Proposed 2022 California ballot initiative sets stage to define ‘high-quality’ education

October 8, 2021

Education activist David Welch speaks after Judge Rolf Treu issued his 2014 decision in the Vergara lawsuit.

The Silicon Valley entrepreneur who unsuccessfully took on teacher tenure in court is now supporting a constitutional amendment aimed at requiring California to provide “high-quality” public education for all students.

The effort expressly takes aim at state laws, policies and regulations that “interfere with a right to a high-quality education.” It also says that the proposed remedies “shall not include new mandates for taxes or spending,” a strategy that some say will limit the options to provide a “high-quality” education, should voters support the amendment in November 2022.

David Welch, who underwrote the Vergara v. the State of California and the California Teachers Association litigation in 2012, is among those proposing the Constitutional Right to a High Quality Public Education Act, which they submitted on Thursday to the California attorney general.

Once the initiative receives a title and summary, backers would begin gathering signatures for what would likely be a new front in the battle between the 310,000 member California Teachers Association and wealthy school reform advocates who want to again pursue changes through the courts that they’ve been unable to persuade a union-friendly Legislature to make. Mike Trujillo, spokesperson for the initiative, said the backers are confident they will have funding for a successful campaign.

Next year’s election is expected to be expensive and contentious. Advocates of school vouchers also have proposed two initiatives that are awaiting the approval of the attorney general to start gathering signatures.  They would give parents funding to attend the private or public school of their choice. (Go here and here to read them.) The CTA spent tens of millions of dollars to handily defeat the last voucher initiative, in 2000.

The current wording of the Constitution guarantees Californians only a “free public education.” The Legislature and the courts would have to define what constitutes “high quality.” But adding that phrase as a constitutional right would “finally empower public school parents with a seat at the table” to advocate for students, the proponents said in a statement preceding the amendment.

The new wording would assert that any law, regulation, policy or official action that “does not put the interests of students first” shall be deemed to interfere with a right to a high-quality education.

Other backers of the initiative include former Los Angeles Mayor Antonio Villaraigosa and Ben Austin, founder of the activist parent group Parent Revolution; both challenged laws limiting school choice, and, like Welch, tangled with the California Teachers Union over teachers’ seniority protections governing layoffs, dismissals and due-process rights. Yolie Flores Aguilar, a former Los Angeles Unified board member and now secretary of the board of the advocacy group Education Trust is also a supporter. Columbia University Law School professor James Liebman helped draft the initiative, Trujillo said.

In their preamble to the amendment, proponents blame “politicians and bureaucrats” for adopting and defending policies that work against students’ interests. As examples, they cite “forcing children to attend low-quality schools,” redirecting state Local Control Funding Formula funds to cover general costs and away from intended underserved students, and “retaining consistently low-performing employees.”

Second front over tenure protections

The latter issue was at the heart of the Vergara lawsuit, which argued that the lack of an effective teacher evaluation system, combined with seniority rights that failed to protect effective new teachers from layoffs, and granting due-process protections or tenure after less than two years, harmed students, especially those in low-income, under-resourced schools.

Los Angeles County Superior Court Judge Rolf Treu sided with the plaintiffs – nine students in five school districts and Students Matter, the organization that Welch founded. The evidence of “the effect of grossly ineffective teachers on students is compelling. Indeed, it shocks the conscience,” he wrote in a 2014 decision.

But two years later, three judges on a Court of Appeal in Los Angeles unanimously overturned the decision, writing that the plaintiffs didn’t establish “that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students.”

“With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes,” the decision stated.

Welch and the draft initiative’s supporters assume that adding the “high-quality” standard to the constitution would empower parents to challenge the status quo and force school boards and legislators to question the impact of laws and regulations on students. Judges would apply a higher standard when deciding whether union contracts and other laws interfered with children’s right to an education.

“They would be forced to ask, ‘Why are more inexperienced teachers in low-income schools? Why is one school fully funded and the school down the street has tumbleweeds?’” Trujillo said.

One week after the ruling on Vergara, a divided Court of Appeal in San Francisco used the same logic in ruling that the state Constitution does not guarantee a minimally funded quality education to children in California.  The ruling applied to two similar lawsuits filed during the depths of the recession, when the Legislature was making big cuts to education: Campaign for Quality Education v. State of California, filed by Public Advocates on behalf of five nonprofits serving low-income, minority families; and Robles-Wong et al. v. State of California, by the organizations representing school boards and school administrators, the state PTA and CTA, together with Stanford law professor William Koski, representing low-income children.

“As much as I can appreciate the plaintiffs’ frustration and dissatisfaction with the overall adequacy of California’s public schools,” wrote Associate Justice Peter Siggins in a concurrent opinion, “I cannot agree” that the constitution provides a right to “command the state to fund schools at some qualitative level.”

Welch and the other initiative proponents, however, disagree that a high-quality public education should apply to raising more money for public education. On the contrary, their amendment would add a caveat: The remedies for enforcing a high-quality education should be limited to invalidating laws, policies and regulations. They “shall not include new mandates for taxes or spending.”

That disturbs Koski, a professor of law and professor of education at Stanford Law School and Stanford Graduate School of Education. “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.”

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