Lead Opinion
This is a direct appeal from an order of the Commonwealth Court invalidating an amendment to Pennsylvania’s Educational Empowerment Act which would allow the mayors of certain medium-sized cities within the Commonwealth to assume control of failing school districts. The primary issue presented is whether the amendment in question constitutes special legislation in violation of Article III, Section 32 of the Pennsylvania Constitution.
I.
In May of 2000, the General Assembly enacted the Education Empowerment Act (the “EEA”).
If the school district improves sufficiently, such that it reaches the goals in the improvement plan and no longer has a history of low test performance, the Department removes it from the List and returns control to the school board. See 24 P.S. § 17-1710-B. If, however, the school district fails to meet its goals for educational improvement and maintains a history of low test performance for three years, the Commonwealth assumes control of the district. The Department certifies it as an “education empowerment district” and establishes a three-member board of control to govern it.
Under the EEA, failing urban school districts that meet certain criteria are subjected to an expedited recovery plan whereby the Secretary waives the inclusion of the school district on the List and immediately certifies it as an empowerment district. In these cases, the mayor of the city in which the district is located, rather than the Secretary, appoints the board of control. This mayor-selected board consists of five members of the community who serve at the mayor’s pleasure, and exercises essentially the same powers as a board of control appointed by the Secretary. The mayor also appoints a school district empowerment team to develop a district improvement plan, which is ultimately submitted to the Department for modification and approval. A district certified under this special provision is governed by the mayor’s board of control for at least five years. Thereafter, when it no longer has a history of low test performance and reaches the goals contained in the improvement plan, it is decertified and authority reverts to the local school board. See 24 P.S. § 17-1707-B('b).
The General Assembly codified the following legislative findings in support of this expedited scheme:
(1) In addition to the operation of failing school districts by a state, other jurisdictions across the nation are utilizing other models to reform failing urban school districts in which the chief executive of the city government is empowered to control the governance of the public schools serving the city. For example, Chicago has implemented a reform model operated by the mayor.
(2) In this Commonwealth, the Mayor of the City of Philadelphia, a city of the first class coterminous with a school district of the first class, recently was empowered by amendments to the home rule charter immediately to appoint all members of the Board of Education of the School District of Philadelphia to serve at his pleasure. In no other school district of the Commonwealth is the mayor or chief executive of a municipality empowered to control or affect the governance of school districts. Under the home rule charter amendments, the Mayor of Philadelphia will have significant input into development and implementation of any school district improvement plan adopted under [24 P.S. § 17-1703-B] and the school district generally.
(3) In order to assess the effectiveness of a mayor-led system of school governance in other large city school districts in this Commonwealth which have a historyof extraordinarily low test performance, a pilot program under this section shall be established for certain school districts ....
24 P.S. § 17-1707-B(a).
As noted, only a certain, defined class of urban school districts is eligible for the expedited, mayor-led program described above. Under the original version of the EEA, a school district was eligible for such treatment only if it was “a school district of the second class with a history of low test performance which is coterminous with the city of the third class which contains the permanent seat of government.” Due to the permanent-seat-of-government criterion, this class could only consist of a single member, the Harrisburg School District. For this reason, the qualifying language was commonly referred to as the “Reed Amendment” after Harrisburg’s mayor, the Honorable Stephen R. Reed. Shortly after passage of the EEA, the Commonwealth Court concluded that the Reed Amendment was unconstitutional special legislation as defined by Article III, Section 32 of the Pennsylvania Constitution, and preliminarily enjoined its implementation. This Court affirmed the Commonwealth Court’s order and declared the Reed Amendment invalid as violative of Section 32.
One week before this Court’s Hickok I decision was announced, the General Assembly amended Section 1707-B, 24 P.S. § 17-1707-B, in an apparent response to the Commonwealth Court’s preliminary injunction order. See Act of Nov. 22, 2000, P.L. 672, No. 91, § 9 (“Act 91”). Act 91 altered the Reed Amendment so that the class of school districts eligible for mayoral control is now defined as follows:
For a school district of the second class which has a history of extraordinarily low test performance, which is coterminous with a city of the third class that has opted under the “Optional Third Class City Charter Law” or 53 Pa.C.S. Pt. Ill Subpt. E to be governed by a mayor-council form of government and which has a population in excess of forty-five thousand (45,000), the secretary shall waive the inclusion of the school district on the education empowerment list under [24 P.S. § 17-1703-B(a)] and immediately certify the school district as an education empowerment district. No school district shall be certified under this section later than December 31, 2005.
24 P.S. § 17-1707-B(a.l).
On December 4, 2000, the Harrisburg School District, the Harrisburg School Board, several individuals residing within the Harrisburg School District, and “Citizens Concerned for Children First,” an unincorporated association of such residents (collectively, “Appellees”), filed a petition for review in the nature of a complaint in equity and declaratory judgment
After the Commonwealth Court denied preliminary injunctive relief, Appellants filed preliminary objections, which the Commonwealth Court sustained with respect to Counts IV and V, finding that the school board retained tax-levying power and that its members retained their offices although their powers were affected. The court overruled the preliminary objections, however, as to Counts I, II, and III, that is, the counts alleging that the amendment amounts to unconstitutional special legislation, violates the Equal Protection Clause, and improperly changes the form of Harrisburg’s government. See Harrisburg Sch. Dist. v. Hickok (“Hickok II”),
The number and oddness of the distinctions that mix and match a class of school with a particular subclass of a third class city that itself is a particular subclass of a home rule municipality that is further narrowed by a population classification that itself is a subclass of population classification used to determine classes of city indicates that the object of the legislation was to winnow down the number of school districts so that it would apply to a very, very, very small number. While that, in and of itself, does not make the legislation violative of Article III, Section 32’s prohibition against special legislation, the absence of any apparent “rhyme or reason” for the factors used indicates that they were artificial and irrelevant to remedying the situation in districts with “extraordinarily low [Pennsylvania System of State Assessment] scores.”
Id. at 228.
Concerning the equal protection challenge, the Commonwealth Court concluded
Judge Leadbetter dissented and indicated that she would have sustained Appellants’ preliminary objections as to all counts of the complaint. Initially, she observed that a separate constitutional provision, Article III, § 14, affirmatively requires the Legislature to provide a “thorough and efficient system of public education” for the Commonwealth. In this respect, she indicated that “the General Assembly enacted the EEA in response to a significant pattern of failure among the Commonwealth’s public schools,” and opined that Act 91— which is specifically designated as a pilot program and modeled after proven programs from other states — provides a remedy for the Harrisburg School District that is closely tailored to the form of government employed by the city and its public school system. Therefore, she concluded that the act represents a “rational legislative response” to the high rate of educational failure in the Commonwealth, and accordingly, violates neither Article III, Section 32 of the state Constitution nor the Equal Protection Clause. As for the claim that Act 91 impermissibly alters the city’s form of government, Judge Leadbetter agreed with Appellants’ argument that Article IX, Section 3 “speaks only to a wholesale change of municipal government, not to amendments of municipal powers which may be made from time to time by the General Assembly.” Hickok II,
On January 3, 2002, the Commonwealth Court granted Appellees’ motion, stating that it had “fully explored each and every one of these arguments in our prior decision regarding the preliminary objections and our answers remain the same.” Harrisburg Sch. Dist. v. Zogby,
Appellants argue that the purpose of Act 91 is to explore ways to “fix broken school districts,” specifically urban ones, and that it extends to school districts in medium-sized cities a tool already available in Philadelphia, the Commonwealth’s largest city: putting the school district under the control of a board appointed by the mayor. They contend that Act 91 therefore represents a rational response to the problem of failing urban school districts, and state further that it cannot constitute special legislation because the classification it ereates may contain multiple school districts. In particular, they aver that if the school districts of the cities of Erie, Allentown, and Reading perform poorly enough, they will be subject to immediate certification as empowerment districts under Act 91. Appellants also assert that, contrary to the Commonwealth Court’s statement that there was no “rhyme or reason” to the set of qualifiers contained in the definition of the class at issue, the General Assembly could reasonably have arrived at that particular classification. Specifically, they posit that the General Assembly could rationally have opted to: treat urban school districts differently from rural ones; establish a “pilot program” for a relatively small number of cities in an effort to assess the results before making immediate
Amici, the Honorable Robert C. Jubelirer, President pro tempore of the Pennsylvania Senate, and the late Honorable Matthew J. Ryan,
Appellees respond there can be no rational reason to treat some third-class cities differently than others. They contend, moreover, that the disputed classification is in reality aimed only at Harrisburg, and that it therefore constitutes special legislation regardless of any asserted rational basis, and unfairly stigmatizes the Harrisburg School District as being the “worst in Pennsylvania.” Appellees state further that there is no “pilot program” exception to Article III, Section 32’s proscription on special legislation, as otherwise the Reed Amendment would have been upheld. Finally, Appellees submit that the “form” of government, for purposes of Article IX, Section 3, includes the duties of governmental officials, and that, accordingly, giving Harrisburg’s mayor additional powers violates Section 3 and additionally alters to the type of city government selected by Harrisburg voters and runs contrary to the Public School Code’s mandate that elected school boards, and not local governmental officials, govern public schools within the Commonwealth.
II.
A statute duly enacted by the General Assembly is presumed valid and will not be declared unconstitutional unless it “clearly, palpably and plainly violates the Constitution.” Purple Orchid, Inc. v. Pennsylvania State Police,
A. Special Legislation and Equal Protection
In the seven years before the Constitution of 1874 was adopted, the General Assembly enacted 8,755 local or special acts and only 475 general laws. See Robert E. Woodside, Pennsylvania Constitutional Law 321 (1985).
Over the years, this prohibition, as well as other state constitutional provisions such as the Uniformity Clause, see Pa. Const, art. XIII, § 1 (prescribing uniformity in taxation), have been understood to include principles of equal protection under the law. See Tool Sales & Serv. Co. v. Commonwealth,
Equal protection principles do not, however, vitiate the Legislature’s power to classify, which necessarily flows from its general power to enact regulations for the health, safety, and welfare of the community. See Harris v. State Bd. of Optometrical Exam’rs.,
The history of the present dispute, as related above, leaves little doubt that the General Assembly sought initially to prescribe an aggressive course of action to ameliorate the systemically failing school district located in the state capital. Under this procedure, the school district would be immediately certified as an empowerment district and placed under the mayor’s control rather than having to wait three years and then being taken over by the state. Although this effort may have been salutary in purpose and effect, this Court held in Hickok I that the General Assembly could not, consistent with Article III, Section 32 and the Equal Protection Clause, prescribe such strong measures for Harrisburg only. Thus, the General Assembly sought to cure the defect identified by the Hickok I Court by extending immediate certification and mayoral control to other cities. Recognizing, however, that these measures were to some degree experimental in nature, the General Assembly apparently sought, as well, to limit the number of municipalities affected by the new provision by extending the class only to a small group of other medium-sized cities which were, in its view, similarly situated to Harrisburg. This group consists of cities that have opted for a mayor-council form of government under the Charter Law, have a population between 45,000 and 250,000, and have a mayor who is accountable to the same electorate as that which makes up the school district.
We note initially that the Legislature is permitted to treat cities of different sizes differently, particularly as classifications of
Additionally, we agree with Appellants that the Legislature could reasonably have sought to limit the program initially to cities with a mayor-led government in which the mayor is accountable to the same local electorate that makes up the school district. This condition has the benefit of providing the individual who retains ultimate authority over the board of control (i.e., the mayor) with the greatest political incentive to ensure that effective means are implemented to improve the performance of the school district involved. Accord Hickok II,
Furthermore, while other third-class cities may have a mayor, see 53 P.S. § 35701, the increased local control inherent in cities governed under a home rule paradigm constitutes a sufficient basis for the General Assembly to have concluded that Act 91’s provisions should be limited, at least- initially, to cities with a home-rule, mayor-council form of government under the Charter Law. In particular, the General Assembly could reasonably have concluded that, as with Philadelphia, such conditions would lend themselves to the mayor “hav[ing] significant input into the development and implementation of any school district improvement plan adopted.” 24 P.S. § 17-1707-B(a)(2).
Finally, although, as noted by the Commonwealth Court, these restrictions collectively narrow the class of school districts eligible for expedited treatment under Act 91 to a small number, we believe that it was rational for the General Assembly to seek to limit the program’s initial reach to a small group of districts before prescribing the same procedures more generally throughout the state. Such is consistent with the codified legislative findings, which indicate that the effectiveness of a mayor-led system of school governance should be assessed under the act’s “pilot program” before being made more generally available.
Under these circumstances, we do not believe that the class defined by Act 91 is based upon artificial or irrelevant distinctions utilized merely to evade the constitutional prohibition on special legislation; we hold, rather, that it is a classification which is reasonably related to the Commonwealth’s legitimate interest in, and the General Assembly’s constitutional duty to ensure, the existence of a “thorough and efficient system of public education.” Pa. Const, art. Ill, § 14. Consequently, we conclude that Act 91 is consistent with both Article III, Section 32 of the Pennsylvania Constitution and the Equal Protection Clause of the United States Constitution.
B. Form of Government
The Commonwealth Court struck down Act 91 upon the alternative ground that, in its view, the statute improperly vests powers in the mayor of Harrisburg without approval of the Harrisburg voters. As discussed, the court viewed this as inconsistent with the Charter Law, in that the mayor-council plan of government does not grant the mayor authority to appoint a board of control for the school district. Appellees likewise contend that giving the mayor power to appoint such a board violates Article IX, Section 3 of the Pennsylvania
While there is some appeal to the proposition that giving the mayor any duties or responsibilities which are not specifically enumerated in the Charter Law effects a change in the form of government because the voters did not opt for a plan in which the mayor possessed such responsibilities, see Hickok II,
The question, then, distills to whether, as Appellees contend, Act 91 violates Article IX, Section 3 by somehow altering the “form” of government selected by the voters of Harrisburg or other cities in the relevant class. This is the central inquiry because the constitutional provision at issue pertains specifically to the selection by municipalities of an optional “form” of government. See Pa. Const, art. IX, § 3.
“Form” is defined variously, and most relevantly, as “the organization, placement, or relationship of basic elements,” and “the structure, organization, or essential character of something, as opposed to its matter.” Webster’s Collegiate Dictionary 515 (2d rev’d & updated Random House ed.2000). In this respect, we agree with Judge Leadbetter that Section 3 of Article IX does not per se preclude a legislative grant of particularized powers and duties to the mayor of a city that has opted for a mayor-council form of government, but refers instead to a wholesale change of municipal government. See Hickok II,
This reading is also consistent with the provisions of the Charter Law itself. Those applicable to all optional plans tend to focus upon such things as the size of the city council, see 53 P.S. § 41213, and the manner in which city officials are elected, see 53 P.S. § 41241, while the provisions pertaining specifically to the mayor-council plan deal with: identifying the city’s elected officials (i.e., the mayor, the city council, the treasurer and the controller), see 53 P.S. § 41402; the length of terms of office, see 53 P.S. § 41403; the size of the city council, see 53 P.S. § 41404; the manner in which vacancies are filled, see 53 P.S. § 41405; the separation of powers between branches of government, see 53 P.S. §§ 41407, 41411; the manner in which local ordinances are enacted, see 53 P.S.
C. Conclusion
Since preliminary objections were sustained as to Counts IV and V, and our analysis is dispositive with respect to Counts I, II, and III, relief is unavailable on the complaint and further proceedings in this matter are unnecessary. See Bensalem Township Sch. Dist. v. Commonwealth,
Accordingly, the order of the Commonwealth Court is reversed, and the matter is remanded for entry of judgment in favor of Appellants.
Notes
. Act of May 10, 2000, P.L. 44, No. 16, § 8.1 (as amended, 24 P.S. §§ 17-1701-B — 17-1716-B).
. A "history of low test performance” arises whenever 50% or more of the students within the district receive failing reading and math scores on state standardized tests for two consecutive years. See 24 P.S. § 17-1702-B (definitions).
. The Department may allow the district to remain on the List for a fourth school year prior to certifying it if the Department determines that the additional year will enable the school district to improve its performance and meet the goals set forth in the improvement plan. See 24 P.S. § 17-1705-B(a).
. In relevant part, Section 32 provides:
The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General Assembly shall not pass any local or special law:
1. Regulating the affairs of counties, cities, townships, wards, boroughs or school districts [.]
Pa Const, art. Ill, § 32.
. A "history of extraordinarily low test performance” is essentially the same as a history of low test performance, see supra note 2, except that the school district must have a two-year failure rate of 60% instead of 50%. See 24 P.S. § 17-1702-B.
. The Harrisburg School District and the Harrisburg School Board withdrew from the case in December of 2001.
. The present Secretary of Education, Charles B. Zogby, was later substituted for former Secretary Hickock as a respondent.
. Section 3 states:
Municipalities shall have the right and power to adopt optional forms of government as provided by law. The General Assembly shall provide optional forms of government for all municipalities. An optional form of government shall be presented to the electors by initiative, by the governing body of the municipality, or by the General Assembly. Adoption or repeal of an optional form of government shall be by referendum.
Pa. Const, art. IX, § 3.
. Act of July 15, 1957, P.L. 901 (as amended, 53 P.S. §§ 41101 — 41625).
. Judge Kelley concurred in the result, but, in an opinion joined by Judge Smith, dissented from the sustaining of the Commonwealth's preliminary objections to the counts involving the delegation of taxing power and the removal of the existing school board from office. See id. at 237-38 (Kelley, J., concurring and dissenting). Those counts are not at issue in this appeal.
. The court also "voided” the Secretary of Education's certification of the Harrisburg School District as an Education Empowerment District. However, the Secretary’s appeal operated as an automatic supersedeas of the January 3, 2002, order. See Pa.R.A.P. 1736(b). Appellees’ request to vacate the supersedeas was denied.
Additionally, although the January 3, 2002, order did not technically resolve Appellees' claims against the Mayor or the Board of Control, the Commonwealth Court subsequently declared its order final, see Pa. R.A.P. 341(c), after which the Mayor and Board of Control filed notices of appeal.
. Mr. Ryan was Speaker of the Pennsylvania House of Representatives at the time he and Senator Jubelirer filed their amicus brief. He continued in that office until his death on March 29, 2003.
. See also Gary E. French, Home Rule in Pennsylvania, 81 Dick. L.Rev. 265, 267 n. 20 (1977) ("Special legislation is that which affects exclusively a specifically named municipality. In Pennsylvania [during the post-Civil War period], the General Assembly was so occupied with dispensing special favors that there was little time left to deal with problems of state-wide concern.” (citation omitted)).
. Appellees claim that education is a fundamental right, and that the Court should therefore apply a standard that is more stringent than the “rational basis” test. We need not resolve here the parties’ dispute concerning whether education is a fundamental right for purposes of equal protection analysis, since Appellees do not argue, nor does it appear from the record, that Act 91 infringes anyone’s ability to receive an education.
. Although Act 91 specifies that the city must be a city of the third class which is coterminous with a school district of the second class, it should be noted that a school district of the second class by definition has a population of between 30,000 and 250,000, see 24 P.S. § 2-202, and third class cities are those with a population of less than 250,000, see 53 P.S. § 101. In light of the coterminality requirement and the criterion that the city has over 45,000 residents. Act 91's requirement that the school district be of the second class is superfluous. Furthermore, the criterion that the school district has a history of severe failure is not, strictly speaking, part of the class definition; rather, it is the condition triggering immediate certification as an empowerment district.
. Appellees are correct in stating that Article III, Section 32 does not have a "pilot program exception.” The relevant inquiry, however, is not whether such an exception exists, but whether the particular pilot program here at issue constitutes special legislation. For the reasons stated, we believe that it does not.
. As noted, Appellees admitted in their complaint, and Appellants alleged in their answer, that the class is presently open to more than one member. We note additionally that other factors may operate to broaden the class. For example, a school district can enter the class if it grows to more than 45,000 residents.
. Appellees suggest that the existence of a rational basis is not determinative. They argue in particular that the Legislature’s true purpose was simply to “figure[] out another way to say 'Harrisburg,'” and complain that Appellants “jump directly to rational basis” without acknowledging the prohibition on evading constitutional constraints through artificial, irrelevant distinctions. See Brief at 14. This Court has clarified, however, that the existence of real and relevant distinctions in the subjects classified is the touchstone of the inquiry under both Section 32 and the Equal Protection Clause. See Hickok 1, 563 Pa. at 397,
Dissenting Opinion
Dissenting.
Because I believe that Act 91
Act 91’s classification is no less effective in singling out the Harrisburg School District for special treatment than the Reed Amendment. It is, in my view, nothing more than a thinly veiled attempt by the Legislature to promulgate special legislation under the guise of a general law. Were the purpose of this legislation really the remediation of failing urban school districts, such could have been achieved through the passage of general laws. The only possible purpose of Act 91 is the evasion of the constitutional limitation ran afoul of in Harrisburg Sch. Dist. v. Hickok (Hickok I), 563 Pa.391,
By its opinion today, the majority has placed its imprimatur on legislation passed
. Act of November 22, 2000, P.L. 672, No. 91, § 9.
. Section 1707 B of the Act of May 10, 2000, P.L. 44, No. 16, § 8.1, as amended, 24 P.S. §§ 17-1701-B to 17-1716-B.
. Section 1707 B of the Act of May 10, 2000, P.L. 44, No. 16, § 8.1, 24 P.S. §§ 17-1701-B to 17-1716-B.'