OPINION оf ROB BONTA, Attorney General; KARIM J. KENTFIELD, Deputy Attorney General
No. 23-902
OFFICE OF THE ATTORNEY GENERAL, State of California
April 25, 2024
TO BE PUBLISHED IN THE OFFICIAL REPORTS
QUESTION PRESENTED AND CONCLUSION
Under California‘s Local Control Funding Formula, or “LCFF,” established by the
No, the Legislature may not amend the LCFF statute in the specified manner. The only pupil subgroups listed in
BACKGROUND
In 2013, the Legislature “fundamentally changed how all local educational agencies . . . in the stаte are funded.”1 It established the Local Control Funding Formula, which “streamlined the number of state funding sources and increased K-12 spending.”2 The LCFF assigns a funding target to each California school district, charter school, and county office of education. Each educational agency then receives funding at or above its target through a combination of state aid and local property taxes.3
Districts then receive additional funding for students classified as “unduplicated pupils,” which thе statute defines as three categories of students: English learners; students eligible for a free or reduced-price meal; and foster youth.6 For each unduplicated pupil, a school district receives a “supplemental grant” equal to a percentage of its base grant.7 If unduplicated pupils exceed 55 percent of the student population, then the district also receives a “concentration grant” for each unduplicated
Under state law, student performаnce must be regularly assessed. Relevant here,
ANALYSIS
This request asks whether the Legislature could amend the LCFF definition of “unduplicated pupil” to add a fourth category of students eligible for supplemental funding. The new category would consist of all members of the
The requestor explains that the purpose of the proposal is to address the persistent racial achievement gaps in K-12 education in California. As the requestor notes, test scores for Black students lag statewide averages in both English and Mathematics. In the most recently reported data, for example, 70% of Black students did not meet English language standards, compared with 53% of all students who did not meet those standards.16 Similar achievement gaps exist for students in other ethnic subgroups; for example, among students identifying as American Indian or Alaska Native, 66% did not meet English standards. And these achievement gaps persist whether students are low income or not.17 To address these serious disparities, the proposal would classify all students in the lowest-performing ethnic subgroup—сurrently Black students—as unduplicated pupils, thereby triggering additional funding.18 The requestor reports that
We have been asked to analyze whether this legislative proposal would run afoul of the state or federal Constitution. In doing so, we recognize the critical importance of the problem that this proposal seeks to address. As commentators have observed, “[f]ew goals in education have been as frustrating and urgent as the effort to fix the deep, generational disparity in achievement . . . in California schools.”20 The persistence of a racial achievement gap across “cities, rural communities and suburbs” is “a sign that opportunity is not yet equal for many children in California classrooms.”21
We also recognize, however, that recent decisions of the United States Supreme Court have increasingly constrained the ability of government to factor race or ethnicity into policymaking. Applying those precedents here, we conclude that the proposed amendment would violate the federal Constitution by conditioning education funding on student ethnicity. Because we conclude that the proposal would violate federal law, we need not address whether it would also violate the state Constitution.22
The United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”23 A “core purpose” of the equal protection clause is to “do away with all governmentally imposed discrimination based on race.”24 In the education context, the government may not “separat[e] students on the bаsis of race without an exceedingly persuasive justification.”25
Under United States Supreme Court precedent, “all racial classifications imposed by” a State “must be analyzed . . . under strict scrutiny.”26 As the Court has explained, strict scrutiny is the “most rigorous and exacting standard of constitutional review.”27 First, a court asks “whether the racial classification is used to further compelling governmental interests.”28 If so, then the court asks “whether the government‘s use of rаce is ‘narrowly tailored’—meaning necessary to achieve that interest.”29 Applying that standard, the Supreme Court has invalidated race-conscious programs in areas such as government contracting and K-12 school assignments.30 Most recently, it struck down a university admissions policy that considered race as one factor in a holistic review of applications—despite having repeatedly upheld similar policies before, including less than a decade earlier.31
Applying those decisions, we conclude that the proposed LCFF amendment “must be analyzed . . . under strict scrutiny.”33 As explained above, the proposal would allocate supplemental education funds based on student ethniсity. Using 2022-2023 data, for example, the proposal is no different from one defining “unduplicated pupil” for that year to include “all Black students in the State.” Although the lowest-performing subgroup could change in later years, supplemental funding would always be awarded to a single ethnic group. Because the proposal would “distribute[] . . . benefits on the basis of individual racial classifications,” it must be “reviewed under strict scrutiny.”34
Applying that standard, we first consider whether the proposed policy would “further compelling governmental interests.”35 In the context of K-12 education, the Supreme Court has recognized that the State has a “compelling” interest in remedying the effects of “past discrimination that violated the Constitution or a statute.”36 In contrast,
The stated purpose of the proposed LCFF amendment is to improve educational outcomes for the State‘s lowest-performing students, thereby addressing the persistent racial achievement gap in K-12 education.38 In our view, the State‘s interest in improving academic outcomes for underperforming students is a vital objective. As the U.S. Supreme Court has long recognized, “education is perhaps the most important function of state and local governments.”39 By “provid[ing] the basic tools by which individuals might lead economically productive lives,” education plays “a fundamental role in maintaining the fabric of our society.”40 Indeed, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”41 Recent analyses have only reaffirmed that conclusion.42 And like other state interests that have been recognized as “compelling,” there are clear standards for “courts . . . to measurе” improvements in student performance, including scores on standardized statewide assessment exams.43 For these reasons, we conclude that improving educational outcomes for low-performing students is a “compelling” interest for federal equal protection purposes.
We conсlude that the legislative proposal here is not “narrowly tailored” to advancing the State‘s interest in closing student achievement gaps. To begin with, there appears to be a “workable race-neutral alternative[].”48 The Legislature could directly tie supplemental LCFF funding to low student performance by defining “unduplicated pupil” to include all students who score below a specified threshold on the statewide assessment exams. Thе State has implemented a program like this before: it allocated $300 million for low-performing students in the 2018-2019 fiscal year.49 And this approach could advance the State‘s interest in improving academic outcomes for its lowest-performing students by directly identifying those students and funding services for them.
Moreover, as compared with the race-neutral alternative, the legislative proposal at issue is less precisely tailored to advаncing the State‘s interest in funding services for low-scoring students.50 Because the proposal limits supplemental funding to students in one ethnic subgroup, it fails to increase funding for the many students in other ethnic subgroups with significant educational needs. Using current data, for example, the
For these reasons, we conclude that the legislative proposal here would not survive the strict scrutiny analysis. Under governing precedent, the proposal is not “narrowly tailored” to advancing the State‘s compelling interest in improving educational outcomes for its low-performing students.52
CONCLUSION
We conclude that the proposed legislative amendment would violate the federal equal protection clause. Nothing in this opinion calls into question race-conscious state or local policies that are “narrowly tailored” to advancing a compelling state interest, such as remediating the effects of past government discrimination. Nor does it cast any doubt on the legality of education-funding mechanisms that do not rely on express racial or ethnic classifications.