The Supreme Court today denied review in a pair of high-profile education rights cases, but did so over the recorded dissents of three justices (one vote too few for review), two of whom — Justices Goodwin Liu and Mariano-Florentino Cuéllar — issued separate statements explaining why the court should hear the cases.  Justice Ming Chin voted for review, but without writing or joining any dissenting statements.

Separate statements on the denial of review continue a practice revived by Justice Liu last year.  In one of today’s cases, Chief Justice Tani Cantil-Sakauye writes a separate statement signed by all the justices announcing the court “has adopted a policy that such statements, when they pertain to an appellate court opinion that has been published in the Official Reports, will also be published, appended to the original appellate court opinion in the Official Reports.”  We’ve said statements like these should be published, but, not to be picky, what about separate statements when review is denied of an unpublished Court of Appeal opinion?  Justice Liu wrote one of those five months ago.  It would be better if all separate statements were published in the Supreme Court official reports, instead of publishing in the Court of Appeal official reports only those statements that can be appended to published opinions.

The Chief Justice’s statement includes the caveats that “of course any separate statement represents the views solely of the authoring justice or any justice signing the statement,” that “an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below,” and that the fact “a justice has not prepared, responded to, or joined a separate statement should not be read as reflecting the views of that justice concerning any separate statement that has been filed by any other justice.”

We anticipated a separate statement in one of the cases — Vergara v. State of California — which concerns the constitutionality of California statutes regarding tenure, retention, and dismissal.  [Disclosure:  Horvitz & Levy filed an amicus brief in the Court of Appeal, and also submitted a letter in the Supreme Court supporting review.]  (The Vergara separate statements are here, after the Court of Appeal opinion.)

Justice Liu writes, “Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review.”  He concludes, “As the state’s highest court, we owe the plaintiffs in this case, as well as schoolchildren throughout California, our transparent and reasoned judgment on whether the challenged statutes deprive a significant subset of students of their fundamental right to education and violate the constitutional guarantee of equal protection of the laws.”  Similarly, Justice Cuéllar criticizes the lower court’s decision — “Nothing in California‘s Constitution or any other law supports the Court of Appeal’s reasoning” — and states that the plaintiffs “raise profound questions with implications for millions of students across California” that “deserve an answer from this court.”

In the other case — Campaign For Quality Education v. State of California, where a divided Court of Appeal upheld dismissal of allegations that the state is failing to provide access to a meaningful education  — Justice Liu writes that “[a] holding of this magnitude, whether correct or not, warrants a full and reasoned examination by the state’s highest court” and that the state’s schoolchildren “deserve to know whether their fundamental right to education is a paper promise or a real guarantee.”  Justice Cuéllar agrees, stating “[i]t is especially important for California’s highest court to speak on this issue.”  (Separate statements here after the Court of Appeal opinion)

In his Vergara statement, Justice Liu concludes that the two petitions “involve different yet complementary claims concerning the importance of resources and reform to improving the education system.  Both cases ultimately present the same basic issue:  whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall.  This issue is surely one of the most consequential to the future of California.”

Education issues are of special interest to Justice Liu.  Besides being a former academic himself — he was a law professor and associate dean at UC Berkeley when he joined the Supreme Court 5 years ago — his early career included a stint as a special assistant to the Deputy Secretary of the U.S. Department of Education during the Clinton Administration, where he developed and coordinated K-12 education policy.  Justice Liu’s official biography states that he “is a prolific and influential scholar on constitutional law and education policy.”

Justice Cuéllar also has an education background — he was on the faculty at Stanford for 14 years — and was the co-chair just a few years ago of the U.S. Department of Education’s National Equity and Excellence Commission.