CALIFORNIA, USA — This story was originally published by CalMatters.
For the second time in two years, a coalition of advocates wants to make a high-quality education a constitutional right in California.
The push comes in the aftermath of pandemic-era school closures and distance learning, during which parents witnessed firsthand what they considered deficient instruction.
As educators now try to help students recover, advocates behind a proposed ballot measure say the right to a high-quality education is more crucial than ever. But while some see it as a simple and obvious proposal designed to empower families and students, critics anticipate a barrage of lawsuits against schools and districts resulting from the vaguely defined phrase “high-quality education.”
“It seems like the intention is to initiate lawsuits,” said Richard Barrera, a board member at the San Diego Unified School District, the state’s second-largest district. “It seems like it’s written in a way to drain funding from public schools to go into the pockets of lawyers.”
The California Attorney General’s office approved three versions of the initiative language, but the authors haven’t yet selected which one they’ll try to get on the ballot. Once they make the decision, they’ll start gathering signatures. There’s currently no organized opposition to the proposed measure.
Supporters of the proposed ballot measure argue that critics exaggerate the concerns about frivolous lawsuits. Christina Laster, a parent and the western region’s education director for the National Action Network, said that parents just want to hold districts accountable. She said litigation is a final resort used in extreme cases.
“For the most part, parents have not been willing to file lawsuits,” she said. “They just want conversation and change.”
More than 10 years ago, John Affeldt, the managing attorney at the civil rights advocacy group Public Advocates, represented plaintiffs who unsuccessfully sued the state seeking to guarantee the right to a high-quality education. He argued that the state and local districts have a variety of ways to define a high-quality education, whether it be through state standards or test scores.
That detail, he said, can be worked out later, whether in the courts or by the state Legislature and governor. The most urgent need, Affeldt said, is ensuring public schools are serving California’s students.
“We should’ve settled this already,” he said. “If education is going to be fundamental and meaningful… it has to deliver something of decent quality.”
A battle started in LA
Students Matter, a coalition of education advocates, authored the proposed measure under the leadership of former Los Angeles Mayor Antonio Villaraigosa.
James Liebman, a Columbia Law School professor who helped draft the language, said of the three versions written, the third version will most likely be the coalition’s choice. It reads: “The state and its school districts shall provide all public school students with high-quality public schools that equip them with the tools necessary to participate fully in our economy, our society, and our democracy.”
Villaraigosa said the measure is largely a response to former Los Angeles Unified Superintendent Austin Beutner’s statements in response to a lawsuit brought by parents frustrated over distance learning during the first years of the pandemic. Beutner said a district is only required to provide a free public education, not a high-quality one.
Villaraigosa said he feared what this complacency might do to future generations of students and voters.
“The less you know, the more easily you can be persuaded by people who are selling you half-baked solutions to complex problems,” he said. “Just look at Trump’s base. They’re less educated people.”
Liebman said the phrase “high-quality” is intentionally broad so that future generations and local districts can each define what a “high-quality” education is. He said even the authors of the U.S. Constitution used broad language that evolved through legal interpretations over time.
“Our nation’s Constitution developed over hundreds of years,” he said. “You can’t predict everything that’s going to happen.”
Liebman added that enshrining a high-quality education as a constitutional right in California will give students and their families another tool for holding their schools and districts accountable. He expects political mobilization, not litigation, to be the main avenue for seeking accountability.
But William Koski, a law and education professor at Stanford University, remains skeptical that political mobilization, if it materializes, will pressure the Legislature to take action.
“Everyone in the California Legislature knew schools were underfunded,” he said. “Yet they couldn’t do anything about it because of a fear of raising taxes.”
In its analysis, the Legislative Analyst’s Office notes that the measure would not have a direct fiscal impact on the public education system. But the LAO also notes that there could be “unknown and highly uncertain” costs, depending on how courts interpret the measure’s language.
Courts as a venue for policy?
For supporters of the measure, those costs are worth empowering families through a constitutional right. But Koski said that, perhaps most significantly, the initiative will open the courts as a venue for shaping education policy, giving parents more power to strike down decisions made by state lawmakers and local school boards.
Koski said this could result in legal battles over actions ranging from teacher layoffs to school closures. Or in the event of another pandemic or public health crisis, parents could challenge a district’s decision to move to remote instruction.
“All of this could land in the courts’ hands,” Koski said.
Students Matter’s 2022 version of this proposed ballot measure more strongly suggested the possibility of legal action against schools and districts. It stated that a parent or guardian could bring “[a]n action to enforce the right to a high-quality public education.” The 2024 ballot versions omit this language.
Villairagosa said the measure is in no way designed to invite lawsuits. Rather, he said, it’s meant to encourage legislation and funding proposals to better equip the state’s schools.
Villairagosa’s tense history with teachers unions adds a thorny political dimension to the proposal. He enjoyed strong support from charter school advocates during his 2018 gubernatorial bid. Teachers unions have historically opposed charter schools for pulling students, and thus state funding, from traditional school districts. Charter schools are also typically not unionized. As mayor, Villairagosa clashed with United Teachers Los Angeles in his efforts to weaken tenure protections.
As of yet, it remains unclear how the politics for this most recent initiative will unfold. Villaraigosa said his team met with the California Teachers Association to discuss the measure. He didn’t disclose any details from the meeting. But he said he’s open to working with the union to finalize the details of the initiative.
“I think what I made clear is that the only way for us to get a high-quality education is for us to work together,” he said.
Becky Zoglman, an associate executive director for the California Teachers Association, declined to comment on the proposed ballot measure and only said that teachers are already striving to provide a high-quality education to all students. She said the union will take a position on the proposed measure only if it makes it onto the ballot. The association also did not take a position on the 2022 initiative, which did not gather enough signatures to appear on the ballot.
Both Koski and Liebman pointed to Kentucky as a positive example of what could happen if a state enshrines the right to a high-quality education into its state constitution.
In 1989, the Kentucky Supreme Court found that the state had failed to provide an “efficient” education to all of its students and ordered the Legislature to overhaul the public school system. A study published in 2004 found that the 1989 decision resulted in more per-pupil funding as well as higher test scores.
But in California, Koski said the vagueness of the proposed language could invite lawsuits targeting everything from book bans to school closures.
“I do think it’s appropriate to hold school systems accountable,” he said. “But should every decision be subject to scrutiny in a lawsuit? I don’t know about that.”
WATCH RELATED: Newsom highlights California's efforts to lead in education
