CALIFORNIA'S LOCAL CONTROL FUNDING FORMULA VIOLATES EQUAL PROTECTION LAWS

California's Education Funding Law AB - 97 - School Finance Local Control Funding Formula Violates the Equal Protection Clause of the 14th Amendment to the United States Constitution and Article I § 7 and Article 4 § 16 of the California Constitution, commonly known as the equal protection laws of California's Constitution.

1. The Federal Government has a substantial interest in student outcomes in California.

California education is critical to the entire Nation’s future because one in eight public school students in the U.S. attends school in California.

According to the latest data available from the National Center for Education Statistics (NCES):

California had 6.3 million preK-12 students in 2011, and that is projected to increase to almost 7 million by 2023.

Source: http://nces.ed.gov/programs/digest/d13/tables/dt13_203.20.asp

54.1% percent were eligible for free/reduced lunch and

Source: http://nces.ed.gov/programs/digest/d13/tables/dt13_204.10.asp

23.2 percent were in English Language Learner programs

Source: http://nces.ed.gov/programs/digest/d13/tables/dt13_204.20.asp

California’s failure to educate its students will greatly impact how educated the Nation is as a whole; and how well prepared the Nation will be to compete with it's peers around the world in the future.

2. In Brown v. Board of Education, 347 U. S. 483 (1954), a unanimous US Supreme Court recognized that:

"Compulsory school attendance laws and the great expenditures for education both demonstrate our [p30] recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." (emphasis added) Id. at 493

Ibid. This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U.S. 205, 213 (BURGER, C.J.), 237, 238-239 (WHITE, J.), (1972); Abington School Dist. v. Schempp, 374 U.S. 203, 230 (1963) (BRENNAN, J.); McCollum v. Board of Education, 333 U.S. 203 212 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79 (1907).

3. In San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) the US Supreme Court defined when it would be appropriate for a Federal Court to review an individual State's education funding system to determine the constitutionality of that system. The Court also defined how an individual State's education funding system should be reviewed to determine the Constitutionality of that system.

A Federal Court has proper jurisdiction to review an individual State’s education funding laws under standards of strict judicial scrutiny, in cases involving laws that operate to the disadvantage of a suspect class or interferes with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. Ibid. [18-44]

If a State's system of financing public education:

1. Operates to the disadvantage of some suspect class, or

2. Impinges upon a fundamental right explicitly or implicitly protected by the Constitution,

that system must be reviewed under standards of strict judicial scrutiny.

If a suspect classification is not found, the system must still be examined to:

"... determine whether the law rationally furthers some legitimate, articulated state purpose, and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. " Ibid. [17]

Matters of Fiscal Policy:

Ibid. [40]. "[San Antonio v Rodriguez] represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues." (Emphasis Added) "The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . . "

Ibid. [41] "It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . ." Madden v. Kentucky, 309 U. S. 83, 87-88 (1940). See also Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973); Wisconsin v. J. C. Penney Co., 311 U. S. 435, 445 (1940). (emphasis added).

4. California's education funding law AB- 97 School Finance - Local Control Funding Formula Operates to the disadvantage of a suspect class and therefore, must be reviewed under standards of strict judicial scrutiny.

On July 1, 2013 Governor Brown signed into law AB- 97 School Finance - Local Control Funding Formula.

The law distributes K- 12 per pupil funding using the following formula:

Base Grant + Supplemental Grant + Concentration Grant = Per Pupil Funding

The "Base Grant" is universal for all students.

The "Supplemental Grant" provides additional funding to Districts based on the percentage of students in the District that are English Language Learners, Receiving Free and Reduced Lunch, or are in Foster Care.

The "Concentration Grant" provides even more funding for Districts that have large concentrations of students that are English Language Learners, Receiving Free and Reduced Lunch, or are in Foster Care.

Source: California Department of Education Local Control Funding Formula Overview

http://www.cde.ca.gov/fg/aa/lc/lcffoverview.asp

The amount of funding an individual school district receives is based solely on the wealth, race and ethnicity (all suspect classifications) of students in the District; therefore, California's education funding law must be reviewed under standards of strict judicial scrutiny.

5. California's education funding law AB- 97 School Finance - Local Control Funding Formula interferes with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution and must be reviewed under standards of strict judicial scrutiny.

In Brown v. Board of Education, 347 U. S. 483 (1954), a unanimous US Supreme Court recognized that "education is perhaps the most important function of state and local governments... [and] where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Id. at 493 (emphasis added)

Article IX, Section 1 of the California Constitution states that education is “essential to the preservation of the rights and liberties of the people.”

In California, education is a fundamental right that belongs to all — not some — of our students. This right derives from the state constitution as well as binding case law.

See: Serrano v. Priest (Cal. 1971) 487 P.2d 1241 the California Supreme Court ruled that education is a fundamental constitutional right. In 1976, in Serrano v. Priest (Serrano II ), 557 P.2d 929, the same court affirmed the lower court’s finding that the wealth-related disparities in per-pupil spending generated by the state’s education finance system violated the equal protection clause of the California constitution stating:

"For these reasons then, we now adhere to our determinations, made in Serrano I, that for the reasons there stated and for purposes of assessing our state public school financing system in light of our state constitutional provisions guaranteeing equal protection of the laws (1) discrimination [18 Cal. 3d 766] in educational opportunity on the basis of district wealth involves a suspect classification, and (2) education is a fundamental interest. Because the school financing system here in question has been shown by substantial and convincing evidence produced at trial to involve a suspect classification (insofar as this system, like the former one, draws distinctions on the basis of district wealth), and because that classification affects the fundamental interest of the students of this state in education, we have no difficulty in concluding today, as we concluded in Serrano I, that the school financing system before us must be examined under our state constitutional provisions with that strict and searching scrutiny appropriate to such a case."

See: Butt v. California (Cal.1992) "The State itself has broad responsibility to ensure basic educational equality"

California's new funding system interferes with students fundamental constitutional right to substantially equal opportunities for learning, and must be reviewed under standards of strict judicial scrutiny.

6. A Federal Court has proper jurisdiction to review an individual State’s education funding law to ensure that the law

bears a rational relationship to a legitimate, articulated State purpose.

The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U. S. 263, 410 U. S. 270 (1973).

Even if a suspect classification is not found, the system must still be examined to:

The stated goal of the Local Control Funding Formula is to provide a base level of funding for every student (Base Grant), and then to provide additional funding for students who "high needs", identified as students who are "English Language Learners", "Receiving Free and Reduced Lunch", or are in "Foster Care" (Supplemental Grant and Concentration Grant).

California's education funding law AB- 97 School Finance - Local Control Funding Formula does not rationally further the articulated State purpose of providing a base level of funding to every student (funding that is sufficient to provide all students with equal opportunities to learn - "Base Grant") and then provide additional funding to students that are English Language Learners, Receiving Free and Reduced Lunch, or are in Foster Care ("Supplemental Grant") and even more additional funding for Districts with high concentrations of students who are "high needs" ("Concentration Grant").

The Governor and the State Legislature have set the Base Grant at a level that is so low, it deprives every student in the State of their fundamental right to a public education system that provides an "Equal Opportunity to Achieve a Quality Education" as defined by the courts [Serrano v. Priest II (1976) 18 Cal. 3d 748] to be "...opportunity to obtain high quality staff, program expansion and variety, beneficial teacher-pupil ratios and class sizes, modern equipment and materials, and high-quality buildings."

The Court in Rodriguez found that while the Texas funding system was not perfect, the system provided an equal opportunity to achieve a quality education for every child in the State because the funding in each District was within $100.00 of each other. Under California's LCFF law, per pupil funding varies from a low of $6,442.00 per pupil in the Richmond Elementary School District to a high of $121,000.00 per pupil in the New Jerusalem Elementary School District.

Source: Cost Per ADA 2013-2014: http://www.cde.ca.gov/ds/fd/ec/currentexpense.asp * Orange County is Code #30, San Joaquin County is Code #39 and Lassen County is Code #18

When the LCFF Law was implemented, the Base Grant was set at $6,500.00 per pupil, with that amount expected to increase, and be capped at 2007-08 levels + inflation by the year 2021 (about $8,500 per student for CUSD). That means that by the year 2021, CUSD will have had relatively flat funding for 14 years with a ceiling of less than $8,500.00.

2008-09 $7,614
2009-10 $7,246
2010-11 $7,228
2011-12 $7,469
2012-13 $7,002
2013-14 $7,419
2014-15 $8,042
By 2021 $7,694 + Inflation or approximately $8,271

Those districts with low percentages of students who are English Language Learners, Receiving Free and Reduced Lunch, or are in Foster Care are being funded solely by the Base Grant; which, as a matter of law can be determined to be insufficient to provide any student with a minimum education.

In 2006 the State Commissioned a study to determine the cost to adequately educate a student. Calculated per pupil costs with special needs weightings were found to be:

Source: https://cepa.stanford.edu/sites/default/files/19-AIR-PJP-Report(3-07).pdf

The study concluded that the minimum cost to educate a student in California in 2007-08 was $8,932.00.

According to the National Center for Education Statistics (latest data 2013 for the year 2011-12)

Source: http://nces.ed.gov/programs/digest/d14/tables/dt14_236.70.asp?current=yes

The State average per pupil funding in California in 2011-12 was $9,608.00.

The National average per pupil funding in 2011-12 was $11,363.00.

With The Base funding Grant of $6,500.00 the per pupil funding in the State of California is $4,863 below the National Average. And Capistrano Unified School District, a suburban school district is $2,139 below the State average.

It must be determined; as a matter of law, that the base funding grant of $6,500, even with an increase to 2007-08 levels + inflation by 2021 is insufficient to provide any student with a basic education as defined by 44 years of California case law. By setting the Base Grant below $8,932.00, the State of California is intentionally underfunding public education, the State's #1 Constitutionally mandated spending priority.

In Serrano, the California Supreme Court ruled that the level of services available to students in each school district should not be a function of wealth, other than the wealth of the state as a whole. The State has a constitutional obligation to equalize the value of the taxable wealth in each district, so that equal tax efforts will yield equal resources.

When the subsequent Serrano remedy was challenged in 1986, 93% of California students were in school districts whose per-pupil spending was within $100 of each other. The court held, in Serrano v. Priest, 226 Cal. Rptr. 584 (Court of Appeal, 2d District 1986), that this level of disparity satisfied California's equal protection requirements.

Under California's new Local Control Funding Formula law per pupil funding varies from a low of $6,442.00 per student at Richmond Elementary School District to a high of $121,000.00 per student in New Jerusalem Elementary School District. This level of disparity is unconscionable and would not satisfy Equal Protection requirements at the State or Federal level today.

Source: Cost Per ADA 2013-2014: http://www.cde.ca.gov/ds/fd/ec/currentexpense.asp * Orange County is Code #30, San Joaquin County is Code #39 and Lassen County is Code #18

7. Even if a suspect classification is not found, the system must still be examined to:

The LCFF does not provide high needs students in districts with a low percentage of students who are English Language Learners, Receiving Free and Reduced Lunch and/or are in Foster Care with sufficient funding to meet their needs and therefore does not meet the State's articulated purpose for the law. CUSD receives $212 per pupil in supplemental grant funds and -0- concentration grant funds. Every student, including English Language Learners, Receiving Free and Reduced lunch and/or Foster kids are being deprived of there fundamental Right to Equality of educational opportunity simply because of where they happen to live, and irrespective of their individual wealth, race or ethnicity. That constitutes invidious discrimination and is a violation of the Equal Protection laws of both the State of California and the Federal Constitution.

To meet it's constitutional mandate to students the State of California must increase the Base Funding amount to a level that provides every student with sufficient funding to achieve equality of educational opportunity, which as a matter of law is not less than $8,932.

CUSD has been denied ($8,932 - $6,500) $2,432 per pupil in funding since 2012. $2,432.00 X 50,000 students is $121,600,000.00 per year X 5 years = $608,000,000.00.

* It could be argued that CUSD is entitled to a greater amount. The 2006 study showed that the State of California knew that it cost between $10,726 and $12,077 to educate a student in a suburban school district.

$10,726 - $6,500 = $4,226 per pupil. $4,226 X 50,000 students is $211,300,000 per year X 5 years = $1,056,500,000.

$12,077 - $6,500 = $5,577 per pupil. $5,577 X 50,000 students is $278,850,000 per year X 5 years = $1,394,250,000.

This is equivalent to the Facilities Bond amount that CUSD is trying to place on the November ballot.

By setting the Base Funding Grant intentionally low, every student in CUSD has been damaged. Every CUSD student has been denied their fundamental right to equality of educational opportunity. As a result of the State of California's intentional mis-conduct (invidious discrimination), CUSD is entitled to recover $608 million dollars that the State of California has intentionally withheld from CUSD students simply because they happen to live in a school district with a low percentage of students who are English Language Learners, receiving Free and Reduced Lunch, and or are in Foster Care.

EXHIBIT "A" Local Control Funding Formula and Local Control Accountability Plan - Impacts and Requirements of the LCFF and LCAP on Capistrano Unified School District.

Source: http://capousd.ca.schoolloop.com/file/1219972013237/1218998864154/4396602685840540705.pdf

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CALIFORNIA'S LOCAL CONTROL FUNDING FORMULA VIOLATES EQUAL PROTECTION LAWS