IN THE INDIANA COURT OF APPEALS

Cause No. 49A02-0702-CV-00188

PHILIP-ANTHONY BONNER, a minor, )

by his parents and next friends, Joseph )
and LaTanya Bonner, et al., )
On Behalf of Themselves and All Others )
Similarly Situated, )
)
Appellants/Plaintiffs, ) Appeal from the Marion Superior Court.
)
v. ) Trial Court Case No. 49D010604PL016414
)
MITCH DANIELS, Governor of the State ) The Honorable Cale J. Bradford, Judge
of Indiana and Co-Chair of the Education )
Roundtable, SUELLEN K. REED, Indiana )
State Superintendent of Public Instruction )
and Chair of the State Board of Education )
and Co-Chair of the Education Roundtable, )
and the INDIANA STATE BOARD OF )
EDUCATION, )
)
Appellees/Defendants. )

BRIEF OF AMICI CURIAE NATIONAL ACCESS

NETWORK, EDUCATION LAW CENTER, AND THE
RURAL SCHOOL AND COMMUNITY TRUST, INC.
IN SUPPORT OF APPELLANTS

Molly A. Hunter, Esq.

Director, National ACCESS Network
525 West 120th St., #219
New York, NY 10027

Ellen Boylan, Esq.

Senior Attorney, Education Law Center
60 Park Place, Suite 300
Newark, New Jersey 07102

Amanda G. Adler, Esq.

Education Finance Center, The Rural
School and Community Trust, Inc.
141-F Pelham Road, #207
Columbia, SC 29209

Attorneys for Amici Curiae

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTIONS ADDRESSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS ALLEGED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. PLAINTIFFS CLAIMS ARE JUSTICIABLE, AS ARE

SIMILAR CLAIMS UNDER THE CONSTITUTIONS AND
SEPARATION OF POWERS DOCTRINES IN OTHER STATES. . . . . . . . . . 4

A. STATE COURTS ROUTINELY INTERPRET EDUCATION

CLAUSES AND DEFINE THE RIGHTS AND DUTIES THESE
CLAUSES IMPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. PROPER SEPARATION OF POWERS CONCERNS COMPEL

THE COURT TO INTERPRET THE CONSTITUION AND
DETERMINE WHETHER DEFENDANTS ARE IN COMPLIANCE. . . . . 9

II. THE COURT IS CAPABLE OF DISCERNING AND

APPLYING JUSTICIALLY MANAGEABLE STANDARDS
IN THIS CASE, AS COURTS IN SIMILAR CASES HAVE DONE
IN OTHER STATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

i
 TABLE OF AUTHORITIES

Cases

Abbeville County School District v. State, 515 S.E.2d 535

(S.C. 1999)...8

Abbott v. Burke, 693 A.2d 417 (N.J. 1997)10, 12, 16

Alabama Coalition for Equity v. Hunt, WL 204083 (Ala.1993).......11

Blake v. State, 860 N.E.2d 625 (Ind. Ct. App. 2007)...4

Brigham v. State, 692 A.2d 384 (Vt. 1997).....10, 12

Campaign for Fiscal Equity v. State, 801 N.E.2d 326 (N.Y. 2003)......8, 10, 12, 13

Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475

(N.Y. Sup. Ct. Jan. 10, 2001).....13

Campaign for Fiscal Equity v. State, 655 N.E.2d 661 (N.Y. 1995)..5, 12

Campbell County School District v. State, 907 P.2d 1238

(Wyo. 1995)...4, 5, 16

Claremont School District v. Governor, 703 A.2d 1353 (N.H. 1997).5, 12, 14

Clark v. Haworth, 23 N.E. 946 (1890)...5

Columbia Falls Elementary School District No. 6 v. State, No. 04-390

(Mont. Nov. 9, 2004)...10, 12

Committee for Educational Equality v. State, CV190-1371CC (Mo. 1993).12

DeRolph v. State, 677 N.E.2d 733 (Ohio 1997)...10, 12

Ex parte James, 713 So. 2d 869 (Ala. 1997).11

Ex parte James, 836 So.2d 813 (Ala. 2002)..11

Fowler v. State, 829 N.E.2d 459 (Ind. 2005)..4

Hoke County Board of Education v. State, 599 S.E.2d 365 (N.C. 2004)2, 10, 11

Hull v. Albrecht (Albrecht II), 960 P.2d 634 (Ariz. 1998).10

ii
Hull v. Albrecht (Albrecht I), 950 P.2d 1141 (Ariz. 1997)12

Idaho Schools for Equal Educational Opportunity v. State,

976 P.2d 913 (Idaho 1998)...10, 12

Kasayulie v. State, 3AN-97-3782 Civ. (Alaska 1999)...12

Lake View School District v. Huckabee, 91 S.W.3d 472 (Ark. 2002).2, 4, 8, 10, 12

Leandro v. State, 488 S.E.2d 249 (N.C. 1997)....2, 5, 10, 12

Lewis E. v. Spagnolo, 710 N.E.2d 798 (Ill. 1999).10

Marbury v. Madison, 5 U.S. 137, 177 (1803)6, 10

Maryland State Board of Education v. Bradford, Nos. 94340058/CE189672 and

95258055/ CL202151 (Md. Cir. Ct. Balt. City. 2005)...2, 12

McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981).12

McDuffy v. Secretary, 615 N.E.2d 516 (Mass. 1993)9, 12

Montoy v. State (Montoy II), 102 P.3d 1160 (Kan. 2005).8, 16

Montoy v. State, 2005 Kan. LEXIS 2, No. 92,032

(Kan. Dist. Ct. Jan. 3, 2005)10, 12

Nagy v. Evansville-Vanderburgh School Corp., 844 N.E.2d 481

(Ind. 2006)...5

Nebraska Coalition for Educational Equity and Adequacy v. Heineman,

2007 Neb. LEXIS 65, No. S-05-1357 (Neb. May 11, 2007).10

Newman v. Deiter, 702 N.E.2d 1093 (Ind. Ct. App. 1998).3

Neeley v. West Orange-Cove Consolidated Independent School

District, 176 S.W.3d 746 (Tex. 2005).12, 16

Oklahoma Education Assn v. State, 158 P.3d 1058

(Okla. 2007)...10

Opinion of the Justices, No. 338, 624 So. 2d 107 (Ala. 1993)..11

Parker v. State ex rel. Powell, 32 N.E. 836 (1892)10

iii
Pennsylvania Assn of Rural & Small Schools v. Ridge, 737 A.2d 246
(Pa. 1999).11, 12

Rose v. Council for Better Educ. 790 SW. 2d 186 (Ky. 1989)..14

Roosevelt v. Bishop, 877 P.2d 806 (Ariz. 1994)5, 11

Seattle Sch. Dist. v. State, 585 P.2d 71 (Wash. 1978)...4, 5, 12

Serrano v. Priest, 557 P.2d 929 (Calif. 1976).....4

Seymour v. Region One Board of Education, 803 A.2d 318

(Conn. 2002)..11

State v. Campbell County School District, 32 P.3d 325 (Wyo. 2001).10, 11

Tennessee Small School Systems v. McWherter, 91 S.W.3d 232

(Tenn. 2002)...10

Tennessee Small School Systems v. McWherter, 851 S.W.2d 139

(Tenn. 1993)8

Vincent v. Voight, 614 N.W.2d 388 (Wisc. 2000).5, 12, 15, 16

Zuni Sch. Dist. v. State, CV-98-14-II (NM 1998)..12

Constitutional Provisions

Arkansas Constitution Article 14, Section 17

Florida Constitution Article IX, Section 1...7

Georgia Constitution Article VIII, Section 1...7

Hawaii Constitution Article X, Section 17

Illinois Constitution Article X, Section 17

Indiana Constitution Article VIII, Section 16

Kentucky Constitution Section 183.8

New Hampshire Constitution Pt. 2, Article 83......14

New Hampshire Constitution Pt. I, Article 37...15

iv
New York Constitution Article X, Section 1...8

North Carolina Constitution Article IX, Section 2..8

South Carolina Constitution Article XI, Section 3..8

Wisconsin Constitution Article X, Section 3.15

Books

Lawrence Cremin, American Education: The National Experience 1783-1876 (1980)..9

C. Kastle, Pillars of the Republic: Common Schools and American Society 1780-1860
(1983)...9

v
 STATEMENT OF AMICI CURIAE

The National ACCESS Network (ACCESS) is a non-profit center at Teachers College,

Columbia University, in New York. Through its network of concerned citizen advocates

nationwide, ACCESS promotes access to meaningful educational opportunities for children by:

conducting research; providing analysis of key education issues; developing effective strategies

for litigation, use of funds, and public engagement; and, strengthening the national movement of

advocates who support adequate funding for public education and improved public schools in all

States. ACCESS also maintains an extensive website on school funding litigations and related

matters at www.schoolfunding.info.

Education Law Center (ELC) is a non-profit advocacy organization in Newark, New

Jersey established in 1973 to advocate on behalf of public school children for access to an equal

and adequate education under state and federal laws. ELC works to improve educational

opportunities for low-income students and students with disabilities through policy initiatives,

research, public education, communications, and legal action. ELC represents the plaintiff

school children in the Abbott v. Burke school finance litigation, and continues to advocate on

their behalf to assure effective and timely implementation of the educational programs and

reforms ordered by the New Jersey Supreme Court in that case. ELC also provides information

and technical assistance to attorneys and advocates in other States, including support for

litigation seeking to improve school funding and expand preschool education for disadvantaged

children, and to reform special education programs for children with disabilities.

The Rural School and Community Trust, Inc. (Rural Trust) is a national non-profit

organization dedicated to promoting equal educational opportunity and improving learning for

students who attend public schools, especially students who attend rural schools. The Rural

Trust has particular expertise in the field of school finance policy and law. The Rural Trust also

1
operates the Rural Education Finance Center, which: (1) sponsors rigorous scholarly legal and

education research on school finance issues; (2) maintains expertise on current legal and policy

developments involving school finance systems; (3) provides technical assistance to lawyers and

policy makers in the field of school finance policy and law; and (4) files amicus curiae briefs in

state litigation involving school finance. The Rural Trust has participated as amicus curiae in

Abbeville v. State, 93-CP-31-0169 (Ct. of Common Pleas, Lee County, S. C. Dec. 29, 2005);

Maryland State Board of Education v. Bradford, Nos. 94340058/CE189672 and 95258055/

CL202151 (Md. Cir. Ct. Balt. City June 9, 2005); Lake View Sch. Dist. No. 25 v. Huckabee, 91

S.W.3d 472 (Ark. 2002); Leandro v. State of North Carolina, 488 S.E.2d 249 (N.C. 1997); and

Hoke County Board of Education v. State of North Carolina, 599 S.E.2d 365 (N.C. 2004).

QUESTIONS ADDRESSED

Amici will address the following questions:

1. Whether plaintiffs claims (1) that the Education Clause imposes an affirmative

duty to provide an adequate education and (2) that defendants are failing in their constitutional

duty are justiciable and within this Courts role under the separation of powers doctrine.

2. Whether courts are able to discern and apply judicially manageable standards in

the education adequacy cases analogous to this case.

STATEMENT OF FACTS ALLEGED

Plaintiffs Complaint alleges facts that, if proven at trial, would substantiate their claims

that, first, the Education Clause of the State Constitution establishes a duty that the State must

provide an adequate contemporary educational opportunity that enables the States children to

become capable citizens and workers, and, second, the current system of education finance fails to

provide the constitutionally mandated educational opportunity. Plaintiffs allege historical facts

and current educational standards that would provide sufficient evidence on which a court could

2
declare the meaning of the State Constitutions Education Clause, as most other state courts have

done. (App. pp. 22-29, 8-26.)

Plaintiffs also allege outcomes and inputs and causal links to aspects of the States

system of education finance that would establish a violation of the States duty to educate its

children, if proven at trial. Alleged low-level achievement among thousands of students on

numerous measures (App. pp. 39-54, 58-77), lack of availability and quality of instructional

programs, which plaintiffs allege are essential (App. pp. 54-57, 78-86), and weaknesses in the

current funding scheme that allegedly deprive schoolchildren of these programs(App. pp. 29-38,

56-57, 27-56, 83-86), if proven at trial, would provide sufficient evidence to support a

declaration that the State is violating its affirmative constitutional duty.

Plaintiffs seek, inter alia, two declaratory judgments. First, they seek a judgment

declaring that the Indiana Constitution imposes a duty to provide an education that prepares the

States children for capable citizenship and work in the contemporary world. Second, they seek

a judgment declaring that defendants are not meeting that constitutional duty because the

education finance system, as affected and implemented by defendants, fails to provide the

requisite education. (App. pp. 18, 57-58, 1, 88-91.)

Due to the procedural posture of this case, plaintiffs alleged facts are taken as true with

reasonable inferences drawn in plaintiffs favor. Newman v. Deiter, 702 N.E.2d 1093, 1097 (Ind.

Ct. App. 1998).

SUMMARY OF ARGUMENT

The Indiana courts play a crucial role in the States tripartite system of government. The

courts duties include interpreting state constitutional clauses and adjudicating claims that those

clauses are being violated. While the separation of powers doctrine requires each branch of

3
government to respect the others roles, it also compels each branch to shoulder its particular

responsibilities.

The courts are also experienced in adjudicating constitutional cases. As has been true of

state courts in many similar cases across the country, this Court does not interfere with the

legislative and executive branches by hearing the constitutional claims raised here. Moreover, the

Court is certainly capable of discerning and applying manageable judicial standards in this case,

as other States courts have done in many similar cases. Amici submit this brief to assist the

Court in placing its consideration of these questions in the context of what courts in other States

have concluded in similar cases.

ARGUMENT

I. PLAINTIFFS CLAIMS ARE JUSTICIABLE, AS ARE SIMILAR CLAIMS

UNDER THE CONSTITUTIONS AND SEPARATION OF POWERS
DOCTRINES IN OTHER STATES.

The Indiana courts have looked to decisions from courts in their sister states for insight

into issues they are considering. See, e.g., Blake v. State, 860 NE2d 625, 628 (Ind. Ct. App.

2007); Fowler v. State, 829 NE2d 459, 469 (Ind. 2005). Other States courts have done the

same, specifically as to justiciability and the separation of powers doctrine in education adequacy

cases like this case. See, e.g., Lake View Sch. Dist. V. Huckabee, 91 S.W.3d 472, 483 (Ark.

2002) (quoting Serrano v. Priest, 557 P.2d 929, 946 (Calif. 1976); Campbell v. State, 907 P.2d

1238, 1264 (Wyo. 1995) (quoting Seattle Sch. Dist. v. State, 585 P.2d 71, 86-87 (Wash. 1978).

Defendants acknowledged the relevance of the decisions of sister state courts in their

brief to the Superior Court. (App. pp. 87-97.) However, they cited only a handful of cases in

which the courts failed to exercise their constitutional duty of constitutional interpretation and

judicial review, while omitting the vast majority of cases in which the courts fulfilled their

responsibilities as a co-equal branch of state government. (App. pp. 88-90.) Defendants

4
separation of powers arguments also ignore the important and necessary role of the judicial

branch in exercising the powers of judicial review. Judicial review has two essential components

interpreting the constitution and laws for duties and rights established under them and

reviewing statutes and their implementation to assess compliance with identified duties and

rights. See, e.g., Nagy v. Evansville-Vanderburgh School Corp., 844 N.E.2d 481, 493 (Ind.

2006); State ex rel. Clark v. Haworth, 122 Ind. 462, 465-467, 23 N.E. 946, 947-948 (1890).

In an overwhelming majority of States where the courts have been asked to interpret the

constitutions education clause, as plaintiffs seek here, the courts have done so, as discussed

below. These interpretations rely extensively on historical records and the intent of the framers

of the constitution and, typically, declare that adequate educational opportunities must be

provided to all schoolchildren to prepare them for citizenship and employment in contemporary

society.1 In Indiana, the Constitutions Education Clause imposes an obligation on the State to

provide a general and uniform system of Common Schools to its schoolchildren, an obligation

this Court has the duty to interpret. The courts in other states with the general and uniform

language have interpreted that language and adjudicated cases similar to this case.2

Plaintiffs also ask this Court to remand for trial their claim that the current system of

education finance fails to provide the constitutionally mandated educational opportunity. Pls. Br.

1-2, 10, 19-20, 35. Persuasive case law from sister States makes clear that questions concerning

both the interpretation of the education clauses of state constitutions and the constitutionality of a

States system of education finance are fully justiciable and are the essence of the courts role

1
See, e.g., Vincent v. Voight, 614 N.W.2d 388 (Wisc. 2000); Leandro v. State, 488 S.E.2d 249,
254-55 (N.C. 1997); Claremont v. Governor, 703 A.2d 1353 (N.H. 1997); Campaign for Fiscal
Equity (CFE) v. State, 655 N.E.2d 661 (N.Y. 1995); Campbell County Sch. Dist. v. State, 907
P.2d 1238 (Wyo. 1995).
2
See, e.g., Leandro v. State, 488 S.E.2d 249 (N.C. 1997); Roosevelt v. Bishop, 877 P.2d 806
(Ariz. 1994); Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 92 (Wash.1978).

5
under the separation of powers doctrine. In most states where the courts have been asked to

adjudicate a challenge that the States school funding system violates the State Constitutions

education clause, the state supreme court has denied defendants Motion to Dismiss and

remanded the case for trial on the merits, as discussed below.

A. STATE COURTS ROUTINELY INTERPRET EDUCATION CLAUSES AND

DEFINE THE RIGHTS AND DUTIES THESE CLAUSES IMPOSE.

Declaring what constitutional duties and rights are defining and clarifying what

constitutional articles mean is one of the courts prime constitutional responsibilities. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (It is emphatically the province and

duty of the judicial department to say what the law is.). The Indiana Supreme Court fulfills its

role leading the judicial branch of Indiana State government when it interprets the State

Constitution and says what the Constitution means.

Defendants argument in the court below that there is a textually demonstrable

constitutional commitment of the school funding issue to the General Assembly (App. pp. 95-97,

100) fails to recognize the scope of the courts co-equal role. While the General Assembly and

the Governor are responsible for establishing, administering, and funding a general and uniform

system of Common Schools to encouragemoral, intellectual scientific, and agricultural

improvement and prepare citizens for the preservation of a free government,3 courts retain the

power and indeed the duty to decide if the other branches of government have complied

with constitutional requirements in carrying out their duties. In fact, this Court has adjudicated

3
From the education clause: Knowledge and learning, generally diffused throughout a
community, being essential to the preservation of a free government; it should be the duty of the
General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and
agricultural improvement; and provide, by law, for a general and uniform system of Common
Schools, wherein tuition shall without charge, and equally open to all. Ind. Const., art. VIII, 1.

6
educational claims, thereby implicitly acknowledging that Article VIII, 1of the Constitution

creates judicially enforceable obligations and rights regarding education. See Pls. Br. 16.

In the court below, defendants argument completely misrepresents the relevant case law

when it contends that the Indiana education clause language requiring the General Assembly to

provide a system of schools distinguishes this case from cases in states where the constitutional

language requires the State to provide a system of schools. (App. p. 100.) In fact, only five of

the 50 State Education Clauses specify the State,4 while the remaining 45 Education Clauses

require the General Assembly or the legislature to provide a system of schools.5 The courts

in almost all the 45 states with the General Assembly or legislature language have found

education adequacy and funding equity cases against the State or state officials justiciable.6

Moreover, unlike defendants assertion that this Court would have to divine meaning

from the constitutions language (App. p. 165) , the courts of sister states have found plentiful

support for interpreting the 18th and 19th century terminology in most of the education clauses

and the few 20th century provisions, as well.7 The Indiana Constitutions Education Clause

offers a richer description of what is constitutionally required than most state constitutions.

Other States courts have had no difficulty interpreting a variety of terms in the education clauses

4
Ark. Const. Art. 14, 1; Fla. Const. Art. IX, 1; Geo. Const. Art. VIII, 1; Haw. Const. Art.
X, 1; Ill. Const. Art. X, 1.
5
See the remaining 45 state constitutions education clauses.
6
States with the General Assembly or the legislature language where the courts have found
education claims justiciable include: Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Idaho, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oregon, South Carolina, South Dakota, Tennessee, Texas,
Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. See
www.schoolfunding.info/states/state_by_state.php3. In five states, cases have not been filed:
Hawaii, Nevada, Utah, Mississippi, and Delaware. Id.
7
See, e.g., cases cited at footnote 8 and in Part II, below.

7
of their state constitutions to ensure the right to an adequate or suitable or efficient

education8

Compared to many state education clauses, Indianas is more expansive and provides

more information for the Courts delineation of the constitutional standard.9 Also, the historical

underpinnings of the language in the 50 education clauses are well-documented and common to

virtually all. The principle belief of the framers of these provisions was that in order to preserve

8
State constitutions in other states use a variety of terms in referencing the obligation to provide
an enforceable and substantive education consistent with constitutional standards, including:
North Carolina: right to privilege of education deemed to give rise to right to sound basic
education with qualitative standards. Leandro v. State, 488 S.E.2d 249, 254-55 (N.C. 1997).
New York: constitutional mandate that [t]he legislature shall provide for a system of free
Common Schools, wherein all the children of this state may be educated," creates state
obligation to ensure "sound basic education" for all children. Campaign for Fiscal Equity, Inc. v.
State, 801 N.E.2d 326, 328 (N.Y. 2003).
Arkansas: a general, suitable, and efficient system of free public schools. Lake View Sch.
Dist. v. Huckabee, 91 S.W.3d 472, 484 (Ark. 2002).
Kansas: the legislature shall provide for intellectual, educational, vocational and scientific
improvement by establishing and maintaining public schools. Montoy v. State, 102 P.3d 1160
(Kan. 2005).
South Carolina: requirement that the General Assembly shall provide for the maintenance and
support of a system of free public education deemed to guarantee a minimally adequate
education that meets certain broad substantive academic and vocational standards. Abbeville
County Sch. District v. State, 515 S.E.2d 535, 540 (S.C. 1999).
Tennessee: requirement that [t]he General Assembly shall provide for the maintenance,
support and eligibility standards of a system of free public schools." Tennessee Small Sch. Sys. v.
McWherter, 851 S.W.2d 139, 148 (Tenn. 1993).
9
See, e.g., Ky. Const. 183 (The General Assembly shall, by appropriate legislation, provide
for an efficient system of common schools throughout the State.); N.C. Const. art. IX, 2 (The
General Assembly shall provide by taxation and otherwise for a general and uniform system of
free public schools, which shall be maintained at least nine months in every year, and werein
equal opportunities shall be provided for all students.); N.Y. Const. art. X, Section 1 (The
legislature shall provide for the maintenance and support of a system of free common schools,
wherein all the children of this state may be educated.); S.C. Const. art. XI, 3 (The General
Assembly shall provide for the maintenance and support of a system of free public schools open
to all children in the State and shall establish, organize and support such other public institutions
of learning, as may be desirable.).
8
a republican form of government and individual freedoms, the people must be educated to be

capable citizens.10

It is important to note that defendants have been unable to cite any Indiana case that finds

deference to legislative judgments is total or absolute. Total deference would virtually eliminate

the proper role of the courts as the ultimate interpreters of the Constitution, and could eliminate

valuable Constitutional protections through unreviewable legislative fiat.

B. PROPER SEPARATION OF POWERS CONCERNS COMPEL THE COURT TO

INTERPRET THE CONSTITUION AND DETERMINE WHETHER
DEFENDANTS ARE IN COMPLIANCE.

The separation of powers doctrine, properly applied, acknowledges the respective duties

of all three branches of government. High courts in many of this Courts sister states have found

not only that separation of powers is no bar to judicial review, but also that it compels them to

fulfill their responsibilities and authority, as a co-equal branch of state government, to hear

challenges equivalent to plaintiffs claims here to the constitutional adequacy of their States

education finance systems. Over a dozen state high courts that have forcefully rejected

separation of powers and political question arguments, concluding it is their duty to declare the

meaning of the Constitution and adjudicate plaintiffs claims. See Pl. Bf. pp. 30-32.

Defendants argued in the court below that the separation of powers doctrine views the

legislatures educational policy making role as paramount and does not honor the courts role

and responsibilities to determine whether State statutes, and systems implemented by State

agencies with delegated authority, are in compliance. (App. pp. 86-87.) Defendants claimed that

separation of powers dictates that all education finance considerations must be left only to the

10
See generally Lawrence Cremin, American Education: The National Experience 1783-1876
(1980); C. Kastle, Pillars of the Republic: Common Schools and American Society 1780-1860
(1983). ; See, e.g. McDuffy v. Secy of Educ., 615 N.E.2d 516 (Mass. 1993) (explaining colonial
history and 18th century principles, especially freedom, incorporated into the education clause).

9
legislative branch and that the courts would be unmoored and capable of nothing more than

second-guessing another branch. Id. Surely, the Indiana courts are made of sterner stuff.

Not surprisingly, the Indiana Supreme Court has consistently recognized that the courts

have a duty to decide issues involving the constitution and laws of the state, even if the

determination may affect other branches of the government. See, e.g., Parker v. State ex rel.

Powell, 133 Ind. 178, 189, 32 N.E. 836, 839 (1892) ("bounden duty . . . to pass upon the validity

of the acts of the General Assembly and to declare them void when in conflict with the

Constitution of the State.") The Supreme Court has long adhered to the classic holding of

Marbury v. Madison, 5 U.S. (1 Cranch) 137 at 177 (2 L. Ed. 60) (1803): "It is emphatically the

province and duty of the judicial department to say what the law is.

Defendants indicated to the court below that only a few aberrant state courts have found

school funding systems unconstitutional in recent years. (App. pp. 90-94.) In fact, a significant

number of courts in other states have considered whether their school funding systems pass

constitutional muster, and most of these decisions have addressed the constitutional adequacy

of school funding systems. During the past ten years, plaintiffs have prevailed in decisions of the

highest courts in education adequacy cases in fourteen states, while defendants have prevailed in

only five.11

11
Specifically, since 1997, plaintiffs have prevailed in: Montoy v. State, 102 P.3d 1160 (Kan.
2005); Hoke County Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004); Columbia Falls Elem.
Sch. Dist. No. 6 v. State, 109 P.3d 257 (Mont. 2005); Campaign for Fiscal Equity, Inc. v. State,
801N.E.2d 326 (N.Y. 2003); Lake View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002);
Tennessee Small Sch. Systems v. McWherter, 91 S.W.3d 232 (Tenn. 2002); Campbell County
Sch. Dist. v. State, 19 P.3d 518 (Wyo. 2001); Abbeville County Sch. Dist. v. State, 515 S.E.2d
535 (S.C. 1999); Idaho Schs. for Equal Educ. Opportunity v. State, 976 P.2d 913 (Idaho 1998);
Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998); Abbott v. Burke, 693 A.2d 417 (N.J. 1997); Leandro
v. State, 488 S.E.2d 249 (N.C. 1997); Brigham v. State, 692 A.2d 384 (Vt. 1997); Claremont
Sch. Dist. V. State, 703 A.2d 1353 (N.H. 1997); DeRolph v. State, 677 N.E.2d 733 (Ohio 1997).
Defendants have prevailed in: Nebraska Coalition for Educational Equity and Adequacy v.
Heinman, 731 N.W.2d 164 (Neb. 2007); Oklahoma Education Association v. State, 158 P.3d
1058 (Okla. 2007); Vincent v. Voight, 614 N.W.2d 388 (Wisc.2000); Lewis E. v. Spagnolo, 710
10
 Also, as other states highest courts have recognized, a determination that any aspect of a

funding system violates constitutional standards entails no greater usurpation of the authority

of the coordinate branches than any other constitutional determination. See, e.g., Seymour v.

Region One Bd. of Educ., 803 A.2d 318, 326 (Conn. 2002). Courts accord proper respect to the

other branches in education adequacy cases not by concluding that their State constitutions are

unenforceable, but rather by deferring to the political branches to correct any constitutional

deficiencies if such a determination is made. See, e.g., id. at 324; Hoke County Bd. of Educ. v.

State, 599 S.E.2d 365, 390-91, 393-94 (N.C. 2004); Roosevelt v. Bishop, 877 P.2d 806 (Ariz.

1994); State v. Campbell County Sch. Dist., 32 P.3d 325, 332 (Wyo. 2001).

The outcome of this case should be determined by whether plaintiffs adduce

evidence proving that the current system of education finance is not providing students

educational opportunities that are designed to produce individuals with knowledge and

learning sufficient for the preservation of a free government. That evidentiary burden

is for a trial on the merits.

II. THE COURT IS CAPABLE OF DISCERNING AND APPLYING

JUSTICIALLY MANAGEABLE STANDARDS IN THIS CASE, AS
COURTS IN SIMILAR CASES HAVE DONE IN OTHER STATES.

Defendants, in briefs below, cited only five states (defendants called five many) whose

courts they say refused to consider challenges similar to this case. (App. pp. 88-90.)

However, the courts in one of those states, Alabama, actually adjudicated the case, including a

trial on the merits and a trial court decision affirmed by the state supreme court.12 Defendants

N.E.2d 798 (Ill. 1999); and Pennsylvania Assn.. of Rural &Small Schs. v. Ridge, 737 A.2d 246
(Pa. 1999).

12
See Ex parte James (In re Alabama Coalition for Equity (ACE) v. James, 836 So.2d 813 (Ala.
2002); Ex parte James (ACE v. James), 713 So.2d 869 (Ala. 1997); Opinion of the Justices, No.
338, 624 So.2d 107 (Ala. 1993); ACE v. Hunt, 1993 WL 204083 (Ala. Cir. Ct. Montgomery Cty.
11
claim that the remaining four courts cited by defendants feared a lack of judicially manageable

standards and urge this Court to succumb to the same fear. Id.

Those four aberrations are minor and unpersuasive in light of at least 20 courts elsewhere

that have adjudicated these cases, undeterred by this chimera.13 The state courts have discerned

and applied judicially manageable standards effectively and with aplomb.14 The courts in these

cases begin explicating judicially manageable standards by interpreting the Education Clause of

their States Constitution, then, proceed by providing guidance to the remand court for its

determination of whether the constitutional standard is being met.

A few examples are illustrative. When New Yorks highest court reversed the granting

of defendants motion to dismiss an education adequacy case similar to Bonner v. Daniels, it

addressed an education clause that said, The legislature shall provide for the maintenance and

support of a system of free common schools, wherein all the children of this state may be

educated. CFE v. State, 655 N.E.2d 661, 665 (N.Y. 1995). The court examined the Education

1993) (Appendix to Opinion of the Justices, No. 338, 624 So.2d at 157). Long after its appellate
jurisdiction had expired, the court, sua sponte, reopened and then closed the case. Ex parte
James, 836 So.2d at 877 (Johnstone, J., dissenting).
13
Columbia Falls Elem. Sch. Dist. 6 v. State, 109 P.3d 257 (Mont. 2005); Montoy v. State, 102
P.3d 1160 (Kan. 2005); Neeley v. West Orange-Cove Sch. Dist., 176 S.W.3d 746 (2005); Lake
View Sch. Dist. v. Huckabee, 91 S.W.3d 472 (Ark. 2002), cert. denied, 538 U.S. 1035 (2003);
Campaign for Fiscal Equity v. State, 801 N.E.2d 326 (N.Y. 2003); Kasayulie v. State, 3AN-97-
3782 Civ. (Superior Court of Alaska, Sept. 1, 1999); Abbeville Cty. Sch. Dist. v. State, 515
S.E.2d 535 (S.C. 1999); Zuni Sch. Dist. v. State, District Court of McKinley County, Case No.
CV-98-14-II (District Court of New Mexico 1998); Hull v. Albrecht, 950 P.2d 1141 (Ariz. 1997);
Claremont Sch. Dist. v. Governor, 703 A.2d 1353 (N.H. 1997); Leandro v. State, 488 S.E.2d
249, 255 (1997); DeRolph v. State, 677 N.E.2d 733 (Ohio 1997); Brigham v. State, 692 A.2d
384 (Vt. 1997); Bradford v. Maryland State Bd. of Educ. (Cir. Ct. for Balt. City, Md. 1996);
Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995); McDuffy v. Secy of Educ., 615
N.E.2d 516 (Ma. 1993); Committee for Educational Equality v. State, No. CV190-1371CC (Mo.
Circuit Ct. 1993); Idaho Sch. for Equal Educ. Opportunity v. Evans, 850 P.2d 724 (Id. 1993);
Abbott v. Burke, 575 A.2d 359 (N.J. 1990); Rose v. Council for Better Education, 790 S.W.2d
186 (Ky. 1989); McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981); Seattle Sch. Dist. No. 1 v.
State, 585 P.2d 71, 92 (Wash.1978).
14
See, e.g., cases cited at footnote 8, above.
12
Article's language and history and held that [i]n order to satisfy the Education Article's

mandate, the system in place must at least make available an education, a term we interpreted

to connote a sound basic education. Id. at 665. The court wrote:

Th[e Education] Article requires the State to offer all children the opportunity of a
sound basic education. Such an education should consist of the basic literacy,
calculating, and verbal skills necessary to enable children to eventually function
productively as civic participants capable of voting and serving on a jury. If the
physical facilities and pedagogical services and resources made available under
the present system are adequate to provide children with the opportunity to obtain
these essential skills, the State will have satisfied its constitutional obligation.
(citations omitted)

Id. at 666. The court also expected the parties and the trial court on remand to develop a

record for further consideration of the meaning of the education clause:

We do not attempt to definitively specify what the constitutional concept and

mandate of a sound basic education entails. Given the procedural posture of this
case, an exhaustive discussion and consideration of the meaning of a "sound basic
education" is premature. Only after discovery and the development of a factual
record can this issue be fully evaluated and resolved.

Id. at 666. Finally, the court provided guidance as to

. . . what the trier of fact must consider in determining whether defendants have
met their constitutional obligation. The trial court will have to evaluate whether
the children in plaintiffs' districts are in fact being provided the opportunity to
acquire theskills necessary to enable them to function as civic participants
capable of voting and serving as jurors. A relevant issue at this point is whether
plaintiffs can establish a correlation between funding and educational opportunity.
In order to succeed in the specific context of this case, plaintiffs will have to
establish a causal link between the present funding system and any proven failure
to provide a sound basic education to New York City school children.

Id. at 666-67.

Following this guidance, the parties presented evidence to the trial court on: teaching

quality, facilities, and other inputs, such as availability of textbooks and computers; student

outcomes, such as test scores and graduation rates; the State system of education finance; and

the alleged causal link. CFE v. State, 719 N.Y.S.2d 475 (N.Y. Sup. Ct. Jan. 10, 2001). The trial

13
court ruled in plaintiffs favor, and the decision was affirmed on appeal. CFE v. State, 801

N.E.2d 326 (N.Y. 2003).

In Claremont Sch. Dist. v. Governor, 142 N.H. 462, 475-75, 703 A.2d 1353, 1359

(1997), the New Hampshire Supreme Court interpreted an education article15 that is far

less directive than Indianas constitutional mandate that the State utilize all suitable

means to provide for a general and uniform system of education. The Court defined a

constitutionally adequate education as one that includes broad educational

opportunities needed in todays society to prepare citizens for their role as participants

and as potential competitors in todays marketplace of ideas, quoting Claremont I, 138

N.H. at 192, 635 A.2d at 1381. The Court stressed that a constitutionally adequate

education must meet the demands of an evolving world and that [a] broad exposure to

the social, economic, scientific, technological, and political realities of todays society is

essential for our students to compete, contribute, and flourish in the twenty-first century.

The New Hampshire high court looked to the seven criteria articulated by the

Supreme Court of Kentucky in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186,

212 (Ky. 1989) as establishing general, aspirational guidelines for defining educational

adequacy, and determined that [a] constitutionally adequate public education should

reflect consideration of the following:

(i) sufficient oral and written communication skills(ii) sufficient knowledge of

economic, social, and political systems(iii) sufficient understanding of
governmental processes(iv) sufficient self-knowledge and knowledge of his or

15
N.H. Const. Pt. 2, Art. 83: Knowledge and learning, generally diffused through a
community, being essential to the preservation of a free government; and spreading the
opportunities and advantages of education through the various parts of the country, being
highly conducive to promote this end; it shall be the duty of the legislators and
magistrates, in all future periods of this government, to cherish the interest of literature
and the sciences, and all seminaries and public schools

14
 her mental and physical wellness; (v) sufficient grounding in the arts(vi)
sufficient training or preparation for advanced training in either academic or
vocational fields; and (vii) sufficient levels of academic or vocational skills
tocompete favorably with their counterparts in surrounding states, in academics
or in the job market.
The New Hampshire Supreme Court found that these guidelines comport with the

[State] Constitutions emphasis on educating our children to become free citizens on

whom the [State] may rely to meet its needs and to further its interests Id. (quoting

McDuffy, 615 N.E.2d at 555). Significantly, the Indiana Constitution also stresses public

educations essential role in the preservation of a free government.

The New Hampshire Supreme Court found that the existing education finance system

was incapable of supporting the standards it had articulated and thereby violated the education

article in the State Constitution. The Court directed the legislature to cure the constitutional

deficiency, stating: Without intending to intrude upon prerogatives of other branches of

government, see N.H. Const. pt. I, art. 37, we anticipate that they will promptly develop and

adopt specific criteria implementing these guidelines and, in completing this task, will appeal to

a broad constituency.

Similarly, in Vincent v. Voight, 614 N.W.2d 388 (Wisc. 2000), the Wisconsin Supreme

Court interpreted the constitutions education clause, which states that:

The legislature shall provide by law for the establishment of district schools, which shall
be as nearly uniform as practicable; and such schools shall be free and without charge for
tuition to all children between the ages of 4 and 20 years

Wisc. Const. art. X, 3. The court held this language to mean that Wisconsin students have the

right to "an equal opportunity for a sound basic education [which] will equip students for their

roles as citizens and enable them to succeed economically and personally" and defined that right

to include

"the opportunity for students to be proficient in mathematics, science, reading and

writing, geography, and history, and . . . receive instruction in the arts and music,
vocational training, social sciences, health, physical education and foreign language."
15
Vincent v. Voight, 614 N.W.2d 388, 396-97 (Wisc. 2000). On this basis, the court also

concluded that the plaintiffs had not presented convincing evidence that students were being

denied this opportunity. Id. at 413.

As State education departments and legislatures have implemented academic standards

and assessment systems, many courts have relied on their States standards and equated a

constitutionally sound system of education, at least in part, with a system that provides all

students the opportunity to master the States standards.16 In Wyoming, for example, after a trial

on the merits, the supreme court wrote approvingly of

[t]rial testimony [that] indicated aspects of a quality education will include:

Integrated, substantially uniform substantive curriculum decided by the legislature
through the State Superintendent of Public Instruction and the State Board of Education
with input from local school boards. Setting of meaningful standards for course content
and knowledge attainment [and]Timely and meaningful assessment. (footnotes
omitted).
Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) (Campbell I).

In this case, the comprehensive K-12 Indiana Academic Standards, available at

www.doe.state.in.us/standards/welcome.html, have been developed by the State Board of

16
See, e.g., Hull v. Albrecht (Albrecht I), 950 P.2d 1141, 1145 (Ariz. 1997) ([A]
constitutionally adequate system will make available to all districts financing sufficient to
provide facilities and equipment necessary and appropriate to enable students to master the
educational goals set by the legislature.); Montoy v. State (Montoy II), 102 P.3d 1160, 1164
(Kan. 2005) (noting that the state's school performance accreditation system, which is based
upon improvement in performance that reflects high academic standards and is measurable, and
its standards for individual and school performance levels, comprise the legislatures
determination of a constitutionally suitable education system) (quoting KAN. STAT. ANN. 72-
6539(a)); Columbia Falls v. State, 109 P.3d 257, 312 (Mont. 2005) (Unless funding relates to
needs such as academic standards . . . and performance standards, then the funding is not related
to the cornerstones of a quality education.); Abbott v. Burke (Abbott IV), 693 A.2d 417, 432
(N.J. 1997) (noting that the states curriculum standards embody the substantive content of a
thorough and efficient education); Neeley v. West Orange-Cove, 176 S.W.3d 746, 787 (Tex.
2005) (an adequate public education system is one that is reasonably able to provide students
with a meaningful opportunity to acquire the essential knowledge and skills reflected in . . .
curriculum requirements) (emphasis in original) (citing district court decision).

16
Education, and the Indiana Department of Education, on authority delegated by the General

Assembly. In addition to the constitutional text and historical record, the Court can look to these

standards to inform the content of a general and uniform system of Common Schools.17 Using

the standards and other sources it deems appropriate, this Court, like courts in other states, is

17
Plaintiffs Complaint cites these standards, and plaintiffs allege a violation of Indianas
constitutionally mandated education system because they are not receiving the opportunity to
master the State standards and thereby become prepared to function in society. Pls. Compl.
15- 26 and 58-86.

17
certainly capable of discerning and applying judicially manageable standards.

CONCLUSION

For all of these reasons, amici curiae respectfully submit that this Court should reverse

the January 2007 Order of the Superior Court and remand this case for trial.

Respectfully submitted,

____________________________________
Molly A. Hunter
Ellen Boylan
Amanda G. Adler

Attorneys for Amici Curiae, National

ACCESS Network, Education Law Center,
and The Rural School and Community
Trust, Inc.

Dated: August 10, 2007

18