Full opinion text
MEMORANDUM OPINION AND ORDER JENKINS, Senior District Judge. This action involves the right of Native Americans living on a remote part of the Navajo Indian Reservation to a free public education. The parties do not dispute that the plaintiffs are entitled to such an education. They only dispute who is responsible for providing it. For the reasons stated below, the court concludes that each of the governmental entities involved in this case has an obligation to see that the plaintiffs receive appropriate educational opportunities. I. BACKGROUND The Navajo Mountain area of the Navajo reservation is located in extreme southern Utah, within the boundaries of San Juan County. It is bordered by Lake Powell on the north, by 10,388-foot Navajo Mountain on the west, by the impassable Paiute mesa on the east and by Arizona on the south. It is one of the most remote and inaccessible areas of the Navajo reservation and perhaps of the United States. About two-thirds to three-quarters of the 1,700 Navajo Mountain residents live on the Utah side of the border; the rest live in Arizona. The individual plaintiffs are apparently all Navajos who reside at Navajo Mountain. See Memorandum in Support of Joint Plaintiffs’ Motion for Partial Summary Judgment (dkt. no. 72) [hereinafter Plaintiffs’ Memo.] at 3, ¶ 2. They are school-age children and their parents or guardians. The Navajo Nation is also a party plaintiff. The plaintiffs brought this action against the Board of Education of the San Juan School District (the “Board”) and its members to compel the San Juan School District (the “District”) to provide secondary school facilities and services at Navajo Mountain and to improve the quality of elementary education at Navajo Mountain. Although Navajo Mountain is technically within Utah, the only vehicular access to the Navajo Mountain area is from the Arizona side, by a graded dirt road. It is a 200-mile trip from District headquarters in Monticello, Utah, to Navajo Mountain. As the proverbial crow flies, Navajo Mountain is only about 45 miles from the District’s nearest high school, at Monument Valley, and only about 60 miles from the District’s nearest elementary school, at Mexican Hat, but because of the topography and lack of roads, one has to drive more than 120 miles from Navajo Mountain to reach the nearest District facilities. This is not the first time this court has considered the question of the Board’s alleged obligation to educate Native Americans in the District. In 1974, Native American students residing in San Juan County brought an action against District, county and state officials alleging that they had “pursued a longstanding pattern of deep-rooted racial discrimination” resulting in “unequal educational opportunities for Native American children attending the San Juan public schools.” See Complaint for Injunc-tive and Declaratory Relief (Civil Rights), Sinajini v. Board of Educ., No. C-74-346 (D.Utah), at 2, ¶ 1. (A copy of the Sinajini complaint is included as exhibit E to Defendants’ Exhibits in Support of Motion for Summary Judgment (dkt. no. 61) [hereinafter Defendants’ Exhibits].) The parties to that case entered into a consent decree requiring the District to construct secondary facilities in the Oljato-Monument Valley-Mexican Hat area and in the Montezuma Creek-Aneth-Red Mesa area and to “use its best efforts to provide an education program ... at each of the new schools which is of substantially as high quality as the existing secondary programs in the District.” Agreement of Parties, Sinajini v. Board of Educ., No. C-74-346, at 10, ¶ 17. (A copy of the consent decree is included as exhibit F to Defendants’ Exhibits.) The parties’ agreement also required school officials to “consult with the school community group and with parents in the Navajo Mountain area to determine whether the residents of that area wish an elementary school in that area.” Agreement of Parties, Sinajini v. Board of Educ., No. C-74-346, at 14-15, ¶ 30. If the Navajo Mountain residents wanted an elementary school, then the District was required to establish one “at the earliest practicable date” unless “full elementary facilities serving at least grades kindergarten through six are established in that area by the Bureau of Indian Affairs [BIA].” Id. at 15, ¶ 30. The District determined that the Navajo Mountain residents wanted an elementary school in their area but preferred a BIA boarding school to a District facility, so rather than constructing an elementary school itself, the District supported the residents’ efforts to obtain a BIA facility at Navajo Mountain. See Defendants’ Exhibits ex. G. Completed in 1983, the BIA school at Navajo Mountain now provides a free public education to students in grades K through 8. The school has about 115 students (well below its capacity of 200), some of whom board at the school. See id. exs. B, K & Q. However, there is no school at Navajo Mountain for students in grades 9 through 12. Secondary-school-age children at Navajo Mountain, of whom there are between about 40 and 66 on the Utah side, must attend distant BIA boarding schools, reside in BIA dormitories near public schools or live with friends or relatives near public schools outside of Navajo Mountain. The District does not provide any educational services at Navajo Mountain. The plaintiffs brought this action to compel the District to provide educational facilities and services at Navajo Mountain. The plaintiffs’ first claim for relief alleges that, by failing to provide educational services at Navajo Mountain, the defendants have deliberately discriminated against the plaintiffs and members of their class based on race. The plaintiffs further claim that this discrimination violates the equal protection guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and its implementing regulations, 34 C.F.R. §§ 100.1 et seq., which prohibit racial discrimination in the operation of federally funded programs, as well as the injunction and consent decree in Sinajini. See Complaint for Injunctive and Declaratory Relief (Civil Rights) (dkt. no. 1) [hereinafter Complaint], at 11-12, ¶ 25. The plaintiffs’ second claim alleges that the defendants have violated federal laws governing the use and expenditure of federal funds, including so-called chapter I funds, Johnson-O’Malley funds and Public Law 874 or federal impact funds. See id. at 12-13, ¶28. The individual plaintiffs filed a motion to certify a class of plaintiffs consisting of all current and prospective Native American school-age children in the Navajo Mountain area, their parents and guardians, all adult students eligible for a free public education and all members of the Navajo tribe affected by the defendants’ actions. See Motion for Class Certification (dkt. no. 48). All the plaintiffs filed a motion for a preliminary injunction to enjoin the Board from refusing to provide Native American children at Navajo Mountain with an adequate secondary education and related school facilities and ordering the Board to submit a plan for providing a secondary education to each Native American of high-school age at Navajo Mountain comparable to that found in other schools in the District. See Joint Plaintiffs’ Motion for a Preliminary Injunction (dkt. no. 46). The defendants moved for summary judgment (dkt. no. 60), claiming that they had no duty to provide any educational services to Native American students residing at Navajo Mountain, and the plaintiffs filed a cross-motion for partial summary judgment on the issue of liability (dkt. no. 71). The United States filed a memorandum supporting and essentially tracking the plaintiffs’ memoran-da in support of their motion for partial summary judgment, and the Utah State Board of Education (the “State Board”) filed a memorandum as amicus curiae setting forth its position. While the defendants’ motion for summary judgment was pending, the parties stipulated to entry of an order providing that the District, with the aid of the State Board, would help secondary school students at Navajo Mountain and their parents with the increased expenses associated with living away from home while the students attend secondary schools in other areas (except for secondary schools operated by the BIA). See Stipulated Order Providing Preliminary Relief (dkt. no. 70), August 18, 1994, at 2-3. The plaintiffs’ joint motion for a preliminary injunction was stayed during the defendants’ performance of the terms of the stipulated order, but the plaintiffs were free to seek further relief following the expiration of the 1994-95 school year or at any other time following the court’s disposition of the case on the merits. See id. at 2, ¶ 2. While the parties’ motions for summary judgment were pending, the United States sought and was granted leave to intervene in this action. It has filed a complaint-in-intervention alleging that the defendants have discriminated against the plaintiffs based on their race, in violation of the equal protection provisions of the United States and Utah constitutions, by failing to provide an equal educational opportunity for secondary-school-age residents of Navajo Mountain, including failing to provide a secondary school reasonably located to their place of residence. See Complaint-in-Intervention (dkt. no. 113), at 8-5. The Board has counterclaimed, alleging that the United States is responsible for the education of Native Americans at Navajo Mountain. See Answer to Complaint-in-Intervention and Counterclaim (dkt. no. 114), at 7, ¶4. The eomplaint-in-intervention is not presently before the court, although it raises some of the same issues as the parties’ cross-motions for summary judgment. After oral argument, the court took under advisement both motions for summary judgment, as well as the plaintiffs’ motion to certify a class. The court now enters this memorandum decision and order denying the parties’ motions for summary judgment and denying the plaintiffs’ motion for class certification. II. THE SUMMARY JUDGMENT MOTIONS The threshold issue in this case is also the central issue, namely, whether the District has any legal duty to provide educational services to Native Americans residing on the Navajo reservation at Navajo Mountain. All sides agree that this issue is ripe for summary judgment, but they disagree about the existence and scope of any such duty. Ironically, despite the fact that both maintain and operate schools on the reservation, both the District and the United States deny that they have any legal obligation to educate Native Americans living on the reservation. The District claims that any duty to provide education on the reservation (particularly, at Navajo Mountain) belongs to the United States and the Navajo Nation. The plaintiffs claim that the District has an absolute duty to educate Native Americans living within its boundaries, including those living at Navajo Mountain, and that that duty is not diminished by any corresponding duty the federal or tribal government may have. The United States agrees that the District has a duty to educate the children of Navajo Mountain but denies that either the United States or the Navajo Nation has any responsibility for educating Native Americans; according to the United States, the District’s duty is not only absolute but also exclusive. Finally, the State Board recognizes some obligation to provide an education to Navajo students living in Utah, whether on or off the reservation, but argues that the duty to educate the children of Navajo Mountain is not the absolute or exclusive responsibility of the State of Utah — it is a shared responsibility of the state and District, the United States (through the BIA) and the Navajo Nation. The court agrees with the State Board. A. Avoidance of Constitutional Issues As a preliminary matter, the District suggests that the court does not have to reach the difficult constitutional issues involved in this case because whatever duty the District might otherwise have to educate Native American children residing at Navajo Mountain has been excused by the federal government’s provision of educational services at Navajo Mountain. The plaintiffs argue that the existence of the BIA school at Navajo Mountain does not excuse the District from its obligation to educate the children of Navajo Mountain. Courts have held that the existence of a BIA school does not justify the exclusion of Indian children from public schools. See Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926, 930 (1924); Grant v. Michaels, 94 Mont. 452, 23 P.2d 266, 272 (1933). In Grant, the Montana Supreme Court stated that an Indian boarding school established by the federal government “does not fill the place of the free common school required by” the Montana Constitution and the fact “that such a school is open to the children of the ... district, does not relieve the state of its duty to furnish public school facilities to those children.” 23 P.2d at 272. Grant relied in part on Piper, in which the California Supreme Court held that a public school district could not refuse to admit an Indian student even though the student could have attended an Indian school within the territorial boundaries of the district. The court rejected the district’s argument that the state constitutional requirement of a system of free common schools was satisfied by the establishment of a federal school: To argue that petitioner [a fifteen-year-old Indian] is eligible to attend a school which may perchance exist in the district, but over which the state has no control, is to beg the question. However efficiently or inefficiently such a school may be conducted would be no concern of the state. 226 P. at 930. The court concluded that, by denying the student admission to its schools, the district had deprived her of her right under the state constitution “to attend schools supported at the state’s expense.” Id. Neither Grant nor Piper is controlling. The issue in Grant was whether the board of county commissioners had abused its discretion in overturning the decision of the county superintendent of schools to create a new school district. There was no evidence of any government boarding school in the area. 23 P.2d at 271. Thus, the language quoted above was merely dicta. The issue in Piper was whether the district could prevent a non-reservation Indian from attending an existing school, not whether the district had to build a school for her to attend. Neither Grant nor Piper involved a district’s alleged duty to build a school in a remote area of an Indian reservation, and each relied on a unique provision of its state’s constitution. Perhaps most important, in neither Grant nor Piper did the plaintiffs choose to have a federally operated school rather than a state or district school in their area, as the plaintiffs in this case did. The court need not decide at this time whether the presence of the BIA school at Navajo Mountain excuses any duty the District may have to provide educational services at Navajo Mountain. It is undisputed that the only educational services the federal government provides at Navajo Mountain are through the BIA school, which only has classes for grades K through 8. The federal government does not provide any secondary-school services at Navajo Mountain. Native American children wishing to continue their studies beyond the eighth grade must go elsewhere for an education. While the BIA may provide a secondary education at one of its boarding schools or may help subsidize a secondary education elsewhere, the court cannot say, as a matter of law, that by providing for an education at a remote facility the BIA has fulfilled whatever obligation the parties may have to provide a free public education to the plaintiffs that is equivalent to that received by other students in the District. Requiring a minor student to leave home for an education does not necessarily provide him or her with an equivalent education. Cf. Prince v. Board of Educ., 88 N.M. 548, 543 P.2d 1176, 1184 (1975) (if school children cannot “make the trip to school and back home each day, then they would be denied a free school just as effectively as if no school existed”) (quoting Strawn v. Russell, 54 N.M. 221, 219 P.2d 292 (1950)). In fact, evidence in this case suggests that secondary students at Navajo Mountain are disadvantaged by having to go to boarding schools. See, e.g., Affidavit of Jamie R. Holgate at 4; Second Affidavit of Jamie Holgate ¶7; Affidavit of Doris Bedonie ¶¶ 3-4; Affidavit of Henry Smallcanyon ¶ 3; Affidavit of Laura Tallman ¶ 3; Affidavit of Mary N. Greymountain ¶ 3; Affidavit of Stewart Clark ¶ 3. Thus, at a minimum the District may still have some duty to provide an education to Navajo Mountain children in grades 9 through 12. B. Justiciability The District also suggests that this court does not have jurisdiction to decide this case because it presents a nonjusticiable political question. The political question doctrine holds that certain matters are not appropriate for judicial consideration but “are really political in nature and best resolved by the body politic.” 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 2.16(a) at 275 (2d ed. 1992). See also Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (stating the test for determining whether a case presents a political question). The gist of the plaintiffs’ complaint is that the defendants have discriminated against the plaintiffs by failing to provide them with educational opportunities equal to those provided other children in the District. That claim does not present a nonjusticiable political question but is the sort of claim courts in this country have been dealing with ever since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Courts have both the power and the responsibility to address alleged violations of constitutional rights, such as the right to equal protection claimed in this ease. See, e.g., Baker v. Carr, 369 U.S. at 209-10, 82 S.Ct. at 705-06. “[I]f ‘discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.’ ” Id. (quoting Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944)). National Indian Youth Council v. Bruce, 366 F.Supp. 313 (D.Utah), aff'd, 485 F.2d 97 (10th Cir.1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974), the only case the District relies on for its argument, is not controlling. The plaintiffs in that case were trying to force a federal agency (the BIA) to close the Intermountain Indian School at Brigham City, Utah, and transfer its secondary education programs to a suitable facility on the Navajo reservation. The court concluded that it was “powerless to adjudicate” any claim seeking removal of the school since Congress had exclusive authority “to control and manage the affairs of the Indian people.” 366 F.Supp. at 319, 320. Bruce involved a coordinate branch of the federal government and thus came squarely within the political question doctrine. See Baker, 369 U.S. at 210, 82 S.Ct. at 706 (“it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question’”). By contrast, this ease involves the duty of a state or local school board to educate Indian children. The question of duty is, of course, a legal question, see, e.g., Utah Power & Light Co. v. Federal Ins. Co., 983 F.2d 1549, 1562 (10th Cir.1993); Ferree v. State, 784 P.2d 149, 151 (Utah 1989), and “[i]t is, emphatically, the province and duty of the judicial department, to say what the law is.” Marburg v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). The court must therefore determine what duty, if any, the District has to educate the plaintiff children. C. The District’s Duty to Educate Children Residing at Navajo Mountain The asserted source of the District’s duty to educate the children of Navajo Mountain is state law. Cf. Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2397, 72 L.Ed.2d 786 (1982) (“Public education is not a ‘right’ granted to individuals by the [federal] Constitution”); Piper v. Big Pine Sch. Dist., 193 Cal. 664, 226 P. 926, 928 (1924) (the “privilege of receiving an education at the expense of the state” is “distinctly a state affair,” since the “federal Constitution does not provide for any general system of education”). Congress required as a condition for Utah’s admission into the Union that Utah’s constitutional convention provide for “the establishment and maintenance of a system of public schools, which shall be open to all the children of [the] State and free from sectarian control.” Act of July 16, 1894, ch. 138, § 3, fourth, 28 Stat. 107, 108 (1893-95). Accordingly, Utah’s constitution required the legislature to provide for “the establishment and maintenance of the state’s education systems including ... a public education system, which shall be open to all children of the state_” Utah Const. art. X, § 1. See also id. art. Ill, fourth (irrevocable ordinance requiring the legislature to “make laws for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and be free from sectarian control”). Pursuant to its constitutional obligation, the Utah Legislature has provided for a system of public education that “recognizes that all children of the state are entitled to reasonably equal educational opportunities regardless of their place of residence in the state and of the economic situation of their respective school districts.” Utah Code Ann. § 53A-17a-102(1) (1994). The state system is meant “to provide a minimum school program for the state in accordance with the constitutional mandate.” Id. The District claims that when the framers of the Utah Constitution referred to “all children of the state” they did not mean Indian children living on a reservation. The District'bases this argument in part on a provision of the Enabling Act requiring the state constitution to “make no distinction in civil or political rights on account of race or color, except as to Indians not taxed ....” Act of July 16, 1894, ch. 138, § 3, 28 Stat. at 108 (emphasis added). Although the State may have been authorized to distinguish “Indians not taxed” from other groups, the constitution actually adopted did not expressly exclude Native American children from its guarantee of a public education system “open to all children of the state.” The District argues that, in construing the phrase “all children of the State,” the court must consider how the phrase has been applied in the past and that, until relatively recently, on-reservation Native Americans were not provided with any type of free, public education from the State. The simple answer to the District’s argument is that, however the State may have interpreted and applied its constitution in the past, it now recognizes some duty under the Enabling Act and the constitution to educate on-reservation Indian children. See Memorandum Setting Forth Utah State Board of Education’s Position as Amicus Curiae on Education on the Navajo Reservation Within Utah (dkt. no. 109), at 19-20. In any event, prior practice is not conclusive. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966); Brown v. Board of Educ., 347 U.S. 483, 489-93, 74 S.Ct. 686, 688-91, 98 L.Ed. 873 (1954). Constitutions are necessarily framed in generalities. See, e.g., Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326, 4 L.Ed. 97 (1816). They must be flexible enough to deal with new conditions and changing mores. [A]s changes come in social and political life [the Constitution] embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. South Carolina v. United States, 199 U.S. 437, 448-49, 26 S.Ct. 110, 111, 50 L.Ed. 261 (1905). See also American Fork City v. Crosgrove, 701 P.2d 1069, 1073 (Utah 1985) (per Durham, J.) (the scope of guarantees under the Utah Constitution “is not limited by their historical roots”). Whatever may have been the status of Native Americans in 1895, when the Utah Constitution was adopted, it is now clear that Native Americans residing on a reservation within the territorial confines of a state are citizens of that state and entitled to all the rights and privileges of other citizens. See U.S. Const. amend. XIV, § 1 (all persons born in the United States and subject to its jurisdiction are citizens of the United States and of the state wherein they reside); 8 U.S.C.A. § 1401(b) (Supp.1994) (persons born in the United States to a member of an Indian tribe are nationals and citizens of the United States); Goodluck v. Apache County, 417 F.Supp. 13, 16 (D.Ariz.1975), (the Fourteenth Amendment and 8 U.S.C. § 1401(b) grant national and state citizenship to reservation Indians), aff'd mem. sub nom. Apache County v. United States, 429 U.S. 876, 97 S.Ct. 225, 50 L.Ed.2d 160 (1976); Felix S. Cohen’s Handbook of Federal Indian Law 639-40, 645, 649 (Rennard Strickland et al. eds., 1982) [hereinafter Cohen]. The District argues that its lack of power on the reservation counsels against finding any duty on its part to provide educational services on the reservation. For example, the District cannot condemn reservation property to acquire the land to build a school, see Utah Const. art. III, second (disclaiming all rights to Indian lands within state boundaries); People v. Naegele Outdoor Advertising Co., 38 Cal.3d 509, 698 P.2d 150, 156 (1985), cert. denied, 475 U.S. 1045, 106 S.Ct. 1260, 89 L.Ed.2d 570 (1986); cannot enforce its compulsory attendance laws on the reservation without the consent of the tribe, see 25 U.S.C.A. § 231 (1983); and cannot appropriate water from the reservation for school use. While these limitations on the District’s powers may affect the scope of the District’s duty and may require the cooperation of the Navajo Nation and the United States in providing educational services to Navajo children living on the reservation, they do not excuse altogether the District’s constitutional obligation to provide a system of public schools open to all the children of the District, including the children of Navajo Mountain. The Navajo Nation has expressed its willingness to make land available for public education. See Navajo Tribal Code tit. 10, §§ 1201(a) (authorizing the Advisory Committee of the Tribal Council “to withdraw Tribal land and issue leases and permits for the use of such land for school or other legitimate educational purposes”) & 1202(a) (providing that such land shall be rent-free) (1978). At least one other court has concluded that state schools on reservation land can effectively fulfill their educational responsibilities under the state constitution. See Prince v. Board of Educ., 88 N.M. 548, 543 P.2d 1176, 1182-83 (1975). Finally, the District argues that, even if it otherwise would have some duty to educate Native American children at Navajo Mountain under state law, that duty has been preempted by the comprehensive scheme the United States has implemented for educating on-reservation Navajos, making application of Utah’s education clause to on-reservation Indians “unnecessary.” This argument requires the court to determine first what responsibility, if any, the United States has for Navajo education. D. The United States’ Duty to Educate Children Residing at Navajo Mountain The plenary power of Congress in Indian affairs is well established. See, e.g., Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974); National Indian Youth Council, Intermountain Indian Sch. Ch. v. Bruce, 485 F.2d 97, 99 (10th Cir.1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). The federal government’s involvement in Navajo education dates back to 1868, the year of the treaty between the United States and the Navajos. That treaty provided in part as follows: In order to insure the civilization of the Indians entering into this treaty, the necessity of education is admitted ...; and the United States agrees that, for every thirty children between [the ages of six and sixteen] who can be induced or compelled to attend school, a house shall be provided, and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians, and faithfully discharge his or her duties as a teacher. The provisions of this article to continue for not less than ten years. Treaty, June 1,1868, U.S.-Navajo Tribe, art. VI, 15 Stat. 667, 669 (1867-69). Relying on Navajo Tribe of Indians v. United States, 224 Ct.Cl. 171, 624 F.2d 981 (1980), the United States claims that the treaty imposes no present duty on it to provide education to Navajos. Response of the United States to the Outstanding Motions for Summary Judgment Filed by Plaintiffs and Defendants (dkt. no. 110) [hereinafter United States’ Memo.], at 22-23. Navajo Tribe was an accounting action under the Indian Claims Commission Act, 25 U.S.C. §§ 70-70w. The tribe sought an accounting of certain expenditures for education. The trial court held that the United States’ obligation under the 1868 treaty to provide education for Navajos lasted for no more than ten years. Even though it was “not necessary to consider” this ruling, since the expenditures at issue could stand regardless of the treaty, the Court of Claims affirmed. See 624 F.2d at 995, 996. The court agreed with the trial judge that, “in the absence of very strong materials suggesting the contrary, the second paragraph [of article VI of the Navajo treaty] must be taken literally to mean that the defendant’s obligations under the Article were not to continue for more than 10 years.” Id. Navajo Tribe is dubious authority at best, based, as it is, on a “literal” reading of the treaty that gives it a meaning just the opposite of its plain language. The treaty “mean[s] what it says in words,” see id., and the words “not less than ten years” do not mean “not more than ten years,” as the Court of Claims seemed to think. They mean that the federal government will provide the services required for at least ten years, not for only ten years. In other words, they establish a floor, not a ceiling. The Court of Claims also relied on the fact that Congress made ten appropriations for Navajo education between 1871 and 1880, the last of which said it was the “last of ten installments” per article VI of the 1868 treaty, and there were no further appropriations expressly for Navajo education until 1913. Rather than proving the Court of Claims’ construction of the statute, the fact that Congress made an appropriation in 1880 — twelve years after the treaty — shows that article VI meant what it said, namely, that the United States’ obligation to provide educational opportunities to the Navajos could continue for more than ten years after the treaty. Between 1913 and 1928, Congress appropriated over $1.5 million for Navajo education. See 624 F.2d at 992 & n. 20. These appropriations expressly provided that they were to carry out article VI of the 1868 treaty. See id. n. 20 & 996. The Court of Claims dismissed these later appropriations as evidence of the United States’ continuing obligation under article VI on two grounds: (1) because they occurred well after the treaty, and (2) because the tribe did not cite any legislative history for the appropriations “spelling out clearly that Article VI was intended to last indefinitely or until the educational goal was fully achieved.” Id. at 996. The first objection could also be made to the evidence the Court of Claims relied on — the 1880 appropriation, which was made some twelve years after the treaty. In any event, remoteness in time is not dispositive. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801-02, 23 L.Ed.2d 371 (1969) (statements of a later Congress about the intent of an earlier Congress are entitled to great weight); Talley v. Mathews, 550 F.2d 911, 920 & n. 22 (4th Cir.1977) (accord). There could be any number of reasons for the lack of appropriations specific to the 1868 treaty between 1880 and 1913, not least of which may have been shifts in federal policy, such as the shift away from treaty-making and towards assimilation. See generally Cohen ch. 2, § C. As to the second objection, the absence of any statement in the legislative history cannot overcome the express language of the legislation itself. The appropriations between 1913 and 1928 stated that they were for the purpose of carrying out article VI of the 1868 treaty, see, e.g., Act of June 30, 1913, ch. 4, § 2, 38 Stat. 77, 86 (1913-15), showing that Congress recognized a continuing obligation under the treaty to provide educational services to the Navajos. Moreover, the Court of Claims’ reliance on the alleged lack of legislative history runs counter to established canons of construction, under which Indian treaties are to be construed liberally in favor of the Indians and under which treaty rights generally cannot be abrogated absent “explicit statutory language.” See County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169 (1985) (citation omitted). Thus, although “Congress holds the constitutional power to abrogate treaty provisions relating to the provision of services,” Cohen 674 n. 11, it is not at all clear that Congress has done so with respect to Navajo education, In fact, as recently as 1950 Congress appropriated another $25,-000,000 for “[s]chool buildings and equipment, and other education measures” “[i]n order to further the purposes of existing treaties with the Navajo Indians.” Navajo and Hopi Tribes Rehabilitation Act, Pub.L. No. 81-474, § 1, 64 Stat. 44, 45, 44 (1950) (codified at 25 U.S.C.A § 631). For all of these reasons, the court concludes that the dicta in Navajo Nation to the effect that the United States’ obligation under the 1868 treaty to provide education for the Navajos lasted no more than ten years does not relieve the United States of its treaty obligation. The 1868 treaty is not the only source of the United States’ obligation to educate Navajos. Federal statutes and regulations also recognize the federal government’s responsibility in the area of Indian education. For example, Congress has expressly declared that a major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and. economic well-being. 25 U.S.C.A. § 450a(c) (1983). See also id. § 450a(a) (recognizing education as a “Federal service[] to Indian communities”); id. § 2502(c) (Supp.1994) (declaring it a “major national goal” to “provide the resources, processes, and structures which will enable tribes and local communities to effect the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel” in life). Through numerous statutes, Congress has established federal standards for and support of Indian education. See, e.g., 25 U.S.C.A. §§ 2001-2022b (1983 & Supp.1994). See generally Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 839-40, 102 S.Ct. 3394, 3399-3400, 73 L.Ed.2d 1174 (1982), and statutes cited therein. BIA regulations expressly recognize that “it is the responsibility and goal of the Federal government to provide comprehensive education programs and services for Indians_” 25 C.F.R. § 32.3 (1994). Indeed, the BIA’s mission statement in the area of education states, “The mission of the Bureau of Indian Affairs, Office of Indian Education Programs, is to provide quality education opportunities from early childhood through life_” Id. In fact, the Department of the Interior has committed to “[pjrovide day and residential educational services as close to an Indian ... student’s home as possible, except when a student elects to attend a school elsewhere....” Id. § 32.4(p). Whether the federal government’s responsibility for Indian education is based on a legal obligation arising out of its trust relationship with Indian peoples, or a moral obligation that it has voluntarily assumed, compare, e.g., 25 U.S.C.A. §§ 450(a) & 2501 (concluding from its “careful review of the Federal government’s historical and special legal relationship with” American Indians that the United States has “resulting responsibilities to” Indians, particularly in the area of education), and 25 C.F.R. § 32.3 (“the Federal Government has a direct interest, as trustee, in protecting Indian ... children, including their education”) (emphasis added), with 25 U.S.C.A. § 1901 (recognizing “the Federal responsibility to Indian people” and finding that Congress “has assumed the responsibility for the protection and preservation of Indian tribes and their resources,” none of which is “more vital ... than their children”), the United States clearly has an obligation for educating the plaintiffs in this case. Cf. White v. Califano, 437 F.Supp. at 554-57 (federal Indian health legislation established the existence of the United States’ duty to provide mental health care for indigent Indians). The United States’ protestations to the contrary, see United States’ Memo, at 19-22, are simply incredible. E. Preemption The District argues that the United States’ obligation to educate the plaintiffs preempts its own obligation. The District’s duty is not preempted by federal law. 1. The Applicable Preemption Standard As an initial matter, the District claims that the proper standard for considering its preemption claim is the broad standard generally applicable to Indian law. Under that standard, express congressional statements Of preemption are “unnecessary,” and “ambiguities in federal law are resolved in favor of preemption.” White Mountain Apache Tribe v. Arizona, 649 F.2d 1274, 1278 (9th Cir.1981) (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 140, 100 S.Ct. 2578, 2582, 65 L.Ed.2d 665 (1980)). See also Bracker, 448 U.S. at 143, 100 S.Ct. at 2583 (“The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law”). This broad standard was adopted out of respect for the “tradition of Indian sovereignty over the reservation and tribal members” and applies where state law regulates on-reservation conduct. See Bracker, 448 U.S. at 143-44, 100 S.Ct. at 2583-84. See also Richardson v. Mt. Adams Furniture (In re Greene), 980 F.2d 590, 595 (9th Cir.1992) (“Almost by definition, application of the preemption analysis is limited to situations where the state itself is seeking to tax or regulate conduct on the reservation”). See generally Cohen at 272-79. This case does not involve state taxation or regulation of conduct but the provision of a governmental benefit or service — education. It would be ironic — not to mention contrary to Congress’s intent and trust obligation — to apply a doctrine that was meant to benefit Indian tribes, by protecting their sovereignty, to deprive them of a badly needed service. The court therefore concludes that the broad standard of Indian law preemption does not apply. This case can be decided on general preemption principles. 2. The Compatibility of State and Federal Law “[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985). The District has not pointed to any statute or rule expressly preempting state law in the area of Indian education. State law may still be preempted, however, where the scheme of federal regulation is “ ‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ ”... [or] where “compliance with both federal and state regulations is a physical impossibility,” or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 100, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992) (per O’Connor, J.) (citations omitted). The ultimate test is whether state law in the area is “consistent with the structure and purpose” of federal law as a whole. Id. See also Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 483, 96 S.Ct. 1634, 1646, 48 L.Ed.2d 96 (1976) (federal laws “passed to protect and guard [Indians] only affect the operation, within the [reservation], of such state laws as conflict with the federal enactments”) (quoting United States v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410 (1938)); Cohen at 271 (preemption generally is meant to prevent states from thwarting Congress’s legislative purposes). Courts are less inclined to find federal programs preemptive of state programs in areas traditionally left to the states, such as education. See Cohen at 272 & n. 12 & cases cited therein. See also 20 U.S.C.A. § 3401(4) (“in our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States”). Here, there is no conflict between state and federal law. In fact, federal law has shifted away from federal education of Native Americans towards state, local and tribal education: “Over the years, responsibility for Indian education has shifted from the Bureau of Indian Affairs [BIA] to state and tribal governments operating with financial assistance from BIA and Department of Education programs.” Cohen at 678. The “comprehensive federal scheme” the District relies on for its preemption argument now depends to a large extent on federal assistance to state and local educational programs to educate Native Americans. The Federally Impacted Aid Act, Public Law 81-874 (codified as amended at 20 U.S.C.A. §§ 236-40), makes federal impact funds available to local educational agencies for educating residents of Indian lands. See 20 U.S.C.A. §§ 236, 238, 240(b). The School Facilities Construction Act, Public Law 81-815 (codified as amended at 20 U.S.C.A. §§ 631-47), makes federal funds available to local educational agencies for the construction of schools to “provide free public education for children who reside on Indian lands.” 20 U.S.C.A. § 644(a). Title I of the Elementary and Secondary Education Act of 1965, now referred to as chapter I (codified as amended and reorganized at 20 U.S.C.A. §§ 2701-2976), provides financial assistance to local educational agencies for the education of Indian children. See 20 U.S.C.A. §§ 2701 & 2711. The Johnson-O’Malley Act of 1934 (codified as reenacted and amended at 25 U.S.C. §§ 452-57) authorizes the Secretary of the Interior to contract with and provide assistance to state education agencies and school districts for Indian education. See 25 U.S.C.A. §§ 452-458e. The Indian Education Act (codified as amended at 25 U.S.C.A. §§ 2601-51) also provides financial assistance to local educational agencies for the education of Indian children. Indeed, in that last act, Congress expressly declared it to be “the policy of the United States to provide financial assistance to local educational agencies to develop and carry out elementary and secondary school programs specially designed to meet [the] special education and culturally related academic needs” of Indian children. 25 U.S.C.A. § 2601. See also 20 U.S.C.A. § 2701(a) (chapter I) (declaring it the policy of the United States to “provide financial assistance to State and local educational agencies to meet the special needs of’ Indian children). The statute authorizing federal impact funds for local educational agencies expressly provides that it is not meant “to relieve any State of any duty with respect to any citizens of that State,” 20 U.S.C.A. § 240(b)(3)(F), and, of course, on-reservation Indians are citizens of the state within which they reside. See Goodluck v. Apache County, 417 F.Supp. 13, 16 (D.Ariz.1975), aff'd mem. sub nom. Apache County v. United States, 429 U.S. 876, 97 S.Ct. 225, 50 L.Ed.2d 160 (1976); Cohen at 639-40, 645, 649. From these federal statutes and their implementing regulations, the court concludes that Congress did not intend the federal government to be the sole provider of Indian education, nor did it intend federal law to preempt state and local obligations to provide educational services for Native Americans. This conclusion is consistent with that of perhaps the leading commentary on Indian law: At times state authorities have sought to deny services to reservation Indians because a federal substitute was available. It is true that the federal government has long supplied many services to tribal Indians. But the courts have not sustained this argument as a valid reason to deny state services. These decisions seem correct, because federal benefits programs are not considered preemptive of state law. Cohen at 653 (emphasis added and footnotes omitted). None of these cases the District relies on compels a different conclusion. 3. Case Law The District relies primarily on dicta in two Supreme Court cases to the effect that the federal government’s “comprehensive federal scheme” for the education of on-reservation Navajos “‘left the State with no duties or responsibilities.’ ” See Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 843, 102 S.Ct. 3394, 3401, 73 L.Ed.2d 1174 (1982) (quoting Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685, 691, 85 S.Ct. 1242, 1246, 14 L.Ed.2d 165 (1965)). The issue in Ramah was whether federal law preempted a state tax imposed on the gross receipts a non-Indian construction company received from a tribal school board for the construction of a school on the reservation. See id. at 834, 102 S.Ct. at 3396. In 1968, the State of New Mexico closed a small public high school that it had operated near the Navajo reservation and which children from the Ramah Navajo Chapter of the Navajo tribe had attended. After the state closed the facility, the chapter established its own school board and operated a school in the abandoned facility. In 1972 the chapter contracted with the BIA for the construction of a new school, with federal funds and on reservation land. The chapter subcontracted the actual construction work to a non-Indian firm. New Mexico required the construction company to pay a gross receipts tax. The company and the school board protested the imposition of the tax on the grounds that the tax was preempted by federal law and unlawfully burdened tribal sovereignty. The Court agreed, holding that “the comprehensive federal regulatory scheme and the express federal policy of encouraging tribal self-sufficiency in the area of education preclude the imposition of the state gross receipts tax in this ease.” Id. at 846-47, 102 S.Ct. at 3402-03. The Court followed the analytical framework it had established in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) (discussed supra note 19). The Court first concluded that the “detailed [federal] regulatory scheme governing the construction of autonomous Indian educational facilities” was “comprehensive.” 458 U.S. at 841, 102 S.Ct. at 3400. The Court next concluded that the state tax imposed an “additional burden” on the contractor and the school board, which “necessarily impedes the clearly expressed federal interest in promoting the ‘quality and quantity1 of educational opportunities for Indians by depleting the funds available for the construction of Indian schools.” Id. at 842, 102 S.Ct. at 3401. The Court then concluded that the state had no countervailing interest that justified imposition of the tax: In this case, the State does not seek to assess its tax in return for the governmental functions it provides to those who must bear the burden of paying this tax. Having declined to take responsibility for the education of these Indian children, the State is precluded from imposing an additional burden on the comprehensive federal scheme intended to provide this education — a scheme which has “left the State with no duties or responsibilities.” Warren Trading Post Co. v. Arizona Tax Comm’n, [380 U.S.] at 691 [85 S.Ct. at 1246], 458 U.S. at 843, 102 S.Ct. at 3401 (emphasis added). The Court’s statement that the state had no duty or responsibility to provide Indian education must be understood in context. The state had abandoned its previous efforts to educate the Ramah Navajo children, and in the vacuum thus created, the federal government had stepped in with a “comprehensive” scheme for the construction of Indian-run schools. While that scheme did not “prevent the States from providing for the education of Indian children within their boundaries,” id. n. 7, it did not require them to do so. Thus, where the state was in fact not educating Navajo children and where federal law had stepped in to make up the deficiency, the state could not rely on any alleged duty to provide Indian education as a justification for taxing the federally regulated construction activity. The Court specifically noted, “This case would be different if the State were actively seeking tax revenues for the purpose of constructing, or assisting in the effort to provide, adequate educational facilities for Ramah Navajo children.” Id. This case is clearly distinguishable from Ramah. Like Bracker and unlike this case, Ramah involved an exercise of state authority over commercial activities on a reservation. Ramah did not hold that federal law preempted any duty the state may have had to educate Navajo children. It only held a state tax preempted. The Court in Ramah did not consider whether the state had any duty under state law to provide education for the Ramah Navajo children; that issue never arose. See supra note 25. By contrast, this case does not involve the imposition of a state tax or regulation on reservation activity. Here, the federal government has not stepped in to provide the services the District is not providing. And the District has in fact relied on its provision of services on the reservation, including educational services, to justify its taxation of non-Indian oil and gas development within the reservation. See Amici Curiae Brief of San Juan County, Duchesne County, and Uintah County, Utah, and the Boards of Education of San Juan County School District, Duchesne County School District and Uintah County School District [hereinafter Amici Brief] at 2-10, 19-21, Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) (a copy of which is included as appendix 14 to Appendix to Memorandum in Support of Joint Plaintiffs’ Motion for Partial Summary Judgment (dkt. no. 73) [hereinafter Plaintiffs’ Appendix] ). Perhaps most important, the regulatory scheme for the specific activity regulated in Ramah — “construction • of autonomous Indian educational facilities,” see 458 U.S. at 841, 102 S.Ct. at 3400 — left little room for state action, id. at 841-42, 102 S.Ct. at 3400-01, whereas the federal scheme for Indian education generally contemplates significant state involvement, see supra pt. II.E.2. Warren Trading Post, the case from which Ramah took its “no duties” language, is even less on point. The issue in that case was whether the state could tax the gross income of a federally licensed trader’s sales to reservation Indians on the reservation. The Court noted that Congress had enacted a comprehensive scheme regulating Indian trade and traders and concluded that the state tax was inconsistent with this federal scheme. Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685, 686, 690-91 & n. 18, 85 S.Ct. 1242, 1245-46 & n. 18, 14 L.Ed.2d 165 (1965). The Court’s opinion contains some overly broad language that would seem to support the District’s preemption argument. The Court stated: Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities. And in compliance with its treaty obligations the Federal Government has provided for roads, education and other services needed by the Indians_ And since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax. Id. at 690-91, 85 S.Ct. at 1245-46. (footnotes omitted). The Court was perhaps guilty of hyperbole. The way the federal government “provided for” education on the reservation was to appropriate funds for school buildings, equipment and other educational measures. See Navajo and Hopi Tribes Rehabilitation Act, Pub.L. No. 81-474, § 1, 64 Stat. 44, 45 (codified at 25 U.S.C.A. § 631), cited in Warren, 380 U.S. at 692 n. 17, 85 S.Ct. at 1246 n. 17. These funds were meant to supplement funds provided for the education of Indians generally. See id. Those general funds are provided to states as well as to the BIA, see 20 U.S.C.A. §§ 236, 238, 240(b), 644, 2701 & 2711; 25 U.S.C.A. §§ 452-458e, 2601-2624, both of which have historically provided education for on-reservation Indians, see Cohen at 177-78, 678; Office of Indian Education Programs, supra note 1, at 25, 35. The Court has since recognized that some of its language in Warren may have been overly broad, see Department of Taxation & Finance v. Milhelm Attea & Bros., — U.S. -, -, -, 114 S.Ct. 2028, 2034, 2036, 129 L.Ed.2d 52 (1994), and, until this case, the District itself did not take Warren’s broad language at face value. See Amici Brief at 15 n. 33 (suggesting that Utah local governments may well have a responsibility toward reservation residents). White v. Califano, 437 F.Supp. 543 (D.S.D.1977), aff'd, 581 F.2d 697 (8th Cir.1978), the “only case when the existence of a federal program contributed to a holding of no state responsibility,” Cohen at 653, is also distinguishable. The issue in White was whether state and county officials had the power to order the involuntary commitment to a state facility of an allegedly mentally ill Indian residing in Indian country. The court held that they did not. The White court based its ruling on two grounds. First, it held that involuntary commitment of a reservation Indian to a state facility would unduly infringe on tribal sovereignty. The court noted that “the process of committing someone involuntarily brings the power of the state deep into the lives of the persons involved in the commitment process.” 437 F.Supp. at 549. The court found the nature of that intrusion “critical.” Id. The court analogized involuntary commitment to criminal incarceration, which historically has lain outside a state’s jurisdiction over reservation Indians, see Langley v. Ryder, 778 F.2d 1092, 1095-96 (5th Cir.1985) (state criminal jurisdiction over Indian country is generally preempted and is allowed only where Congress clearly and unequivocally grants such authority), and concluded, “One can scarcely conceive how the power of the state could be brought to bear upon a person with any greater severity.” 437 F.Supp. at 549. Obviously, education intrudes much less on personal liberty than involuntary commitment or incarceration do (although the distinction may be lost on some reluctant young scholars). The educational process limits a person’s freedom only to the extent the state’s compulsory attendance laws are enforced. The tribe must consent to the application of state compulsory attendance laws, see 25 U.S.C.A. § 231, and, if the tribe is allowed a say in how education is provided to its members, it is difficult to see how providing educational opportunities to the students at Navajo Mountain would otherwise infringe unduly on tribal sovereignty, particularly where, as here, the tribe has solicited the state’s help. See also supra n. 11 & p. 20; infra n. 31. Second, the White court held that the federal government had preempted the field of involuntary commitment of mentally ill persons living on an Indian reservation. The court concluded that Congress, “by limiting the state’s powers and by recognizing a unique relationship and resulting responsibility to the Indian people, has in this case acted to relieve the state of a responsibility otherwise owed by statute to its citizens.” 437 F.Supp. at 558. As noted above, the congressional scheme for Indian education, unlike the congressional scheme for Indian health services, does not limit the state’s power but expressly contemplates significant state involvement in educating on-reservation Indians and provides funding for state education of Indians. For all these reasons, the court concludes that the United States’ duty to educate the plaintiff children does not preempt the defendants’ duty to educate them. The defendants are therefore not entitled to summary judgment to the extent their motion is predicated on the argument that they have no duty to educate the plaintiffs' or that any duty they have is federally preempted. F. The Scope of the District’s Duty Under State Law There remains the question of the scope of the District’s duty. Based on the federal statutes governing Indian education, the court concludes that Congress intended the education of on-reservation Indians to be a cooperative effort among the federal government, states and local school boards, the Indian tribes and Indian parents. The fact that one entity may have a duty to educate on-reservation Indians does not excuse any other entity from fulfilling its own obligations. Cf. McNabb v. Bowen, 829 F.2d 787, 793-95 (9th Cir.1987) (where Congress intended health services to be provided to Indians both by the federal Indian Health Service and by state and local programs but the county denied responsibility for an Indian child’s medical bills, the IHS had to pay for the child’s care). The precise scope of the District’s obligation under state law is not clear. At least in dicta, the Utah Supreme Court has construed the provisions of the Utah Constitution providing for a free public education system “open to all” children of the state, see Utah Const. art. X, §§ 1 & 2, as follows: The requirement that the schools must be open,to all children of the state is a prohibition against any law or rule which would separate or divide the children of the state into classes or groups, and grant, allow, or provide one group or class educational privileges or advantages denied another. No child of school age, resident within the state, can be lawfully denied admission to the schools of the state because of race, color, location, religion, politics, or any other bar or barrier which may be set up which would deny to such child equality of educational opportunities or facilities with all other children of the state. This is a direction to the Legislature to provide a system of public schools to which all children of the state may be admitted