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  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  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  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  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  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 .

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  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  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.”

This story was originally published by .

The effort to get on the November 2022 ballot is just getting started, but such a statute would give parents “legal standing” before a judge to argue that districts should make better use of education dollars, said initiative spokesman Michael Trujillo, a veteran political strategist.

“Here’s a chance for parents to become effective policymakers on behalf of their children,” said Trujillo, who has long worked for former Los Angeles Mayor Antonio Villaraigosa, a supporter of the initiative.

The move comes as parents across the country are vocally asserting their rights to influence the education agenda. Parents’ anger over school closures and controversial diversity and equity initiatives was considered a key factor in tipping the Virginia governor’s race in favor of Republican Glenn Youngkin.

The California initiative would be the third effort nationally to enshrine a child’s opportunity to receive a high-quality education in a state constitution. Supporters have launched similar campaigns in and . 

“Having that right in the constitution could be very helpful in addressing long-standing inequities in our educational system and closing opportunity gaps,” said Ted Lempert, president of Children Now, an Oakland-based advocacy organization. He added that “getting more dollars to kids of color and English learners has to be part of the equation.”

The California initiative, however, includes wording that would prohibit courts from issuing remedies that include “new mandates for taxes or spending.”

That restriction could be an obstacle to improving educational quality, said Jessica Levin, a senior attorney at the Education Law Center, based in New Jersey. 

“More funding would be the way to address many of the issues that the proponents of this initiative are purporting to want to fix,” she said. The center represented plaintiffs in , a 1998 New Jersey school finance case that led to far-reaching reforms, including universal preschool for 3- and 4-year-olds.

A from the center gives California a C for the level of per-student funding schools receive from state and local sources. But it grades the state a D on how much it spends on education as a percentage of overall economic activity — less than 3 percent.

State constitutions, Levin added, all include some “affirmative obligation” to provide students a public education, but courts have varied in how they interpret what that education should include.

Federal courts in recent years have also been asked to consider whether the U.S. Constitution should entitle children to an education. Last year, Michigan Gov. Gretchen Whitmer agreed to a $100 million settlement in a 6th Circuit Court of Appeals case in which seven Detroit students argued their schools had failed to teach them to read.

On Nov. 1, the 1st Circuit Court of Appeals heard oral arguments in in which 14 Rhode Island students argue their schools don’t provide civics education, leaving them unprepared to exercise their rights as citizens. 

‘There’s no remedy’

In California, David Welch, who waged a lengthy challenging state laws on teacher tenure and seniority, is behind the ballot initiative. That lawsuit, Vergara v. California, argued such provisions keep poor and minority students from having effective teachers. In 2016, the California Court of Appeals ultimately held that the attorneys for the nine student plaintiffs were unable to prove that state law controlled teacher assignments.

The state’s powerful teachers unions came out on top when the state supreme court declined to review the case. A ballot measure that aims to improve schools by making it easier to fire ineffective teachers would be certain to reopen that fight. Levin said the initiative “on its face” might sound appealing, but could be a way to once again go after teacher tenure and laws that  result in new teachers being the first to go when budgets are cut.

Trujillo said the initiative is not just an effort to revive Vergara. 

“Włó˛šłŮ Vergara taught us is that there is a right to a free education,” he said, “but if you want to sue because of a reading gap, there’s no remedy.” 

Some experts say the measure, which would need roughly a million signatures by June to qualify, is vague and ignores the limitations districts face when the majority of their budgets are spent on salaries. Laura Preston, director of governmental affairs at F3Law, a California firm that handles education cases, said laws that require districts to negotiate budgets with teachers unions can limit flexibility to address students’ needs. 

Schools are also facing teacher shortages now and even superintendents are — not a time to discuss getting rid of teachers, she said.

The initiative is “so broad that we’re all trying to figure out what it means,” Preston said, calling the proponents “a bunch of people who don’t know how education works trying to reform education.”

‘A battle royale’ 

The effort to add the constitutional amendment isn’t the only California initiative likely to provoke a fight with the teachers unions. A venture capitalist is behind a measure to eliminate collective bargaining for public sector employees. The argues that unions “protect bad employees.”

A failed in 2012, but the prolonged school closures could have shifted some voters’ attitudes. Julia Koppich, an independent San Francisco-based researcher, said proponents could play on “unions being blamed for keeping schools closed longer than some parents thought they needed to be.”

Republicans tried to use parent frustration with school closings during the September election to recall Gov. Gavin Newsom, but were unsuccessful.

“I’m not sure if that anti-union, pandemic-specific anger is of the lasting variety,” Koppich said, but even so, “if this initiative is on the ballot, it will be a battle royale and an expensive one.”

Lisa Gardiner, a spokeswoman for the California Teachers Association said members “certainly believe that all students deserve a high-quality public education,” but that the union does “not take positions on — or even consider — ballot measures until they have qualified for the ballot.”

School closures are also fueling efforts to get two private school choice initiatives on the ballot. Now in the signature-gathering phase, both would create education savings accounts, of either $13,000 or $14,000 per year, that families could use for private and religious school tuition. 

“The pandemic required families to try alternatives,” according to . “Today more than 60 percent of families are interested in alternative learning options for their students beyond the traditional public school system.” 

State officials estimate the cost of the program would range from $4 billion to $7 billion, which “could be paid with reductions to funding for public schools and/or reductions to other programs in the state budget.”

The unions are also likely to oppose efforts to expand school choice in the state. Trujillo said he’s expecting a “well-funded” campaign to defeat the constitutional amendment guaranteeing a high-quality education if it goes before the voters. But he’s hoping that when proponents highlight smaller class sizes and higher pay for qualified teachers as possible results of the amendment, the unions might like what they hear. 

“Unions that want to oppose this are going to feel like they’re in upside-down land,” he said.