-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-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: M URRAY , P.J., and J ANSEN and S HAPIRO , JJ.

S HAPIRO , 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 im portant 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 approve d a new Constitution providing that local school districts “shall” provide an educat ion 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 Sadly, my colleagues in the majority have judicially repealed these provisions with their decision today. They have also, by judicial fiat, repealed a legislative enactment that requires scho ol districts to take sp ecific action where pupils fail to attain basic competencies.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 th e majority that the judiciary is not suited to, and should avoid attempting to, manage school administration or fine tune educational policy. However, this do es 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 thos e, like children, who do not have a voice in the political process. While the judiciary is not suit ed to selecting and executing educational policy, it is suited to determining whether defendant s are complying with their constitutional and statutory duties and ordering them to take timely action to do so.-3- I. PLAINTIFFS’ ALLEGATIONS AND THE MAJORITY’S CONCLUSIONS

Plaintiffs, students of defenda nt Highland Park School Distri ct (HPSD), allege that the government defendants violated their constitu tional rights under Cons t 1963, art 8, §§ 1 and 2, and violated their own statutory duties und er MCL 380.1278(8). Defe ndants assert that plaintiffs’ complaint does not stat e a cause of action. That compla int, as noted by the trial court in denying defendants’ motion for summary dispos ition, contains a le ngthy 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 belo w “proficient” on the Michigan Educational Assessment Program (MEAP) Reading test a nd 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 Examination 3 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 su ch that students are rarely able to take home textbooks;

• Many classrooms have inadequa te heat or no heat at all;

• School buildings are unsecured su ch that a homeless man was ab le to live and sleep in the facilities without detect ion by school officials;

• Student files do not contain assessments of grade level performan ce, current and post MEAP assessment, counseling records, attenda nce records, or disc ipline records;

• By contrast, in the demographically similar sc hool district of Inks ter, 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 ot her appropriate documents specifically contradict them.”). In addition, defendants do not, at least for purposes of this moti on, 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 profic ient,” and “not proficient.”

3 This is the final standardized test administered to Michigan students.-4- Failing to reference these, or any of the othe r equally disturbing allegations in plaintiffs’ complaint, the majority reaches the following conclusions: (1) the provision in the Michigan Constitution that guarantees that every school distri ct “shall provide for th e education of pupils,” Const 1963, art 8, § 2, has neither meaning nor eff ect and that no level of failure by a school district to provide these requireme nts can ever constitute a viola tion of this provision; (2) the Michigan Constitution’s provisions in Article 8, S ections 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 enfor cement of the statutory mandate contained within MCL 380.1278(8) that non-special edu cation students whose reading level is below grade level “shall be provided special assist ance reasonably expected to enable the pupil to bring his or her reading skills to grade le vel within 12 months.”

All of these conclu sions are erroneous.

II. CONSTITUTIONAL CLAIMS

Plaintiffs’ constitutional claims arise solely under the education provisions of the 1963 Michigan Constitution. Specifically, plaintiffs’ co mplaint 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 di strict shall provide for the educ ation 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 constitu tional 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-esta blished rule of statutory inte rpretation 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 c onsideration of the law. Its analys is 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 opinio n 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 Cons t 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 discu ssion 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 ‘encou rage[s]’ education, but does not mandate it.” The majority opinion wholly fails to address the considerab le body of law in th is state and sister states addressing the scope and import of such a constitu tional provision.

As for § 2, the majority ignores the use of th e mandatory word “shall ” in both its first and second sentences, applying to the legislature an d 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 vi ew, there are no minimal requireme nts to “maintain and support.” Moreover, a school district could provide nothing more than a build ing for students to sit in but remain in compliance with this constitutional pr ovision, 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 ag ree with that sentiment if the i ssue in this case was merely the “intricacies” of the delivery of e ducational services. However, that is not the situation before us. Indeed, I do not believe that any reasonable pe rson, 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 dist rict “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 exerci se of a fundamental right or involves a suspect class, the inquiry under the Equal Protection Clause is whet her the classification is rationally re lated 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 statut ory and constitutional grounds. The Court emphasized that the statutory employment of the word “shall” in dir ecting action by a school district defeated the district’s claims that the plaintiff’s reque sted relief went beyond that provided by the constitution. Id . at 365. It noted the l ongstanding policy that school laws are “to be liberally construed consistent with the pub lic policy of fostering and encour aging free public education[.]” Id . at 357 (citation omitted).-6- by its existence, regardless of whether a single student receive s any semblance of an actual education.

Contrary to the majority in this case, Mich igan 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 school s, i.e., no tuition was ch arged. The plaintiffs nevertheless argued that the modest fee charge d 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 stat e 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 elemen ts 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 edu cation 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 vi olated. Where the educ ation provided, like one without textbooks, is not “of any value,” the st ate has not met its c onstitutional 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 righ t 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 impo rtant 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) (K AVANAGH and L EVIN , JJ., concurring), for the propos ition that “no system of public schools can provide equality of educationa l 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 not hing outside of the provisio n of textbooks, it is still applicable to this case as plainti ffs’ complaint alleges that “[t]here is a critical lack of textbooks in most classrooms.”-7- provided with perfect equality, for the educatio nal provisions of our constitution to have any meaning, schools must provide “adequate educ ational 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 opi nion not be misconstrued, it is important to note that we are not presented with a concrete claim by either individual students or by sc hool districts that they ar e 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 as ked 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 alle gation that the overwhelming majority of student s in this district are not re ceiving a minimally adequate education. Ironically, in Milliken , the defendant argued that th e proper way to demonstrate denial of a constitutionally required educatio n would be to evaluate the school “in terms of ‘output,’ as measured by pupil accomplishm ent on certain achievement tests.” Id . at 398. This is precisely what the instant plaint iffs have done and the testing ad ministered 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 case s 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 stat e’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 closel y 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 th an minimal educational quality. I do not see why such a distinction renders those cases irrelevant to our instant inqu iry. If anything, courts should be more hesitant to review broad funding mechanisms than a part icular failure to provide minimal educational services in a singl e school district.-8- The General Assembly shall provide for the maintenance and support of a system of free public schools open to all chil dren 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 power s, 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, ru ling that the constituti onal mandate required the state to “provide opportunity for each child to rece ive a minimally adequate education[,]” which it defined as: “1) the ability to read, write, and speak the Eng lish language, and knowledge of mathematics and physical science; 2) a fundamental knowledge of economic, social, and political systems, and of history and governmental processes; a nd 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’ constitution al 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 th e 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 subjec t 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 educat ion 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 th is state may be educated.” Id . at 314. The court held that this provision “requires the State to offer all ch ildren the opportunity of a sound basic education . . . . Such an educatio n should consist of the ba sic 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 constituti onal education clause even less specific than Michigan’s, 9 held that “[o]ur societ y places tremendous value on e ducation. Education provides the key to individual opportunities for soci al 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 ade quate public education” and left it to the legislatur e to meet those benchmarks. Id . at 474-476.

In Tennessee, the state constitutional edu cation clause contains language resembling Michigan’s, providing:

The State of Tennessee recognizes th e inherent value of education and encourages its support. The General Asse mbly shall provide for the maintenance, support and eligibility standa rds of a system of free public schools. The General Assembly may establish and support such postsecondary educational institutions, including public institutions of higher lear ning, 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 Assemb ly shall maintain and support a system of free public schools that provides, at least, the oppor tunity to acquire gene ral knowledge, develop the powers of reasoning and judgment, and generally prepare students intelle ctually 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 constituti onal provision requiri ng that “The General Assembly shall, by appropriate legislation, prov ide 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 s ubstitute 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 Sec tion 183 to that evidence, it is crystal clear that the General Assembly has fallen s hort of its duty to enact legislation to provide for an efficient system of comm on 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 S ection 183. The common school system in Kentucky is constitution ally 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 re quired 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 consti tutional duty goes beyond mere reading, writing and arithmetic. It also embraces board educationa l opportunities needed in the c ontemporary setting to equip our children for their role as citizens and as potential competitors in t oday’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 provi sion 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 la bor market, or in the ma rket 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 mathem atics 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, Cons t 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 define d by law. Every sc hool district shall provide for the education of its pupils without discrimina tion 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 releva nt part: “The General Assembly shall encourage, by all suitable means, the promotion of intellectual, scientif ic, moral, and agricultural improvement.” King , 818 NW2d at 12. 10

10 For this reason, King undercuts the concurrence’ s conclusion that to he ar plaintiffs claim under Const 1963, art 8, § 2, the judiciary must impermi ssibly “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 e ducation clause reads very diffe rently that Iowa’s. And, the other states that have addressed this question have consistently he ld that a cause of action may be brought, argued, and that a court ma y find that the state has failed to satisfy the e ducation 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 understa nd. 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 7t h grade Michigan

as “sufficient,” “adequate,” or “quality” with regard to the education requ ired 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 “educati on.” The word “education” mean s “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 plain tiffs assert that a constitutionally satisfactory “educ ation” has not been provided. In additi on, Const 1963, art 8, § 2 requires that the legislature maintain and sup port a system of public education “as defined by law” and plaintiffs have alleged that in the HP SD, the public education is in violation of state statute MCL 380.1278(8). Also, give n that the concurrence conced es that “no sane individual would oppose the proposition that Michigan sc hools should provide a quality education for all[,]” it is difficult to conclude that providing an “ad equate” education was not the intent of the framers and voters in adopting th ese 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 impos ition of a remedy was beyond the court’s role, the court, at minimum, had jurisdicti on 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 sc hool district. See Port Huron , 229 Mich App at 631. Defendants do not appear to dis pute that a majority of the relevant fourth grade non-special education student s did not score satisf actorily 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 violat ed the plain terms of the statute.

The majority nevertheless re verses the trial court’s deni al of defendant’s motion for summary disposition, concluding that “it remain s 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 c ourt’s denial of summary disposition, not for reversing it. Moreover, defendants have not allege d or offered any evidence that the students fall within the exception for “pupils with extenu ating 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 pr ogress in developing reading profic iency 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 serv ices provided to these students are inadequate, it constitute s a “separate and distinct claim.” In fact, that is exactly the letter and spirit of the claim now before us. To direct these minor plaint iffs, who have litigated these cases for over two years and are, therefore, two years closer to “g raduation,” to start over with a new case, premised on defendants’ fail ure 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 th at case’s reasoning. Rather, the majority implies that Lash held that, in the absence of an express statutory auth orization 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 wh ether a private remedy is available for a statutory violation, a court may infer a pr ivate cause of action “if it determines that the remedy is appropriate in furthera nce of the purpose of the legislation and needed to assure the effectivene ss 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.]-13- 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 in vaded, and (c) to pr otect 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, formatti ng, and citations omitted).]

All of these requirements are plainly met in this case. MCL 380.1278(8) explicitly defines the class of persons inte nded to be protected as “[non-sp ecial 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 ed ucation that will enable these children to become functioning members of society. The kind of harm is the de nial of the “special assistance reasonably expected to enable the pupil to bring his or her r eading skills to grade level within 12 months.” The hazard is the failure to provide that assistance.

The majority’s willingness to ignore the stat ute 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 th e 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 th eir statutory or constitutional claims, relief may not be easily fashioned and that some forms of relie f 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 prevai l 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 argum ent, 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 st udents. I agree that the precise na ture 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, notwithstandi ng the fact that the ex ecution 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 ha ve acknowledged in their briefs, “mandamus will lie to compel the exercise of discretion, but not to co mpel its exercise in a particular manner.” Id

. 12

Moreover, like in Teasel , where the relevant statute requ ired 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 “s pecial 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 Supr eme 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 in stances that called for a “reasonableness” determination, the Supreme Court found manda mus 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 situa tion 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 pow er is the constitutional pow er 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 carri ed out. Were it othe rwise, our citizens would be powerless to compel their public servants to conduc t 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 st atutory mandate, i.e., that they “shall” provide “special assistance” to student s that fail the fourth or seventh grade MEAP reading test. While the precise nature of th at required assistance re mains 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 complianc e 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 be fore us. He explained that while the ultimate action chosen by a governmental ag ent or entity may remain discre tionary and, therefore, beyond mandamus, a court does possess jurisdiction to di rect that governmental agent or entity to exercise its discretion and to do so in accordance with the app licable 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 meritori ous, may pose challenges. However, it is likely that a judicially crafted remedy would not be necessary. The pa rties 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 ha ve ruled in favor of plaintiffs in claims like the one now before us have declared the status quo unc onstitutional and, rather than attempting to define what must be done, have simply direct ed the legislative or executive branch to adopt remedial ac tion 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; ju risdiction 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 th at the legislature failed to fulfill constitutional duties to provide for an efficient system of public schools, but withholding finality of the decision until 90 da ys 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 reme dy: the issuance of a personal protection order does not automatically insu late an individual from further harassment, the imprisonment of a convicted mu rderer does not bring the victim back to the life or heal her loved ones, and civil judgments often fail to make th e prevailing party whole. In sum, the role of the court is to determin e the rights of the pa rties under the rule of law and, based on that determination, fashion a reasonable, albeit ofte n 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 on ly available solution fo r these children is “p olitical,” 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 judgment 14 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 pur view. 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 wa s made independent because it has . . . the primary responsibility and duty of giving for ce and effect to cons titutional liberties and limitations upon the executive and le gislative branches.” Black, The Bill of Rights , 35 NYU L Rev 865, 870 (1960).

V. CONCLUSION

My colleagues offer kindly worded sympat hy to the children whose futures are in jeopardy through no fault of their own. But, th e schoolchildren who brought this claim are not requesting this Court’s sympathy. They are as king 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 re medy 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 que stion 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 st atutory or constitutional standards. However, I do assert, consistent with precedent, that this is a ju sticiable matter, states a claim, and that a trial court, after hearing the releva nt proofs, may render a decision subject to appellate review.

Accordingly, I respectfully dissent.

/s/ Douglas B. Shapiro

14 The majority opinion fails to substantively disc uss 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 380.1 278(8) . . . [and] declare as unconstitutional Defendants’ violation of Plainti ffs’ rights under Article 8, Sec tions 1 and 2 of the Michigan Constitution; [and] declare as unconstitutional Defe ndants’ 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 s upport its summary dismissal.