STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

Transcription

1 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE S.S. as next friend of minor L.M.; D.S. as next friend of minor S.D.; M.J. as next friend of minor M.S.; D.C. as next friend of L.B.; T.F. as next friend of minors D.F., I.D., and F.C.; and L.H. as next friend of minor C.M., on behalf of themselves and all others similarly situated, Plaintiffs, CASE NO.: Case No CZ vs. STATE OF MICHIGAN; STATE BOARD OF EDUCATION; MICHIGAN DEPARTMENT OF EDUCATION; MICHAEL P. FLANAGAN, Superintendent of Public Instruction in his official capacity; JOYCE PARKER, Emergency Manager of Highland Park in her official capacity; HIGHLAND PARK SCHOOL DISTRICT; HIGHLAND PARK PUBLIC SCHOOL ACADEMY SYSTEM; and THE LEONA GROUP, LLC, Hon. Robert L. Ziolkowski PLAINTIFFS OPPOSITION TO STATE DEFENDANTS SUPPLEMENTAL MOTION FOR SUMMARY DISPOSITION Defendants. Attorneys for Plaintiffs Kary L. Moss (P49759) Rick A. Haberman (P57269) Michael J. Steinberg (P43085) Mark P. Fancher (P56223) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) Jennifer B. Salvatore (P66640) Edward Alan Macey (P72939) Nakisha N. Chaney (P65066) Cooperating Attorneys, American Civil Liberties Union Fund of Michigan Nacht, Roumel, Salvatore, Blanchard & Walker, P.C. 101 N. Main Street, Ste. 555 Ann Arbor, MI (734)

2 Mark D. Rosenbaum (CA #59940) David B. Sapp (CA #264464) (Admitted Pro Hac Vice) Cooperating Attorneys, American Civil Liberties Union Fund of Michigan 1313 W. 8th St. Los Angeles, CA (213) Steven D. Guggenheim (CA #201386) Catherine Eugenia Moreno (CA #264517) Joni Ostler (CA #230009) Doru Gavril (CA #282309) (Admitted Pro Hac Vice) Cooperating Attorneys, American Civil Liberties Union Fund of Michigan Wilson, Sonsini, Goodrich & Rosati, LLP 650 Page Mill Road Palo Alto, CA (650) Attorneys for Defendants Darrin F. Fowler (P53464) Timothy J. Haynes (P41196) Raymond O. Howd (P37681) P.O. Box Lansing, MI (517) KIENBAUM OPPERWALL HARDY & PELTON, P.L.C. Eric J. Pelton (P40635) Noel D. Massie (P28988) Brian D. Shekell (P75327) 280 N. Old Woodward Avenue, Ste. 400 Birmingham, MI (248) CLARK HILL, PLC Jonathan M. Martone (P73035) 151 S Old Woodward Ave Ste 200 Birmingham, MI (248)

3 TABLE OF CONTENTS Page INTRODUCTION... 1 STATEMENT OF FACTS... 3 STANDARD OF REVIEW... 5 ARGUMENT... 5 I. THE NEW EMERGENCY MANAGER LAW DOES NOT IMMUNIZE STATE DEFENDANTS CONSTITUTIONAL AND STATUTORY VIOLATIONS... 5 A. State Defendants Violations of Their Independently Arising Constitutional Duty Cannot Be Immunized by Statute... 6 B. This Lawsuit Is Based on State Defendants Inaction Rather on Any Activity Authorized by the Emergency Manager Law... 7 C. State Defendants Absurd Interpretation of the New Emergency Manager Law Would Deny Legal Remedies to Students Living in Distressed Districts... 8 II. STATE COURTS IN NINETEEN STATES HAVE HELD STATE GOVERNMENTS LIABLE FOR FAILING TO ENFORCE EDUCATIONAL MANDATES IN STATE CONSTITUTIONS CONCLUSION i-

4 TABLE OF AUTHORITIES Page(s) CASES Abbeville Cnty Sch Dist v. State, 335 SC 58; 515 SE 2d 535 (1999)...11 Abbott v. Burke, 119 NJ 287; 575 A2d 359 (1990)...11 Bond v. Public Schools of Ann Arbor School District, 383 Mich 693; 178 NW2d 484 (1970)...6 Brigham v. State, 166 Vt 246; 692 A2d 384 (1997)...11, 12 Burdette v. State, 166 Mich App 406; 421 NW2d 185 (1988)...6 Butt v. State of California, 4 Cal 4th 668; 842 P2d 1240 (1992)...12 Campbell County School Dist v. State, 907 P2d 1238 (Wyo 1995)...11 Claremont Sch Dist v. Governor, 143 NH 154; 725 A.2d 648 (1998)...11 DeRolph v. State, 78 Ohio St 3d 193; 677 NE 2d 733 (1997)...11 Edgewood Indep Sch Dist v. Kirby, 777 SW 2d 391 (Tex 1989)...12 Haridopolos v. Citizens for Strong Schools, Inc, 81 So 3d 465 (Fla App 2011)...11, 12 Helena Elementary Sch Dist No 1 v. State, 236 Mont 44; 769 P2d 684 (1989)...11, 12 Kuhn v. Thompson, 168 Mich 511; 134 NW 722 (1912)...7 Lake View Sch Dist No 25 of Phillips Cnty v. Huckabee, 351 Ark 31; 91 SW 3d 472 (2002) supplemented 358 Ark 137 (2004)...12 Lake View Sch Dist No 25 of Phillips Cnty v. Huckabee, 355 Ark 617; 142 SW 3d 643 (2004)...12 Lake View Sch Dist No 25 of Phillips Cnty v. Huckabee, 364 Ark 398; 220 SW 3d 645 (2005) ii-

5 Leandro v. State, 346 NC 336; 488 SE 2d 249 (1997)... 11, 12 Lobato v. State, 218 P3d 358 (Colo App 2009)...11, 12 McDuffy v. Secretary, 415 Mass 545; 615 NE 2d 516 (1993)...11 Niederhouse v. Palmerton, --- N.W.2d ---, 2013 WL (Mich App, 2013)...5 Pauley v. Kelly, 162 WVa 672; 255 SE 2d 859 (1979)...11, 12 Paulson v. Minidoka County School Dist, 93 Idaho 469; 463 P2d 935 (1970)...11 People v. DeJonge, 442 Mich 266; 501 NW2d 127 (1993)...7 People v. Loyer, 169 Mich App 105; 425 NW2d 714 (1988)...9 Reist v. Bay Cnty Circuit Judge, 396 Mich. 326; 241 NW2d 55 (1976)...9 Rose v. Council for Better Educ, 790 SW 2d 186 (Ky 1989)...11, 12 Sheff v. O'Neill, 238 Conn 1; 678 A2d 1267 (1996)...11, 12 Smith v. Dep't of Public Health, 428 Mich 540; 410 NW2d 749 (1987) aff d 491 US 58 (1989)...6 Tennessee Small Sch Sys v. McWherter, 851 SW 2d 139 (Tenn 1993)...11 STATUTES Article 8, Section 1 of the Michigan Constitution...1, 3, 6 Article 8, Section 2 of the Michigan Constitution...3, 6, 7 MCL MCL to MCL , 8 MCL (8)...3, 7, 8 -iii-

6 RULES MCR 2.116(C)(7)...5 -iv-

7 INTRODUCTION Outside of this lawsuit, Governor Snyder and his right hand men have repeatedly acknowledged in unequivocal terms that the State of Michigan has ultimate responsibility for ensuring that public schoolchildren receive basic educational equality and at least a minimally sufficient education. For example, when the State Attorney General brought an action in August 2012 to unseat the members of the Detroit Public School District s school board, who were allegedly illegally elected, the Complaint acknowledged that the State had a Constitutional duty to ensure that Michigan schoolchildren received quality educational services, stating: This action is necessary to guarantee that, as our Michigan Constitution requires, schools and the means of education shall be forever encouraged. Mich. Const, Art VIII, sec 1. In the Detroit Public School District, this has required extraordinary action by the State including the appointment of an emergency financial manager to help assure the orderly and efficient provision of quality educational services. Exhibit A at 1-2. In a subsequent press release, the Attorney General reiterated the State s obligation under the Michigan Constitution to provide education to children, saying: My job as Attorney General is to ensure state law is followed and that our children get the quality education they were promised by our Michigan Constitution. Ex. B. 1 Similarly, Bill Rustem, Director of Strategy to Governor Snyder, recently proclaimed: [T]he bottom line is simple: [T]he state has the ultimate responsibility to educate students.... If (local districts) can t, or if you refuse, or if you don t... then the state has that constitutional obligation to step in and provide for the education of those kids. Ex. C. 2 Governor Snyder himself has also acknowledged that this is Michigan s constitutional promise to our children and our state.... Ex. D. 3 1 (Press Release, < (accessed June )). 2 < June 19, 2013). 3 See also Ex. E (John Austin, President of Defendant State Board of Education: Today, [Michigan s] commitment to great public education is in tatters.... The State Board of Education is committed to help lead the public discussion of how we rebuild and finance great (continued...) -1-

8 Yet, in this Court, when the children of Highland Park School District have called upon the State to make good on its Constitutional obligations, the State Defendants 4 utterly reverse their stance, and insist that they have no obligation or responsibility whatsoever to schoolchildren, under the Michigan Constitution, statute, or otherwise. The State Defendants have taken the unprecedented absolutist position that they can ignore the abject failure of the schools in Highland Park, and that those children have no recourse whatsoever. If the State Defendants were correct, severely disadvantaged children in one of the worst districts in the state will have no recourse to ensure their constitutional and statutory rights to a minimal education where they can learn to read at grade level. The State Defendants recent Supplemental Motion for Summary Disposition is but the latest attempt to evade their responsibilities. In a new twist, State Defendants take the position that they, in fact, enjoy broad immunity from this lawsuit under a new emergency manager statute. But that new statute is inapplicable to lawsuits, such as this, that rest on the state government s failure to discharge its constitutional and statutory responsibilities. Further, the State Defendants argument, if successful, would mean that children living in districts under the control of an Emergency Manager would be unable to assert any rights while children living in more affluent districts would otherwise be able to do so. Plaintiffs have stated viable claims against State Defendants for failure to meet their duties at the most basic level. The State Defendants Supplemental Motion for Summary Disposition should be denied. (...continued from previous page) public schools again. We look to work with the governor, Legislature and all comers. ) < June 19, 2013). 4 State Defendants are the State of Michigan, the State Board of Education, the Michigan Department of Education, and Michael P. Flanagan in his official capacity as Superintendent of Public Instruction of the State of Michigan. -2-

9 STATEMENT OF FACTS Plaintiffs and the class they seek to represent are children who attend schools in the Highland Park School District, one of Michigan s lowest-performing school districts. 1, 9. The named plaintiffs are seven children who, when this action was filed, were entering various grades between four and twelve in the three schools that comprised Highland Park School District ( HPSD ) As detailed in Plaintiffs Opposition to State Defendants Motion for Summary Opposition filed October 12, 2012 ( Pltfs Opp. ), the conditions in the HPSD are deplorable. Plfts Opp. at 3-6. Due to the lack of basic literacy instruction, well over half of the students at HPSD schools cannot read at grade level, as determined by the State s own standardized tests. Id. The schools in Highland Park lack such basic necessities as heating and toilet paper, let alone adequate textbooks and libraries. Id. at 3. The named Plaintiffs have startling literacy deficiencies. Id. at 4-5. They cannot spell simple words, form grammaticallycorrect sentences, or even write legibly. Id. This lawsuit was necessary because none of the responsible parties has taken action to remedy the deplorable conditions in the Highland Park schools. Plaintiffs allege that State Defendants have failed to perform their statutory obligation under MCL (8), which provides: Excluding special education pupils, pupils having a learning disability, and pupils with extenuating circumstances as determined by school officials, a pupil who does not score satisfactorily on the 4th or 7th grade [MEAP] 5 reading test shall be provided special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months. 72; Plaintiffs also allege that the State Defendants failure to provide basic literacy instruction is a violation of Plaintiffs constitutional rights under Article 1, Section 2 (the equal protection clause) and Article 8, Sections 1 and 2 of the Michigan Constitution, which provide in relevant part that schools and the means of education shall forever be encouraged and that 5 The MEAP or Michigan Educational Assessment Program is the annual test chosen by the State to measure student progress in various subjects. 1. The MME or Michigan Merit Examination is the final standardized test administered to high school students in the State of Michigan

10 [t]he legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. 3; Plaintiffs seek declaratory and injunctive relief and a writ of mandamus, against the State Defendants, the Highland Park School District, the Stateappointed emergency manager, the for-profit charter company that the emergency manager hired (Leona Group LLC), and the Highland Park Public School Academy System ( HPPSAS ), which is the name of the Highland Park Schools as operated by the Leona Group. To date, Plaintiffs have had no discovery from the State Defendants. Plaintiffs have, however, been able to depose Ms. Dzialo, a teacher employed by the Leona Group, as well as Pamela Williams, the current superintendent. In addition, the Court allowed Plaintiffs expert, Dr. Elizabeth Moje, access to the Highland Park schools to inspect student records, observe reading instruction, and interview employees. See Stipulated Order dated January 8, 2013 (Exhibit F). The Court further allowed Dr. Moje to request additional data from the schools. Mr. Moje prepared a report detailing information learned from her school visit and observation, along with analysis of additional data requested. Dr. Moje found: Although it is obvious that the staff at the System are working diligently with the materials they have available, my initial assessment of the programs identified by Superintendent Williams stands: The programs are not being used with the degree of structure, systematicity, and coherence necessary for the System/State to meet the Statute s demands. This is particularly evident at the upper grades. Dr. Moje Report 12 (Exhibit A to Plaintiff s Supplemental Opposition to HPSD s Motion for Summary Disposition, filed concurrently herewith). Pursuant to Court Order, Dr. Moje met with Dr. Rebecca Sipe and Dr. Linda Williams, experts designated by the HPPSAS and Leona Group, and together the experts created a Joint Report and Literacy Turnaround Plan, which was filed with the Court on May 8, The State Defendants have not participated in the efforts of the parties to formulate a turnaround plan for the district. Instead, the State Defendants, while not denying that the conditions in the Highland Park School District are deplorable, have steadfastly insisted that they have absolutely no legal responsibility whatsoever to the children of Highland Park. -4-

11 STANDARD OF REVIEW State Defendants bring their Supplemental Motion pursuant to MCR 2.116(C)(7), which provides for dismissal if a claim is barred because of immunity granted by law, among other things. In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court considers the affidavits, pleadings, and other documentary evidence presented by the parties and accepts the plaintiff's well-pleaded allegations, except those contradicted by documentary evidence, as true. Niederhouse v. Palmerton, --- N.W.2d ---, 2013 WL , at 2 (Mich App, 2013). Any evidence submitted must be considered in the light most favorable to the nonmoving party. Id. ARGUMENT I. THE NEW EMERGENCY MANAGER LAW DOES NOT IMMUNIZE STATE DEFENDANTS CONSTITUTIONAL AND STATUTORY VIOLATIONS In their latest attempt to avoid responsibility for the reading deficiencies present in Highland Park schools, State Defendants now ask for broad immunity from this lawsuit, under a newly enacted emergency manager statute, MLC (The Local Financial Stability and Choice Act). State Supp. Mot. at 3. Like its predecessor, MCL , the new emergency manager statute permits Defendant State of Michigan to appoint emergency managers to administer financially distressed local governments and school districts. MCL to The new statute also provides that a lawsuit against the State may not be maintained for any activity authorized by this act[.] MCL State Defendants claim this provision grants them broad immunity from this lawsuit because their liability arises by virtue of the fact an Emergency Manager was installed in the [Highland Park School] District. State Supp. Mot. at 3. State Defendants are wrong. The new statute s immunity provision is inapplicable to this lawsuit for three simple reasons: (1) the new statute cannot immunize violations of Michigan s constitution; (2) Plaintiffs claims are predicated on State Defendants failure to act rather than on any activity authorized by the new statute; and (3) the State Defendants interpretation of -5-

12 the statute would tie the availability of a legal remedy to an individual s wealth, in violation of Michigan s equal protection guarantee. A. State Defendants Violations of Their Independently Arising Constitutional Duty Cannot Be Immunized by Statute State Defendants cannot seriously contend that the new emergency manager law immunizes their failure to discharge their constitutional obligations. It is black-letter law that a statute cannot immunize a state actor s unconstitutional activities or failure to perform constitutionally mandated duties: Constitutional rights serve to restrict government conduct. These rights would never serve this purpose if the state could use governmental immunity to avoid constitutional restrictions.... Governmental immunity is not available in a state court action where it is alleged that the state has violated a right conferred by the Michigan Constitution. Burdette v. State, 166 Mich App 406, ; 421 NW2d 185 (1988); see also Smith v. Dep't of Public Health, 428 Mich 540; 410 NW2d 749 (1987) aff d 491 US 58 (1989) (governmental immunity not available in action alleging constitutional violation). Article 8, Sections 1 and 2 of the Michigan Constitution provide that all children have the right to a free public education as defined by statutory law. 64. These provisions are not toothless, unenforceable policy statements. See State Supp. Mot. at 3. On the contrary, the Michigan Supreme Court has held that Article 8, Sections 1 and 2 are substantive provisions that grant Michigan children substantive rights to education rights that are enforceable in Michigan s courts of law. See, e.g., Bond v. Public Schools of Ann Arbor School District, 383 Mich 693, ; 178 NW2d 484 (1970) (constitutional right to free public education means that students may not be charged for books and supplies and may sue to enforce this right). Pursuant to Article 8, Section 2, the Legislature has enacted numerous statutes that define what free public education consists of in Michigan and how it is organized. See Pltfs Opp. at 6-8. Among these, the Right to Read Statute defines, in concrete terms, what reading services students are entitled to in order to ensure their minimal reading proficiency. By supplying a definition for reading proficiency in Michigan s public schools, MCL (8) also sets a -6-

13 quantifiable and unequivocal constitutional minimum, under Article 8, Section 2, for the educational services that must be provided to achieve the required proficiency. 6 State Defendants have steadfastly denied that these constitutional and statutory provisions impose any duties on them that are enforceable by students and their parents in Michigan s courts of law. State Supp. Mot. at 3; State Mot. at 7-9. Such a contention (besides being absurd on its face) has also been repeatedly rejected by the Michigan Supreme Court, which has held that provision of public education is a function of the Michigan state government and its performance is enforceable by Michigan courts. See, e.g., Kuhn v. Thompson, 168 Mich 511, ; 134 NW 722 (1912) ( [O]ur free school system has been organized... as a primary and distinctive function of state government held under state control. ); People v. DeJonge, 442 Mich 266, 288; 501 NW2d 127 (1993) ( Providing public schools ranks at the very apex of the function of a State. ). See also Pltfs Opp. at 6-8, In further recognition of State Defendants constitutional duties, the Michigan Legislature has enacted multiple statutes that spell out, in detail, the various educational responsibilities placed in State Defendants charge. See id. at 6-8. Because State Defendants liability is predicated on a constitutional violation, they cannot obtain blanket immunity by means of the new statute for their refusal to discharge their existing constitutional responsibilities. B. This Lawsuit Is Based on State Defendants Inaction Rather on Any Activity Authorized by the Emergency Manager Law Throughout this action, Plaintiffs have made it unmistakably clear that their claims against State Defendants are predicated on State Defendants practice of ignoring, year after year, the straightforward dictates of Michigan s Constitution and Right to Read Statute, MCL (8), and on State Defendants failure, year after year, to ensure that Highland Park 6 Plaintiffs have also stated a constitutional claim based on Michigan s equal protection guarantee, given the deepening disparity between the quality of public instruction in Highland Park and that offered in other Michigan public schools. See Pltfs Opp. at

14 students master the reading skills statutorily required at their grade level. 1, 7, 11, 14, 75, 90, 95-98, ; Pltfs Opp. at 6-8, At the heart of Plaintiffs claims against State Defendants lies State Defendants inaction and failure to perform their duties, rather than any of their actions with respect to the appointment of an emergency manager in the Highland Park School District. Indeed, State Defendants have failed to perform this fundamental state function at its most basic level: students in Highland Park are not being taught to read. See Pltfs Opp. at 11. With no administrative remedies available to them, Plaintiffs have instituted this action for declaratory and injunctive relief to compel State Defendants to act, rather than to challenge any of State Defendants activities. 7 Pltfs Opp. at State Defendants have completely ignored the mandate of MCL (8) that they shall provide special assistance to students who fail to score satisfactorily on the fourth or seventh grade MEAP reading test. MCL (8); 1, 7, 11, 14, 75, 90, 95-98, A plain reading of the immunity provision that State Defendants have invoked shows that only action rather than inaction can be immunized by the statute. See MCL (a lawsuit against the State may not be maintained for any activity authorized by this act.... ). As such, the immunity provision of the new emergency law does not apply, on its face, to State Defendants failure to discharge their independently arising duties. C. State Defendants Absurd Interpretation of the New Emergency Manager Law Would Deny Legal Remedies to Students Living in Distressed Districts 7 State Defendants misrepresent Plaintiffs arguments regarding the relationship between State Defendants and Defendant Emergency Manager. See State Supp. Mot. at 3-4. Plaintiffs nowhere assert that State Defendants involvement in the running of the Highland Park School District is the source of State Defendants liability. Plaintiffs only point to State Defendants appointment of the Emergency Manager as evidence refuting State Defendants incorrect factual assertions that they had no direct involvement in the Highland Park. See Pltfs Opp. at

15 Taking State Defendants claims of broad immunity to their natural conclusion yields a result that defies not just common sense, but also Michigan s laws. State Defendants would become immune from lawsuit in any distressed school district where an emergency manager has been appointed, but their actions (or inaction) could be open to challenge in any of the districts wealthy enough not to require an emergency manager. Thus, the more egregiously State Defendants fail to discharge their constitutional and statutory duties, the closer they would get to broad immunity from legal challenge. The very children that the State believes are in the most dysfunctional and disadvantaged districts would be denied recourse. Put differently, State Defendants position is that only the parents and students located in wealthy districts have the power to bring suit to enforce their rights. Tying the availability of a legal remedy such as a suit for a writ of mandate and declaratory judgment to the wealth of the district a student lives in is in plain violation of Michigan s equal protection guarantee. See Reist v. Bay Cnty Circuit Judge, 396 Mich. 326, ; 241 NW2d 55 (1976) ( The Equal Protection Clause requires that indigent parents be provided counsel for prosecuting the first appeal as of right to the circuit court and such transcripts as counsel requires. ); see also People v. Loyer, 169 Mich App 105, 124; 425 NW2d 714 (1988) ( When such a[] [legal] advantage is to be reaped by the prosecution only when the defendant is poor and therefore cannot afford to pay..., it seems undeniable to us that such a defendant is not the recipient of equal justice under law. ). The disingenuousness of the State Defendants position here can hardly be overstated. When the Governor appointed an Emergency Manager for the Highland Park School District, he issued the following statements: It is critical that students in the Highland Park School District get the education they need and deserve[.] Ex. G ). 8 < (accessed June 19, -9-

16 Over the last several weeks, I have grown increasingly concerned about the district s ability to complete the school year without significant assistance and intervention, Snyder said. The welfare of the students attending Highland Park schools is our number one priority. We must ensure they have every opportunity to learn and succeed. Ex. H. 9 Similarly, Superintendent of Public Instruction Mike Flanagan stated, Children who attend Highland Park Schools deserve the best education possible. We cannot and will not let this financial emergency impact these young people and their hopes for the future. Ex. I. 10 Yet now, these same individuals claim that because the Governor appointed an Emergency Manager in Highland Park, the State Defendants are now immune and have no legally-enforceable obligations to Highland Park schoolchildren under the Michigan Constitution or the Right to Read statute. This argument turns the law on its head and, if accepted, would allow the State to manufacture its own immunity in the poorest, most troubled districts where the children are the most severely disadvantaged. The Court should not allow this. II. STATE COURTS IN NINETEEN STATES HAVE HELD STATE GOVERNMENTS LIABLE FOR FAILING TO ENFORCE EDUCATIONAL MANDATES IN STATE CONSTITUTIONS A brief review of similar actions across the nation underscores the weakness of State Defendants argument that they are not responsible for enforcing the educational mandate of Michigan s Constitution. At least nineteen states have held that judicial remedies are available to enforce educational provisions in state constitutions. The courts in these nineteen states have required state governments to live up to their constitutional duties with respect to the adequacy and equality of public education. These court decisions have in common several key rulings, which are also applicable in the instant case. 9 < (accessed June 19, 2013). 10 < (accessed June 19, 2013). -10-

17 First, the state courts faced with similar actions have found that constitutional educational provisions guarantee concrete, substantive rights to public school students. See, e.g., Leandro v. State, 346 NC 336, 345; 488 SE 2d 249 (1997) (students and parents stated claim against state and board of education for violating the constitutional provision that [t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right. ) (citation omitted). 11 Second, these constitutional mandates were held to imply minimal constitutional standards for the adequacy and equality of public education, including literacy. See, e.g., Abbeville Cnty Sch Dist v. State, 335 SC 58, 67-69; 515 SE 2d 535 (1999) (constitutional provision establishing a system of free public education required provision of a minimally adequate education that included the ability to read, write, and speak the English language ) (citation omitted). 12 Third, and especially relevant here, even when such constitutional provisions have allowed the state to share the administration of the public school system, courts have held that it ultimately is the state s responsibility to ensure the constitutional requirements are being met. See, e.g., Brigham v. State, 166 Vt 246, 264; 692 A2d 384 (1997) (the state cannot, however, abdicate the basic responsibility for education by passing it on to local governments, which are themselves creations of the state. ); Abbott v. Burke, 119 NJ 287, 306; 575 A2d 359 (1990) ( The State s obligation to attain that minimum is absolute any district that fails must be 11 See also Haridopolos v. Citizens for Strong Schools, Inc, 81 So 3d 465, 467 (Fla App 2011); Lobato v. State, 218 P3d 358, 371 (Colo App 2009); Claremont Sch Dist v. Governor, 143 NH 154, 158; 725 A.2d 648 (1998); Brigham v. State, 166 Vt 246, 251; 692 A2d 384 (1997); DeRolph v. State, 78 Ohio St 3d 193, 203; 677 NE 2d 733 (1997); Sheff v. O'Neill, 238 Conn 1, 21; 678 A2d 1267 (1996); Campbell County School Dist v. State, 907 P2d 1238, 1264 (Wyo 1995); McDuffy v. Secretary, 415 Mass 545, , , 621; 615 NE 2d 516 (1993); Tennessee Small Sch Sys v. McWherter, 851 SW 2d 139, 148 (Tenn 1993); Helena Elementary Sch Dist No 1 v. State, 236 Mont 44, 53; 769 P2d 684 (1989); Rose v. Council for Better Educ, 790 SW 2d 186, 205 (Ky. 1989); Paulson v. Minidoka County School Dist, 93 Idaho 469, 471; 463 P2d 935 (1970). 12 See also Leandro, 346 NC at 345; Abbott v. Burke, 119 NJ 287, 306; 575 A2d 359 (1990); 575 A2d 359 (1990); Rose, 790 SW 2d at 212; Pauley v. Kelly, 162 WVa 672, ; 255 SE 2d 859 (1979). -11-

18 compelled to comply. ). 13 Accordingly, courts have ruled that declaratory and/or injunctive relief was available to the plaintiffs. See, e.g., Rose v. Council for Better Educ, Inc, 790 SW 2d 186, 214 (Ky 1989) (declaratory judgment in favor of class of students); Lake View Sch Dist No 25 of Phillips Cnty v. Huckabee, 355 Ark 617; 142 SW 3d 643 (2004) (appointing special master to evaluate whether state scheme for funding education was constitutional); Helena Elementary Sch Dist No 1 v. State, 236 Mont 44, 54-55; 769 P2d 684 (1989) (ordering trial court to retain jurisdiction to enforce ruling against defendants state of Montana, education officials, and schools districts). 14 As the rulings of courts in these nineteen states illustrate, State Defendants abdication of their constitutional duties warrants swift and decisive judicial intervention. Such intervention is all the more warranted when, with every new school year, Highland Park s students fall farther behind. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that State Defendants Supplemental Motion for Summary Disposition be denied. Dated: June 20, 2013 Respectfully submitted, WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ Joni Ostler Joni Ostler Admitted pro hac vice Attorneys for Plaintiffs 13 See also Lake View Sch Dist No 25 of Phillips Cnty v. Huckabee, 364 Ark 398, 415; 220 SW 3d 645 (2005); Lake View Sch Dist No 25 of Phillips Cnty v. Huckabee, 351 Ark 31, 97-98; 91 SW 3d 472 (2002) supplemented 358 Ark 137 (2004); Butt v. State of California, 4 Cal 4th 668, ; 842 P2d 1240 (1992). 14 See also Haridopolos, 81 So 3d at 473 (student and parent plaintiffs); Lobato, 218 P3d at 371 (parent plaintiffs); Leandro, 346 NC at 357; Brigham, 166 Vt at (student and school district plaintiffs); Sheff, 238 Conn at 45 (student plaintiffs); Edgewood Indep Sch Dist v. Kirby, 777 SW 2d 391, (Tex 1989) (student and parent plaintiffs); Pauley, 162 WVa at

19 Page Mill Road Palo Alto, CA (650)