October 4, 2017
By: Dennis Whitaker
Depending on one’s world view, the Pennsylvania Supreme Court decision on September 28, 2017 in William Penn School Dist. v. Pa. Dep’t of Ed., 46 MAP 2015 was either a major step forward for education equality, or the work of an activist court that threw out more than 150 years of jurisprudence. Wherever on the continuum you fall, there is little doubt that the Court’s decision to allow Petitioners to press their constitutional claims against education funding at trial is a major departure from past practice. Simply put, the Supreme Court reversed a unanimous Commonwealth Court en banc decision in which that court, relying on its own precedent and that of the Pennsylvania and United States Supreme Courts, held that Petitioners’ claims that the current state education funding mechanism violated the Education and Equal Protection provisions of the Pennsylvania Constitution was a non-justiciable political question best left to the legislative branch. Now, on remand to Commonwealth Court, the focus shifts from whether Petitioners presented a justiciable claim to (1) defining the confines of a constitutional right to “a thorough and efficient system of public education”; (2) if the General Assembly has, through the current school funding mechanism, imposed a classification whereby the distribution of state funds deprives economically disadvantaged school districts of the resources necessary to provide a constitutionally adequate education; and (3) what level of scrutiny should be applied in evaluating that right.
We make no pretense of a deep dive into the 86-page majority decision authored by Justice Wecht and joined by Justices Todd, Donohue, Dougherty and Mundy, nor Chief Justice Saylor’s 48-page dissent joined by Justice Baer. Instead, we seek to provide an overview sufficient to alert those whose interests may be impacted and if so to suggest potential paths of action on remand to Commonwealth Court.
Petitioners’ claims are premised on Respondents’ alleged violation of Article I, Section 14, the Education Clause, and Article I, Section 32, the Equal Protection provision, of the Pennsylvania Constitution. Article I, Section 14 provides:
The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.
As to the equal protection provision, the Court explained as follows:
Petitioners state their equal protection claim solely in terms of Article III, Section 32 of our Constitution, which by its terms proscribes the enactment of “local or special laws” when the circumstance “can be provided for by general law.” Unlike the Fourteenth Amendment to the United States Constitution, Section 32 does not speak expressly in terms of equal protection. Nonetheless, we long have gleaned equal protection principles from Section 32, which we have held is substantially coterminous with the federal Equal Protection Clause. See Balt. & Ohio R. Co. v. Dep’t of Labor & Indus., 334 A.2d 636, 643 (Pa. 1975) (“[T]he content of the two provisions is not significantly different.”).
William Penn Sch. Dist., Slip Op. at 3.
With the relevant constitutional provisions identified, we turn to Petitioners’ claims. Again, as described by the Court:
[Petitioners] 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.” 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.
Id. at 2-3. In addition to the William Penn School District, Petitioners include public school districts from Philadelphia and from Delaware, Cambria, Lancaster, Luzerne and Schuylkill Counties. There also are individual Petitioners including students and parents and guardians of students attending the named school districts as well as organizational Petitioners such as the Pennsylvania Association of Rural and Small Schools and the NAACP—Pennsylvania State Conference, a Commonwealth affiliate of the National Association for the Advancement of Colored People.
As the Court discusses at length, Petitioners sought declaratory and injunctive relief to rectify alleged constitutional deficiencies in Pennsylvania’s system of public education due to the General Assembly’s failure to support and maintain the thorough and efficient system of education mandated by the Constitution. Of note as to the equal protection claim, Petitioners alleged that education is a fundamental right such that strict scrutiny would apply to the classification reflected in the disparity of educational resources at the disposal of low and high-wealth districts. Petitioners ask for declaratory relief, specifically as to the scope of the General Assembly’s mandate under the Education Clause, as well as permanent injunctive relief directing Respondents to address the faulty classification.
Respondents filed preliminary objections, the principal objection being a demurrer to Petitioners’ claims as non-justiciable political questions. Citing the U.S. Supreme Court decision in Baker v. Carr, 369 U.S. 186 (1962), as adopted by Pennsylvania’s Supreme Court (see below), Respondents posited that the Constitution confers responsibility for providing a thorough and efficient system of public education exclusively upon the legislature and there are no judicially manageable standards for granting relief. Therefore, under Baker and its Pennsylvania progeny, Commonwealth Court (and hence the Supreme Court) should abstain from infringing on the legislative provenance. Respondents also argued that Petitioners failed to state an equal protection claim because they do not have a fundamental right to education entitling them to strict scrutiny of the school funding scheme, and the existing statutory scheme rationally serves the state’s interest in maintaining and supporting a thorough and efficient system of public education. Respondents further objected that Petitioners’ request for mandatory injunctive relief is barred by sovereign immunity and by the separation of powers doctrine to the extent that Petitioners sought to have the judicial branch to compel action by the General Assembly and to subject it to ongoing judicial supervision. For those unfamiliar with Baker, the Court summarizes that decision and identifies the Pennsylvania decisions in which it has been applied at pages 29-30 and foot note 29.
Commonwealth Court sustained Respondents’ preliminary objections and dismissed the Petition, holding that under the Court’s precedent applying Baker, both the Education Clause claims and the equal protection claim entailed non-justiciable political questions. William Penn Sch. Dist. v. Pa. Dep’t of Educ., 114 A.3d 456, 464 & n.15 (Pa. Cmwlth. 2015) (en banc). The Supreme Court considered these legal questions de novo under a plenary scope of review. As noted earlier, we will not take a deep dive into the Courts lengthy discussion (Opinion pages 32-83) of the basis for allowing Petitioners’ claims to proceed beyond the pleading stage. However, we will highlight some noteworthy take-aways for consideration.
First, from a precedential standpoint, the Court in considering Petitioners’ constitutional claims reached back to Marbury v. Madison, 5 U.S. 137 (1803), and opined that:
. . . 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 (1898). 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.
William Penn Sch. Dist., Slip Op. at 3-4 (footnote omitted).
Relying on Marbury, the equally hoary Cohens v. Virginia, 19 U.S. 264 (1821), and a lengthy review of Pennsylvania precedent and that of other state courts, the majority concluded that it was incumbent upon the courts to review Petitioners’ constitutional claims. The concluding text paints in sharp relief the Court’s renewed interest in considering matters previously left to the other branches:
The spirit of Chief Justice Marshall’s cautionary refrain has informed the clear majority of state courts that have held it their judicial duty to construe interpretation-begging state education clauses like ours to ensure legislative compliance with their constitutional mandates, no matter the difficulties invited or, in many cases, confronted. We hold that our Education Clause, viewed in the overarching context of our cases taking up the question of abstention from political questions, compels the same result. To the extent our prior cases suggest a contrary result, they must yield. To be sure, courts must take great care in wading deeply into questions of social and economic policy, which we long have recognized as fitting poorly with the judiciary’s institutional competencies. See, e.g., Martin v. Unemployment Comp. Bd. of Review, 466 A.2d 107, 111-13 (Pa. 1963). However, the judiciary has a correlative and equally important obligation to fulfill its interpretive function. It bears repeating that the political question doctrine in Pennsylvania is of wholly prudential cloth, and hence must be considered anew each time it is invoked. See supra at 37-38. It is a mistake to conflate legislative policy-making pursuant to a constitutional mandate with constitutional interpretation of that mandate and the minimum that it requires. In this domain, as in so many others, courts have the capacity to differentiate a constitutional threshold, which ultimately is ours to determine, from the particular policy needs of a given moment, which lie within the General Assembly’s purview. The array of courts that have done precisely that in this arena suggests that our assessment in this regard is neither imprudent nor uncommon. It is fair neither to the people of the Commonwealth nor to the General Assembly itself to expect that body to police its own fulfillment of its constitutional mandate. This is especially so in light of the many competing and not infrequently incompatible demands our legislators face to satisfy non-constitutional needs, appease dissatisfied constituents, and balance a limited budget in a way that will placate a majority of members in both chambers despite innumerable differences regarding policy and priority . . . Judicial oversight must be commensurate with the priority reflected in the fact that for centuries our charter has featured some form of educational mandate. Otherwise, it is all but inevitable that the obligation to support and maintain a “thorough and efficient system of public education” will jostle on equal terms with non-constitutional considerations that the people deemed unworthy of embodying in their Constitution. We cannot avoid our responsibility to monitor the General Assembly’s efforts in service of its mandate and to measure those effects against the constitutional imperative, ensuring that non-constitutional considerations never prevail over that mandate.
William Penn Sch. Dist., Slip Op. at 83-85 (citation omitted).
That the Pennsylvania Supreme Court now contains a majority that would adopt such a holding is further evidence of the sea change in the Court’s collective judicial philosophy which correlates with the additions and subtractions to the Court over the past several judicial elections. As we analyze the matters in which the Court grants allocatur and those to be argued we see evidence that the Court is accepting cases it likely would not have only a few years ago. One such example is scheduled for argument before the Court on October 17, Cagey v. PennDOT. Therein, the Court granted allocatur in what was a run of the mill sovereign immunity matter applying settled case law from Commonwealth Court holding that since the Commonwealth is immune from suit for injuries attributable to a failure to install guardrails at all, it is also immune from liability for installing guardrails but doing so negligently. Moreover, Commonwealth Court specifically cited to Dean v. Dep’t of Trans., 751 A.2d 1130 (Pa. 2000), a case in which the Court held that the Department has no duty to erect guardrails on Commonwealth real property along Commonwealth agency roadways. Unless the Court has decided to revisit this aspect of sovereign immunity, there is no reason to grant review. You can find a more detailed look at this case in our October Supreme Court Argument section.
Just last month, the Court granted allocatur in Whitmoyer v. WCAB (Mountain Country Meats), 150 A.3d 1003, 1018 (Pa. Cmwlth. 2016) allocatur granted September 15, 2017, 52 MAP 2017, in which the majority ruled that the term “compensation” in Section 319 of the Workers’ Compensation Act, relating to subrogation of employer to rights of employee against third persons, encompasses medical expenses in addition to indemnity benefits. In interpreting Section 319 to include medical expenses, the majority relied on the policy that an employer’s right of subrogation against any third-party civil action recovery or settlement proceeds “is generally absolute, unless the employer engages in deliberate, bad faith conduct.” The Supreme Court’s granted allocatur to review if Commonwealth Court erred in concluding that the term “instalments of compensation” in Section 319 of the Workers’ Compensation Act, 77 P.S. § 671, encompasses both medical and disability compensation; and, if Commonwealth Court erred in finding that the defendant-employer did not waive its rights under Section 319 of the Workers’ Compensation Act, 77 P.S. § 671. Although the “generally absolute” subrogation right is the subject of much prior precedent, the Court will revisit it here. You can get more detail on this case in our section on Allocatur Grants. Recently in honor of Constitution Day, we featured a series of posts in which we highlighted some of the areas where the Supreme Court has found expanded guarantees of the rights granted by the Pennsylvania Constitution when compared to its federal counterpart. These areas may now provide fertile ground for additional expansions with a Court disposed to consider things anew.
Second, now that the matter is remanded back to Commonwealth Court for trial, there will be ample opportunity for interested parties to weigh in by intervention or, more likely, through participation as amicus. The substantial number of amici participating at the pleading stage is evident just by looking at the dockets in Commonwealth Court and in the Supreme Court. As described above, the issues will be different before Commonwealth Court and will present opportunities for groups or individuals to provide their views to the court regardless of whether they participated at the pleading stage. Any person or group with an interest in the way our schools are funded and how those funds are distributed should consider filing an amicus brief as they can be effective tools for conveying policy views to the courts.
Pennsylvania Appellate Advocate is an excellent way to follow the Supreme Court as well as the Superior and Commonwealth Courts. Our Supreme Court analysis consists of summaries of every allocatur grant and of upcoming arguments as well as important cases such as the instant matter. We are blogging the gerrymandering arguments before Commonwealth Court and the U.S. Supreme Court and recently presented an in depth look at the differences between the Pennsylvania and federal Constitutions. We invite you to subscribe to our blog for interesting and useful analysis on our appellate courts.
About the Author:
Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service. Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.