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Indiana Supreme Court: no Indiana state constitution quality standards for public education; reverses appellate court, upholds trial court Rule 12(B)(6) dismissal

Draft June 10, 2009

The Indiana Supreme Court in Bonner v. Daniels on June 2, 2009, held that the Indiana state constitution, while requiring the Indiana General Assembly to establish a system of public education, does not mandate quality standards in public education, or specifically does not require outcomes-based measures as a constitutional matter.

The court did so upholding a Marion County trial court Rule 12(b)(6) dismissal of an action that had been brought on behalf of public school students. Plaintiffs had sought a declaratory judgment that Indiana public education fell short of necessary standards and that public education financing violated equal privilege requirements. In so doing, the court reversed an intermediate appellate court decision that had overturned the dismissal.

The Indiana Supreme Court held:

Although recognizing the Indiana Constitution directs the General Assembly to establish a general and uniform system of public schools, we hold that it does not mandate any judicially enforceable standard of quality, and to the extent that an individual student has a right, entitlement, or privilege to pursue public education, this derives from the enactments of the General Assembly, not from the Indiana Constitution.

Bonner v. Daniels, Slip Op., No. 49S02-0809-CV-525, -- Ind. --, -- N.E.2d -- (Indiana Supreme Court, June 2, 2009), http://www.in.gov/judiciary/opinions/pdf/06020901bd.pdf (accessed June 5, 2009), at 2.

While acknowledging that the state constitution mandates the establishment of public education, the court side-stepped the question of what that meant, or, in complying with the mandate, what it meant to cross the threshold of public education being established. In other words, the court failed to take up the matter of when four walls, a roof, and a staff become a school and not just a building where minors are subjected to a set schedule.

In the above-quoted passage, without elaborating the court attempts to separate out the duty to form a public school system from the question of a particular individual receiving the public education. But the court does not go on to address what a public education is.

While, at this point, the court declines to specify whether the individual student's access to public education is a right, entitlement, or privilege, it goes on to hold that the Education Clause does not create a right or entitlement.

Of course, even though the action was for a declaratory judgment, and not necessarily over a specific case or controversy, naturally the court had before it the complaint as filed by plaintiffs, not the general subject matter the complaint touched upon.

Plaintiffs complaint sought judicial declarations that the Indiana Constitution imposes upon the state an obligation to meet specific, ultimate-result-oriented quality standards for public education -- not focusing on what educational opportunities were offered, or specific results with respect to academic performance, but rather employment success, the capacity to be a good citizen, and prevalence of college admission.

The action also sought a declaration that the state's educational finance system for primary and secondary school's fell short of meeting the argued-for constitutional standards. It is under this argument that plaintiffs argue essentially that students are not receiving an education, but apparently based upon financingl considerations.

Plaintiffs sought broad life-result measures to indict educational finance

In particular, plaintiffs sought declarations that:

[1] that the Indiana Constitution imposes an enforceable duty on the General Assembly to provide an education that prepares all of Indiana's children – rich or poor, white, black or Hispanic, with or without special needs, and with or without English proficiency – to function in a complex and rapidly changing society, to discharge the duties and responsibilities of citizenship, and to compete successfully with their peers for productive employment and opportunities for advancement through higher education.

[2] that the Defendants are violating their constitutional duty because Indiana's current system of financing education violates the Indiana Constitution, with the result that the plaintiffs, and the tens of thousands of other Indiana schoolchildren whom plaintiffs represent, are not receiving their constitutional entitlement of education as intended by the framers of the Constitution.

Id. at 3.

As can be seen, plaintiffs sought to focus on results in the future lives of students, with respect to whether they get into college and get jobs, and in some undefined way how they function as citizens. Moreover, plaintiffs seemed to focus on financing of public education (one might speculate this was to involve whether there were disparities in local school budgets or facilities).

The state constitution speaks to the provision of education, which might reasonably be considered to include facilities, course offerings, credentials of instructors, perhaps extracurricular programs, and perhaps measures of personal and environmental safety at given facilities. But instead of focusing upon what is or is not provided, plaintiffs instead were focusing on results generated, and ultimate life results not directly related to education.

Rather than focusing on actual educational results such as test scores, plaintiffs went one step even beyond that by wanting to blame public education for unemployment or hypothetical instances of bad citizenship.

The only real educational aspect of the measures cited in plaintiffs' proposed declarations is the mention of whether students attain opportunities at higher education.

Even with their second prong, which flirst with the question of whether an education is actually received, having the potential utility of implicitly calling for a definition of what it means to offer an education as a threshold matter, plaintiffs' focus with that prong seemed to be on the financial aspects of public education rather than its actual existence.

As seen above, plaintiffs also attempted to argue that the Indiana constitution required that students should not receive differential effect or results in their education in the context of several differentiating criteria, including a lack of ability to speak English, differences in income level, and when a student has a disability including any learning disability.

So, in sum, plaintiffs wanted to focus not on whether public education was provided, or what that meant, but whether someone participating in public education gets into college, and what kind of economic or community-based life they lead. In other words, plaintiffs sought to find a constitutional duty for state government not simply to provide a public education, but to see that citizens take advantage of it, show up to class, study, apply to college, get into college, get jobs, and in some vague way are good citizens, all housed within a constitutional clause that simply calls for public education to be provided, and provided tuition-free.

The court's review: introduction

The court applied Indiana Rule of Court 12(b)(6) as the relevant standard for dismissal under a Motion to Dismiss in the case:

The Indiana Supreme Court reiterated a standard for constutional review focusing upon the plain text of constitutional provisions, potentially enhanced by analysis of the original intent of constitutional framers and ratifiers, and the overall purpose and structure of the state constitution. Addressing the complaint, the court examined three provisions of the Indiana Constitution:

:: Education Clause, Article 8, Section 1
:: Due Course of Law Clause, Article 1, Section 12 (arguing that education is a "fundamental right")
:: Equal Privileges Clause, Article 1, Section 23 (arguing that some levels of education are provided to some students, but not equally to others)

The plaintiffs in the action were public school students. They named as defendants the governor, state superintendent of education, and state board of education, in those capacities as well as, for the two individuals, their capacities as co-chairs of The Education Roundtable.

In reaching its decision the Indiana Supreme Court reaffirmed precedent-based sign-posts for Indiana state constitutional review and state Rule 12(B)(6) analysis.

Indiana State Constitutional Review

The Indiana Supreme Court articulated a standard of constitutional review based upon the actual text and original intent of the framers and ratifiers:

Interpreting our Constitution "involves a search for the common understanding of both those who framed it and those who ratified it." Collins v. Day, 644 N.E.2d 72, 75-76 (Ind. 1994); see also McIntosh v. Melroe Co., 729 N.E.2d 972, 974 (Ind. 2000). "In construing the Indiana Constitution . . . [we] look to 'the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions.'" Ajabu v. State, 693 N.E.2d 921, 928-29 (Ind. 1998), quoted by McIntosh, 729 N.E.2d at 974. The actual language, however, is particularly valuable because it "tells us how the voters who approved the Constitution understood it, whatever the expressed intent of the framers in debates or other clues." McIntosh, 729 N.E.2d at 983.

Bonner v. Daniels, Slip Op., No. 49S02-0809-CV-525, -- Ind. --, -- N.E.2d -- (Indiana Supreme Court, June 2, 2009), http://www.in.gov/judiciary/opinions/pdf/06020901bd.pdf (accessed June 5, 2009)

So in state constitutional review, the court looks to the:

:: language of the text
:: historical context surrounding its actual drafting and ratification
:: purpose and structure of the constitution taken as a whole
:: case law interpreting the specific provisions

Note that the historical context considered is that of original intent, the historical context surrounding actual constitutional framing and ratification, not currently evolving societal mores as interpreted by the members of the court.

Rule 12(b)(6) Dismissal

As the court explained, "Indiana Trial Rule 12(B)(6) permits dismissal for "[f]ailure to state a claim upon which relief can be granted.'" Bonner v. Daniels, supra., n. 3, quoting Indiana Trial Rule 12(B)(6),

Note that disposition of the matter was by dismissal, upon a Motion to Dismiss (not, for example, a Motion for Summary Judgment). As such presumably there was little or no discovery, and the court was holding that, even if all facts pled by plaintiffs were accepted as true, under law the relief plaintiffs sought could not be granted upon the grounds plaintiffs cited.

The court explained:

The function of an appellate court in reviewing a trial court judgment granting a Rule 12(B)(6) motion to dismiss was summarized in City of New Haven v. Reichhart, 748 N.E.2d 374 (Ind. 2001):

It is well settled that a complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. We view the pleadings in the light most favorable to the nonmoving party and draw every reasonable inference in favor of that party. When reviewing a motion to dismiss for failure to state a claim, this court accepts as true the facts alleged in the complaint. We will affirm a successful Trial Rule 12(B)(6) motion when a complaint states a set of facts, which, even if true, would not support the relief requested in that complaint. We will affirm the trial court's ruling if it is sustainable on any basis found in the record.

Id. at 377-78 (internal citations omitted).

Id. at

For purposes of Rule 12(B)(6) analysis, then (within the scope of that analysis):

:: the court interprets all pleadings in the light most favorable to the nonmoving party
:: the court draws every reasonable inference in favor of the nonmoving party
:: the court accepts as true all facts alleged by plaintiffs, when the Motion to Dismiss argues that plaintiffs have failed to state a claim for which relief may be granted
:: a dismissal is affirmed when a complaint alleges fact that, even if true, would not support the sought-after relief

Indiana Constitution: Education Clause

The court indicates that plaintiffs devoted the lion's share of their efforts to arguing under the Indiana Constitution's Education Clause.

That Education Clause, Article 8, Section 1, of Indiana's Constitution of 1851 states:

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.

Ind. Const. Art. 8, § 1.

Plaintiffs apparently argued under the clause as a whole and not simply specific elements such as the phrases "general and uniform" or "equally open to all."

The court looked to whether the text spoke to aspirations or set out a concrete duty, and whether it set out something for which judicial enforcement was plausible:

... the text of the Education Clause expresses two duties of the General Assembly. The first is the duty to encourage moral, intellectual, scientific, and agricultural improvement. The second is the duty to provide for a general and uniform system of open common schools without tuition. The first is general and aspirational; the second is more concrete—the assignment of a specific task with performance standards ("general and uniform," "tuition without charge," and "equally open to all"). Judicial enforceability is more plausible as to the second duty than the first.

Bonner, supra., at 5.

That is, the court focused on the Education Clause setting out a concrete duty to: (1) establish public schools; (2) free of charge; (3) equally open to all.

Note that these three points simply involve establishing free public schools that are equally open to all, without assessing the quality of results achieved. The court held:

As can be seen from the text of the Education Clause, its 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 "general and uniform," "tuition . . . without charge," and "equally open to all" do not require or prescribe any standard of educational achievement that must be attained by the system of common schools. The Clause says nothing whatsoever about educational quality.

Id. at 6.

However the court, or perhaps plaintiffs, failed to address what minimum threshold a facility and staff must cross to be considered a school rather than simply being a building in which minors are subjected to daily schedules. For example, there is no discussion in the opinion of accreditation, or whether, for example, a hypothetical entity could be considered a high school if a certain number of its students could not read and write.

In addition, the court, or perhaps plaintiffs, failed to address whether the requirement that public schools be "equally open to all" was fulfilled when access to education was subject to dramatic disparities -- for example, if access to public education was manifested by differences in course offerings, differences with respect to personal safety and educational environment, or lack of access to educational opportunities of similar quality.

In other words, this case overlooked the fundamental question -- what is a school, and what does it mean for there to be equal access to such a school.

As mentioned above, the previous clause, relating to the General Assembly encouraging moral, intellectual, scientific, and agricultural improvement, the court considered to be aspirational in nature. As seen below, in examining the history of Indiana's current constitution, the court considered that much was left to legislative discretion.

True to its standards of constitutional analysis, the court looked to the establishment of Indiana's 1851 constitution (the current state constitution), how it contrasted with the previous, 1816 constitution, and how the matter of public education was presented to those ratifying it, namely Indiana voters.

The court indicated that it considered the 1851 constitution's Education Clause to be less expansive than that of 1816, in part by only referring to common schools and not education through college, while pointing out that neither constitution set outcome standards for education. The court did observe that the 1851 constitution added provisions for state finance for education and the creation of a state superintendent of education.

Interestingly, unlike a legislative history in which, among other things, a court might look to recorded statements by those voting on legislation, in the case of constitutional ratification by voters, the court looked to statements made to them, rather than statements made by voters as voters.

Specifically, the court looked to the text of what apparently was an explanatory text prepared for Indiana voters, accompanying the text of the then-proposed constitution, termed an "address" and approved by Indiana's constitutional convention.

Despite the fact that the mid-19th Century debate over public schools at the time apparently was acrimonious, the explanatory address simply referred to the abolition of county seminaries, the application of funding, and the general matter of providing public schools with free tuition for all.

More to the point, the court points out, like the constitution itself, the explanatory address makes no mention of standards of quality.

It should be noted that the issue at hand is not the policy question of whether quality standards should be set or met, or whether a statute does set such standards and has been complied with, but rather constitutional legal analysis over whether the Indiana Constitution requires outcomes as a matter of constitutional law and as a matter of constitutional right.

In other words, plaintiffs were asking the Indiana Supreme Court to find outcomes-based requirements in the constitution itself, and to clear the way for a trial to make a factual determination as to whether such a requirement had not been met.

The court, however, appears to once again side-step a central question. For example, the court says, with respect to the explanatory address:

But it did not state or suggest that Article 8 intended to impose upon government any duty to educate children to any particular standard of achievement.

Id. at 7.

As seen above, the case missed the fundamental question of "what makes a school a school" and when does a facility cross that threshold. Here, we see the court -- perhaps somewhat sloppily -- focusing on educational achievement as opposed to educational offerings.

The whole point of the Education Clause is to offer a free public education, not what someone does with it. So technically the issue is not whether students take advantage of their educational opportunity, but whether the educational opportunity is there, and equally there for all.

Now one could argue that testing of students, for example, or college or vocational technical admission, might be one measure of how well-educated the student population has become, and indirectly whether they were offered educational opportunities to attain that level of education.

But the more salient questions under the plain text of the Education Clause, had they perhaps been more properly framed by plaintiffs, would have been:

(1) does the school exist, including facilities necessary for particular types of courses, such as chemistry labs

(2) are there teachers inside who can be established to actually be teachers, and to carry out their teaching function

(3) are there certain course offerings constituting an education at a given level, that can be established as actually being taught

(4) is there a physical environment that does not undo the previous three points, such as adequate provision for personal safety

Where the trouble might start, however, is where there are additional vague concepts that some might wish to argue are "necessary" to education even if they have nothing to with actual academic training. For example, some advocates might argue that there is not equal access to education if every school does not offer band, including providing state funding for local schools that have not taxed their citizens sufficiently to pay for the instruments and uniforms.

Or, by way of comparison, in the context of reverse racism in higher education, some have argued that reverse racism, or reverse sexism, is virtuous because "diversity" enhances educational experience. Similar voices might make similar arguments in the context of primary or secondary education, arguing that a commingling of students from different areas to achieve "diversity." Those voices might also attempt to argue that, in addition to informal conversations at the lunch table being part of an "education," classroom discussion might be enhanced by such diversity. In other words, they apparently argue that students are in school, not to be educated by their teachers and expertly written text books, but by their peers.

In any event, the Indiana Supreme Court, reading the plain text of the Indiana Constitution, found nothing calling for quality standards among Indiana public education as a matter of constitutional mandate, and found that the ratification history of the 1851 constitution likewise did not seem to consider such factors a constitutional matter.

The court went on to cite earlier precedent from Nagy v. Evansville-Vanderburgh School Corporation, 844 N.E.2d 481 (Ind. 2006), in turn quoting Robinson v. Schenck, 102 Ind. 307, 318, 1 N.E. 698, 705 (1885), holding that the constitutional provides a great deal of legislative discretion with respect to what is provided in public education:

After reviewing the Article's political and constitutional history as well as subsequent appellate opinions, this Court concluded in Nagy as follows:

[D]etermining the components of a public education is left within the authority of the legislative branch of government. Article 8, Section 1 imperatively places upon the legislature, "by all suitable means . . . to provide, by law, for a general and uniform system of Common Schools." But this imperative leaves to that branch considerable discretion in determining what will and what will not come within the meaning of a public education system. "The duty rests on the legislature to adopt the best [school] system that can be framed; but they, and not the courts, are to judge what is the best system. There is this limitation on legislative power: the system must be 'a general and uniform one,' and tuition must be free and open to all; but the extent of this limitation is this, and nothing more."

Nagy, 844 N.E.2d at 491 (quoting Robinson v. Schenck, 102 Ind. 307, 318, 1 N.E. 698, 705 (1885)).

But note that once again the court leaves a gaping hole in its analysis, in fact, in this instance, providing a quote that runs counter to its own holding.

The court's quote from Nagy includes the requirement that the system of public education be "general and uniform" -- "'There is this limitation on legislative power: the system must be "a general and uniform one," and tuition must be free and open to all; but the extent of this limitation is this, and nothing more.'"

In other words, by introducing the notion that the system must be uniform, the court implies that there cannot be disparities among different components. Uniformity by definition requires a definition of what constitutes a school, and that this definition be conformed with to some extent across the entire system.

So once again the court flirts with internal inconsistencies in its flow of thought. It allows that the constitution requires public education, but fails to take into account what that means. It cites its own earlier opinion saying that there is some degree of legislative discretion, but completely fails to address its own admission that one fundamental constraint on the legislature's discretion is that the system be uniform, which is impossible to assess without some type of measurement with respect to what services and facilities are offered, regardless of the results.

At the same time, the court is not called to ruminate on the broad subject area but to address the issue of whether, on its face, plaintiffs' complaint as drafted, states no basis for relief. And plaintiffs complaint sought to find in the Education Clause a basis for holding the Indiana system of public education responsible for employment levels, whether Indiana residents who attended Indiana public schools are good citizens, and whether that subset of the population get attend college at a high enough rate.

More problematic, however, is the court's failure to address plaintiffs' complaint that the system of public education financing deprives students of an education.

At the same time, it appears that plaintiffs made the mistake of making their finance prong about whether public education even exists, not about whether it is uniform.

Indiana Constitution: Equal Privilege and Due Course of Law

In addressing plaintiffs' Equal Privilege and Due Course of Law claims, the court focused not on what the Indiana constitution mandated the General Assembly provide, but upon what a particular individual was to receive by way of right or entitlement.

The court observed that plaintiffs brief, in the court's view, had hinged its state constitution equal privilege and due course of law arguments upon the concept that the Education Clause established a right or entitlement to a public education.

However, the court held that the Indiana Bill of Rights did not list public education among enumerated rights, and that Education Clause provided aspirational goals for the legislature, such that any specific individual right or entitlement to a public education would be derived from legislative enactments and not the state constitution.

The court went on to sum up its position that, while the constitution mandates the establishment of public education that is tuition-free and available to all, it does establish, by way of constitutional mandate or right, educational outcome and results:

We conclude that the framers and ratifiers certainly sought to establish a state system of free common schools but not to create a constitutional right to be educated to a certain quality or other output standard. In the absence of such a constitutional right to receive an adequate public education, the plaintiffs are not entitled to the declaratory relief sought regarding the Equal Privileges or Due Course of Law Clauses of the Indiana Constitution.

Id. at 8-9.

How the Justices Voted

The majority consisted of Justice Brent E. Dickson, who authored the majority opinion, Chief Justice Randall T. Shepard, and Justice Frank Sullivan, Jr., with Justice Theodore R. Boehm concurring with a separate opinion. Justice Robert D. Rucker dissented.

Interestingly, with respect to the history of the Education Clause, the majority cited a previous opinion from another decision by the lone dissenter, Justice Rucker.

Links and further reading

:: Bonner v. Daniels, Slip Op., No. 49S02-0809-CV-525, -- Ind. --, -- N.E.2d -- (Indiana Supreme Court, June 2, 2009), http://www.in.gov/judiciary/opinions/pdf/ 06020901bd.pdf (accessed June 5, 2009)
:: Indiana Supreme Court
:: Indiana state appellate opinions

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