The right to a quality education

by Carol Kocivar | December 12, 2021 | 4 Comments
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What should California’s constitution say about education quality?

Should every California student have a right to a high quality education?

It’s a no-brainer, right? Doesn’t everyone want to make sure our children have a high quality education? I know I do.

Universal education is proof of our belief in social mobility, and the idea that America is a meritocracy. Public education is the single largest function of government, an ongoing project for each generation to pay it forward and prepare the next.

Despite all that, California’s constitution is virtually silent about the quality of the education students should get. It says that schools should exist, and that they should be free. But there is no specific language about quality.

In 2022, California voters may be asked to weigh in on the question of whether students should have a constitutional right to a high-quality education. This issue has some history, and the proposed initiative includes some important limitations. In this post we’ll review the background of the issue with a short, easy tour through some California court decisions that matter a lot.

Education in state constitutions

Each state’s constitution says something different about education, and the role of the state in providing it. These provisions vary a lot from state to state, and they can influence the way that courts rule on questions about how school systems are funded and administered.

Education advocates in other states have successfully sued for greater and more equitable school funding, referring to the wording in their constitutions. Courts in New York, New Jersey, Kentucky, Ohio, Massachusetts, and Michigan have ordered the legislature to step up and provide the funding students need.

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

Read this section of the Constitution. What does it mean to you?

California’s responsibility for education is described in Article IX of the state constitution, adopted in 1879. The important sections are below. Read carefully, like a judge. Are there words that specifically say or infer that the state owes students the right to a high quality education? Remember your answer.

What California’s constitution says about education quality

Sec.1

A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.

Sec. 5

The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.

California lawsuits for a quality education

Two California lawsuits (Robles-Wong v California and the Campaign for Quality Education v California) have 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 these arguments. The court decision was based on the language of the constitution and what can be implied from its words. 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…”

Did your reading agree with the court’s ruling?

“To the contrary,” said the court. “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.”

If the California Constitution had specifically included the words “high quality education”, do you think the decision in this case would have been different? Would California have aligned with other state courts and ordered the legislature to improve funding?

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: Put the interest of students first

These constitutional challenges failed because the court concluded that the California constitution has no specific words about the quality of education. In 2022, voters will have a chance to consider adding those words. Let's look at the newest proposal to change the California Constitution to specifically include the right to a high quality public education.

Proposed amendment to add Article IX, section 5.5 to the California Constitution

(a)

(b)

(c)

All public-school students shall have the right to a high-quality public education that provides them with the skills necessary to fully participate in the economy, our democracy and our society.

This right to a high quality public education shall not be denied or infringed upon by any state or local law, regulation or policy or by any official action that affects students generally.

Any law, regulation or policy or by any official action that affects students generally which does not put the interest of students first shall be deemed to deny this right.

(d)

(e)

(f)

The remedy to enforce this right shall be limited to invalidating, or otherwise enjoining the offending law, regulation or policy or official action. The remedies for this right shall not include new mandates for taxes or spending.

The right to a high-quality public education belongs to all public school students attending any public preschool, kindergarten, elementary or secondary school.

An action to enforce the right to a high quality education may only be brought by a parent or guardian of a public school student or a non-profit organization representing public school students.

Part (a) sounds really good and seems like it shouldn’t be controversial, right? Give every student the right to a high-quality education!

Part (c) sets the principle of “putting the rights of students first”. Any laws that do not put the rights of students first deny the right to a high quality education.

The tricky part is highlighted in part (d).

So sue me. What’s the remedy?

Below is the critical language in section (d) that limits this proposed Constitutional amendment. This is where you decide whether or not you support it.

The remedy to enforce this right shall be limited to invalidating, or otherwise enjoining the offending law, regulation or policy or official action. The remedies for this right shall not include new mandates for taxes or spending.

That last sentence demands close attention.

"The remedies for this right shall not include new mandates for taxes or spending."

If you think the right to a high quality education should mean that you can sue for more funding to pay for counselors or arts in every classroom or a better math curriculum, well, that’s not what this proposed initiative does.

The Legislative analysis is very clear on this point:

“A court would be unable to implement other remedies, such as awarding damages to a defendant or ordering the state or local governing boards to take specific actions.”

Who can complain?

In order for a court to enforce a new constitutional right to a high-quality public education, someone would have to complain, and that’s where parents come in. Under this amendment, parents would get the right to ask the court to invalidate a law or policy they don’t think “puts the interests of children first.”

“An action to enforce the right to a high quality education may only be brought by a parent or guardian of a public school student or a non-profit organization representing public school students.”

You may well ask what it would mean to “put the interest of students first” under this law. The proposed initiative intentionally doesn’t define it — 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. If you think the class size laws or the curriculum don’t put the rights of students first, you could challenge that, too.

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. Has anything changed? They may decide, again, that the separation of powers leaves policy decisions to the legislature.

“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."

What laws would the right to a quality education affect?

Thousands of laws and policies could be affected by a constitutional right to a quality education, but only if challenged.

Who will sue for the right to a quality education?

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

Remember, the issue of whether a law puts the interest of students first may be 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.

Who would gain power by passing the Kids First amendment?

Bills become laws when passed by the legislature and signed by the governor. This constitutional amendment would explicitly create a new basis for challenging laws about education policies. If you disagree about a law and you can afford the cost of litigation, then this amendment might get you one more bite at the apple. If you were on the losing side of an argument, you can argue the law does not “put the right of students first” and use this to try to nullify it.

How much will this cost?

That depends. Will this create a cottage industry for people who love to sue and thus drive up education legal costs at the state and local level? 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?

Is there an easier and more straightforward way to give students the right to a high-quality education. Yup.

Just add the words “high quality” to the constitution as indicated below.

Sec. 5 “The Legislature shall provide for a system of high quality common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.”

In reporting about this possible initiative, EdSource interviewed William Koski, a professor of law and professor of education at Stanford Law School and the Stanford Graduate School of Education. His remarks echo our analysis:

“At first blush, the initiative looks promising. Who could be against a high-quality education?” he wrote in an email. “But any right is only as good as its remedy. The ‘right’ to a high quality education created by this initiative may not be realized because the remedy is so limited. It only allows children, families and their communities to attack educational laws, policies and regulations, but explicitly prohibits them from seeking funding to improve their schools.”

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.

Questions & Comments

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user avatar
karenfcull December 28, 2021 at 9:11 pm
It feels like the Kids First proposal might be used to stop a vaccine mandate?
user avatar
Carol Kocivar December 29, 2021 at 1:13 pm
That's an argument that could be made. The other side would argue that supreme court cases uphold the right to mandate vaccines. See our Ed100 blog Don’t make children victims in a vaccine war As students return to school in the COVID delta surge, Carol asks: How much freedom should people have to put others at risk by choosing not to vaccinate themselves?
user avatar
Nancy K December 16, 2021 at 5:12 pm
Great article. Thank you.
user avatar
Carol Kocivar January 20, 2022 at 5:52 pm
The proponents of this initiative have stopped gathering signatures for this year. Maybe they read the Ed100 blog.
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