What should California’s constitution say about education quality?

For the second time in two years, signatures are being gathered to put an initiative on the ballot that, if passed, would create a constitutional right to a high-quality education in California.

Does California's Constitution require a “high quality” public education?
Let’s take a look.

It seems like a no-brainer, right? Doesn’t everyone want to make sure our children have a high quality education? I know I do. But the details matter.

In this post, we'll review the background of the right to education with a short tour of some California court decisions that matter a lot. Then we’ll take a close look at the proposed initiative.

Education in state constitutions

Public education is the single largest function of government, an ongoing project for each generation to pay it forward and prepare the next. The constitution of the United States makes no mention of education. It defers the responsibility to the states, where the provisions vary a lot from state to state.

California’s constitution takes a minimalist approach: it says that public schools should exist, and that they should be free. But that's it. There is no specific language about quality.

California’s responsibility for education is described in Article IX of the state constitution, adopted in 1879.

Education quality lawsuits in other states

Education advocates in other states have looked to the wording in their constitutions to argue, successfully, for greater and more equitable school funding. Courts in New York, New Jersey, Kentucky, Ohio, Massachusetts, and Michigan have enforced their constitutions by ordering their legislatures to step up and provide the funding students need to meet their constitutional obligations.

In California, this kind of lawsuit has been tried, but failed. Twice.

California lawsuits for a quality education have failed

Two California lawsuits (Robles-Wong v California and the Campaign for Quality Education v California) argued that all public school children have a constitutional right to an education of “some quality”. They also asked the court to declare the education finance system unconstitutional and order the state to design an educational finance system that fulfills its constitutional duty to all children in California.

They both lost.

In 2016, the First District Court of Appeal, in a 2-1 ruling, rejected arguments that the language of the constitution implied any level of quality. The court found “there is no support for finding implied constitutional rights to an education of ‘some quality’ for public school children or a minimum level of expenditures for education…”

“To the contrary,” the court ruled, “the language of these constitutional sections do not include qualitative or funding elements that can be enforced by the courts. The constitutional sections leave the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch.”

The dissenting judge argued that this decision aligns California with those few state courts that have “declined to accept the responsibility to enforce the right of every child to an adequate education.”

Challenge to tenure laws

In another lawsuit, Vergara v California, students challenged provisions in the education code relating to how teachers obtain tenure, how they are dismissed, and how they are laid off. They won in the trial court, but the California Court of Appeals reversed the decision on constitutional grounds:

“With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court's job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea’.”

“...Policy judgments underlying a statute are left to the Legislature; the judiciary does not pass on the wisdom of legislation... Courts do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature.”

Proposal to change the Constitution

These constitutional challenges failed because the court concluded that the California constitution has no specific words about the quality of education. The proposed amendment would change the conditions by adding words that explicitly establish a limited constitutional right to a high quality public education.

Below is the Title and Summary prepared for the ballot by the Attorney General.

Analysis of the proposed initiative

Message to brain: Read the fine print. Read the fine print.

Part (a) sounds really good and seems like it shouldn’t be controversial, right? Give every public school student the right to a high-quality education! Quick. Give me the pen. Where should I sign?

Part (b) says this does not just apply to laws. It affects a broad range of actions: state or local law, regulation, policy, or official action. Think curriculum selection, health and safety requirements, attendance policies, teaching requirements…

Part (c) sets a new principle: “putting the rights of students first.” The initiative intentionally does not define “high quality education” and it does not define “putting the rights of students first.” either. Almost anything that touches on education could be subject to a lawsuit on the basis of “putting students first”. Is this wide open to interpretation? You bet it is. That seems to be the point, and it could have unpredictable consequences. Does a requirement for ethnic studies put students first? The same can be asked about climate change, teacher’s unions, policies on LGBTQ+ students, books in the library…

This would add to the existing right to file a uniform complaint for violations of federal or state laws or regulations, such as allegations of unlawful discrimination, harassment, intimidation, or bullying.

Part (d) is tricky, because it would limit the remedies:

That last sentence (emphasis added) demands close attention. If you think the right to a high-quality education should mean that you can sue for more funding to pay for counselors or school nurses or a better math curriculum, well, that’s not what this proposed initiative does. The legislative analysis is very clear about this point:

What does “put the interest of students first” mean?

The proposed initiative intentionally doesn’t define what it means to put students first — the proponents say the meaning would be worked out over time through the process of litigation.

For example, if you don’t think a teacher tenure law puts the interest of students first, you could challenge it — just like the plaintiffs did in the case Vergara v California. The court may, however, look to the language in the Vergara ruling as precedent to decide whether the statute being challenged puts the interest of students first. They may decide, again, that the separation of powers leaves policy decisions to the legislature. Remember, the court directed the power to the Legislature:

Who will sue for the right to a quality education?

It costs money to file a legal challenge, and that's limiting. Will most of the challenges come from low-income parents with little personal resources, or from well-funded organizations with a political point of view about what is best for students?

Remember, the issue of whether a law puts the interest of students first is in the eye of the beholder. When controversial legislation and regulations are passed, there are always strong opinions on both sides. Think about the arguments over requirements for vaccinations or ethnic studies or math curriculum changes. People on both sides will undoubtedly argue they are “putting the interests of students first.”

It is impossible to predict which laws would be challenged under this initiative, but it’s possible to make an educated guess. The backers of the initiative include people who supported the Vergara lawsuit on teacher tenure and who support policies to expand school choice.

How much will this cost?

That depends. To put it on the ballot will require at least 874,641 signatures by July 3, and the recent average cost per signature is about $13. Then there's the cost of the campaign to pass it. If it becomes part of the Constitution, the legislative fiscal analysis says there will be “unknown litigation and court-related costs for the state and schools that depend significantly on the number of lawsuits filed on behalf of public school students.”

A simpler fix?

The most complex part of this proposed initiative is the section that squirms to restrict the judicial branch from compelling the other branches to take high-quality action if high-quality money is part of the problem. Is there an easier and more straightforward way to give students the right to a high-quality public education? Yup.

Just add the words “high quality” to the constitution as indicated below. This simple solution would not limit parents' and student rights to sue for more funding or other remedies.

What do you think? We hope this post helps spur a reasonable discussion about the best way to give our students the constitutional right to a high quality public education.

Note: Ed100 published posts related to this one in response to policies proposed in 2016 and 2021.