Campaign for Quality Educ. v. State

In these consolidated appeals, appellants ask us to reinstate their claims in which they seek declaratory and injunctive relief on the ground that respondents are allegedly violating sections 1 and

First, there can be no doubt that the fundamental right to a public school education is firmly rooted in California law as it "has historically been accorded an ascendant position in this state. Indeed, at the very start, article IX of our 1849 Constitution created the office of Superintendent of Public Instruction; required the Legislature to encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement; required the Legislature to establish a system of common schools; and established a fund for the support of the common schools. (See Stats. 1849, p. 32.) ... Section 1 of article IX of the Constitution now provides, as it has since 1879: 'A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.' Section 5 of article IX presently mandates, as it has since 1879: 'The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.' " ( California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513 , 1522, 7 Cal.Rptr.2d 699 ( Hayes ).)

"The early case of Ward v. Flood (1874) 48 Cal. 36 [ ( Ward ) ], considered the provisions of the Constitution of 1849 relative to educational affairs which, in all material respects, [are] similar to the present Constitution. The Supreme Court said: 'The opportunity of instruction at public schools is afforded the youth of the state by the statute of the state, enacted in obedience to the special command of the constitution of the state, directing that the legislature shall provide for a system of common schools, by which a school shall be kept up and supported in such district ..., etc. ( [A]rt. XIX, [former] [§] 3). The advantage or benefit thereby vouchsafed to each child, of attending a public school is, therefore, one derived and secured to it under the highest sanction of positive law. It is therefore, a right-a legal right -as distinctively so as the vested right in property owned is a legal right, and as such it is protected, and entitled to be protected by all the guarantees by which other legal rights are protected and secured to the possessor.' ( [ Ward , supra ,] 48 Cal. at p. 50, italics added; quoted in Piper v. Big Pine School Dist. (1924) 193 Cal. 664 , 670 [ 226 P. 926 ].)" ( Slayton v. Pomona Unified School Dist . (1984) 161 Cal.App.3d 538 , 548-549, 207 Cal.Rptr. 705 , fn. omitted.)

Second, there is no dispute that "our Constitution vests the Legislature with sweeping and comprehensive powers in relation to our public schools ( Hall v. City of Taft [ (1956) ] 47 Cal.2d [177,] 179 [ 302 P.2d 574 ] ), including broad discretion to determine the types of programs and services which further the purposes of education ( [ Hayes ,] supra , 5 Cal.App.4th at p. 1528 [ 7 Cal.Rptr.2d 699 ] )," and "such functions as educational focus, teaching methods, school operations, furnishing of textbooks and the like." ( Wilson v. State Bd. of Educ . (1999) 75 Cal.App.4th 1125 , 1134-1135, 89 Cal.Rptr.2d 745 ( Wilson ); see California Teachers Assn. v. Board of Trustees (1978) 82 Cal.App.3d 249 , 255, 146 Cal.Rptr. 850 ["the curriculum and the courses of study included in the common state curriculum are not prescribed by the Constitution, but are details left to the discretion of the Legislature," and "[t]hey do not constitute a part of the system, but are simply a function of that system"].) And, as appellants admit, the Legislature,

Appellants seemingly acknowledge the absence of textual support for the inchoate right to a quality education that they assert here. As such, they argue that sections 1 and 5, when read together in the context of article IX, support a finding of an "implicit" right to an education of "some quality." However, we are not at liberty to infer the existence of a constitutional right based on well-established principles of constitutional interpretation that counsel otherwise. As our Supreme Court explained in People ex rel. Brodie v. Weller (1858) 11 Cal. 77 , 86 : "We do not ... approve of the principle of constitutional construction, which seeks by vague surmises, or even probable conjecture, or general speculation of a policy not distinctly expressed, to control the express language of the instrument; since such mode would not unfrequently change the instrument from what its framers made it, into what Judges think it should have been. Chief Justice Marshall, in Gibbons v. Ogden , ( [ (1824) 22 U.S. 1 ,] 9 Wheat. 1 [ 6 L.Ed. 23 ] ) ) speaking of the federal constitution, says '[the framers], and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said [ id . at p. 188 ];' " and, earlier, in Sturges v. Crowninshield (1819) 17 U.S. 122 , 4 Wheat. 122 , 4 L.Ed. 529 , Chief Justice Marshall says "although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words" (17 U.S. at p. 202, 4 Wheat. at p. 202 ). And, more recently, in Washington v. Glucksberg (1997) 521 U.S. 702 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 , the high court, in addressing the contours of a federal constitutional substantive due process claim, said that "[b]y extending constitutional protection

IV. Sections 1 and 5 of Article IX Do Not Provide For A Minimum Level of Educational Expenditures

In seeking reinstatement of their complaints, appellants alternatively posit that regardless of their educational adequacy argument, they can demonstrate the Legislature's current allocation of funds for the legislatively-mandated education of public school children fails to comply with article IX. As a remedy for the purported failure, appellants seek a declaration declaring that the Legislature's current allocation of funds does not provide an adequate education for all public school students, and an order compelling the Legislature to implement an education financing system that complies with the constitutional right to an education under court supervision . We conclude that appellants are not entitled to the requested relief as they cannot show that the constitutional provisions they invoke restrict legislative discretion in allocating

An overview of California's educational financing scheme, as established by legislation and interpreted by the courts, is helpful to our analysis of Appellants' funding claim. "Under the state Constitution, the Legislature is obligated to provide for a public school system. (Cal. Const., art. IX, § 5 ; Wells [, supra ,] 39 Cal.4th [at p.] 1195 [ 48 Cal.Rptr.3d 108 , 141 P.3d 225 ].) Seeking to promote local involvement, the Legislature established school districts as political subdivisions and delegated to them that duty. ( Wells , [ supra ,] at p. 1195 [ 48 Cal.Rptr.3d 108 , 141 P.3d 225 ] ; Butt v. State of California (1992) 4 Cal.4th 668 , 680-681 [ 15 Cal.Rptr.2d 480 , 842 P.2d 1240 ] ; see also [ Hayes, supra ,] 5 Cal.App.4th [at p.] 1523 [ 7 Cal.Rptr.2d 699 ].) Historically, school districts were largely funded out of local property taxes. ( Serrano v. Priest (1971) 5 Cal.3d 584 , 592 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ] ( Serrano I ); Serrano v. Priest [, supra ,] 18 Cal.3d [at pp.] 737-738 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ] ( Serrano II ); see County of Los Angeles v. Sasaki (1994) 23 Cal.App.4th 1442 , 1450 [ 29 Cal.Rptr.2d 103 ].) Under the California system of financing as it existed until the 1970's, different school districts could levy taxes and generate vastly different revenues; because of the difference in property values, the same property tax rate would yield widely differing sums in, for example, Beverly Hills and Baldwin Park. ( Serrano I, at pp. 592-594 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ].)" ( California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231 , 243, 135 Cal.Rptr.3d 683 , 267 P.3d 580 ( Matosantos ).)

In Serrano I and Serrano II , our Supreme Court invalidated the 1970's system of education financing, "holding that education was a fundamental interest ( Serrano I, supra , 5 Cal.3d at pp. 608-609 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ] ; Serrano II, supra , 18 Cal.3d at pp. 765-766 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ] ) and that financing heavily dependent on local property tax bases denied students equal protection ( Serrano I , at pp. 614-615 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ] ; Serrano II, at pp. 768-769, 776 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ] ). The Serrano decisions threw 'the division of state and local responsibility for educational funding' into ' "a state of flux." ' ( Los Angeles Unified School Dist. v. County of Los Angeles (2010) 181 Cal.App.4th 414 , 419 [ 104 Cal.Rptr.3d 590 ].) In their aftermath, a 'Byzantine' system of financing ( [ Hayes, supra, 5 Cal.App.4th at p. 1525 [ 7 Cal.Rptr.2d 699 ] ] ) evolved in which the state became the principal financial backstop for local school districts. Funding equalization was achieved by capping individual districts' abilities to raise revenue and enhancing state contributions to ensure minimum funding levels. (Lockard, In the Wake of Williams v. State: The Past, Present, and Future of Education Finance Litigation in California (2005) 57 Hastings L.J. 385 , 388-398 ; see generally Wells [ , supra, ] 39 Cal.4th at p. 1194 [ 48 Cal.Rptr.3d 108 , 141 P.3d 225 ] [discussing current funding regime].)" (

We conclude our discussion here by "emphasiz[ing] that the Legislature's power over our public school system is plenary, subject only to constitutional restraints. [Citations.]" ( Wilson, supra , 75 Cal.App.4th at p. 1134, 89 Cal.Rptr.2d 745 .) Thus, Appellants' assertion "that the Legislature is not providing enough funding for [education] is not a basis for a lawsuit." ( Grossmont, supra , 169 Cal.App.4th at p. 886, 86 Cal.Rptr.3d 890 ; see California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770 , 798, 121 Cal.Rptr.3d 696 ["[t]he formulation of a budget bill, including the items to be placed in the bill, is inherently a discretionary and legislative power," and "[t]he budget determination is 'limited by [the Legislature's] discretion, and beyond the interference of courts' "]; id . at p. 799, 121 Cal.Rptr.3d 696 ["[t]he California Constitution's separation of powers doctrine forbids the judiciary from issuing writs that direct the Legislature to take specific action, including to appropriate funds and pass legislation"].) Appellants raise "a public policy claim, 'properly resolved ... in the halls of the Legislature.' " ( Grossmont, supra , at p. 892, 86 Cal.Rptr.3d 890 .)

V. Conclusion

We agree wholeheartedly with appellants that the provision of a quality education for all public school students is an important goal for society as it ensures full participation in our constitutional democracy. Nonetheless, we must deny their request to reinstate those portions of their complaints' causes of action based on alleged violations of sections 1 and 5 of article IX. When read singly or together, sections 1 and 5 of article IX evince no constitutional mandate to an education of a particular standard of achievement or impose on the Legislature an affirmative duty to provide for a particular level of education expenditures. Our decision is consistent with the "rules of constitutional interpretation, which require that constitutional limitations and restrictions on legislative power ' " 'are to be construed strictly, and are not be extended to include matters not covered by the language used.' " ' [Citation.] Under these principles, there is no basis for applying [sections 1 and 5 of article IX] as an equitable remedy to cure the perceived unfairness resulting from political decisions on funding priorities,"

The plaintiffs allege that our state's constitutionally recognized right to education brings with it an obligation of the state to fund education at a qualitative level-an obligation that arises organically and by implication from a reading of article IX sections 1 and 5 of our state constitution together. They say, "Taken as a whole, the language and history of article IX make clear that the fundamental right to an education must have some qualitative meaning, and it is the duty of the State to keep up and support an educational system that provides all California school children that fundamental right." This implicit constitutional obligation is yet inchoate and undefined, and no court of our state has yet recognized it.

As much as I can appreciate the plaintiffs' frustration and dissatisfaction with the overall adequacy of California's public schools, and recognize our Legislature's challenges in adequately funding schools to meet the standards it sets, I cannot agree that article IX provides a right to command the state to fund schools at some qualitative level. I so conclude for three principal reasons.

Our state constitution contains provisions that, the plaintiffs acknowledge, explicitly set a minimum level of funding to public schools. But it also contains provisions that set a maximum. Proposition 98 passed by the voters in 1988 and Proposition 111 passed in 1990 established a minimum level of funding commonly known as the minimum funding guarantee, but also established a limit of excess revenues that can go to the schools. (Cal. Const., art. XVI, §§ 8, 8.5.) Moreover, as recently as 2014, voters approved a measure placed on the ballot by the Legislature to add section 21 to article XVI of the state constitution to create a state reserve for schools and community colleges and thereby lessen the impact of any economic downturn on the amount of money available to the schools under constitutional formulas. For me, these express provisions conflict with the plaintiffs' argument that an implicit constitutional right to educational adequacy mandates some other minimum specific level of state support to the schools.

Second, I have no quibble with the plaintiffs' position that the state must afford students the "opportunity to obtain a meaningful education and to learn the academic content standards." For me, assessing whether that obligation has been fulfilled begins and ends with whether our educational system enables sufficient numbers of students to meet the standards articulated in state statutes. The Superintendent of Public Instruction is required by law to develop an Academic Performance Index that measures the performance of school districts, schools and pupils. This index is required to take into account results of statewide achievement tests administered to students in grades 2 through 11. (Ed. Code, § 52052, subd. (a)(1) & (a)(4)(A).) In 2013, this system of assessment was modified to utilize a new testing method. (Ed. Code, § 52052 as amended by Stats. 2013, ch. 489 (A.B. 484).) The new testing and assessment scheme reflects the "intent of the Legislature that the state's system of public school accountability be more closely aligned with both the public's expectations for public education

In holding that education is a fundamental interest under our state Constitution's equal protection clause, in the landmark decision Serrano v. Priest (1971) 5 Cal.3d 584 , 96 Cal.Rptr. 601 , 487 P.2d 1241 , the Supreme Court began "by examining the indispensable role which education plays in the modern industrial state. This role, we believe, has two significant aspects: first, education is a major determinant of an individual's chances for economic and social success in our competitive society; second, education is a unique influence in a child's development as a citizen and his participation in political and community life. '[T]he pivotal position of education to success in American society and its essential role in opening up to the individual the central experiences of our culture lend it an importance that is undeniable.' [Citation.] Thus, education is the lifeline of both the individual and society." ( Id. at p. 605, 96 Cal.Rptr. 601 , 487 P.2d 1241 .) The Serrano court went on to quote from the historic Brown v. Board of Education decision ((1954) 347 U.S. 483 , 493, 74 S.Ct. 686 , 98 L.Ed. 873 ), that " '[i]n these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.' " (5 Cal.3d at p. 606, 96 Cal.Rptr. 601 , 487 P.2d 1241 .)

As the lead opinion recognizes, and I repeat here two paragraphs of the opinion, "there can be no doubt that the fundamental right to a public school education is firmly rooted in California law as it 'has historically been accorded an ascendant position in this state. Indeed, at the very start, article IX of our 1849 Constitution created the office of Superintendent of Public Instruction; required the Legislature to encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement; required the Legislature to establish a system of common schools; and established a fund for the support of the common schools. (See Stats. 1849, p. 32.) ... Section 1 of article IX of the Constitution now provides, as it has since 1879: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement." Section 5 of article IX presently mandates, as it has since 1879: "The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established." ' ( California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513 , 1522 [ 7 Cal.Rptr.2d 699 ] ) [¶] 'The early case of Ward v. Flood (1874) 48 Cal. 36 [ ( Ward ) ] considered the provisions of the Constitution of 1849 relative to educational affairs which, in all material respects, [are] similar to the present Constitution. The Supreme Court said: "The opportunity of instruction at public schools is afforded the youth of the state by the statute of the state, enacted in obedience to the special command of the constitution of the state, directing that the legislature shall provide for a system of common schools, by which a school shall be kept up and supported in such district ... , etc. ( [A]rt. XIX, [former] [§] 3). The advantage or benefit thereby vouchsafed to each child, of attending a public school is, therefore, one derived and secured to it under the highest sanction of positive law. It is therefore, a right-a legal right -as distinctively so as the vested right in property owned is a legal right, and as such it is protected, and entitled to be protected by all the guarantees

Thus, our state's jurisprudence makes clear that our children have a right to an education. And, as Chief Justice Cantil-Sakauye wrote when sitting on the Court of Appeal, "naturally" the school system mandated by the Constitution "should provide a high quality education for all the students of our state." ( Levi v. O'Connell, supra, 144 Cal.App.4th at p. 708, 50 Cal.Rptr.3d 691 .) In that case, involving the demands of a highly gifted teenager, the court held that article IX section 5 does not confer "a right to a free college education." ( Levi , p. 710, 50 Cal.Rptr.3d 691 .) But neither that nor any other decision takes issue with our Supreme Court's observation in Serrano v. Priest, supra, 5 Cal.3d at page 607, 96 Cal.Rptr. 601 , 487 P.2d 1241 , that "surely the right to an education today means more than access to a classroom."

As the majority of state courts addressing this issue has recognized, if the constitutional provision is to have meaning, it must imply that the system of common schools must provide some minimum qualitative level of education. Such a reading of article IX is fully consistent with, if not compelled by, the importance that our Supreme Court historically has placed on the role of education and the recognition that it is a fundamental right of all the state's children. Certainly there are extremes that all would agree fail to meet the constitutional standard-such as a curriculum that did not include reading or arithmetic, or a schedule of only one day or one hour per week. As stated by the Texas Supreme Court in a case much like the one before us, "no one would dispute that a public education system limited to teaching first-grade reading would be inadequate." ( Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., supra, 176 S.W.3d at p. 778.) Indeed, in Butt v. State of California (1992) 4 Cal.4th 668 , 15 Cal.Rptr.2d 480 , 842 P.2d 1240 , in determining whether the truncation of the school term by a school district violates the state Constitution's guaranty of educational equality, our Supreme Court pointed to the need to consider "the actual quality of the district's program, viewed as a whole." ( Id. at pp. 686-687, 15 Cal.Rptr.2d 480 , 842 P.2d 1240 ; see also, e.g., Conn. Coalition for Justice in Educ. Funding, Inc. v. Rell, supra, 990 A.2d at pp. 249-250 ["our research has revealed that those state courts that have reached the merits of the issue overwhelmingly have held that there is a floor with respect to the adequacy of the education provided pursuant to their states' education clauses; that education must be in some way 'minimally adequate' or 'soundly basic' "]; Gannon v. State of Kansas, supra, 319 P.3d at p. 1228 [" ' There is a point where the legislature's funding of education may be so low that ... it would be impossible to find that the legislature has made "suitable provision for finance of the educational interests of the state." ' "].)

The seemingly obvious point, with which my colleagues disagree, that the constitutional mandate to provide a public school system implies the need to maintain public schools at some minimum level of competence, is brought home by comparison to the right to counsel. Although both the federal and state Constitutions say merely that there is a right to "the assistance of counsel" (U.S. Const., Amend. VI ; Cal. Const., art. I, § 15 ), there is no doubt that this right implies that the assistance must be effective or adequate assistance. As noted by one commentator, "[t]he parallels between the right to adequate counsel and

Recognizing that the public schools must operate at some minimum level of proficiency admittedly does not define the quality of the system that must be maintained. Certainly the Constitution does not mandate particular curriculum or instructional methods, specifics that are within the discretion of the Legislature to determine. "There can thus be no doubt that our Constitution vests the Legislature with sweeping and comprehensive powers in relation to our public schools ( Hall v. City of Taft [ (1956) ] 47 Cal.2d [177,] 179 [ 302 P.2d 574 ] ), including broad discretion to determine the types of programs and services which further the purposes of education ( [ Hayes, ] supra, 5 Cal.App.4th at p. 1528 [ 7 Cal.Rptr.2d 699 ] )." ( Wilson v. State Bd. of Educ . (1999) 75 Cal.App.4th 1125 , 1134-1135, 89 Cal.Rptr.2d 745 .) "[T]he curriculum and courses of study are not constitutionally prescribed [but] ... are details left to the Legislature's discretion [and] ... do not constitute part of the system but are merely a function of it. ( California Teachers Assn. v. Board of Trustees [ (1978) ] 82 Cal.App.3d [249,] 255 [ 146 Cal.Rptr. 850 ].) The same could be said for such functions as educational focus, teaching methods, school operations, furnishing of textbooks and the like." ( Wilson , supra , at p. 1135, 89 Cal.Rptr.2d 745 .)

Yet, the specifics of the education system prescribed by the Legislature do not necessarily create a system that provides students with a minimally acceptable basic education. The complaints before us forcefully allege that the current system does not do so. Plaintiffs allege that although "the state has established a comprehensive education program that defines specific academic knowledge, skills, and abilities that all public schools are expected to teach and all students are expected to learn ... , [t]here is ... one glaring omission in the state's required educational 'system': The state makes absolutely no attempt to align funding policies and mechanisms with the educational program it has put in place, to determine the actual cost of the educational program, or to provide districts with the financial resources to provide the programs and services it has prescribed. Nor does the state's funding scheme take into account the learning needs of certain populations of students, including English Learners and economically disadvantaged children, to ensure that all children receive an opportunity to achieve the state's educational goals and thus have an opportunity to participate in civic life and become productive participants in the economy. Instead, the state bases funding for its education program on formulas that were cobbled together decades ago for a very different educational program and very different needs." Plaintiffs quote the 2007 report of the Governor's Committee on Education Excellence, " 'California's current K-12 education finance system is the most complex in the nation but yields little benefits. Core funding is based on anachronistic formulas, neither tied to the needs of individual students nor to intended academic outcomes.' " The same report characterizes the educational system as "fundamentally flawed. It is not close to helping each student become proficient in mastering the state's clear curricular standards, and wide disparities persist between rich and poor, between students of color and others,

The contention that the current system fails to satisfy a constitutional mandate necessarily supposes a standard by which to define a minimally acceptable quality of education. The inherent difficulty of articulating such a standard, and the absence of such an articulation within the language of the state constitutions, in large part underlies the refusal of those state supreme courts that have declined to interpret their constitution to imply such a standard. However, decisions from many other states demonstrate that courts are capable of articulating such a standard, albeit a standard that is general and requires intensive factual analysis to apply.

In Campaign for Fiscal Equity, Inc. v. State, supra, 631 N.Y.S.2d 565 , 655 N.E.2d 661 ( CFE I ), for example, the New York Court of Appeal, with only the pleadings before it, did "not attempt to definitively specify what the constitutional concept and mandate of a sound basic education entails" but "articulate[d] a template reflecting [its] judgment of what the trier of fact must consider in determining whether defendants have met their constitutional obligation" ( id ., 631 N.Y.S.2d 565 , 655 N.E.2d at pp. 666-667 ). The court held that a sound basic education within the meaning of the New York Constitution "should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury." ( Id ., 631 N.Y.S.2d 565 , 655 N.E.2d at p. 666.) Further, "Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas." ( Ibid . ) Following a trial, in Campaign for Fiscal Equity, Inc. v. State of New York (2003) 100 N.Y.2d 893 , 769 N.Y.S.2d 106 , 801 N.E.2d 326 ( CFE II ), the court defined "sound basic education" more exactly, as the "opportunity for a meaningful high school education, one which prepares [children] to function productively as civic participants." ( Id., 769 N.Y.S.2d 106 , 801 N.E.2d at p. 332 ; see Campaign for Fiscal Equity, Inc. v. State of New York (2006) 8 N.Y.3d 14 , 828 N.Y.S.2d 235 , 861 N.E.2d 50 , 53 ( CFE III ).) "To determine whether New York City schools in fact deliver the opportunity for a sound basic education, the trial court took evidence on the 'inputs' children receive-teaching, facilities and instrumentalities of learning-and their resulting 'outputs,' such as test results and graduation and dropout rates." ( CFE II, supra , 769 N.Y.S.2d 106 , 801 N.E.2d at p. 332.) Ultimately, based on the evidence presented at trial, the high court upheld the finding that there was a causal link between the state's funding system and the failure of New York City's schools to provide children "the constitutionally mandated opportunity for a sound basic education." ( CFE II, supra , 769 N.Y.S.2d 106 , 801 N.E.2d at p. 340 ; CFE III, supra , 828 N.Y.S.2d 235 , 861 N.E.2d at p. 52.)

A somewhat similar standard was articulated by the Supreme Court of Kentucky. (

In McDuffy v. Secretary of the Executive Office of Education, supra, 615 N.E.2d at page 517, the Supreme Judicial Court of Massachusetts considered these issues in the context of the Commonwealth's constitutional provision requiring the Commonwealth to "cherish" the public schools. The court reviewed the history of public education in Massachusetts and noted the importance attached to such education. The court concluded that "[w]hat emerges from this review is that the words are not merely aspirational or hortatory, but obligatory. What emerges also is that the Commonwealth has a duty to provide an education for all its children, rich and poor, in every city and town of the Commonwealth at the public school level." ( Id . at p. 548.) The record in that case "show[ed] clearly that, while the present statutory and financial schemes purport to provide equal educational opportunity in

In Abbeville County School District v. State of South Carolina, supra , 767 S.E.2d at page 167, the Supreme Court of South Carolina "acknowledge[d] that the Defendants enacted a robust education scheme designed to address the critical aspects of public education," but observed that "student performance in the Plaintiff Districts demonstrates an apparent disconnect between intentions and performance." According to the court, "The measurable inputs and outputs show that the Defendants have failed to provide students in the Plaintiff Districts the requisite constitutional opportunity. Inadequate transportation fails to convey children to school or home in a manner conducive to even minimal academic achievement. Students in the Plaintiff Districts receive instruction in many cases from a corps of unprepared teachers. Students in these districts are grouped by economic class into what amounts to no more than educational ghettos, rated by the Department of Education's guidelines as substandard. Large percentages of the students in the Plaintiff Districts-over half in some instances-are unable to meet minimal benchmarks on standardized tests, but are nonetheless pushed through the system to 'graduate.' " ( Id. at p. 175.) The court held that "South Carolina's educational funding scheme is a fractured formula denying students in the Plaintiff Districts the constitutionally required opportunity [for a basic education]." ( Id. at p. 173.)

As have the courts of these many states and others, I too conclude that the provisions of our state Constitution requiring the state to support a system of common schools is not without substance, and that the Constitution requires a system that provides students with a meaningful basic education in reality as well as on paper. As demonstrated by the experience in those states in which their Constitution has been interpreted to mandate an educational system meeting a qualitative standard, a standard such as those articulated in the opinions quoted above, though general, permits meaningful evaluation of a school system by educational professionals and experts. "These standards import a wide spectrum of considerations and are admittedly imprecise, but they are not without content. ... The constitutional standards provide an appropriate basis for judicial review and determination." ( Neeley v. West Orange-Cove Consolidated Independent School Dist., supra, 176 S.W.3d at pp. 778-779.) As noted by the Connecticut Supreme Court, its "explication of a constitutionally adequate education" (quoted above) was "crafted in broad terms." ( Conn. Coalition for Justice in Educ. Funding, Inc. v. Rell, supra , 990 A.2d at p. 254.) But, the court points out, this breadth reflects not only the "recognition of the political branches' constitutional responsibilities, and indeed, greater expertise, with respect to the implementation of specific educational policies" and that "the specific educational inputs or instrumentalities suitable to achieve this minimum level of education may well change over time," but that "like any other principle of constitutional law, this broad standard likely will be refined and developed further as it is applied to the facts eventually to be found at trial in this case." ( Id . at pp. 254-255.) Using such a standard, the courts can determine whether the existing system of funding and governing California's public

Furthermore, to the extent that more funds are necessary to provide all students with the basic education mandated by the Constitution, the court's inability to compel the Legislature to appropriate those funds is no reason for the court to refrain from exercising its proper authority to determine whether the state is complying with the constitutional mandate. We need not presume that the Legislature will fail to respond appropriately if the court should ultimately determine that the Constitution is being violated by the lack of sufficient funding. Indeed, our Supreme Court has previously expressed its confidence that "the Legislature, aided by what we have said today ... will be able to devise a public school financing system which achieves constitutional conformity." ( Serrano v. Priest (1976) 18 Cal.3d 728 , 775, fn. 54, 135 Cal.Rptr. 345 , 557 P.2d 929 .) Many other courts, while recognizing the need for deference to the role of the Legislature, have echoed this view. (E.g., Ex Parte James (Ala. 1997) 713 So.2d 869 , 882 ["[T]he judiciary should not presume at the outset of litigation of this nature that legislative and executive officials will be derelict in their duties. Indeed, it must assume the contrary."].) Moreover, as the experience in other states confirms, various forms of relief are available short of ordering the Legislature to appropriate funds. Courts have required plans to be developed to address and correct adjudicated deficiencies. The intensive examination of the system that trial of plaintiffs' allegations would necessarily entail may be expected to yield other specific forms of relief. I would not at this preliminary stage attempt to predict the outcome of further proceedings, but I do not assume that no meaningful relief is possible.

It is true that the experience in some states where the courts have ordered relief has not been entirely positive. In the State of Washington, the Supreme Court has held the state in contempt for failing to comply with its orders. ( McCleary v. State of Washington (Supreme Ct. No. 84362-7, Order Sept. 11, 2014.)) In Kansas, school closings have been threatened as the result of judicial intervention. (Eveld, Kansas Supreme Court voices aggravation at Legislature in school funding case , The Kansas City Star (Nov. 6, 2015) < http://www.kansascity.com/news/local/article43417731.html> [as of Apr. 20, 2016].) Litigation in Texas has given rise to multiple decisions from the Texas Supreme Court since 1989, producing this dissenting opinion in 2005: "Of course, the true goal of this litigation is to put pressure on the Texas Legislature. We demanded legislative changes by holding the Texas school-finance system unconstitutional in [three separate cases] ... [and] warned that we might do so again soon in [two other cases]. The Court fulfills that threat today. But there is no end in sight; if the past is any indication, the new funding will not last long, and public education will not change much." ( Neeley v. West O range - Cove Consolidated Independent School Dist., supra, 176 S.W.3d at pp. 800-801 (dis. opn. of Brister, J.), fns. omitted.) Litigation in those states is still ongoing, however, so that it cannot yet be said to what extent the court's involvement will have improved the quality of education in those jurisdictions.

In other states extended litigation following the court's recognition of a constitutional mandate for quality education has produced meaningful improvements in the educational system. In Massachusetts, for example, in 1993 its highest court directed entry of a declaration that the provisions

In New York, the high court's ruling that the education article of their state constitution "require[d] the State to offer all children the opportunity for a sound basic education" ( CFE I, supra , 631 N.Y.S.2d 565 , 655 N.E.2d at p. 661 ) led to a trial at which it was determined that inadequate funding caused New York City children not to receive that opportunity ( CFE II, supra, 769 N.Y.S.2d 106 , 801 N.E.2d at p. 340-344 ). The court directed the state to ensure by means of "[r]eforms to the current system of financing school funding and managing schools ... that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education." ( Id. , 769 N.Y.S.2d 106 , 801 N.E.2d at p. 348.) The court directed the state to ascertain the actual cost of providing a sound basic education in New York City, rather than the state as a whole, and set a deadline to implement its directive. ( Id. , 769 N.Y.S.2d 106 , 801 N.E.2d at pp. 348-349.) In response, the Governor promptly "issued an executive order creating the New York State Commission on Education Reform, charged with recommending education financing and other reforms that would ensure that all children in New York State have an opportunity to obtain a sound basic education." ( CFE III, supra, 828 N.Y.S.2d 235 , 861 N.E.2d at p. 53.) Based on a methodology explained in CFE III, and the resulting estimated "spending gaps," the Governor proposed legislation to provide increased funding to fill those gaps. That legislation was not initially enacted ( id. , 828 N.Y.S.2d 235 , 861 N.E.2d at p. 55 ), but according to the 2007 Update from the New York State Assembly Education

I would not presume to predict the long-term consequences of permitting plaintiffs' disturbing allegations to be examined at trial and the appropriateness of any remedy for confirmed inadequacies evaluated on appeal. I conclude only that plaintiffs have alleged on-going violations of our state Constitution, that it is the responsibility of the courts to adjudicate the merits of that claim, that the courts are capable of fulfilling that responsibility, and that, should plaintiffs' allegations be proven, the potential for meaningful relief cannot be dismissed. It may well be that the extent to which proven deficiencies in California's educational system ultimately are corrected will depend on the good faith of legislators and other public officials and the play of political forces. Nonetheless, I would not assume that a judicial edict, entered and upheld after the searching inquiry demanded by our court system, would be for naught.

I would therefore reverse the order sustaining demurrers and granting judgment on the pleadings as to the causes of action alleging the ongoing violation of section 5 of article IX of the California Constitution, and remand so that the accuracy of plaintiffs' allegations can be fully evaluated and appropriate relief thoughtfully considered.

Attachment

Filed 8/22/16

Court of Appeal, First Appellate District, Division Three - Nos. A134423/A134424

S234901

IN THE SUPREME COURT OF CALIFORNIA

En Banc

CAMPAIGN FOR QUALITY EDUCATION, Plaintiff and Appellant,

v.

STATE OF CALIFORNIA et al., Defendants and Respondents; AND CONSOLIDATED CASE.

The petition for review is denied.

Chin, Liu and Cuéllar, JJ., are of the opinion the petition should be granted.

Chief Justice

DISSENTING STATEMENT

by Liu, J.

The question at the heart of this case is whether California's K-12 education system has fallen below a minimum level of quality guaranteed by our state Constitution. The plaintiffs include dozens of students of various races, ethnicities, and socioeconomic backgrounds, from first graders to twelfth graders, all of whom attend public schools throughout the state. Citing a wide range of studies and indicators, these schoolchildren allege that the state is failing to provide access to a meaningful education that prepares them to meet the state's academic standards, to achieve economic and social success, and to participate in the political and civic life of their communities. This failure, they contend, violates the education clauses of the California Constitution. (Cal. Const., art. IX, §§ 1 ["A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall

The Court of Appeal, in a 2-1 decision, affirmed the trial court's dismissal of the complaints. ( Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896 ( Campaign for Quality Education ).) The panel produced three opinions. The majority, in an opinion by Justice Jenkins, held that "sections 1 and 5 of article IX do not provide for an education of 'some quality' that may be judicially enforced by appellants." ( Id. at p. 906.) Those provisions, the majority explained, "do not allow the courts to dictate to the Legislature, a coequal branch of government, how to best exercise its constitutional powers to encourage education and provide for and support a system of common schools throughout the state." ( Id. at pp. 915-916.) Justice Siggins, in a concurring opinion, took the view that "the academic standards articulated in our Education Code" essentially define "the constitutional right to a quality education" and that any claims of systemic inadequacy "should arise under the statutes ... without resort to the general language of article IX." ( Id. at p. 918 (conc. opn. of Siggins, J.).) Justice Pollak dissented, saying that "if [article IX] is to have meaning, it must imply that the system of common schools must provide some minimum qualitative level of education. Such a reading of article IX is fully consistent with, if not compelled by, the importance that our Supreme Court historically has placed on the role of education and the recognition that it is a fundamental right of all the state's children." ( Id. at p. 922 (dis. opn. of Pollak, J.).)

Because this case presents unsettled questions of the utmost importance to our state and its schoolchildren, the petition before us readily meets our criteria for review. We are clearly being asked "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) Plaintiffs have made serious allegations of chronic deficiencies in California's K-12 education system, and they have asserted constitutional claims that only this court can definitively resolve. The issues are ones that divided our colleagues in the Court of Appeal, whose three opinions illuminate the momentous and complex nature of the controversy. That court ultimately held that the constitutional adequacy of the largest function of our state government is not an issue within the judiciary's purview. A holding of this magnitude, whether correct or not, warrants a full and reasoned examination by the state's highest court.

The high courts in more than two-thirds of the states have addressed these issues over the past three decades in cases arising under the education clauses of their state constitutions. A substantial majority of these courts have decided it is their duty to resolve the constitutional issues; the minority that have found the issue nonjusticiable have done so in published opinions. Many courts have articulated standards for educational adequacy, and such standards have led to progress in some states but not others. All of this experience is available to aid our resolution of this case. Yet this court today decides that the issues presented do not merit our review.

It is not the judiciary's job to make educational policy or to run the public schools. Those functions are constitutionally committed to the political branches (

I

n order to understand the significance of this case, it is useful to have some historical context. Fifty years ago, California's public schools were the envy of the nation. As an eminent scholar of California history has written, "[i]n the so-called Golden Age following World War II, the schools of California were considered among the best in the nation, and test scores proved it." (Starr, California: A History (2005) p. 335.) During that period, "[p]ublic schools were being built by the hour, and dedicated. And public school architecture was at its best. An entire generation of talented young men and women went into public school teaching and administration. There was a sense that a utopia was being formed in the classroom." (Learning Matters, First to Worst (2004) [video program; Kevin Starr interview].) So confident were the state's leaders in the educational future of California's schoolchildren that they devised and executed a "Master Plan" to build what many regard as the best public university system in the world. (Starr, Golden Dreams: California in an Age of Abundance (2009) pp. 217-244.)

"But by the early 1990s, California had dropped to the lowest rankings in terms of scores and dollars spent on K-12 education. In 1993, for example, fourth-graders in California were vying with fourth-graders in Mississippi for the dubious distinction of being the worst readers in the nation." (Starr, California: A History, supra , at p. 335.) This decline of California's K-12 education system, as the student population has become more diverse, is well-documented. (See Carroll et al., Rand Corp., California's K-12 Public Schools: How Are They Doing? (2005).) For two decades now, California has trailed most states on student achievement and education funding. (See Quality Counts , Education Week (1997-2016) < http://www.edweek.org/ew/qc/> [as of Aug. 22, 2016].) The allegations in the complaints, which we must accept as true at this stage of the litigation ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 , 1081, 6 Cal.Rptr.3d 457 , 79 P.3d 569 ), paint a sobering picture.

According to one of the complaints (there are two in this case), "[d]espite having one of the most diverse and challenging student population [ sic ] in the nation, California per pupil spending in 2008-09 was $2,131 below the national average, ranking the State 44th in the country. California's per pupil spending was less than each of the largest 10 states in the nation, with New York spending almost $6,000 more per pupil." The staffing of California's public schools reflects the

The test scores of California students, on average and disaggregated by subgroups, are among the lowest in the nation, as measured by the federally administered National Assessment of Educational Progress. On the 2009 assessment, one complaint alleges, "California tied for 47th of fourth grade reading and tied for 46th in eighth grade math. [¶] Academic performance is low for all subgroups of students. Even for students who are not academically disadvantaged, California ranks tied for 43rd in fourth grade reading and tied for 41st in eighth grade math. For California students whose parents graduated from college, the rank is still 40th in fourth grade reading and 39th in eighth grade math. ... [¶] ... California's economically disadvantaged students rank 49th in fourth grade reading and 48th in eighth grade math when compared to economically disadvantaged students in other states."

In addition, plaintiffs allege, large majorities of our African American, Latino, and low-income students as well as English learners do not achieve proficiency according to the state's own academic standards: "In 2008-09, only 50% of California's students were proficient in English-Language Arts; only 37% of African-American students, 37% of Hispanic students, 36% of economically disadvantaged students, and 20% of English Learners reached this level. Only 46% of California's students were proficient in Mathematics; this percentage dropped to 30% for African-American students, 36% for Hispanic students, 37% for economically disadvantaged students, and 32% for English Learners. By eleventh grade, students in these groups had fallen even farther-in English language Arts, only 25% of African-American students, 26% of Hispanic students and economically disadvantaged students, and 5% of English Learners reached proficiency."

Moreover, according to one complaint, California sends a smaller percentage of its high school graduates to four-year colleges and universities than all but three states: "Of those California students who do graduate from high school, many fail to successfully complete the course requirements (known as 'A-G requirements') needed to even apply for admission to California's four-year public universities. Of 550,000 students who enrolled in California public schools as ninth graders in the fall of 2004, only about one quarter completed the A-G requirements and graduated eligible for a four-year college or university. [Rogers et al., California Educational Opportunity Report (2010) p. 7]. ... [¶] Among those graduates who do gain admission into California's university system, many are unprepared to succeed there. Sixty percent of freshmen in the California State University system are not proficient in either Math or English, or both, and beginning in 2012, will be required to take remedial courses in these subjects before they can begin college."

Although the legislative process has produced a variety of education initiatives over the years, none has yet to substantially reverse these indicators. The passage of Proposition 98 in 1988 and Proposition 111 in 1990, which guarantee K-12 education a minimum share of the state's General Fund, was arguably the last time

More recently, the voters in 2012 passed Proposition 30, which imposed temporary tax increases to support K-12 education and community colleges. (Cal. Const., art. XIII, § 36, subd. (e).) And in 2013, the Legislature restructured the school finance system by creating the Local Control Funding Formula, which is designed to improve the ability of school districts to flexibly use state education dollars to address the most pressing areas of need. (Ed. Code, § 42238.02.) Each district now receives a base funding allocation per student, plus supplemental funding depending on the district's population of English learners and low-income students as well as the concentration of those students in the district. ( Ibid. )

As these efforts suggest, educational policymaking in California has not been a tale of intransigence. At the state and local levels, many educational leaders have labored mightily to provide all children with access to a decent education, and we should not ignore their successes. (See Cal. Dept. of Education Success Stories < http://www.cde.ca.gov/nr/re/ss/> [as of Aug. 22, 2016].) However, as the complaints allege, the past two decades have not produced a tale of overall efficacy either. It is of course unrealistic to expect a major turnaround of any large school system to occur overnight; such "miracles" are properly met with skepticism. But some states have made significant gains in education over the past 20 years (see Hanushek et al., Achievement Growth: International and U.S. State Trends in Student Performance (2012) pp. 5-16), even as student achievement in California, despite some progress, has remained generally low.

It is against this backdrop that plaintiffs have turned to the courts for an elaboration of the Legislature's duty to provide for a system of common schools. The schoolchildren who brought these actions do not claim they are entitled to a world-class education. They ask only whether the California Constitution protects them from being deprived of a minimally adequate education. They are asking the judiciary, as the ultimate guarantor of constitutional rights, to define and safeguard their fundamental right to education.

Despite recognizing that education is a fundamental right under the California Constitution, the Court of Appeal found "no explicit textual basis [in section 1 or section 5 of article IX] from which a constitutional right to a public school education of a particular quality may be discerned."

As Justice Pollak argued in dissent, there is significant reason to question the Court of Appeal's holdings that article IX's education clauses do not imply any minimum standard of quality and do not impose any duties on the Legislature that are judicially discernible or enforceable. These holdings reflect the minority view among the more than 30 state high court opinions addressing similar issues under their state constitutions. (See Campaign for Quality Education , supra , 246 Cal.App.4th at p. 920 (dis. opn. of Pollak, J.) ["The different outcomes [among state high courts] result less from differences in the wording of the respective constitutions than from different perceptions of the role properly played by the courts in overseeing compliance with the state's basic charter."].) A significant number of these courts have recognized a judicially enforceable right to an adequate education. The adequacy standards articulated by the high courts of Connecticut, Kansas, Kentucky, Massachusetts, New Jersey, New York, South Carolina, Texas, Washington, West Virginia, and Wyoming are reviewed in Justice Pollak's dissent. ( Id. at pp. 925-929, citing Conn. Coalition for Justice in Education Funding, Inc. v. Rell (2010) 295 Conn. 240 , 990 A.2d 206 ; Gannon v. State (2014) 298 Kan. 1107 , 319 P.3d 1196 ; Rose v. Council for Better Education (Ky. 1989) 790 S.W.2d 186 ; McDuffy v. Secretary of Education (1993) 415 Mass. 545 , 615 N.E.2d 516 ; Robinson v. Cahill (1973) 62 N.J. 473 , 303 A.2d 273 ; Campaign for Fiscal Equity, Inc. v. State of New York (2003) 100 N.Y.2d 893 , 769 N.Y.S.2d 106 , 801 N.E.2d 326 ; Abbeville County School Dist. v. State (2014) 410 S.C. 619 , 767 S.E.2d 157 ; Neeley v. West Orange-Cove Consolidated Independent School Dist. (Tex. 2005) 176 S.W.3d 746 ; McCleary v. State (2012) 173 Wash.2d 477 , 269 P.3d 227 ; Pauley v. Kelly (1979) 162 W.Va. 672 , 255 S.E.2d 859 ; Campbell County School Dist. v. State (Wyo. 1995) 907 P.2d 1238 ; see also Lake View School Dist. No. 25 of Phillips County v. Huckabee (2002) 351 Ark. 31 , 91 S.W.3d 472 ; Claremont School Dist. v. Governor (1993) 138 N.H. 183 , 635 A.2d 1375 .) These decisions "demonstrate that courts are capable of articulating such a standard, albeit a standard that is general and requires intensive factual analysis to apply." ( Campaign for Quality Education , at p. 925 (dis. opn. of Pollak, J.).)

Justice Pollak concluded "that the provisions of our state Constitution requiring the state to support a system of common schools is not without substance, and that the Constitution requires a system that provides students with a meaningful basic education in reality as well as on paper. ... [A] standard such as those articulated in the opinions quoted above, though general, permits meaningful evaluation of a school system by educational professionals and experts." ( Campaign for Quality Education , supra , 246 Cal.App.4th at p. 929 (dis. opn. of Pollak, J.).) Judicial formulation of broad and general standards "reflects not only the 'recognition of the political branches' constitutional responsibilities,

Apart from its concerns about formulating an adequacy standard, the Court of Appeal worried that adjudication of plaintiffs' claims would potentially put the judiciary on a collision course with the Legislature in violation of the separation of powers. Two points from Justice Pollak's dissent are pertinent here.

First, "[t]o a large extent," this worry "rest[s] on the premise that plaintiffs are seeking to compel the California Legislature to appropriate additional funds for K-12 education, which is beyond the constitutional province of the judiciary." ( Campaign for Quality Education , supra , 246 Cal.App.4th at p. 931 (dis. opn. of Pollak, J.).) However, "[p]laintiffs do not allege simply that the amount of funds appropriated to the schools is insufficient, but that the system by which funds are allocated among schools and school districts is significantly responsible for the inadequacies in the educational system." ( Ibid. ) Further, "[p]laintiffs allege that the present system incorporates inadequate teacher training, and some plaintiffs also attribute deficiencies to the methods of teacher evaluation, promotion and discipline." ( Id. at p. 932.) At this point, it is far from clear that any remedy for a proven violation would require the courts to order increased spending on education. "[A]s the experience in other states confirms, various forms of relief are available short of ordering the legislature to appropriate funds. Courts have required plans to be developed to address and correct adjudicated deficiencies. The intensive examination of the system that trial of plaintiffs' allegations would necessarily entail may be expected to yield other specific forms of relief." ( Id. at pp. 932-933.) Indeed, it may be that reforms designed to make more efficient use of existing funds would provide an important measure of relief if plaintiffs were to prove a violation. (See id. at pp. 918-919 (conc. opn. of Siggins, J.) ["the balance between more resources and operational and organizational change in the schools may need to be differently struck"]; Vergara v. State of California (2016) 246 Cal.App.4th 619 , 640-641 [trial court found that hiring and retention of grossly ineffective teachers severely hamper students' educational progress].)

Second, and more fundamentally, whatever limitations on judicial authority may constrain a court's ability to order remedies for proven violations, "[w]e need not presume that the Legislature will fail to respond appropriately if the court should ultimately determine that the Constitution is being violated by the lack of sufficient funding." ( Campaign for Quality Education , supra , 246 Cal.App.4th at p. 932 (dis. opn. of Pollak, J.).) Although courts in some states have clashed with their legislatures over educational adequacy remedies (e.g., Kansas and Washington), there are also examples of such litigation resulting in interbranch collaboration and important reform (e.g., Kentucky and Massachusetts). Like Justice Pollak, "I would not presume to predict the long-term consequences of permitting plaintiffs' disturbing allegations to be examined at trial and the appropriateness of any remedy for confirmed inadequacies evaluated on appeal. ... It may well be that the extent to which

This last point bears emphasis. The potential for conflict between courts and the political branches is inherent in the power of judicial review. Even so, "[i]t is emphatically the province and duty of the judicial department to say what the law is." ( Marbury v. Madison (1803) 5 U.S. 137 , 177, 1 Cranch 137 , 2 L.Ed. 60 ; see Marin Water & Power Co. v. Railroad Com. (1916) 171 Cal. 706 , 711-712, 154 P. 864 ["The judicial function is to 'declare the law and define the rights of the parties under it.' "].) I do not underestimate the uncertainties that might attend a judicial declaration of the law in this context. But it has always been the case that "[t]he judiciary ... has no influence over either the sword or the purse .... It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." (The Federalist No. 78 (Cooke ed., 1961) p. 523 (Hamilton).) We ought to proceed in this case, as we do in all constitutional cases, with a strong presumption that public officials-having taken the same oath we have taken to "support and defend the Constitution of the United States and the Constitution of the State of California" (Cal. Const., art. XX, § 3 )-will work in good faith to effectuate any judgment duly entered by the courts. This understanding is not only a matter of the respect we owe the coordinate branches of government, but also an essential underpinning of the rule of law as practiced in our constitutional tradition.

The challenges facing California's K-12 education system remain within the purview of the Governor, the Legislature, the Superintendent of Public Instruction, and other state and local officials. This court's passivity in the face of plaintiffs' claims should not be understood as an implied judgment that those claims are unmeritorious or unfit for judicial resolution. Our denial of review suspends, for now, the prospect of judicial elaboration of what the fundamental right to education entails. But it is possible that the complexion of the issue and, in turn, this court's posture may change if our education system further stagnates or worsens.

At the same time, my vote to grant review should not be construed as a judgment that plaintiffs have established a constitutional violation. Apart from the unsettled questions of justiciability and interpretation of article IX, plaintiffs' allegations have not been tested at trial, and it appears that some of the conditions alleged in the complaints have changed. Since 2010, the year plaintiffs filed their complaints, state funding of K-12 education has risen significantly. Proposition 98 funding per pupil is projected to exceed $10,000 in 2015-2016, a 28 percent real increase since 2010-2011. (Legis. Analyst, The 2016-17 Budget, EdBudget Tables, K-12 Education, K-12 Proposition 98 Funding Per Pupil < http://lao.ca.gov/Publications/Report/3326#8> [as of Aug. 22, 2016].) The current budget returns our K-12 system to the funding level that existed in 2007-2008, before the economic downturn. ( Ibid. ) Whether education funding will continue its current upward trajectory remains to be seen. (See Cal. Const., art. XIII, § 36, subd. (f) [Proposition 30's

As a result of the Local Control Funding Formula, enacted in 2013, a significant portion of education dollars are now allocated to districts according to their numbers of low-income students and English learners as well as the concentration of those students in the district. (Ed. Code, § 42238.02.) The formula replaced what many believed to be an outdated and arbitrary funding scheme with a more rational and equitable distribution. School districts now have more discretion in spending their funds, and each district is responsible for adopting a three-year local control and accountability plan. ( Id. , § 52060 et seq.) This devolution of control and accountability marks a pronounced shift from the decades of centralized education governance catalyzed by Proposition 13 and reinforced by the federal No Child Left Behind Act. Time will tell whether these reforms prove effective.

Meanwhile, student achievement remains low. On the 2015 National Assessment of Educational Progress, California ranked 48th in fourth-grade math, 49th in fourth-grade reading, 41st in eighth-grade math, and 44th in eighth-grade reading. (U.S. Dept. of Education, Nat. Center for Education Statistics, NAEP State Comparisons < http://nces.ed.gov/nationsreportcard/statecomparisons/> [as of Aug. 22, 2016].) These low rankings persist when test scores are disaggregated by subgroups. In fourth-grade reading, for example, California students eligible for free or reduced-price lunch ranked 48th compared to their counterparts in other states; students who were not eligible ranked 40th. ( Ibid. )

Although the initiatives above are significant, none of them directly addresses the fundamental question of adequacy at the heart of plaintiffs' complaints. Proposition 98 funding is designed to increase with growth in the economy and K-12 attendance, but the funding level is not based on what resources are needed to provide a minimally adequate education to all students. The Local Control Funding Formula aims to distribute funds more equitably according to student needs, but it does not purport to prescribe adequate funding levels.

In order to identify a concerted effort to examine the adequacy of California's K-12 education system, one has to go back a full decade. In 2005, a bipartisan group of state leaders-the President Pro Tem of the Senate, the Speaker of the Assembly, the Superintendent of Public Instruction, the Governor's Committee on Education Excellence, and the Secretary of Education-commissioned a comprehensive review of California's school finance and governance systems. Funded by four major foundations, this initiative enlisted dozens of scholars throughout California and the nation, and resulted in over 20 research papers not only on resource adequacy and equity, but also on state and local governance, teacher policies, and data and information systems. (Stanford Center for Education Policy Analysis, Getting Down to Facts < https://cepa.stanford.edu/ gdtf/overview> [as of Aug. 22, 2016].) This unprecedented body of research was completed in 2007, but its potential impact in the policymaking arena was largely eclipsed by a severe recession. Now that economic conditions have improved, there have been calls to renew the wide-ranging inquiry that began a decade ago. (Cal. School Boards Assn., California's Challenge: Adequately Funding Education in the 21st Century (2015).)

Today this court declines to decide whether our state Constitution lends urgency

Whether plaintiffs could have proven as much at trial-this case having been squelched at the pleading stage-remains unanswered. So do the important questions of state constitutional law presented by this case that our court is best suited to resolve. (See Cal. Rules of Court, rule 8.500(b)(1).) Indeed, the question whether our state Constitution demands some minimum level of educational quality, as opposed to resolving precisely how schools should be administered, lies at the core of what this institution is empowered to adjudicate. And because plaintiffs' claims here concern a range of state activities affecting education, the key question in this case implicates more than simply an exercise in defining the appropriate level of funding or of any other single input to support an adequate education.

We consider that question against the backdrop of separation of powers principles that are vital to our government. Yet never have these principles meant that we should strain to avoid our responsibility to interpret the state Constitution simply because the right at issue touches on concerns the Legislature might ultimately address, or because the task of resolving a case implicating the right to education demands careful attention to the proper role of courts as well as our sister branches. We routinely treat as justiciable those challenges based on other fundamental rights, such as the right to marry, vote, or engage in free speech. (See, e.g., In re Marriage Cases (2008) 43 Cal.4th 757 , 809, 76 Cal.Rptr.3d 683 , 183 P.3d 384 [right to marry]; Fashion Valley Mall, LLC v. National Labor Relations Board (2007) 42 Cal.4th 850 , 865, 69 Cal.Rptr.3d 288 , 172 P.3d 742 [right to free speech]; Gould v. Grubb (1975) 14 Cal.3d 661 , 670, 122 Cal.Rptr. 377 , 536 P.2d 1337 [right to vote].) The right to education is no less fundamental, nor is it any less worthy of protection. Courts of other states, when faced with similar challenges based on this right, overwhelmingly agree. (See, e.g., Gannon v. State (2014) 298 Kan. 1107 , 319 P.3d 1196 , 1226 ["Most state supreme courts have rejected the nonjusticiability argument ..."].)

It is especially important for California's highest court to speak on this issue. Our state educates one-eighth of all public school students in the country. (See Nat. Ed. Assn., Rankings of the States 2015 and Estimates of School Statistics 2016 (May 2016) p. 11.) Many of those kids who come from low-income families find themselves concentrated in particular schools or districts that, despite the best intentions, fail to deliver an education remotely worthy of the students they are serving. These realities make it all the more critical that the representative branches play the crucial role that belongs to them, but with greater clarity about the scope of the right to

Respectfully, I would grant review.