Tunstall v. Bergeson , 141 Wash. 2d 201 ( 2000 )

Talmadge, J.

(concurring) — I write separately to express my concern that certain loose language in Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978), regarding the breadth of the constitutional provisions on education in article IX of the Washington Constitution, may have found full voice in the dissent.

The dissent perceives an individualized constitutional right to an education based on article IX and Seattle School District. Dissent at 239-40. Moreover, as if that is not enough, the dissent contends this right is “fundamental.” Dissent at 242. The dissent’s articulation of this right is dangerously imprecise in its content and breadth.

What is the practical consequence of the dissent’s individualized constitutional right to education? How does the dissent define the content of this right? Does the dissent mean to say that every child in Washington has a fundamental constitutional right to specific educational programs such as 12 years of meaningful instruction in English, mathematics, science, social studies, foreign language, economics, the arts, physical education, computer sciences, or the like? How does the dissent measure if the individual right to education has been met? If a child in the sixth grade fails to achieve at the sixth grade level in mathematics or English, is the child’s fundamental constitutional right to an education abridged?²⁵ If we do not assess the child’s achievement of a constitutionally guaranteed education annually at each grade level, do we then wait until some other point in time, perhaps when the child graduates from high school? Or do we instead assess a child’s achievement subject-by-subject? Will a cause of action lie to compel the State to pay for all necessary services to bring the child’s achievement in school to this as yet undefined but constitutionally prescribed level? How will the dissent direct the Legislature to pay for such services?

The framers of Washington’s Constitution had a more precise idea in mind when they addressed education. Article IX, section 1 of our Constitution states:

PREAMBLE. It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.

Section 2 of that article directs the Legislature to provide an appropriate educational system in Washington.

PUBLIC SCHOOL SYSTEM. The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.

The framers made clear an elected superintendent of public instruction and an elected Legislature, not the judiciary, manage Washington’s educational system. Wash. Const. art. III, § 22 (superintendent “shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law”). We have said: “The state exercises its sovereign powers and fulfills its duties of providing education largely by means of a public school system under the direction and administration of the State Superintendent of Public Instruction, State Board of Education, school districts and county school boards.” Edmonds Sch. Dist. No. 15 v. City of Mountlake Terrace, 77 Wn.2d 609, 611, 465 P.2d 177 (1970).

Our case law clearly confirms the broad power of the Legislature to define educational opportunity for Washington students by giving meaning to a “common school education.” Seattle Sch. Dist., 90 Wn.2d at 518-19. Moreover, the Legislature has broad discretion to define the means of providing educational opportunity to children.²⁶ As early as 1935, we held the state can meet its duty under article IX by selecting any method it sees fit to organize the educational system; we upheld a cooperative administrative structure for education involving state, county, and school district officers. Newman v. Schlarb, 184 Wash. 147, 153, 50 P.2d 36 (1935). See also State ex rel. DuPont-Fort Lewis Sch. Dist. No. 7 v. Bruno, 62 Wn.2d 790, 384 P.2d 608 (1963); Edmonds Sch. Dist. No. 15, 77 Wn.2d 609.

We have wisely chosen not to prescribe the content of an education mandated by the Washington Constitution in our earlier decisions on the scope of article IX. See, e.g., Seattle Sch. Dist., 90 Wn.2d at 518, 520; Tommy P. v. Board of County Comm’rs, 97 Wn.2d 385, 398, 645 P.2d 697 (1982). Indeed, the content of educational opportunity changes over time, far beyond what this Court has the power to dictate. An 1889 common school education is different from such an education in 2000. For example, computer skills now critical to any contemporary Washington student were not contemplated in the agrarian Washington of 1889. This fact alone would suggest the dissent’s articulation of a broad individual right goes too far.

The Washington Constitution effectively offers children in this state a constitutional right to educational opportunity. The state has the paramount duty to make ample provision for this opportunity in the education of its children. The Legislature’s paramount duty is to define this educational opportunity in the establishment of an educational system and to fund it. Individual children, their parents, and local school districts each have standing to compel the Legislature to implement this constitutional mandate. But the courts cannot prescribe an individual right to a specific form of education.

Under a more precise formulation of the constitutional interest of children, a child should not have a right to sue for an individualized level of educational achievement in a subject or at a grade level, as the dissent would appear to permit. But if the Legislature defined a common school education and failed to fund it at the defined level, or if a school district failed to offer classes in English or mathematics at a high school, for example, when such classes were determined by the state to be compulsory for a child’s graduation from high school, then an individual action might lie to compel the enforcement of the constitutional mandate.

We should be exceedingly cautious about characterizing rights as “absolute” or “fundamental,” lest we arrogate to the judiciary total responsibility for running Washington’s education system. That is not what our constitutional framers intended. The judiciary cannot, and should not, “constitutionalize” education in Washington so as to place the administration and the funding of education beyond the responsibility of the executive and legislative branches to whom that responsibility was expressly entrusted by the framers. The courts are ill-equipped to annex such a duty from the other branches and to execute the considerable responsibilities associated with it.

Because the majority’s disposition of the issues in this case is in accord with the delineation of article IX of the Washington Constitution set forth here, I concur in the majority opinion.

25 Indeed, long-standing Washington case law forbids a private cause of action for a student’s individual failure to achieve. Camer v. Seattle Sch. Dist. No. 1, 52 Wn. App. 531, 762 P.2d 356 (1988), cert. denied, 493 U.S. 873, 110 S. Ct. 204, 107 L. Ed. 2d 157 (1989).

26 The dissent’s assertion that chapter 28A.193 RCW may violate article IX because that statute allows school districts and educational service districts (ESDs) to bid for contracts to provide educational opportunities for young people in prison is plainly wrong. First, the dissent does not understand the role of educational service districts. Contrary to the dissent’s view, ESDs actually do provide a variety of educational services directly to students. See RCW 28A.310.010 (purposes of ESDs). See also RCW 28A.310.180 (ESDs may provide cooperative service programs, joint purchasing programs, and direct student services such as pupil transportation); RCW 28A.310.350 (core services of ESDs may include special education and transportation services, provision of learning resources, health education); RCW 28A.310.470 (superintendent of public instruction (SPI) may delegate to ESDs any program, project, or service authorized by Legislature to be performed by SPI).

Second, the dissent’s interpretation of article IX’s requirement of a general and uniform educational system is novel. If only a general and uniform educational system is constitutionally permissible in the dissent’s view, making contracted services unconstitutional, then are parochial schools constitutionally infirm? After all, parochial schools provide educational services outside the control of school districts. See chapter 28A.195 RCW. How about home schooling? Home schools involve neither school districts nor schools. See chapter 28A.200 RCW. The dissent fails to understand Washington’s diverse, pluralistic structure for the delivery of educational services.

In sum, where does the logic of the dissent’s analysis lead? Is the constitutional right to a general and uniform educational system for youthful offenders satisfied only if those offenders are somehow removed from prison and placed in regular classrooms?