Filed 4/20/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                     DIVISION THREE


CAMPAIGN FOR QUALITY
EDUCATION et al.,
        Plaintiffs and Appellants,
                                                        A134423
v.
STATE OF CALIFORNIA et al.,                             (Alameda County
                                                         Super. Ct. No. RG10524770)
        Defendants and Respondents.

MAYA ROBLES-WONG et al.,
        Plaintiffs and Appellants,
v.                                                      A134424
STATE OF CALIFORNIA et al.                              (Alameda County
        Defendants and Respondents;                      Super. Ct. No. RG10515768)
CALIFORNIA TEACHERS
ASSOCIATION,
        Intervener and Appellant.


        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 5 of article IX of the California Constitution.1 Appellants’
claims are general in nature. They allege the constitutional sections provide for a
judicially-enforceable right to an education of “some quality” for all public school
children, and, alternatively, that the Legislature is currently violating its constitutional

1
       All further unspecified references to sections and articles refer to the California
Constitution.


                                               1
obligations to “provide for” and “keep up and support” the “system of common schools”
by its current educational financing system. However, we find no support for finding
implied constitutional rights to an education of “some quality” for public school children
or a minimum level of expenditures for education, as appellants urge us to read into
sections 1 and 5 of article IX. To the contrary, the language of these constitutional
sections do not include qualitative or funding elements that may be judicially enforced by
the courts. Rather, the constitutional sections leave the difficult and policy-laden
questions associated with educational adequacy and funding to the legislative branch.
Consequently, we must affirm the trial court’s dismissal of the complaints as appellants
have failed to state a claim for which judicial relief may be accorded them.

                  FACTUAL AND PROCEDURAL BACKGROUND
       The two lawsuits before us were deemed related but not consolidated in the trial
court. In Campaign for Quality Education v. State of California (CQE), plaintiffs are
several nonprofit associations and guardians ad litem for minor students attending public
schools in California, as well as one adult taxpayer and homeowner and two adult
taxpayers and homeowners who are parents of students attending public schools in
California. Similarly, in Maya Robles-Wong v. State of California (Robles-Wong),
plaintiffs are several nonprofit associations and guardians ad litem for several students
attending public schools in California, as well as several California school districts.
Intervener California Teachers Association filed a complaint-in-intervention in the
Robles-Wong action. Defendants in each action are the State of California and various
named persons sued in their official capacities as state officers.
       In their operative complaints, all named plaintiffs and intervener (collectively
appellants) seek declaratory and injunctive relief based, in pertinent part, on allegations
that all named defendants (collectively respondents) are violating sections 1 and 5 of
article IX. The overarching nature of the causes of actions sought to be reinstated are
based on allegations that all public school children have a constitutional right to an
education of “some quality,” and, alternatively, that the Legislature is currently failing to
meet its constitutional duty by employing an irrational educational funding scheme.

                                              2
According to appellants, the Legislature’s current method of funding education fails to
ensure that all public school children have the opportunity to become educationally
proficient according to current legislatively-mandated academic standards.
       Resolving respondents’ separate demurrer and motion for judgment on the
pleadings, the trial court sustained the demurrer and granted the motion for judgment on
the pleadings, without leave to amend, as to those portions of the causes of action
alleging that respondents are violating sections 1 and 5 of article IX. The court granted
appellants the right to amend their complaints relative to other causes of action, but
appellants declined to do so. Accordingly, the court entered judgments dismissing the
lawsuits in their entirety. Appellants’ timely appeals ensued. 2

                                      DISCUSSION
I.     Introduction
       In ruling on a demurrer or motion for judgment on the pleadings, the trial court
examines the pleading to determine whether it alleges facts sufficient to state a cause of
action under any legal theory, with the facts being assumed true for purposes of this
inquiry. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors
(2010) 48 Cal. 4th 32, 42 (Committee for Green Foothills); Pang v. Beverly Hosp., Inc.
(2000) 79 Cal. App. 4th 986, 989.) Our review is de novo. (Committee for Green
Foothills, supra, 48 Cal.4th at p. 42; Schabarum v. California Legislature (1998) 60
Cal. App. 4th 1205, 1216 (Schabarum).) “[W]e treat the properly pleaded allegations of
[the] complaint as true, and also consider those matters subject to judicial notice.
[Citations.]” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1232.) “[T]he
allegations of the complaint must be liberally construed with a view to attaining
substantial justice among the parties. [Citation.] If there is any reasonable possibility

2
        In addition to the briefs filed by the parties, we have considered amici curiae
briefs, in support of appellants’ position, filed by Education Law Center and Campaign
for Educational Equity, Teacher’s College, Columbia University; Delaine Eastin and Jack
O’Connell; Fight Crime: Invest in Kids California; Children Now, Education Trust-West
& California Association of School Business Officials; and Maria Medina and
Californians Together.


                                              3
that plaintiff can state a good cause of action, it is error and an abuse of discretion to
sustain the demurrer without leave to amend. [Citations.] However, leave to amend is
properly denied if the facts and nature of plaintiffs’ claims are clear and under the
substantive law, no liability exists. [Citations.]” (Beck v. County of San Mateo (1984)
154 Cal. App. 3d 374, 379.)
       As noted, appellants limit their appeals to seeking reinstatement of those portions
of the causes of actions that seek to impose liability on respondents for their alleged
violations of sections 1 and 5 of article IX.3 Appellants urge us to hold that their claims
are justiciable in that if we were to remand the cases for trial, they would be able to
demonstrate that the Legislature’s current education finance system is in violation of the
fundamental right to an education guaranteed by article IX, and, the legislative and
executive branches of the state should be compelled to take “appropriate action under
court supervision.” However, even assuming the truth of the facts as alleged in the
complaints, appellants have failed to state causes of action based on alleged violations of
sections 1 and 5 of article IX by respondents.

II.    Principles of Constitutional Interpretation
       “[I]t is well established that it is a judicial function to interpret the law, including
the Constitution, and when appropriately presented in a case or controversy, to declare
when an act of the Legislature or the executive is beyond the constitutional authority
vested in those branches.” (Schabarum, supra, 60 Cal.App.4th at p. 1213.) We must
“ ‘ “enforce the provisions of our Constitution and ‘may not lightly disregard or blink at
. . . a clear constitutional mandate.’ ” ’ ” (County of Riverside v. Superior Court (2003)
30 Cal. 4th 278, 284-285.) “ ‘It is within the legitimate power of the judiciary, to declare

3
        Thus, we find that appellants have abandoned any challenge to the following trial
court rulings: (1) dismissal of those portions of the causes of actions alleging equal
protection violations (art. I, § 7(a)&(b); art. IV, § 16); and (2) dismissal of those portions
of the cause of action alleging violations of article IX, section 6 [school financing], and
alleging that “the State has failed to meet the requirement[s] of [a]rticle XVI,
[s]ection 8(a), that ‘[f]rom all state revenues there shall first be set apart the monies to be
applied by the State for support of the public school system.’ ”


                                               4
the action of the Legislature unconstitutional, where that action exceeds the limits of the
supreme law; but the Courts have no means, and no power, to avoid the effects of non-
action.’ ” (California State Employees’ Assn. v. State of California (1973) 32 Cal. App. 3d
103, 109.) “Unlike the federal Constitution, which is a grant of power to Congress, the
California Constitution is a limitation or restriction on the powers of the Legislature.
[Citations.] Two important consequences flow from this fact. First, the entire law-
making authority of the state, except the people’s right of initiative and referendum is
vested in the Legislature, and that body may exercise any and all legislative powers
which are not expressly or by necessary implication denied to it by the Constitution.
[Citations.] In other words, ‘we do not look to the Constitution to determine whether the
[L]egislature is authorized to do an act, but only to see if it is prohibited.’ [Citation.]
[¶] Secondly, all intendments favor the exercise of the Legislature’s plenary authority: ‘If
there is any doubt as to the Legislature’s power to act in any given case, the doubt should
be resolved in favor of the Legislature’s action. Such restrictions and limitations
[imposed by the Constitution] are to be construed strictly, and are not to be extended to
include matters not covered by the language used.’ ” (Methodist Hosp. of Sacramento v.
Saylor (1971) 5 Cal. 3d 685, 691.)
       In interpreting sections 1 and 5 of article IX, “our paramount task is to ascertain
the intent of those who enacted it” by looking “ ‘to the language of the constitutional text
. . . .’ ” (Thompson v. Department of Corrections (2001) 25 Cal. 4th 117, 122.) We
“cannot insert or omit words to cause the meaning of [the sections] to conform to a
presumed intent that is not expressed. (Code Civ. Proc., § 1858 [4]; California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 633 [59
Cal. Rptr. 2d 671, 927 P.2d 1175].) ‘As a judicial body, it is our role to interpret the


4
       Code of Civil Procedure section 1858 reads: “In the construction of a statute or
instrument, the office of the Judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted, or to omit what has been
inserted, and where there are several provisions or particulars, such a construction is, if
possible, to be adopted, as will give effect to all.”


                                               5
[sections] as they are written.’ [Citation.]” (Knight v. Superior Court (2005) 128
Cal. App. 4th 14, 23 (Knight).)

III.   Sections 1 and 5 of Article IX Do Not Provide A Qualitative Education
       Element
       Appellants contend the language and history of sections 1 and 5 of article IX, and
seminal judicial decisions declaring public education to be a fundamental right, lead to
the inexorable conclusion that public school students have a judicially-enforcible
constitutional right to an education of “some quality.” After addressing certain
preliminary matters, we conclude that sections 1 and 5 of article IX do not provide for a
education of “some quality” that may be judicially enforced by appellants.
       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
(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


                                              6
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, 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), 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),” 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 (Wilson); see California Teachers Assn. v.
Board of Trustees (1978) 82 Cal. App. 3d 249, 255 [“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, consistent with its constitutional authority, has addressed the quality of
education to be afforded public school students. (See, e.g., Ed. Code, §§ 52052-52052.9
[Public School Performance Accountability Program], 60640-60649 [California
Assessment of Student Performance and Progress], 60851-60852.2 [High School Exit
Examination].)



                                               7
       Third, we agree with the general proposition, embodied in appellants’ arguments,
that an education of “some quality” accords with good public policy. However, the
question in this case is not whether the concept of an education of “some quality”
comports with good public policy. The question before us is whether the right to an
education of “some quality” is enshrined, as a constitutional right, under sections 1 and 5
of article IX. Having properly framed the issue, we now analyze appellants’ claims under
well-settled principles that guide our interpretation of the California Constitution.
       At the outset we note that our Supreme Court has not addressed the issue raised by
appellants – to wit, whether the right to an education of “some quality” is enshrined under
sections 1 and 5 of article IX. Appellants ask to find that such a constitutional right is
judicially enforceable based on the language in sections 1 and 5 of article IX, and as
found by courts in other states that have analyzed constitutional provisions similar to
article IX. However, as we now discuss, we conclude the language of sections 1 and 5,
when read singly or together, in the context of article IX, does not provide for such an
enforceable right, based on our constitutional language and persuasive decisions of other
states that have analyzed almost identical constitutional language. (See Bonner v.
Daniels (Ind. 2009) 907 N.E.2d 516, 520 (Bonner); Committee for Educ. Equality v. State
(Mo. 2009) 294 S.W.3d 477, 488 (Committee for Educ. Equality).) 5

5
        “In determining the meaning of a constitutional provision it will be presumed that
those who framed and adopted it were conversant with the interpretation which had been
put upon it under the constitution from which it was copied, and this is the rule even as to
provisions taken from the constitutions of other states,—the judicial construction placed
upon them in the states from which they are taken will be followed by the courts in the
state which adopts them.” (Lord v. Dunster (1889) 79 Cal. 477, 485.) In Bonner, the
court analyzed the language in the Education Clause, Article 8, Section 1, of the Indiana
Constitution of 1851, which reads: “ ‘Knowledge and learning, generally diffused
throughout a community, being essential to the preservation of a free government; it shall
be the duty of the General Assembly to encourage, by all suitable means, moral,
intellectual, scientific, and agricultural improvement; and to provide, by law, for a
general and uniform system of Common Schools, wherein tuition shall be without charge,
and equally open to all.’ ” (Bonner, supra, 907 N.E.2d at p. 520.) In Committee for
Educ. Equality, the court analyzed the language in Article IX, section 1(a), of the
Missouri Constitution of 1875, which reads: “A general diffusion of knowledge and

                                              8
       The current sections 1 and 5 were adopted as part of the California Constitution of
1879. After section 1’s “precatory introduction . . . stressing the importance of
knowledge and learning to the preservation of a free government,” the remaining text of
sections 1 and 5 imposes two duties on the Legislature. (Bonner, supra, 907 N.E.2d at
p. 520.) The first is the duty to encourage the promotion of intellectual, scientific, moral
and agricultural improvement by “all suitable means.” ([§ 1].) The second is the duty to
provide for a system of common schools by which a free school shall be kept up and
supported in each district . . . . (§ 5.) Thus, section 1 “is general and aspirational,” but
makes no provision for how the Legislature is to achieve its goal except to use “all
suitable means.” (Bonner, supra, 907 N.E.2d at p. 520; see Committee for Educ.
Equality, supra, 294 S.W.3d at p. 489 [“[t]he aspiration for a ‘general diffusion of
knowledge and intelligence’ concerns policy decisions, and these political choices are left
to the discretion of the other branches of government”].) Section 5 is “more concrete –
the assignment of a specific task with performance standards” (Bonner, supra, 907
N.E.2d at p. 521), namely, to create “a system of common schools,” “free,” and “kept up
and supported in each district.” (§ 5.) But, section 5 does not “delineate or identify any
specific outcome standards to be achieved by the [Legislature’s] performance of its duty
to provide for a system of common schools.” (Bonner, supra, 907 N.E.2d at p. 521; see
Kennedy v. Miller (1893) 97 Cal. 429, 432 [“[t]he term ‘system,’ ” as used in article IX,
section 5, “imports a ‘unity of purpose as well as an entirety of operation, and the
direction to the [L]egislature to provide “a” system of common schools means one
system which shall be applicable to all the common schools within the state’ ”].) “As can
be seen from the text of [sections 1 and 5, the] language speaks only of a general duty to
provide for a system of common schools and does not require the attainment of any
standard of resulting educational quality. The phrases [“a system of common schools,”


intelligence being essential to the preservation of the rights and liberties of the people, the
general assembly shall establish and maintain free public schools for the gratuitous
instruction of all persons in this state within ages not in excess of [21] years as prescribed
by law.” (Committee for Educ. Equality v. State, supra, 294 S.W.3d at p. 488.)


                                              9
“free,” and “kept up and supported in each district”] do not require or prescribe any
standard of educational achievement that must be attained by the system of common
schools.” (Bonner, supra, at p. 521.) Thus, we find no explicit textual basis from which
a constitutional right to a public school education of a particular quality may be
discerned.
       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) 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,
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, the high court, in addressing the
contours of a federal constitutional substantive due process claim, said that “[b]y
extending constitutional protection to an asserted right or liberty interest, we, to a great
extent, place the matter outside the arena of public debate and legislative action. We
must therefore ‘exercise the utmost care whenever we are asked to break new ground in
this field’ [citation], lest the liberty protected . . . be subtly transformed into the policy


                                                10
preferences of the members of this Court [citation].” (Id. at p. 720.) Consequently, as
these decisions instruct, we reject appellants’ invitation to glean, through surmise or
speculation, an implicit right to educational adequacy from these sections. We hasten to
add that our interpretation of sections 1 and 5 of article IX flows not only from the
language of article IX itself, but from a consideration of its purpose. (See Lungren v.
Davis (1991) 234 Cal. App. 3d 806, 825 [“in construing the meaning of the constitutional
provisions at issue, we must consider their purposes”].) “ ‘The proper province of a
declaration of rights and constitution of government, after directing its form, regulating
its organization and the distribution of its powers, is to declare great principles and
fundamental truths, to influence and direct the judgment and conscience of legislators in
making laws, rather than to limit and control them, by directing what precise laws they
shall make.’ ” (Ward, supra, 48 Cal. at p. 55.) Sections 1 and 5 are “precisely of this
character” (Ward, supra, at p. 55) - the sections declare “great principles and fundamental
truths” (ibid.) but do not mandate the Legislature to act in a particular manner regarding
what precise laws shall be made to implement these principles and truths. (See Clausing
v. San Francisco Unified School Dist. (1990) 221 Cal. App. 3d 1224, 1236-1237.) “We
decline [appellants’] invitation to amplify the words and meaning of our Constitution as
crafted by its framers and approved by its ratifiers.” (Bonner, supra, 907 N.E.2d at p.
522.) 6


6
        We see no significance to appellants’ arguments based on isolated portions of the
debates during the Constitutional Convention of 1879. If the constitutional language is
“not ambiguous,” as in this case, “ ‘ “not even the most reliable document of
[constitutional] history . . . may have the force of law.” [Citation.]’ [Citation.]” (Knight,
supra, 128 Cal.App.4th at p. 23.) It is only “[i]f doubts and ambiguities remain then, and
only then, are we warranted in seeking elsewhere for aid.” (State Board of Education v.
Levit (1959) 52 Cal. 2d 441, 462.)
        We also find distinguishable Hartzell v. Connell (1984) 35 Cal. 3d 899 (Hartzell),
cited by appellants. In Hartzell, our Supreme Court found that a school’s imposition of
fees for extracurricular activities violated the “free school” guarantee in section 5 of
article IX because the activities, although not required for graduation, constituted an
integral component of public education. (Id. at pp. 909-913.) However, the court did not
find that the constitution required such extracurricular activities had to be provided by a

                                              11
       We conclude our discussion here with the views expressed by the Illinois Supreme
Court, in Committee for Educ. Rights v. Edgar (Ill. 1996) 174 Ill. 2d 1 [672 N.E.2d 1178]
(Committee for Educ. Rights),7 when rejecting a claim similar to the one appellants assert
here: “It would be a transparent conceit to suggest that whatever standards of quality
courts might develop would actually be derived from the constitution in any meaningful
sense. Nor is education a subject within the judiciary’s field of expertise, such that a
judicial role in giving content to the education guarantee might be warranted. Rather, the
question of educational quality is inherently one of policy involving philosophical and
practical considerations that call for the exercise of legislative and administrative
discretion. [¶] To hold that the question of educational quality is subject to judicial
determination would largely deprive the members of the general public of a voice in a
matter which is close to the hearts of all individuals in [the State]. Judicial determination
of the type of education children should receive and how it can best be provided would
depend on the opinions of whatever expert witnesses the litigants might call to testify and
whatever other evidence they might choose to present. Members of the general public,
however, would be obliged to listen in respectful silence. We certainly do not mean to
trivialize the views of educators, school administrators and others who have studied the
problems which public schools confront. But nonexperts – students, parents, employers
and other[s] – also have important views and experiences to contribute which are not


public school. The court held only that “[o]nce the community has decided that a
particular educational program is important enough to be offered by its public schools, a
student’s participation in that program [could not] be made to depend upon his or her
family’s decision whether to pay a fee or buy a toaster,” and “[t]he constitutional defect
in [imposing] such fees [could] neither be corrected by providing waivers to indigent
students, nor justified by pleading financial hardship.” (Id. at pp. 912, 913.)
7
        In Committee For Educ. Rights, the court analyzes the language in section 1 of
article X of the Illinois Constitution of 1970, which reads, in pertinent part: “ ‘A
fundamental goal of the People of the State is the educational development of all persons
to the limits of their capacities. [¶] The State shall provide for an efficient system of high
quality public educational institutions and services. . . . [¶] The State has the primary
responsibility for financing the system of public education. ([Italics] added.)’ ”
(Committee For Educ. Rights, supra, 672 N.E.2d at p. 1183.)


                                              12
easily reckoned through formal judicial fact-finding. In contrast, an open and robust
public debate is the lifeblood of the political process in our system of representative
democracy. Solutions to problems of educational quality should emerge from a spirited
dialogue between the people of the State and their elected representatives.” (672 N.E.2d
at p. 1191; see also Wells v. One2One Learning Foundation (2006) 39 Cal. 4th 1164,
1213 (Wells) [an allegation that “seeks to raise issues of the quality of education,” and
“the academic results produced,” falls “within the rule that courts will not entertain
claims of ‘educational malfeasance’ ”]; Serrano v. Priest (1976) 18 Cal. 3d 728, 748
[“[q]uality cannot be defined wholly in terms of performance on statewide achievement
tests because such tests do not measure all the benefits and detriments that a child may
receive from his educational experience”].)

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 funds for
the education of public school children.
       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


                                              13
established school districts as political subdivisions and delegated to them that duty.
(Wells, [supra,] at p. 1195; 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.)” (California Redevelopment Assn. v. Matosantos (2011) 53 Cal. 4th
231, 243 (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; Serrano II, supra, 18 Cal.3d at pp. 765-766) and that
financing heavily dependent on local property tax bases denied students equal protection
(Serrano I, at pp. 614-615; Serrano II, at pp. 768-769, 776). 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]) 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
[discussing current funding regime].)” (Matosantos, supra, 53 Cal.4th at pp. 243-244.)
       Thereafter, in 1978, the voters adopted Proposition 13 (Cal. Const., art. XIII A,


                                             14
added by Prop. 13, as approved by voters, Primary Elec. (June 6, 1978)), which “capped
ad valorem real property taxes imposed by all local entities at 1 percent (Cal. Const.,
art. XIII, § 1, subd. (a)), reducing the amount of revenue available by more than half
(Stark, The Right to Vote on Taxes (2001) 96 Nw.U.L.Rev. 191, 198). In place of
multiple property taxes imposed by multiple political subdivisions, it substituted a single
tax to be collected by counties and thereafter apportioned. (Cal. Const., art. XIII A, § 1,
subd. (a).)” (Matosantos, supra, 53 Cal.4th at p. 244.) “Proposition 13 transformed the
government financing landscape in at least three ways . . . . First, by capping local
property tax revenue, it greatly enhanced the responsibility the state would bear in
funding government services, especially education. [Citations.] Second, by failing to
specify a method of allocation, Proposition 13 largely transferred control over local
government finances from the state’s many political subdivisions to the state, converting
the property tax from a nominally local tax to a de facto state-administered tax subject to
a complex system of intergovernmental grants. [Citations.] Third, by imposing a
unified, shared property tax, Proposition 13 created a zero-sum game in which political
subdivisions (city, counties, special districts, and school districts) would have to compete
against each other for their slices of a greatly shrunken pie.” (Matosantos, supra, at
pp. 244-245, fn. omitted.)
         “In 1988, the voters added another wrinkle with Proposition 98, which established
constitutional minimum funding levels for education and required the state to set aside a
designated portion of the General Fund for public schools. (Cal. Const., art. XVI, § 8;
see Los Angeles Unified School Dist. v. County of Los Angeles, supra, 181 Cal.App.4th at
p. 420; [Hayes,] supra, 5 Cal.App.4th at pp. 1517-1518.) Two years later, the voters
revised and effectively increased the minimum funding requirements for public schools.
(Prop. 111, as approved by voters, Primary Elec. (June 5, 1990), amending Cal. Const.,
art. XVI, § 8; see County of Sonoma v. Commission on State Mandates (2000) 84
Cal. App. 4th 1264, 1289 [101 Cal. Rptr. 2d 784].)” (Matosantos, supra, 53 Cal.4th at
p. 245.) With this background in mind, we now turn to an analysis of appellants’ funding
claim.


                                             15
       As previously stated, appellants assert that the California Constitution mandates
that the Legislature appropriate funds for education that are sufficiently adequate to
provide all public school students with an equal opportunity to meet proficiency
standards currently set by the Legislature. In the Serrano decisions, our Supreme Court
determined that the courts were competent to decide whether or not the Legislature’s
distribution of state funds for education was consistent with the equal protection of the
law provisions of the State constitution. (Serrano II, supra, at pp. 768-769, 776; Serrano
I, supra, 5 Cal. 3d at pp. 614-615.) Appellants argue that the declaratory and injunctive
relief they seek is “precisely the type of relief” authorized by our Supreme Court in its
Serrano decisions. We find no support for appellants’ argument in the Serrano decisions.
To the contrary, our Supreme Court made clear in Serrano I that there is no constitutional
mandate for the Legislature “to provide funds for each child in the State at some magic
level to produce either an adequate-quality educational program or a high-quality
educational program.” (Serrano v. Priest (1977) 20 Cal. 3d 25, 36, fn. 6 [describing the
decision in Serrano I]; see also Serrano I, supra, at p. 596 [“article IX, section 5 makes
no reference to school financing”].) 8 Appellants eschew that they are seeking a court
directive compelling the Legislature to provide for “a magic level” or any specific level
of educational funds. “Functionally, however,” their funding claim would require this
court to impose its “judgment over that of the Legislature in order to determine whether a
particular policy benefits public education.” (Woonsocket Sch. Comm. v. Chafee (R.I.
2014) 89 A.3d 778, 793.) Thus, unlike the Serrano decisions on which appellants rely,


8
        Consequently, we reject appellants’ reliance on our Supreme Court’s general
observation in Serrano I that “surely the right to an education today means more than
access to a classroom.” (5 Cal.3d at p. 607.) Serrano I neither addressed nor found a
constitutional mandate imposing on the Legislature a duty to fund an education of “some
quality” that appellants seek to enshrine in articles I and 5 of article IX. “It is axiomatic
that language in a judicial opinion is to be understood in accordance with the facts and
issues before the court.” (Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19
Cal. 4th 1182, 1195-1196.) “General expressions in opinions that go beyond the facts of
the case will not necessarily control the outcome in a subsequent suit involving different
facts.” (Gomes v. County of Mendocino (1995) 37 Cal. App. 4th 977, 985.)


                                             16
allowing appellants’ funding claim to proceed would require the courts to intrude into the
Legislature’s appropriation powers, which we decline to do. (See Grossmont Union High
School Dist. v. State Dept. of Education (2008) 169 Cal. App. 4th 869, 889 (Grossmont)
[“[u]nder the California Constitution, the judiciary has no general authority to compel
appropriations or second-guess legislative spending decisions”].)
       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.) 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; see California School Bds.
Assn. v. State of California (2011) 192 Cal. App. 4th 770, 798 [“[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 [“[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.)

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

                                              17
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,” (City of San
Jose v. State of California (1996) 45 Cal. App. 4th 1802, 1816-1817), or to “delineate or
identify any specific outcome standards to be achieved by [the Legislature’s]
performance of its duty to provide for a system of common schools” (Bonner, supra, 907
N.E.2d at p. 521). In the absence of a challenge to any legislative enactment, we
conclude sections 1 and 5 of article IX, standing alone, 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. 9 Because sections 1 and 5 of article IX do not impose on the
Legislature any duties that can be judicially enforced, there is no reason for a judicial
evaluation as to whether there has been a breach of those alleged duties.10 Even if the
matter were remanded for a trial, appellants would not be entitled to the declaratory and
injunctive relief requested in their pleadings. “The quandary described in the
complaint[s] is lamentable, but the remedy lies squarely with the Legislature, not the
judiciary.” (Grossmont, supra, 169 Cal.App.4th at p. 892.) Accordingly, we affirm the
judgments of dismissal in favor of respondents.11


9
        We note that appellants do not seek leave to amend their complaints. They ask us
only to uphold allegations that the State is violating sections 1 and 5 of article IX,
standing alone and untethered to any challenge to legislative enactments.
10
        And, accordingly, we do not need to articulate a judicial standard to be applied by
the trial court to determine whether the Legislature is providing an education of “some
quality” to all public school children.
11
        “ ‘Strictly speaking, a general demurrer is not an appropriate means of testing the
merits of the controversy in a declaratory relief action because plaintiff is entitled to a
declaration of his rights even if it be adverse.’ [Citations.] However, ‘where the issue is
purely one of law, if the reviewing court agreed with the trial court’s resolution of the
issue it would be an idle act to reverse the judgment of dismissal for a trial on the merits.
In such cases the merits of the legal controversy may be considered on an appeal from a
judgment of dismissal following an order sustaining a demurrer without leave to amend
and the opinion of the reviewing court will constitute the declaration of the legal rights

                                             18
                                    DISPOSITION
      The judgments of dismissal are affirmed. Defendants and respondents are
awarded costs on appeal.



                                                _________________________
                                                Jenkins, J.


I concur:


____________________
Siggins, J.




and duties of the parties concerning the matter in controversy.’ [Citations.]” (Herzberg
v. County of Plumas (2005) 133 Cal. App. 4th 1, 24.) Because we have resolved
appellants’ demurrers and motion for judgment on the pleadings, as matters of law, “[t]he
object[s] of the declaratory relief actions [are] served by our opinion that” appellants
have failed to state causes of actions against respondents based on alleged violations of
sections 1 and 5 of article IX, and accordingly, no remand is necessary. (Teresi v. State
of California (1986) 180 Cal. App. 3d 239, 245, fn. 4; see Savient Pharmaceuticals, Inc. v.
Department of Health Services (2007) 146 Cal. App. 4th 1457, 1464.) In light of our
determination, we do not need to separately address the parties’ other arguments.


                                           19
SIGGINS, J., Concurring.
       I join fully in the majority opinion authored by Justice Jenkins. I am writing
separately to address my particular impressions and observations of the nature of the
plaintiffs’ claim.
       There is no question that this case is largely about the adequacy of state financial
support for California public schools. The defendants are the State of California, the
Governor, State Controller and the Director of the State Department of Finance. The
Superintendent of Public Instruction and the State Board of Education are not parties.
The complaints seek declaratory and injunctive relief to require the state to “set apart the
revenues” to “provide and support an education finance system” that will provide
students “the opportunity to obtain a meaningful education and to learn the academic
content standards.”
       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


                                              1
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 and the workforce needs of the state’s economy. It is therefore necessary that
the accountability system evolve beyond its narrow focus on pupil test scores to
encompass other valuable information about school performance, including, but not




                                              2
limited to, pupil preparedness for college and career, as well as the high school
graduation rates already required by law.” (Ed. Code, § 52052, subd. (a)(4)(H).)1
       The plaintiffs say the academic standards articulated in our Education Code
inform the constitutional right to a quality education but do not prescribe it. I disagree. It
seems to me that our state’s obligation to ensure that most students perform at adequate
levels is prescribed in the statutory academic standards. In the event that large numbers
of students cannot meet expected levels of achievement, an action should arise under the
statutes to improve the performance of our public schools without resort to the general
language of article IX as authority. Such a statutory basis for an action would also be in
accord with the general principle of judicial restraint that courts should not decide
constitutional questions where other grounds are available and dispositive of the issues.
(Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal. 4th 220,
230.) The plaintiffs did not allege any statutory theory for a cause of action in this case,
so the parameters of such a claim must await another day.
       Finally, also in 2013, our Legislature modified our school funding formula to
better address needs based upon differences between school district populations and
appropriated an additional $2 billion to the public schools. (Stats. 2013, ch. 47.)
Whatever this may mean for the future, one thing seems clear to me. State policymakers
are working on the problem, and an action that primarily seeks to increase the amount of
state funds provided to the schools may not be the prescription for success. Rather, the
balance between more resources and operational and organizational change in the schools
may need to be differently struck. Recognition of some duty to support and fund the
schools at some particular level may, in the end, do little to advance the cause of
educational adequacy.

                                                   _________________________
                                                   Siggins, J.
       1
         A general description of the California Assessment of Student Performance and
Progress System along with reports of the most recent scores can be found on the Department of
Education website at:  (as of April 20, 2016).


                                              3
POLLAK, J., Dissenting.
       Of the numerous issues presented by this difficult case, two are fundamental: Do
sections 1 and 5 of article IX of the California Constitution compel the state to maintain
an elementary school system for grades kindergarten through grade 12 (K-12) that meets
some minimal qualitative standard and, if so, is the claim that the present school system
fails to meet that standard justiciable—that is, may the courts entertain that claim and
seek to compel the appropriate state agencies to correct the deficiency? Neither question
is susceptible to a facile response. The same issues have been considered at length under
similar provisions of other state constitutions by the highest courts of numerous states—
with different outcomes. Most state supreme courts addressing the question have read
their state constitution implicitly to mandate a minimum qualitative educational system
which they have struggled to enforce,1 while a lesser number have either held the
mandate lacking or the courts unsuited to articulate and enforce any such qualitative
standard.2 Although the parties here attempt to distinguish many of these out-of-state
cases based on differences in the terminology of the respective state’s constitutional
provisions, as a general proposition these differences in phraseology are insignificant.
1
  E.g., Conn. Coalition for Justice in Educ. Funding, Inc. v. Rell (2010) 295 Conn. 240
[990 A.2d 206, 210-256] (plur. opn. of Norcott, J.); Gannon v. State (2014) 298 Kan.
1107 [319 P.3d 1196, 1216-1231]; Abbeville County Sch. Dist. v. State (2014) 410 S.C.
619 [767 S.E.2d 157, 163-180]; McCleary v. State (2012) 173 Wash.2d 477 [269 P.3d
227, 246-262]; Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. (2005) 49 Tex.
Sup. Ct. J. 119 [176 S.W.3d 746, 776-800]; Campaign for Fiscal Equity, Inc. v. State
(1995) 86 N.Y.2d 307 [655 N.E.2d 661, 664-671]; McDuffy v. Secretary of the Executive
Office of Educ. (1993) 415 Mass. 545 [615 N.E.2d 516, 519-556]; Rose v. Council for
Better Educ. (Ky. 1989) 790 S.W.2d 186, 205-214; Robinson v. Cahill (1973) 62 N.J.
473, 515-521 [303 A.2d 273, 287-298]; see generally, Gordon, California Constitutional
Law: The Right to an Adequate Education (2016) 67 Hastings L.J. 323, 351 (hereafter
Gordon) [“a review of other states’ decisions reveals that there is a movement in favor of
finding a substantive, qualitative right to education under state constitutions”].
2
 E.g., Woonsocket School Com. v. Chafee (R.I. 2014) 89 A.3d 778, 787-792; Bonner ex
rel. Bonner v. Daniels (Ind. 2009) 907 N.E.2d 516, 520-522; Com. for Educ. Rights v.
Edgar (1996) 174 Ill. 2d 1 [672 N.E.2d 1178, 1183-1193]; see Gordon, supra, 67
Hastings L.J. at p. 352 [“In the minority of states that have declined to find a right to
adequacy, their supreme courts have never found education to be a fundamental right.”].


                                             1
All of the constitutions, like the California Constitution, in substance require the state to
support a system of public or common schools. Although some state constitutional
provisions refer to the maintenance of “efficient” or “thorough and efficient” schools or
school systems, or like terms, none explicitly indicate a particular level of achievement
that is required.3 The different outcomes 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. I respectfully dissent
from my colleagues’ decision to align California with those few state courts that have
declined to accept the responsibility to enforce the right of every child to an adequate
education.

1.     Do sections 1 and 5 of article IX of the California Constitution impose a minimum
       qualitative standard?

       There is, of course, no question but that the California Constitution mandates a
public school system, which has been held to apply to grades K-12. (Levi v. O’Connell
(2006) 144 Cal. App. 4th 700, 708.) Section 5 of article IX of the California Constitution
requires the Legislature to “provide” for a system of common schools that “shall be kept
up and supported” for at least six months of the year. While this section says nothing
explicitly about the necessary quality of such schools, its meaning is informed by section
1 of article IX. Section 1 begins with the recognition that “[a] general diffusion of
knowledge and intelligence” is essential to the preservation of the rights and liberties of
the people, and requires the Legislature to “encourage by all suitable means the
promotion of intellectual, scientific, moral, and agricultural improvement.” Presumably
the system of common schools prescribed by section 5 must encourage the promotion of
such improvement.

3
 The opinion in Pauley v. Kelly (1979) 162 W.Va. 672 [255 S.E.2d 859, 884-886]
contains an Appendix I that sets out in one place the clauses in each state constitution that
provide for public school systems. The opinion in Connecticut Coalition for Justice in
Education Funding, Inc. v. Rell, supra, 990 A.2d at pages 244-250 contains an extended
discussion of “Sister State Decisions” addressing the interpretation of these provisions
and citations to additional cases on point not cited in this opinion.


                                              2
       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,
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.) The Serrano court went on to quote from the historic Brown v.
Board of Education decision ((1954) 347 U.S. 483, 493), 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.)
       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


                                              3
established.” ’ (California Teachers Assn. v. Hayes (1992) 5 Cal. App. 4th 1513, 1522
. . . .) [¶] ‘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. . . .)” (Slayton v. Pomona
Unified School Dist. (1984) 161 Cal. App. 3d 538, 548-549, fn. omitted.)” (Lead opn.,
ante, pp. 6-7.)
       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.) 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.) 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, 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


                                              4
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, 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; 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 a right to adequate education have not gone unnoticed by the
California Supreme Court; the court compared the two in its first Serrano decision, and


                                               5
even noted that ‘from a larger perspective, education may have far greater social
significance’ than the right to a fair trial.” (Gordon, supra, 67 Hastings L.J. at pp. 349-
350; see Serrano v. Priest, supra, 5 Cal.3d at p. 607.)
       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), 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).” (Wilson v. State Bd. of Educ. (1999) 75 Cal. App. 4th 1125, 1134-1135.)
“[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.) 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.)
       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


                                                6
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, and between native
English Learners and native English speakers.”
         Under the current system and the minimum funding guarantee of Proposition 984
—which plaintiffs allege “has become an artificial cap on education spending whose
formulas are routinely manipulated by the state for further reductions or delays in
funding”—per pupil spending in California in 2008-2009, adjusted for regional cost
differences allegedly “was $2,856 less per pupil than the national average, or an abysmal
47th in the country.” In 2007-2008, according to the allegations in one complaint,
“California ranked at or near the bottom in the nation in staffing ratios: 49th in total
school staff; 47th in principals and assistant principals; 49th in guidance counselors; 50th
in librarians; and 49th in access to computers. California educates over 1.7 million
students more than Texas, but does so with 16,700 fewer teachers.” 5 Besides insufficient


4
    California Constitution, article XVI, section 8(b).
5
 According to the allegations in another of the complaints, California ranks “50th in total
school staff with 70 per 1,000 students, compared to a national average of 124.7 total
school staff per 1,000 students” and “49th out of 51 in teachers, with California schools
operating with 75% of the national average of teachers to students.”


                                                7
and undertrained staff, plaintiffs allege that the state’s public schools suffer from
inadequate instructional programs, insufficient materials, equipment and facilities,
inadequate data systems and an inadequate system for ensuring uniform teacher quality.
       Consequently, the complaints allege: “California students are directly harmed by
the state’s failure to meet its constitutional obligation to support its system of public
schools. 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. Even for California students
who are not economically disadvantaged, California still ranks tied for 43rd in fourth
grade reading and tied for 41st in eighth grade math. [¶] These dismal statistics reflect
only the students who remain in school through eleventh grade. . . . Fewer than 70% of
California students graduate from high school. The graduation rates are even lower for
African-American and Hispanic students, whose graduation rates are both less than 60%.
Less than half of African-American males graduate from high school.”
       The lengthy complaints and extensive briefing, filled with references to a
multitude of official reports and academic studies and papers, provide considerably more
specifics, criticisms, and proposals than would be profitable to set out at this point.
Among other reasons why further specificity here would be pointless is that in the several
years that these cases have been pending, there have been legislative and funding changes
that may affect the present accuracy of plaintiffs’ allegations. Should these actions
proceed to trial, the focus would of course be on current conditions to the extent that
relevant data is available. Nonetheless, despite changes—hopefully improvements—that
have occurred more recently, the fundamental issues raised by the complaints remain:


                                               8
Does the California Constitution imply minimum qualitative requirements for the state’s
educational system, and is it for the courts to determine whether those requirements are
satisfied and to enforce them if they are not?
       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, 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. 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. 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 [801 N.E.2d 326] (CFE II), the
court defined “sound basic education” more exactly, as the “opportunity for a meaningful


                                                9
high school education, one which prepares [children] to function productively as civic
participants.” (Id. at p. 332; see Campaign for Fiscal Equity, Inc. v. State of New York
(2006) 8 N.Y.3d 14 [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, 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, at
p. 340; CFE III, supra, at p. 52.)
       A somewhat similar standard was articulated by the Supreme Court of Kentucky.
(Rose v. Council for Better Educ., supra, 790 S.W.2d 186.) Interpreting its state
constitutional provision requiring the legislature to “provide for an efficient system of
common schools” (KY Const., § 183), the court held that “[t]he essential, and minimal,
characteristics of an ‘efficient’ system of common schools” include providing all children
with an adequate education, and that an adequate education is one which has as its goal
the development of ‘at least the seven following capabilities: (i) sufficient oral and
written communication skills to enable students to function in a complex and rapidly
changing civilization; (ii) sufficient knowledge of economic, social, and political systems
to enable students to make informed choices; (iii) sufficient understanding of
governmental processes to enable the student to understand the issues that affect his or
her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or
her mental and physical wellness; (v) sufficient grounding in the arts to enable each
student to appreciate his or her cultural and historical heritage; (vi) sufficient training or
preparation for advanced training in either academic or vocational fields so as to enable
each child to choose and pursue life work intelligently; and (vii) sufficient level of
academic or vocational skills to enable public school students to compete favorably with



                                              10
their counterparts in surrounding states, in academics or in the job market.’ ” (790
S.W.2d at pp. 212-213.)
       The Supreme Judicial Court of Massachusetts considered “[t]he guidelines set
forth by the Supreme Court of Kentucky [to] fairly reflect [its] view” of the applicable
guidelines under the Massachusetts Constitution. (McDuffy v, Secretary of the Executive
Office of Education, supra, 615 N.E.2d at pp. 554-555.) And the Supreme Court of
Kansas “expressly adopted the Rose court’s articulated standards like other supreme
courts,” deeming them “minimal standards” that “ ‘should be considered as minimum
goals in providing an adequate education.’ ” (Gannon v. State of Kansa, supra, 319 P.3d
at p. 1236.)
       The Supreme Court of Connecticut concluded, “consistent with the conclusions of
other state courts that have considered similar constitutional guarantees, that [the
Connecticut constitutional provision that “there shall always be free public elementary
and secondary schools in the state”] embodies a substantive component requiring that the
public schools provide the students with an education suitable to give them the
opportunity to be responsible citizens able to participate fully in democratic institutions
such as jury service and voting, and to prepare them to progress to institutions of higher
education, or to attain productive employment and otherwise to contribute to the state’s
economy.” (Conn. Coalition for Justice in Educ. Funding, Inc. v. Rell, supra, 990 A.2d
at p. 227.)
       Other state supreme courts have defined the contours of an acceptable system of
public education in their own way, but have similarly concluded that the constitutional
requirement of maintaining a system of public schools implies the duty to support the
system at some qualitative level. (E.g., McCleary v. State, supra, 269 P.3d at pp. 231,
236, 250 [education required under state constitution “consists of the opportunity to
obtain the knowledge and skills” described in a prior opinion,6 in four learning goals

6
 In Seattle School Dist. No. 1 of King County v. State (1978) 90 Wash.2d 476 [585 P.2d
71, 94-95], the Washington Supreme Court held that the state had a constitutional duty to
provide an education that “ ‘goes beyond mere reading writing and arithmetic. It also

                                             11
specified in a subsequently adopted and amended Basic Education Act and in academic
learning requirements “in nine separate content areas, including reading, math, science,
writing, communication, social studies, the arts, health and fitness, and educational
technology”]; Pauley v. Kelly (1979) 162 W.Va. 672 [255 S.E.2d 859, 877-878] [“a
thorough and efficient system of schools . . . develops, as best the state of education
expertise allows, the minds, bodies and social morality of its charges to prepare them for
useful and happy occupations, recreation and citizenship, and does so economically.
[¶] Legally recognized elements in this definition are development in every child to his or
her capacity of (1) literacy; (2) ability to add, subtract, multiply and divide numbers;
(3) knowledge of government to the extent that the child will be equipped as a citizen to
make informed choices among persons and issues that affect his own governance;
(4) self-knowledge and knowledge of his or her total environment to allow the child to
intelligently choose life work to know his or her options; (5) work-training and advanced
academic training as the child may intelligently choose; (6) recreational pursuits;
(7) interests in all creative arts, such as music, theatre, literature, and the visual arts;
(8) social ethics, both behavioral and abstract, to facilitate compatibility with others in
this society. [¶] Implicit are supportive services: (1) good physical facilities,
instructional materials and personnel; (2) careful state and local supervision to prevent
waste and to monitor pupil, teacher and administrative competency. [¶] . . . “[T]he
Thorough and Efficient Clause requires the development of certain high quality
educational standards, and . . . it is in part by these quality standards that the existing
educational system must be tested.’]; see also, e.g., Robinson v. Cahill, supra, 303 A.2d


embraces educational opportunities needed in the contemporary setting to equip our
children for their role as citizens and as potential competitors in today’s market as well as
in the market place of ideas. Education plays a critical role in a free society. It must
prepare our children to participate intelligently and effectively in our open political
system to ensure that system’s survival. It must prepare them to exercise their First
Amendment freedoms both as to sources and receivers of information; and, it must
prepare them to be able to inquire, to study, to evaluate and to gain maturity and
understanding.’ ” (See McCleary v. State, supra, 269 P.3d at p. 246.)


                                                12
at p. 295 [“The Constitution’s guarantee must be understood to embrace that educational
opportunity which is needed in the contemporary setting to equip a child for his role as a
citizen and as a competitor in the labor market.”]; Campbell County School Dist. v. State
(Wyo. 1995) 907 P.2d 1238, 1259 [constitution mandates “an education system of a
character which provides . . . students with a uniform opportunity to become equipped for
their future roles as citizens, participants in the political system, and competitors both
economically and intellectually.”].)
       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 the public schools for every child, rich or poor,
the reality is that children in the less affluent communities (or in the less affluent parts of
them) are not receiving their constitutional entitlement of education as intended and
mandated by the framers of the Constitution.” (Id. at p. 552.) The court concluded “that
the Commonwealth has failed to meet its constitutional obligation.” (Ibid.)
       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


                                              13
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


                                              14
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 schools complies with the
constitutional mandate.

2.     Is the claim that the public school system fails to comply with the constitutional
       standard justiciable?

       Defendants here make the same contention that other states have made in most of
the cases cited above. As in the South Carolina case, they argue that “the term
‘minimally adequate education” is purposely ambiguous, objectively unknowable, and
unworkable in a judicial setting,’ and that determining whether the Defendants are
meeting their constitutional duty presents a non-justiciable political question.” (Abbeville
County Sch. Dist. v. State, supra, 767 S.E.2d at p. 163.) My two colleagues essentially
adopt this view but, like the Supreme Court of South Carolina, I respectfully disagree.
As the court there stated, “Courts may experience difficulty in determining the precise
parameters of constitutionally acceptable behavior; however, this imprecision does not
necessarily signify that courts cannot determine when a party’s actions, or the results of
those actions, fall outside the boundaries of such constitutional parameters. . . . [¶] [A]s
Chief Justice John Marshall famously stated, ‘[I]t is emphatically the province and duty
of the judicial department to say what the law is.’ ” (Ibid., quoting Marbury v. Madison
(1803) 5 U.S. 137, 138.)
       The justiciability of a claim that the state is not providing students with a basic
education required by the state constitution has been exhaustively analyzed in the
opinions of numerous other state supreme courts. As did the Kansas Supreme Court,
many have focused on the “six characteristics or elements one or more of which must
exist to give rise to a political question” that is nonjusticiable set out in Baker v. Carr




                                               15
(1962) 369 U.S. 186, 217. (Gannon v. State, supra, 319 P.3d at pp. 1218-1231.)7 As the
Kansas court concluded, “Most state supreme courts have rejected the nonjusticiability
argument—which necessarily include those courts that have expressly rejected the
contention that no judicially manageable standards were contained in the education
articles of their own constitutions.” (Id. at p. 1226) That court observed that a majority
of state courts, including the Texas Supreme Court, have held that “ ‘the separation of
powers does not preclude the judiciary from determining whether the legislature has met
its constitutional obligations to the people to provide for public education.’ ” (Id. at
p. 1230, quoting Neeley v. West Orange-Cove Consolidated Independent School Dist.,
supra, 176 S.W.3d at pp. 780-781.) As many other courts have concluded, while the
courts must “ ‘defer to the legislature in matters of policymaking’, . . . ‘it is the province
of the judicial branch to define, and safeguard, rights provided by the [state] Constitution,
and order redress for violation of them.’ ” (CFE III, supra, 861 N.E.2d at p. 58; Leandro
v. State (1997) 346 N.C. 336 [488 S.E.2d 249, 253-254] [“When a government action is
challenged as unconstitutional, the courts have a duty to determine whether that action
exceeds constitutional limits . . . Therefore, it is the duty of this Court to address
[plaintiffs’] constitutional challenge to the state’s public education system”]; De Rolph v.
State (1997) 78 Ohio St. 3d 193 [677 N.E.2d 733, 737] [“We will not dodge our
responsibility by asserting that this case involves a nonjusticiable political question. To
do so is unthinkable. We refuse to undermine our role as judicial arbiters and to pass our
responsibilities onto the lap of the [legislature].”].)

7
  According to Baker v. Carr, supra, 369 U.S. at page 217, “Prominent on the surface of
any case held to involve a political question is found a [1] textually demonstrable
constitutional commitment of the issue to a coordinate political department [legislature];
[2] or a lack of a judicially discoverable and manageable standards for resolving it; [3] or
the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; [4] or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches of government;
[5] or an unusual need for unquestioning adherence to a political decision already made;
[6] or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.”


                                               16
       To a large extent, defendants’ argument and the opinions of my two colleagues
rest 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. While plaintiffs’ complaints surely indicate that additional
funding is required to bring the public schools up to minimal constitutional quality, there
are several reasons for which this limitation on judicial authority and respect for the role
of the legislative and executive branches of government do not compel the dismissal of
the action. Initially, the complaints address more than the level of present funding.
Plaintiffs 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.
“[M]oney is only one of a number of elements that must be studied in giving definition
and content to the constitutional promise of a thorough and efficient education.”
(Robinson v. Cahill, supra, 355 A.2d at p. 132.) An observation of the Texas Supreme
Court may well apply here: following trial, the court there was convinced “that defects in
the structure of the public school finance system expose the system to constitutional
challenge. Pouring more money into the system may forestall those challenges, but only
for a time. They will repeat until the system is overhauled.” (Neeley v. West Orange-
Cove Consolidated Independent School Dist., supra, 176 S.W.3d at p. 754, fn. omitted.)
Plaintiffs here point, for example, to the reliance on average daily attendance to
determine the amount of base funding each school receives, rather than on the
educational needs of each school’s student population. At the same time (and perhaps
somewhat inconsistently) plaintiffs allege that approximately one-third of educational
funds are distributed in the form of categorical grants that impose unduly restrictive
conditions and reduce available teaching hours by requiring excessive paperwork and
administrative chores. The current funding system, they allege, provides insufficient
flexibility to the individual schools and school districts to fashion their curriculum and
programs to meet the particular educational needs of the students in their school or school
district. Plaintiffs allege that the present system incorporates inadequate teacher training,


                                             17
and some plaintiffs also attribute deficiencies to the methods of teacher evaluation,
promotion and discipline.8 Thus, even if one assumes that full correction of the alleged
deficiencies in the educational system cannot be achieved without additional funding, it
does not follow that causative defects cannot be identified in judicial proceedings and
steps ordered to correct them without overstepping the proper limits of judicial authority.
       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.) 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



8
 In Vergara v. State of California (2016) __ Cal.App.4th __ [2016 Cal.App.Lexis 285]
Division Two of the Second Appellate District very recently held that provisions of the
Education Code governing teacher tenure and dismissal do not violate the equal
protection provision of the California Constitution. As pointed out in Gordon, supra,
proper interpretation of article IX may provide a remedy for deficiencies that cannot be
addressed under the equal protection provision.

                                               18
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) 
[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 Orange-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 of the Commonwealth’s constitution “impose an
enforceable duty on the magistrates and Legislatures of this Commonwealth to provide
education in the public schools for the children there enrolled” and “that the
constitutional duty is not being currently fulfilled by the Commonwealth.” (McDuffy v.
Secretary of Executive Office of Education, supra, 615 N.E.2d at p. 555.) The court
articulated broad guidelines, and “assume[d] that the Commonwealth will fulfill its duty


                                              19
to remedy the constitutional violations that [it] identified.” (Id. at p. 554.) The court
declared that “it is the responsibility of the Commonwealth to take such steps as may be
required in each instance effectively to devise a plan and sources of funds sufficient to
meet the constitutional mandate”(id. at pp. 555-556) and authorized the lower court to
“retain jurisdiction to determine whether, within a reasonable time, appropriate legislative
action has been taken” (id. at p. 556). In 2005, although the lower court had ruled that
the state had not yet fully met its constitutional obligations, a majority of the
Massachusetts Supreme Judicial Court concluded, “In the twelve years since McDuffy
was decided, the elected branches have acted to transform a dismal and fractured public
school system into a unified system that has yielded, as the judge found, ‘impressive
results in terms of improvement in overall student performance.’ She found that
‘spending gaps between districts based on property wealth have been reduced or even
reversed. The correlation between a district’s median family income and spending has
also been reduced.’ Public dollars for public education are now being allocated to where
they are the most effective: defining core educational goals for all students, evaluating
student performance toward those goals, and holding schools and school districts
accountable for achieving those goals. . . . A system mired in failure has given way to
one that, although far from perfect, shows a steady trajectory of progress.” (Hancock v.
Commissioner of Educ. (2005) 443 Mass. 428 [822 N.E.2d 1134, 1138-1139].)
       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, 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, 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. 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.


                                              20
(Id. 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, 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. at
p. 55), but according to the 2007 Update from the New York State Assembly Education
Committee, “in response to the Campaign for Fiscal Equity, Governor Eliot Spitzer and
the legislature dedicated hundreds of millions of taxpayer dollars to education in a
revised formula which made high-needs children the state’s priority. The City of New
York will benefit greatly from this new approach.” (Rep. Nolan, Chair (Dec. 2007)
 [as of Apr. 20, 2016].)
       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.




                                              21
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.




                                                  _________________________
                                                  Pollak, Acting P.J.




                                             22
Trial Court:                        Alameda County Superior Court




Trial Judge:                        Hon. Steven A. Brick




Counsel for Appellants:             John Thomas Affeldt, Tara Kini, Sophia Lai;
Campaign for Quality Education et   PUBLIC ADVOCATES, INC.
al.:                                (Counsel for CQE Plaintiffs/Appellants)

                                    Martin R. Glick
                                    Deborah S. Schlosberg
                                    Sara J. Eisenberg
                                    Gabriel N. White
                                    Steven L. Mayer
                                    ARNOLD & PORTER LLP
                                    (Counsel for CQE Plaitiffs/Appellants)

                                    Rohit Kumar Singla
                                    Leo Goldbard
                                    MUNGER TOLLES & OLSON
                                    (Counsel for CQE Plaintiffs/Appellants)




                                            23
Counsel for Appellants:   Frank B. Kennamer, Sandra Z. Nierenberg,
Robles-Wong et al.:       Gretchen E. Groggel, Elisa Cervantes;
                          BINGHAM McCUTCHEN LLP
                          (Counsel for Robles-Wong Individual Plaintiffs Appellants

                          Deborah B. Caplan, Joshua R. Daniels, Matthew R. Cody
                          OLSON, HAGEL & FISHBURN, LLP
                          (Counsel for Robles-Wong, CSBA, ACSA, STATE PTA, and
                          School Districts)

                          Abe Hajela
                          (Counsel for Robles-Wong, CSBA, ACSA and California State
                          PTA)

                          William S. Koski, Carly J. Munson;
                          YOUTH AND EDUCATIONAL LAW PROJECT
                          MILLS LEGAL CLINIC, STANFORD LAW SCHOOL
                          (Counsel for Robles-Wong, Individual Plaintiffs/Appellants)

                          William F. Abrams
                          KING & SPALDING
                          (Counsel for Robles-Wong, Individual Plaintiffs/Appellants)

                          Laura P. Juran
                          Jean Shin
                          CALIFORNIA TEACHERS ASSOCIATION
                          (Counsel for Appellant-Intervener CTA and Robles-Wong)

Counsel for Respondent:   Edmund G. Brown Jr., as Governor
State of California       Ana Matosantos, as Director of Finance
                          John Chiang, as State Controller
                          Kamala D. Harris, Attorney General of California
                          Julie Weng-Guiterrez, Senior Assistant Attorney General
                          Nimrod Elias, Ernest Martinez, Lisa Tillman, Jonathan E.
                          Rich, Joshua Nathan Sondheimer, Pauline Gee
                          Ismael A. Castro, Supervising Deputy Attorney General




                                  24
Counsel for Amicus curiae for         Stephen R. Buckingham
Appellants:                           Alison Price Corbin
Education Law Center and              LOWENSTEIN SANDLER LLP
Campaign for Educational Equity,
Teacher’s College, Columbia           Rochelle Lyn Wilcox
University                            DAVIS WRIGHT TREMAINE LLP




Counsel for Amicus curiae for         Cynthia Louise Rice
Appellants:                           Franchesca Gonzalez
California Rural Legal Assistance,    CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
Inc.                                  (Counsel for Amici Curiae, Maria Medina)

                                      Santiago Avila-Gomez
                                      CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
                                      (Counsel for Amici Curiae, Californians Together)



Counsel for Amicus curiae for         Steven D. Allison, David D. Johnson,
Appellants:                           Tracy E. Reichmuth, Joel D. Smith
Delaine Eastin and Jack O’Connell     CROWELL & MORING
in support of Plaintiff/Appellants:   (Counsel for Amicus curiae Delaine Eastin and Jack
                                      O’Connell)




Counsel for Amicus curiae for         Cameron G. Stout, Douglas Karpa, Daniel R. Golub
Appellants:                           HOLLAND & KNIGHT LLP
Fight Crime: Invest in Kids           (Counsel for Amicus Curiae Fight Crime: Invest in Kids
California                            California)




Counsel for Amicus curiae for         Nicole S. Cuningham
Appellants:                           Nicole S. Naghi
Children Now, Education Trust-        GOODWIN PROCER LLP
West & California Association of      (Counsel for Children Now, Education Trust-West &
School Business Officials             California Association for School Business Officials)




                                              25