(dissenting) — I respectfully dissent.
The Washington State Constitution requires the State “to make ample provision for the education of all children residing within its borders . . . .” Wash. Const. art. IX, § 1. We have long recognized this paramount constitutional duty of the State, see Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 511-12, 585 P.2d 71 (1978), which the majority eviscerates by relying on unconvincing distinctions and *238irrelevant statutes. By manipulating the definition of “child,” the majority denies Washington children their constitutional right to education and equal protection of the law. The trial court’s decision recognized the constitutional right of children in Washington to a high school education, regardless of their criminal past. This decision is correct.
The majority loosely distinguishes Tommy P. v. Board of County Comm’rs, 97 Wn.2d 385, 645 P.2d 697 (1982). By drawing three unconvincing distinctions with this case, the majority disposes of respondent’s argument “that Tommy P. stands for the proposition that children do not lose their rights to an education under the basic education act simply because they are incarcerated.” Majority at 213. I disagree and would apply the approach established by Tommy P. to recognize the importance of this constitutional right.
The court in Tommy P. found that children in Washington had a statutory right to education under Title 13 RCW and Title 28A RCW. Tommy P., 97 Wn.2d at 386. This court found the right to education in the specific provisions of both titles, and in the broad principles they stood for and, therefore, refrained from “considering whether the right may also be based on the United States Constitution or this state’s constitution.” Tommy P., 97 Wn.2d at 391 (citing Senear v. Daily Journal-Am., 97 Wn.2d 148, 641 P.2d 1180 (1982)). This restraint was in accord with the long-standing tradition in United States courts of avoiding constitutional questions when a decision can be based on statutory grounds. However, the principles underlying Tommy P. are of constitutional significance and should not be so easily abandoned.
The majority distinguishes Tommy P. by noting those plaintiffs were juvenile offenders, not children who had been “declined to adult court or incarcerated in adult facilities.” Majority at 214. Whether an offender is a juvenile or a child declined to adult court is entirely irrelevant. By drawing this distinction, the majority deprives a child of the constitutional right to a high school education simply because he or she committed a serious crime early in life. I *239cannot agree with this erosion of such a significant constitutional right.
By drawing an inappropriate distinction between children on the basis of whether they have committed a crime or not, the majority compounds its error by applying an incorrect constitutional analysis. The majority applies something similar to a rational basis review in this case and ignores our constitutional duty to apply heightened scrutiny to statutes that threaten fundamental rights. The majority cites cases that are only tangentially relevant to stand for the proposition that a statute must infringe upon a fundamental right before heightened scrutiny will be applied. See majority at 224-26. Whether the statute infringes upon a fundamental right is a legal conclusion, not a legal premise. Properly stated, the threshold question is whether “the allegedly discriminatory classification . . . threatens a fundamental right.” State v. Shawn P., 122 Wn.2d 553, 560, 859 P.2d 1220 (1993) (emphasis added) (citing State v. Schaaf, 109 Wn.2d 1, 17, 743 P.2d 240 (1987)). If the classification threatens a fundamental right, the statute is presumed unconstitutional and the State must establish that the statute is necessary to achieve a compelling governmental interest. See Nielsen v. Washington State Bar Ass’n, 90 Wn.2d 818, 820, 585 P.2d 1191 (1978). The State has failed to carry its burden.
The majority reads Wash. Const. art. IX, § 2 as establishing a fundamental right to a “common school system,” Majority at 221. Put another way, an individual child’s right to an ample education is recharacterized as merely a duty of the State to establish a common school system. This mistakes the means for the ends and misinterprets our precedent. In Seattle School District No. 1 v. State, this court held:
By imposing upon the State a paramount duty to make ample provision for the education of all children residing within the State’s borders, the constitution has created a “duty’ that is supreme .... Flowing from this constitutionally imposed “duty” is its jural correlative, a correspondent “right” *240permitting control of another’s conduct. Therefore, all children residing within the borders of the State possess a “right,” arising from the constitutionally imposed “duty” of the State, to have the State make ample provision for their education. Further, since the “duty” is characterized as paramount the correlative “right” has equal stature.
Consequently, all children residing within the State’s borders have a “right” to be amply provided with an education. That “right” is constitutionally paramount and must be achieved through a “general and uniform system of public schools.”
Seattle Sch. Dist., 90 Wn.2d at 511-13 (footnotes omitted).
By characterizing the right as one to a “common school system,” the majority confuses the constitutional right to education with the constitutional right to a common school system. As both the plain text of article IX and our precedent show, the right at issue here is the right to an education. Because that right is fundamental, see Seattle Sch. Dist., 90 Wn.2d at 513, strict scrutiny applies to any law that threatens that right. See In re Personal Restraint of Young, 122 Wn.2d 1, 26, 857 P.2d 989 (1993).
Because the right at issue appertains to “all children residing within [Washington’s] borders . . . ,” Wash. Const. art. IX, § 1, the first issue is the definition of “children.” RCW 28A. 150.220 of the Washington basic education act of 1977 (Basic Education Act) provides that “[e]ach school district’s kindergarten through twelfth grade basic educational program shall be accessible to all students who are five years of age . . . and less than twenty-one years of age . . . .” RCW 28A. 150.220(5). Through the Basic Education Act, the Legislature effectuates Wash. Const, art. IX. See RCW 28A.150.200. This definition of “child” is expansive. The Legislature found it appropriate to define “child” for the purposes of article IX as any person between 5 and 21 years of age. RCW 28A.150.220(5).27 Although the ma*241jority is correct in noting it is the duty of this court to interpret the meaning of the word “child” in article EX, majority at 218, there is no reason to reject the definition offered by the Legislature. It does not conflict with any interpretation we have already given this portion of the constitution. Nor is this a case where the Legislature has attempted to intrude upon the judicial sphere of power. Cf. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).
Nonetheless, the majority chooses to retool the meaning of the word “children.” It holds “the common understanding” that “children” for our purposes “includes [only] individuals up to age 18.” Majority at 218-19. The statutory authority cited by the majority is RCW 26.28.015, age of majority for enumerated specific purposes, see majority at 219, and selective miscellaneous statutes. The age at which an individual may contract, execute a will, vote, or sue is not relevant to whether he or she has a right to a high school education, and the Legislature has told us just that. Both the title of RCW 26.28.015 and the first six words of its text, “[Notwithstanding any other provision of law . . .,” declare the legal irrelevance of other statutory definitions of “child” for the purposes of article EX, the Basic Education Act, or chapter 28A.193 RCW.
The critical flaw in the majority’s analysis is shown by the fact it settles on the age of 18 as the upper limit of a “child.” RCW 28A. 193.030(3) limits the duty of a juvenile detention educator to provide education programs “for inmates under the age of eighteen. . . .” Although the majority never draws the connection, apparently it chooses 18 as the constitutional limit for childhood simply because the Legislature decided not to provide juvenile detention education for anyone older than 18. The majority’s conclusion is certainly not compelled by RCW 26.28.015; that statute shows nothing more than the fact one becomes a juridical actor in Washington at the age of 18. Again, in the *242context of defining the scope of the constitutional right to an education, this is simply not relevant.
I would recognize the right to education is fundamental, see Seattle Sch. Dist., 90 Wn.2d 476. Because that right properly appertains to individuals under 21 years of age, RCW 28A. 150.220, the appropriate burden is for the State to show the statute (which threatens that right) is narrowly drawn to serve some compelling state interest. Cf. Northshore Sch. Dist. No. 417 v. Kinnear, 84 Wn.2d 685, 759-61, 530 P.2d 178 (1974) (Stafford, J., dissenting) (arguing that because the right to an ample education is fundamental, the State may not escape its duty to provide education regardless of whether a compelling interest is present).
Under this approach, the State “must establish that its classification is ‘necessary to promote a compelling governmental interest.’ Under strict scrutiny, ‘ “the governmental interest claimed to justify the discrimination is to be carefully examined ... to determine whether that interest is legitimate and substantial, and . .. the means adopted to achieve the goal [must be] necessary and precisely drawn.” ....’” State v. Hernandez-Mercado, 124 Wn.2d 368, 375-76, 879 P.2d 283 (1994) (quoting Graham v. Richardson, 403 U.S. 365, 376, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971) (quoting Nyquist v. Mauclet, 432 U.S. 1, 7, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977) (citing Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 605, 96 S. Ct. 2264, 49 L. Ed. 2d 65 (1976)))) (footnotes omitted). In my judgment, the State has failed to do so.
There is no compelling state interest in discriminating against 19- to 21-year-old inmates. Of course, a different answer can be reached if the interest is more broadly drawn. As a whole, the statute obviously “provide [s] for the operation of education programs for the department of corrections’juvenile inmates,” RCW 28A.193.005, which is clearly a compelling governmental interest. However, whether the statute does what it says it does is not the question for us. The question is whether the State has a *243compelling interest in discriminating against 19- to 21-year-old juvenile inmates. It does not.
Chapter 28A.193 RCW threatens the fundamental right to an education. This statute places detention education programs on a wholly different plane than public education programs. While the classroom setting and the mechanics of bringing teachers and resources to students will obviously be different in detention than in public schools, this statute is not about those mechanics. It is about outsourcing juvenile offender education to private entities without a strong mechanism to ensure that the education will in fact be delivered and will in fact be “general and uniform,” i.e., equal to a public education the citizens of this state have a right to expect. The majority insists, “we have previously recognized 0 [that] incarcerated children may have different educational needs and may require different training programs . . ..” Majority at 227. And so we have. What the majority does not explain, and what I do not understand, is how recognition of that fact converts the commodification of juvenile offender education into a compelling interest.
Even if the State could establish a compelling interest in discriminating between the education of offenders and nonoffenders, the statute is not narrowly tailored to serve the interest asserted. There is no showing that denying education to juvenile offenders over 18 is necessary “to provide for the operation of education programs for the department of corrections’ juvenile inmates.” RCW 28A.193.005.
Equal protection requires that classification systems treat like people alike. See State v. Blilie, 132 Wn.2d 484, 493, 939 P.2d 691 (1997). Washington citizens have a right to finish high school until they are 21 or 22 years old. RCW 28A. 150.220(5); RCW 28A.155.020. Incarcerated Washington residents are, however, denied the opportunity. RCW 28A.193.030(3). Instead of having until they are 21 or 22 years old to finish high school, youth in prison, who need education at least as much as those out of prison, have only *244until they are 18.28 Denying an education to the very individuals who presumably most need it bears no rational relation to any penological, deterrent, or rehabilitative purpose.29
Chapter 28A.193 RCW allows for a system that is separate and unequal and violates article IX of the Washington Constitution, by failing to provide uniform, general, and ample education for all children. I would hold that all children have the same constitutional right to a high school education, regardless of their criminal past.
Madsen and Alexander, JJ., concur with Johnson, J.
Reconsideration denied October 6, 2000.
RCW 28A.155.020 allows children with certain disabilities to complete the school year in which they turn age 21.
As the majority notes, “[o]f the 1,027 offenders under the age of 21, approximately 209 were believed to have either a high school diploma or a general equivalency diploma (GED).” Majority at 207. In other words, approximately 80 percent of the offenders under the age of 21 have no high school degree.
I am also concerned the competitive bidding system set up by RCW 28A.193.020 will not produce an education that is general and uniform. And that is precisely what Wash. Const. art. IX requires. The statute invites any interested education provider to bid for the business of educating juvenile offenders. If no bids are received or accepted, the local educational service district is required to provide education. RCW 28A.193.020(2). However, the educational service districts have no experience in actually providing education, and there is no statutory mechanism to aid them in becoming able to provide education. As the trial court found, unless a school district is the education provider, it is unlikely the program will even have the authority to award a high school diploma. See Stipulated Facts 33, 36-42, 47 (Appellants’ Emergency Mot. for Stay Pending Appeal, app. D). I agree. In the end, an entity with no experience in educating children and no realistic hope of gaining any, other than through trial and error, is charged with educating juvenile offenders. Most disturbing and telling of all is that education was provided at only two prisons in the 1998-99 school year, despite the statutory requirements of chapter 28A.193 RCW. Stipulated Facts 46, 47.