessary to good government 

and the happiness of mankind, schools and the means of education shall forever 

be encouraged. 

 The legislature shall maintain and support a system of free public 

elementary and secondary schools as defined by law. Every school district shall 

provide for the education of its pupils without discrimination as to religion, creed, 

race, color or national origin. 

 [Emphasis added.] 

 By virtue of their employment of the word “shall,” these constitutional provisions are 

mandatory and require compliance. See Port Huron v Amoco Oil, Inc, 229 Mich App 616, 631; 

583 NW2d 215 (1998) (It is a well-established rule of statutory interpretation that “[w]hile the 

word ‘shall’ is generally used to designate a mandatory provision, ‘may’ designates discretion.”). 

Nonetheless, the majority dispenses with these constitutional provisions in conclusory fashion 

with little, if any, analysis or consideration of the law. Its analysis falters at the very first step, 

by relying on the fact that education is not a “fundamental interest” under the equal protection 

clause. See Martin Luther King Jr Elementary Sch Children v Mich Bd of Ed, 451 F Supp 1324, 

1328 (ED Mich, 1978) (“MLK”).4

 While plaintiffs did assert an equal protection claim under 

 

4

 In this regard, defendants and the majority rely heavily on MLK, 451 F Supp 1324, a single 

federal trial court opinion from 1978. The bulk of MLK involved the application of the federal 

equal protection clause, a claim not raised in this case. Id. at 1327-1333. MLK did briefly 

address a claim made under Const 1963, art 8, § 2, concluding that it did not guarantee “equal” 
-5- 

Const 1963, art 1, § 2 before the trial court, that claim is not before this Court in the instant 

appeal, rendering the majority’s discussion of equal protection a red herring.5 The sole issue is 

whether the plaintiffs have stated a claim that our constitution’s educational provisions have 

been violated. 

 The balance of the majority’s consideration of § 1 is limited to a single conclusory 

sentence reading: “Article 8, § 1 merely ‘encourage[s]’ education, but does not mandate it.” The 

majority opinion wholly fails to address the considerable body of law in this state and sister 

states addressing the scope and import of such a constitutional provision. 

 As for § 2, the majority ignores the use of the mandatory word “shall” in both its first and 

second sentences, applying to the legislature and the relevant school district respectively.6 In so 

doing, the majority revises the Constitution’s language so as to conclude that § 2 can never be 

violated. In the majority’s view, there are no minimal requirements to “maintain and support.” 

Moreover, a school district could provide nothing more than a building for students to sit in but 

remain in compliance with this constitutional provision, because, in the words of the majority, 

the Constitution leaves to the district “the actual intricacies pertaining to the delivery of specific 

educational services.” I might agree with that sentiment if the issue in this case was merely the 

“intricacies” of the delivery of educational services. However, that is not the situation before us. 

Indeed, I do not believe that any reasonable person, and certainly no reasonable parent, would 

conclude that “intricacies” are at issue where, at the HPSD’s high school, 90% of students failed 

the Michigan Merit Reading Examination, 97% failed the Math test, 100% failed the Social 

Studies test, and 100% failed the Science test. The message the majority sends is that the 

mandatory constitutional provision that a school district “shall” provide education is met simply 

education to all students. Id. at 1333-1334. It certainly did not define the scope of Const 1963, 

art 8, § 2, and, of course, we are not bound by lower court federal opinions. Abela v General 

Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004). 

5

 Moreover, even if plaintiffs’ equal protection claim was before this Court, the fact that 

education has been held not to be a “fundamental interest” does not, in itself, defeat that claim. 

See, e.g., Frame v Nehls, 452 Mich 171, 183; 550 NW2d 739 (1996) (“Unless the [alleged] 

discrimination impinges on the exercise of a fundamental right or involves a suspect class, the 

inquiry under the Equal Protection Clause is whether the classification is rationally related to a 

legitimate governmental purpose.”). 

6

 In Feaster v Portage Pub Schs, 451 Mich 351, 357; 547 NW2d 328 (1996), the Supreme Court 

unanimously reversed the dismissal of a complaint for declaratory and injunctive relief against a 

school district based on statutory and constitutional grounds. The Court emphasized that the 

statutory employment of the word “shall” in directing action by a school district defeated the 

district’s claims that the plaintiff’s requested relief went beyond that provided by the 

constitution. Id. at 365. It noted the longstanding policy that school laws are “to be liberally 

construed consistent with the public policy of fostering and encouraging free public education[.]” 

Id. at 357 (citation omitted). 
-6- 

by its existence, regardless of whether a single student receives any semblance of an actual 

education. 

 Contrary to the majority in this case, Michigan courts have been willing to address such 

questions in the past. In Bond v Ann Arbor Pub Sch Dist, 383 Mich 693, 698-697; 178 NW2d 

484 (1970), the plaintiffs attended free public schools, i.e., no tuition was charged. The plaintiffs 

nevertheless argued that the modest fee charged by the defendant school district for books and 

supplies violated the constitutional requirement that the legislature “maintain and support a 

system of free public elementary and secondary schools.” Id. at 697; Const 1963, art 8, § 2. The 

trial court dismissed the case for failure to state a claim and the Court of Appeals affirmed. Bond 

v Ann Arbor Pub Sch Dist, 18 Mich App 506, 511; 171 NW2d 557 (1969). 

 Our Supreme Court unanimously reversed. Bond, 383 Mich at 706. It held that “free . . . 

public schools” included the free provision of the “necessary elements of any school’s activity,” 

alternatively stated as the materials that “are an essential part of a system of free public 

elementary and secondary schools.” Id. at 702. Most important for purposes of the instant 

appeal is the Court’s statement that, “No education of any value is possible without school 

books.” Id, quoting Crowley v Bressler, 41 NYS 2d 441, 445-446; 181 Misc 59 (1943). The 

Bond Court’s analysis makes clear that where public educational services fall below some 

minimal level, Const 1963, art 8, § 2 has been violated. Where the education provided, like one 

without textbooks, is not “of any value,” the state has not met its constitutional obligation.7

 In Snyder v Charlotte Pub Sch Dist, 421 Mich 517; 365 NW2d 151 (1984), our Supreme 

Court stated in more general terms: 

 Although public education is not a fundamental right granted by the 

federal constitution, it is not merely some governmental benefit which is 

indistinguishable from other forms of social welfare legislation. Plyer v Doe, 457 

US 202, 221; 102 S Ct 2382; 72 L Ed 2d 786 (1982). See also San Antonio 

Independent School Dist v Rodriguez, 411 US 1, 30; 93 S Ct 1278; 36 L Ed 2d 16 

(1973). “[E]ducation is perhaps the most important function of state and local 

governments.” Brown v Topeka Bd of Ed, 347 US 483, 493; 74 S Ct 686; 98 L 

Ed 873 (1954). [Snyder, 421 Mich at 525 (emphasis added).] 

 The majority quotes the concurrence in Milliken v Green, 390 Mich 389, 406; 212 NW2d 

711 (1973) (KAVANAGH and LEVIN, JJ., concurring), for the proposition that “no system of 

public schools can provide equality of educational opportunity in all its diverse dimensions[,]” 

but gives no credence to the sentence immediately following, which provides: “All that can 

properly be expected of the state is that it maintain and support a system of public schools that 

furnishes adequate education services to all children.” (Emphasis added). While there is no 

constitutional requirement that schools provide an optimal education nor that all services be 

 

7

 Even if Bond were read to apply to nothing outside of the provision of textbooks, it is still 

applicable to this case as plaintiffs’ complaint alleges that “[t]here is a critical lack of textbooks 

in most classrooms.” 
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provided with perfect equality, for the educational provisions of our constitution to have any 

meaning, schools must provide “adequate educational services to all children.” Id. 

 Moreover, in Milliken, which concerned a challenge to Michigan’s entire system of 

public school funding, id. at 391, the concurrence stated: 

 We are presented with generalized arguments concerning the nature of 

educational opportunity in this State. So that our opinion not be misconstrued, it 

is important to note that we are not presented with a concrete claim by either 

individual students or by school districts that they are suffering from particular 

specified education inadequacies because of deficiencies . . . . Such concrete 

claims, when and if raised, will stand or fall on their own merits and not on 

account of anything we say here. In short, we are not abandoning the school 

children of this State to legislative whim in derogation of any judicially 

enforceable right to an education they may have under our Constitution. 

[Milliken, 390 Mich at 392-393 (emphasis added).] 

In this case, the plaintiff schoolchildren have asked the courts to make good on this commitment 

not to abandon them. Unlike Milliken, this case is not one based on “generalized arguments” 

about educational opportunity, but rather on objective tests that support the allegation that the 

overwhelming majority of students in this district are not receiving a minimally adequate 

education. Ironically, in Milliken, the defendant argued that the proper way to demonstrate 

denial of a constitutionally required education would be to evaluate the school “in terms of 

‘output,’ as measured by pupil accomplishment on certain achievement tests.” Id. at 398. This is 

precisely what the instant plaintiffs have done and the testing administered by state law is their 

best evidence. 

 Plaintiffs also cite to several cases from our sister states that have considered this 

question and provided helpful analyses.8

 A review of these cases demonstrates that my 

colleagues stand nearly alone in their conclusions. 

 The South Carolina Supreme Court, in Abbeville Co Sch Dist v State, 335 SC 58, 63-64; 

515 SE2d 535 (1999), considered whether the state’s public school funding scheme violated 

either the equal protection clause or the state constitution’s education clause. It found no equal 

protection violation, id. at 65, but concluded that the funding scheme violated the state 

constitution, id. at 68. The relevant clause closely resembles Const 1963, art 8, § 2, and 

provides: 

 

8

 The concurrence rejects some of these cases as “not analogous” because they deal with school 

funding issues rather than minimal educational quality. I do not see why such a distinction 

renders those cases irrelevant to our instant inquiry. If anything, courts should be more hesitant 

to review broad funding mechanisms than a particular failure to provide minimal educational 

services in a single school district. 
-8- 

 The General Assembly shall provide for the maintenance and support of a 

system of free public schools open to all children in the state and shall establish, 

organize and support such other public institutions of learning as may be 

desirable. [Abbeville Co, 335 SC at 66.] 

The trial court in Abbeville had concluded that the language of the provision was non-specific 

and that “judicial restraint, separation of powers, and/or the political question doctrine prevented 

it from considering this education clause claim.” Id. at 67. The South Carolina Supreme Court 

reversed that holding, ruling that the constitutional mandate required the state to “provide 

opportunity for each child to receive a minimally adequate education[,]” which it defined as: “1) 

the ability to read, write, and speak the English language, and knowledge of mathematics and 

physical science; 2) a fundamental knowledge of economic, social, and political systems, and of 

history and governmental processes; and 3) academic and vocational skills.” Id. at 68. The court 

went on to state: 

We recognize that we are not experts in education, and we do not intend to dictate 

the programs utilized in our public schools. Instead, we have defined, within 

deliberately broad parameters, the outlines of the constitution’s requirement of 

minimally adequate education. 

 Finally, we emphasize that the constitutional duty to ensure the provision 

of minimally adequate education to each student in South Carolina rests on the 

legislative branch of government. We do not intend by this opinion to suggest to 

any party that we will usurp the authority of that branch to determine the way in 

which educational opportunities are delivered to the children of our State. We do 

not intend the courts of this State to become super-legislatures or super-school 

boards. [Id. at 69.] 

This holding is consistent with the application of other states’ constitutional provisions similar to 

Const 1963, art 8, § 2. 

 In Lake View Sch Dist No. 25 of Phillips Co v Huckabee, 351 Ark 31; 91 SW3d 472 

(2002), the Arkansas Supreme Court held that the legislative and executive branches were in 

violation of the state’s constitutional education provision. Id. at 52-53; see Ark Const, art 14, 

§ 1. In rejecting a justiciability argument similar to that made in the instant case, the court noted 

that, “The State’s argument appears to be that not only are legislative acts presumed to be 

constitutional, but that they are per se constitutional and not subject to judicial review.” Id. at 53 

(citation omitted). 

 The high court of New York State, the Court of Appeals, reached the same conclusion. 

In Campaign for Fiscal Equity v New York, 86 NY2d 307; 655 NE2d 661 (1995), that court 

interpreted New York’s constitutional education provision, which is nearly identical to 

Michigan’s and mandates that “[t]he legislature shall provide for the maintenance and support of 

a system of free common schools, wherein all the children of this state may be educated.” Id. at 

314. The court held that this provision “requires the State to offer all children the opportunity of 

a sound basic education . . . . Such an education should consist of the basic literary, calculating, 
-9- 

and verbal skills necessary to enable children to eventually function productively as civic 

participants . . . .” Id. at 316. 

 In Claremont Sch Dist v Governor, 142 NH 462; 703 A2d 1353 (1997), the New 

Hampshire Supreme Court, relying on a constitutional education clause even less specific than 

Michigan’s,9

 held that “[o]ur society places tremendous value on education. Education provides 

the key to individual opportunities for social and economic advancement and forms the 

foundation for our democratic institutions and our place in the global economy.” Id. at 472. The 

court went on to enumerate several “benchmarks of a constitutionally adequate public education” 

and left it to the legislature to meet those benchmarks. Id. at 474-476. 

 In Tennessee, the state constitutional education clause contains language resembling 

Michigan’s, providing: 

 The State of Tennessee recognizes the inherent value of education and 

encourages its support. The General Assembly shall provide for the maintenance, 

support and eligibility standards of a system of free public schools. The General 

Assembly may establish and support such postsecondary educational institutions, 

including public institutions of higher learning, as it determines. [Tenn Const, art 

XI, § 12.] 

Relying on dictionary definitions of the word “education,” the Tennessee Supreme Court held 

that the clause required “that the General Assembly shall maintain and support a system of free 

public schools that provides, at least, the opportunity to acquire general knowledge, develop the 

powers of reasoning and judgment, and generally prepare students intellectually for a mature 

life.” Tenn Small Sch Sys v McWherter, 851 SW2d 139, 150-151 (Tenn, 1993). 

 Similarly, in Rose v Council for Better Ed, Inc, 790 SW2d 186 (Ky, 1989), the Kentucky 

Supreme Court addressed the Kentucky constitutional provision requiring that “The General 

Assembly shall, by appropriate legislation, provide for an efficient system of common schools 

throughout the State.” Ky Const, § 183. The court found the question justiciable and determined 

the school system constitutionally deficient: 

[W]e [do not] intend to substitute our judicial authority for the authority and 

discretion of the General Assembly. We are, rather, exercising our constitutional 

duty in declaring that, when we consider the evidence in the record, and when we 

apply the constitutional requirement of Section 183 to that evidence, it is crystal 

clear that the General Assembly has fallen short of its duty to enact legislation to 

provide for an efficient system of common schools throughout the state. In a 

word, the present system of common schools in Kentucky is not an “efficient” one 

in our view of the clear mandate of Section 183. The common school system in 

Kentucky is constitutionally deficient. [Rose, 790 SW2d at 189.] 

 

9

 See NH Const, part II, art LXXXIII. 
-10- 

 In Pauley v Kelly, 162 W Va 672, 689; 255 SE2d 859 (1979), the West Virginia Supreme 

Court of Appeals held that their constitution required the state to prepare students for useful 

occupations and citizenship including literacy and the “ability to add, subtract, multiply and 

divide numbers[.]” Id. at 705-706. 

 In Seattle Sch Dist No. 1 of King Co v State, 90 Wash 2d 476; 585 P2d 71 (1978), the 

Washington Supreme Court interpreted that state’s constitutional education clause, which 

provides that “[i]t is the paramount duty of the state to make ample provision for the education of 

all children residing within its borders[.]” Wash Const, art IX, § 1. The court held that, under 

this clause, “the State’s constitutional duty goes beyond mere reading, writing and arithmetic. It 

also embraces board educational opportunities needed in the contemporary setting to equip our 

children for their role as citizens and as potential competitors in today’s market as well as in the 

market place of ideas.” Seattle Sch Dist No. 1, 90 Wash 2d at 517. The court explained that, 

“[t]he constitutional right to have the State ‘make ample provision for the education of all 

(resident) children’ would be hollow indeed if the possessor of the right could not compete 

adequately in our open political system, in the labor market, or in the market place of ideas.” Id. 

at 518. 

 Given these holdings from our sister states, which favor plaintiffs, it is difficult to see 

why the majority finds judicial overreach in addressing whether our constitution’s education 

provision is violated when the overwhelming majority of students in the subject district cannot 

read or perform mathematics at grade level. 

 Defendants rely heavily on King v Iowa, 818 NW2d 1 (Iowa, 2012). However, the Iowa 

constitutional education clause bears little resemblance to Michigan’s. To recall, the relevant 

clauses of our constitution, Const 1963, art 8, §§ 1 and 2, provide: 

 Religion, morality and knowledge being necessary to good government 

and the happiness of mankind, schools and the means of education shall forever 

be encouraged. 

 The legislature shall maintain and support a system of free public 

elementary and secondary schools as defined by law. Every school district shall 

provide for the education of its pupils without discrimination as to religion, creed, 

race, color or national origin. 

The relevant clause of the Iowa constitution, by contrast, does not even contain the word 

“education.” It reads in relevant part: “The General Assembly shall encourage, by all suitable 

means, the promotion of intellectual, scientific, moral, and agricultural improvement.” King, 818 

NW2d at 12.10

 

10 For this reason, King undercuts the concurrence’s conclusion that to hear plaintiffs claim under 

Const 1963, art 8, § 2, the judiciary must impermissibly “read into” the Constitution words such 
-11- 

 In King, the Iowa high court referenced its state’s unusual history of rejecting any 

constitutional provisions to mandate free public schools, noting that as far back as 1859 “we 

reached the conclusion that no aspect of the Iowa Constitution, including the education clause, 

authorized the legislature to provide for public schools” and that its constitutional convention 

had voted down a proposed amendment to provide for tuition-free schools. Id. at 14-15. Based 

on this rather particular constitutional history, the King court concluded that if the Iowa 

constitution “did not assure a right to a free public education, it seems untenable to argue that [it] 

contained a judicially enforceable right to a free public education with certain minimum 

standards of quality.” Id. (emphasis omitted). 

 Michigan’s constitutional education clause reads very differently that Iowa’s. And, the 

other states that have addressed this question have consistently held that a cause of action may be 

brought, argued, and that a court may find that the state has failed to satisfy the education clause 

of the state’s constitution due to a failure to provide some baseline level of adequacy of 

education.11

III. STATUTORY CLAIMS 

 The majority’s rejection of plaintiffs’ statutory claims against the school district 

defendants is even more difficult to understand. MCL 380.1278(8), part of the School Code, 

provides: 

 Excluding special education pupils, pupils having a learning disability, 

and pupils with extenuating circumstances as determined by school officials, a 

pupil who does not score satisfactorily on the 4th or 7th grade Michigan 

as “sufficient,” “adequate,” or “quality” with regard to the education required to be provided to 

Michigan’s children. While I agree that it is not the province of the judiciary to add words to the 

provisions of the Michigan Constitution, I suggest that it is my colleagues who seek to do so by 

adding the words “with no minimal standards of quality” to the requirement that the state and 

school districts provide “education.” The word “education” means “the process of training and 

developing the knowledge, skill, mind, character, etc., especially by formal schooling; teaching; 

training” Webster’s New Twentieth Century Dictionary (2d ed), and plaintiffs assert that a 

constitutionally satisfactory “education” has not been provided. In addition, Const 1963, art 8, 

§ 2 requires that the legislature maintain and support a system of public education “as defined by 

law” and plaintiffs have alleged that in the HPSD, the public education is in violation of state 

statute MCL 380.1278(8). Also, given that the concurrence concedes that “no sane individual 

would oppose the proposition that Michigan schools should provide a quality education for 

all[,]” it is difficult to conclude that providing an “adequate” education was not the intent of the 

framers and voters in adopting these constitutional provisions. 

11 Moreover, like in Haridopolos v Citizens for Strong Schs, Inc, 81 So 3d 465, 472 (Fla Ct App, 

2011), “[t]he present case is, to be sure, distinguishable from King, which featured an attack on 

internal legislative processes[.]” There is also no such attack made in the instant case. 

Haridopolos also concluded that even if the imposition of a remedy was beyond the court’s role, 

the court, at minimum, had jurisdiction to enter a declaratory judgment. Id. at 473. 
-12- 

educational assessment program [MEAP] reading test shall be provided special 

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

skills to grade level within 12 months. [Emphasis added.] 

 Like the previously discussed constitutional provisions, this statute employs the word 

“shall,” denoting required compliance on the part of subject school district. See Port Huron, 229 

Mich App at 631. Defendants do not appear to dispute that a majority of the relevant fourth 

grade non-special education students did not score satisfactorily on the reading test or that an 

overwhelming majority of seventh grade students failed to do so as well. Thus, the district 

essentially concedes that it has violated the plain terms of the statute. 

 The majority nevertheless reverses the trial court’s denial of defendant’s motion for 

summary disposition, concluding that “it remains to be determined whether the [individual 

plaintiffs] are subject to exclusion from additional instruction premised on ‘extenuating 

circumstances as determined by school officials.’” The fact that this issue “remains to be 

determined” is grounds for affirming the trial court’s denial of summary disposition, not for 

reversing it. Moreover, defendants have not alleged or offered any evidence that the students fall 

within the exception for “pupils with extenuating circumstances as determined by school 

officials.” 

 The majority also states that, “While the form of additional instruction may be deemed 

insufficient given the lack of progress in developing reading proficiency for these students, this 

would constitute a separate and distinct claim.” It offers no basis for this statement, likely 

because there is none. Essentially, the majority states that if the services provided to these 

students are inadequate, it constitutes a “separate and distinct claim.” In fact, that is exactly the 

letter and spirit of the claim now before us. To direct these minor plaintiffs, who have litigated 

these cases for over two years and are, therefore, two years closer to “graduation,” to start over 

with a new case, premised on defendants’ failure to remedy their educational shortcomings, 

mocks these children. 

 The majority further concludes that MCL 380.1278(8) does not provide a private cause of 

action. For this principle, it cites only Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 

(2007), but does not reference that case’s reasoning. Rather, the majority implies that Lash held 

that, in the absence of an express statutory authorization of a private cause of action, no statute 

can ever give rise to a private cause of action. This is simply false. In Lash, our Supreme Court 

held that 

when a statute is silent concerning whether a private remedy is available for a 

statutory violation, a court may infer a private cause of action “if it determines 

that the remedy is appropriate in furtherance of the purpose of the legislation and 

needed to assure the effectiveness of the provision . . . .” [Lash, 479 Mich at 192, 

quoting Gardner v Wood, 429 Mich 290, 301 n 5; 414 NW2d 706 (1987), quoting 

4 Restatement Torts, 2d, § 874A, p 301.] 
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That is, 

a cause of action could be created to redress a statutory violation where the 

purpose of the statute at issue was found to be exclusively or in part (a) to protect 

a class of persons which includes the one whose interest is invaded, and (b) to 

protect the particular interest which is invaded, and (c) to protect that interest 

against the kind of harm which has resulted, and (d) to protect that interest against 

the particular hazard from which the harm results. [Lash, 479 Mich at 192-193 

(quotation marks, formatting, and citations omitted).] 

 All of these requirements are plainly met in this case. MCL 380.1278(8) explicitly 

defines the class of persons intended to be protected as “[non-special education] pupils who do 

not score satisfactorily on the 4th or 7th grade [MEAP] . . . reading test.” The particular interest 

is obtaining a minimum level of education that will enable these children to become functioning 

members of society. The kind of harm is the denial of the “special assistance reasonably 

expected to enable the pupil to bring his or her reading skills to grade level within 12 months.” 

The hazard is the failure to provide that assistance. 

 The majority’s willingness to ignore the statute is particularly odd given the majority’s 

repeated assertion that education policy is a matter for the legislature. In enacting MCL 

380.1278(8), the legislature set education policy. It is merely a question of whether that policy, 

and the statute enacting it, will be enforced by the courts. The majority wrongly declines to do 

so. 

IV. AVAILABLE RELIEF 

 In large measure, my colleagues base their dismissal of this case on the grounds that if 

plaintiffs were to prevail at trial on either their statutory or constitutional claims, relief may not 

be easily fashioned and that some forms of relief may constitute an overextension of judicial 

authority. In my view, there is no basis for this concern as to plaintiffs’ statutory claim and any 

such concern as to the constitutional claims is both premature and exaggerated. 

 As to the statutory claim, if plaintiffs were to prevail at trial, the remedy would be 

straightforward. Defendants would be ordered to provide the service that is specifically defined 

in MCL 380.1278(8). Moreover, contrary to defendant’s argument, a writ of mandamus would 

be available to so direct. The statute, using the word “shall” imposes a duty on the district to 

provide assistance to the relevant students. I agree that the precise nature of that assistance is left 

to the discretion of the district, but “the writ will lie to require a body or an officer charged with 

a duty to take action in the matter, notwithstanding the fact that the execution of that duty may 

involve some measure of discretion.” Teasel v Dep’t of Mental Health, 419 Mich 390, 410; 355 
-14- 

NW2d 75 (1984). As defendants have acknowledged in their briefs, “mandamus will lie to 

compel the exercise of discretion, but not to compel its exercise in a particular manner.” Id.

12

 Moreover, like in Teasel, where the relevant statute required not merely any psychiatric 

evaluation, but an informed one, 419 Mich at 401; MCL 330.1476, the statute at issue in this 

case, MCL 380.1278(8), mandates a standard for the “special assistance” that must be provided, 

namely that the assistance must be “reasonably expected” to fulfill the statutory goal of bringing 

students to grade reading level within 12 months. As our Supreme Court has repeatedly held, 

“reasonably expected” is a term of art that denotes an objective standard. See Krohn v HomeOwners Ins Co, 490 Mich 145, 163; 802 NW2d 281 (2011); Allstate Ins Co v McCarn, 471 Mich 

283, 290; 683 NW2d 656 (2004). Indeed, in other instances that called for a “reasonableness” 

determination, the Supreme Court found mandamus an appropriate remedy. See, e.g. Hering v 

Royal Oak, 326 Mich 232, 237; 40 NW2d 133 (1949); Employees & Judges of Second Judicial 

Dist Ct v Hillsdale Co, 423 Mich 705, 702; 378 NW2d 744 (1984). 

 Defendants essentially argue that they are above the law. They claim to possess the 

authority to violate a statutory mandate and that no action may be taken in the courts to enforce 

that statute. This is precisely the situation that Justice Ryan cautioned against in Teasel: 

The [mandamus] power [of the judiciary] is not one to create a duty where none 

existed before or to mandate action where the decision whether to act is 

discretionary. Rather, the power is the constitutional power of a circuit court to 

direct, upon complaint of an aggrieved party, that a duty imposed by law upon the 

executive department of the government to make a decision according to 

legislatively established criteria be carried out. Were it otherwise, our citizens 

would be powerless to compel their public servants to conduct the business of 

government—to make a decision, whether good or bad, but some decision, based 

upon the legislatively established criteria where the duty to make a decision is 

clear. [Teasel, 419 Mich at 412.] 

In this case, plaintiffs allege that defendants have violated a statutory mandate, i.e., that they 

“shall” provide “special assistance” to students that fail the fourth or seventh grade MEAP 

reading test. While the precise nature of that required assistance remains discretionary, the 

government entity may not use that discretion as an excuse to simply take no action at all. In 

other words, a government entity may not wholly avoid compliance with a statutory mandate on 

the grounds that it retains some discretion as to the particular method of compliance. 

 

12 In Teasel, the plaintiff moved the court for a return to a state mental hospital, arguing that he 

was entitled to treatment and had been dismissed without the statutorily-required evaluation. 

Teasel, 419 Mich at 397-398. Writing for a unanimous Court, Justice Ryan clearly articulated 

the scope of mandamus in a case such as that before us. He explained that while the ultimate 

action chosen by a governmental agent or entity may remain discretionary and, therefore, beyond 

mandamus, a court does possess jurisdiction to direct that governmental agent or entity to 

exercise its discretion and to do so in accordance with the applicable statutory standards. Id. at 

414-416. 
-15- 

 I agree with my colleagues that defining a judicial remedy for the constitutional claim, 

should it be shown to be meritorious, may pose challenges. However, it is likely that a judicially 

crafted remedy would not be necessary. The parties may, and I believe likely would, design a 

remedy to which they can agree. If that does not occur, the question of remedy can be referred to 

the legislative branch for first consideration. Many state courts that have ruled in favor of 

plaintiffs in claims like the one now before us have declared the status quo unconstitutional and, 

rather than attempting to define what must be done, have simply directed the legislative or 

executive branch to adopt remedial action of their own choice and design. See Claremont Sch 

Dist v Governor, 143 NH 154, 158; 725 A2d 648 (1998); Sheff v O’Neill, 238 Conn 1, 3-4; 678 

A2d 1267 (1996) (court granted plaintiffs’ request for declaratory relief but stayed imposition of 

any judicially crafted remedy to afford the legislature an opportunity to act); Bingham v 

Vermont, 166 Vt 246, 269; 692 A2d 384 (1997) (declaratory relief granted; jurisdiction retained 

until remedial legislation could be enacted); McDuffy v Secretary of Executive Office of Edu, 415 

Mass 545; 614 NE2d 516 (1993); Rose, 790 SW2d at 215-216 (holding that the legislature failed 

to fulfill constitutional duties to provide for an efficient system of public schools, but 

withholding finality of the decision until 90 days after the adjournment of the legislative 

session).13

 Most important, I reject the majority’s view that the possibility that such challenges 

might be faced if and when plaintiffs prove their case is grounds to not hear their case at all. It is 

the very rare case in which the judiciary is able to impose a perfect remedy: the issuance of a 

personal protection order does not automatically insulate an individual from further harassment, 

the imprisonment of a convicted murderer does not bring the victim back to the life or heal her 

loved ones, and civil judgments often fail to make the prevailing party whole. In sum, the role of 

the court is to determine the rights of the parties under the rule of law and, based on that 

determination, fashion a reasonable, albeit often imperfect, remedy in cases where the parties 

cannot agree upon one. In that respect, this case is no different than many others that come 

before our courts. 

 

13 My colleagues suggest that the only available solution for these children is “political,” i.e., for 

the voters of Highland Park to elect a “better” school board. However, as the discussed cases 

demonstrate, even if the question of remedy is later found to exceed judicial capabilities, it is 

well within the purview of the judiciary to declare the status quo unlawful and refer the 

determination of remedy to the political branches. 
-16- 

 At minimum, it is clear that a declaratory judgment14 finding that the status quo is in 

violation of Const 1963, art 8, §§ 1-2 and/or MCL 380.1278(8), or an injunction directing 

compliance with those laws, is well within the judiciary’s purview. Indeed, such action, if 

merited, is required by our constitutional role as a check and balance on the other branches. As 

Justice Hugo Black observed: “[T]he judiciary was made independent because it has . . . the 

primary responsibility and duty of giving force and effect to constitutional liberties and 

limitations upon the executive and legislative branches.” Black, The Bill of Rights, 35 NYU L 

Rev 865, 870 (1960). 

V. CONCLUSION 

 My colleagues offer kindly worded sympathy to the children whose futures are in 

jeopardy through no fault of their own. But, the schoolchildren who brought this claim are not 

requesting this Court’s sympathy. They are asking that we allow their case to be heard. 

 The ultimate resolution of this case, if allowed to be heard, cannot now be known. 

Defendants may prevail on the merits. The parties may agree on a remedy or, after trial, the trial 

court may impose a remedy from which none of the parties appeals. Whether a remedy is 

imposed and, if so, whether it is proper, is a question that we should not, and may not, determine 

at this stage of the case. Most important, the mere existence of that question should not lead us 

to refuse to hear the case altogether. 

 I wish to stress that I do not assert that this Court should now conclude whether the state 

and school district are in violation of either statutory or constitutional standards. However, I do 

assert, consistent with precedent, that this is a justiciable matter, states a claim, and that a trial 

court, after hearing the relevant proofs, may render a decision subject to appellate review. 

 Accordingly, I respectfully dissent. 

/s/ Douglas B. Shapiro 

 

14 The majority opinion fails to substantively discuss plaintiffs’ request for declaratory relief 

despite the fact that the trial court declined to dismiss that claim and the complaint and amended 

complaint each request that “this Court . . . [d]eclare as unconstitutional Defendants’ violation of 

Plaintiffs’ rights as pursuant to MCL 380.1278(8) . . . [and] declare as unconstitutional 

Defendants’ violation of Plaintiffs’ rights under Article 8, Sections 1 and 2 of the Michigan 

Constitution; [and] declare as unconstitutional Defendants’ violations of Plaintiffs’ rights under 

Article 1, Section 2 of the Michigan Constitution.” I believe the majority’s cursory treatment of 

this claim insufficient to support its summary dismissal.