William Penn Sch. Dist. v. Pa. Dep't of Educ.

170 A.3d 414

WILLIAM PENN SCHOOL DISTRICT; Panther Valley School District; The School District of Lancaster ; Greater Johnstown School District; Wilkes-Barre Area School District; Shenandoah Valley School District; Jamella and Bryant Miller, Parents of K.M., a Minor; Sheila Armstrong, Parent of S.A., Minor; Tyesha Strickland, Parent of E.T., Minor; Angel Martinez, Parent of A.M., Minor; Barbara Nemeth, Parent of C.M., Minor; Tracey Hughes, Parent of P.M.H., Minor; Pennsylvania Association of Rural and Small Schools ; and The National Association for the Advancement of Colored People—Pennsylvania State Conference, Appellants

v.PENNSYLVANIA DEPARTMENT OF EDUCATION; Joseph B. Scarnati III, in his Official Capacity as President Pro-Tempore of the Pennsylvania Senate; Michael C. Turzai, in his Official Capacity as the Speaker of the Pennsylvania House of Representatives; Tom Wolf in His Official Capacity as the Governor of the Commonwealth of Pennsylvania; Pennsylvania State Board of Education; and Pedro A. Rivera, in his Official Capacity as the Secretary of Education, Appellees

No. 46 MAP 2015.

Supreme Court of Pennsylvania.

ARGUED: September 13, 2016

DECIDED: September 28, 2017

Michael Churchill, Esq., Daniel Urevick-Ackelsberg, Esq., Public Interest Law Center of Philadelphia, Deborah Gordon Klehr, Esq., Cheryl Kleiman, Esq., Maura Mclnerney, Esq., Education Law Center, Matthew Jared Sheehan, Esq., O'Melveny & Myers, LLP, Brad M. Elias, Esq., Aparna B. Joshi, Esq., for Appellants.

Daniel Thomas Brier, Esq., Myers, Brier & Kelly, L.L.P., Lucy Elizabeth Fritz, Esq., John G. Knorr III, Esq., Pennsylvania Office of Attorney General, Lawrence G. McMichael, Esq., Patrick Michael Northen, Esq., Catherine Glenn Pappas, Esq., Dilworth Paxson, L.L.P., Gregory George Schwab, Esq., Robert M. Tomaine Jr., Esq., Pennsylvania Department of Education, for Appellees.

Daniel Johnson Auerbach, Esq., City of Philadelphia Law Department, Ira Metr Karoll, Esq., Jones Day, Fred T. Magaziner, Esq., Dechert LLP, Ralph J. Teti, Esq., Willig, Williams & Davidson, Seth F. Kreimer, Esq., for Amicus parties.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE WECHT¹

Appellant–Petitioners in this case are school districts, individuals, and groups with an interest in the quality of public education in Pennsylvania. They contend that the General Assembly and other Respondents collectively have failed to live up to the mandate, embodied in our Constitution's Education Clause, that the General Assembly "provide for the maintenance and support of a thorough and efficient system of public education."² They further allege that the hybrid state-local approach to school financing results in untenable funding and resource disparities between wealthier and poorer school districts. They claim that the General Assembly's failure legislatively to ameliorate those disparities to a greater extent than it does constitutes a violation of the equal protection of law guaranteed by the Pennsylvania Constitution.³

The Commonwealth Court, sitting in its original jurisdiction, dismissed both claims at the pleading stage, relying upon this Court's prior dispositions of similar cases.⁴ Arguably, these prior decisions held that such challenges to prerogatives constitutionally conferred upon the General Assembly were political questions that the courts cannot adjudicate without infringing upon the constitutional separation of powers. Concluding that these decisions controlled the issues presented, the Commonwealth Court ruled that Petitioners' claims lay outside the reach of the judiciary as non-justiciable political questions pursuant to the principles set forth in Baker v. Carr , 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its federal and Pennsylvania progeny.

It is settled beyond peradventure that constitutional promises must be kept. Since Marbury v. Madison , 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803), it has been well-established that the separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements. That same separation sometimes demands that courts leave matters exclusively to the political branches. Nonetheless, "[t]he idea that any legislature ... can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions." Smyth v. Ames, 169 U.S. 466, 527, 18 S.Ct. 418, 42 L.Ed. 819 (1898).⁵ Thus, we must be skeptical of calls to abstain from a given constitutional dispute. We hold that this is not a case that requires such abstention. Accordingly, we reverse the Commonwealth Court's contrary ruling.

I. Background

A. The Pennsylvania Constitution and Public Education⁶

The lineage of charters that led to Pennsylvania's current Constitution offers a window into the shifting priorities and prerogatives animating the Commonwealth's sometimes fractious history. This history informed the introduction and evolution of what became the Education Clause, a provision that has remained in our Constitution in materially the same form since 1874. We choose as a starting point William Penn's 1682 Frame of Government of Pennsylvania. This was Pennsylvania's first charter, "in effect a constitution agreed upon between Penn and the colonists," and "the first real [C]onstitution followed in the colony of Pennsylvania." Gedid, supra n.6, § 3.2[a] at 33 (citing Thomas Raeburn White, COMMENTARIES ON THE CONSTITUTION OF PENNSYLVANIA xvii (1907)). Notably, Penn's Framework provided for the creation of schools, and the colonial assembly passed education legislation as early as 1683. William Penn himself stressed that the people should "spare no cost" in providing for education, opining that "by such parsimony all is lost that is saved." PARSS at 87 (quoting Philip S. Klein, et al. , A HISTORY OF PENNSYLVANIA 384 (2d ed. 1973)). The Framework was short-lived, as Penn issued the Charter of Privileges in 1701, notable for its addition of certain defined individual liberties, and in particular its expansion of religious freedom and concomitant broadening of the electoral franchise, which, in turn, transformed Pennsylvania into a haven for oppressed religious sects. Notably absent from the Charter, though, was any provision concerning education.

Continued economic growth, as well as demographic, economic, and political changes, led to the Pennsylvania Convention of 1776. The Constitution that emerged from the convention, which came to be a model for other state charters, added extensive and now-familiar procedural protections, intra-governmental checks and balances, and a detailed declaration of rights. Education also returned in the 1776 Constitution's mandate that "[a] school or schools shall be established in each county by the legislature, for the convenient instruction of youth, with such salaries to the masters paid by the public, as may enable them to instruct youth at low prices." PA. CONST. OF 1776 § 44.

Aspects of the 1776 Constitution, including in particular its further expansion of the franchise, its unicameral legislature, its weak executive Council of Censors lacking veto power, and a judiciary characterized by the combination of democratic selection and the brevity of judges' terms, provoked conflict among political factions. This led to gridlock, recrimination, and, in due time, the 1789 Pennsylvania constitutional convention, which culminated in the adoption of the 1790 Constitution. The new Constitution divided legislative power into two houses, replaced the Council of Censors with a unitary executive having veto power, and extended life tenure on good behavior to judges who were appointed rather than elected.⁷ Like other state constitutions enacted in that era, it resembled in its broad strokes, and in its conception of tripartite representative democracy, the United States Constitution.

The fledgling federal constitution conspicuously omitted any mention of education, which presumably was among the unenumerated powers reserved to the states by the Tenth Amendment.⁸ But in Pennsylvania, the Constitution of 1790 preserved generally the 1776 Constitution's educational mandate, refining the language of the earlier clause to direct the legislature "to provide, by law, for the establishment of schools throughout the State, in such manner that the poor may be taught gratis." PA. CONST . OF 1790 art. VII, § 1.

Judge Dan Pellegrini has provided a useful account of how the 1790 Education Clause's mandate was applied in the decades that followed:

Laws effectuating the [1790 Education Clause], passed in 1802, 1804[,] and 1809, allowed parents who declared themselves paupers to receive state aid to pay tuition at private institutions. But the "pauper school" approach reached few children, and as late as 1828, the state had paid the tuition of only 4,477 children that year. Ellwood P. Cubberley, PUBLIC EDUCATION IN THE UNITED STATES 192 (2d ed. 1934). Over half the state's 400,000 children were not enrolled in school. Stuart G. Noble, A HISTORY OF AMERICAN EDUCATION 160 (1938).

The cause of universal public education gained wide support during the 1820s. The Pennsylvania Society for the Promotion of Public Schools, founded in 1827, petitioned for a revision of the state's school laws. None of the governors during the period that the 1809 law was in effect believed that the constitutional mandate was being fulfilled. In his 1823 inaugural address to the state legislature, Governor [John] Schulze stated:

The object of the convention seems to have been, to diffuse the means of rudimental education so extensively, that they should be completely within the reach of all—the poor who could not pay for them, as well as the rich who could. Convinced that even liberty without

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