Reader Writes: Open Letter to Mission Viejo City Attorney, Mission Viejo City Council

On July 26th the Mission Viejo City Council held a special meeting in order to discuss Capistrano's proposed $2 billion dollar bond measure for the November 2016 ballot. I want to express how refreshing it was to have elected leaders that truly wanted to understand the bond proposal and it's effect on students and taxpayers.

That was the first public meeting I have attending where a government entity wanted to hear from the public, and did not limit public comment to 3 minutes per speaker. It is very hard for a complex issue to be vetted in a three minute statement; which is why, the public has been reduced to nothing more then a blank checkbook for a government that was elected to protect and serve them.

At that meeting I took the opportunity to try and explain how CUSD came to a point in time where it could possibly have facilities that were so unkept that they could need $2 billion in repairs and maintenance. I shared a graphic that showed a State wide plan that has been produced by CUSD in every budget discussion since 2012.



The facilities bond has been part of CUSD's business plan since 2012. That is why CUSD has felt free to give employees 4 consecutive years of across the board compensation increases totaling over $120 million and increasing unfunded pension liabilities from $49 million to almost $60 million in four years. Why CUSD chose to reduce instructional time, cut programs, defer maintenance, and increase class size to pay for those compensation increases. And now that employee compensation increases have been restored to all time highs. the wonderful, experienced teachers are all going to retire at maximum salaries, pensions and benefits and will be replaced with new inexperienced teachers at 1/2 the cost ($48,000 per year). These new teachers will be inexperienced, but will be teaching in overcrowded classrooms in substandard facilities, and they will lack the the programs and instructional materials to provide even a minimum education to students.

I do not think that the general public, much less our local elected leaders are aware of the damage that is being done to our students. Over 50% of all students in CUSD will have NO OPTION to attend a post graduate educational institution other than a Community College. That is why the State of California wants to make Community College FREE. Because it now takes our kids 6 years to master what use to be taught in a 4-year high school curriculum. If there is a silver lining in the bond measure that CUSD is proposing, it is the light that is being shed on a corrupt and morally bankrupt State Government that uses California's public education system not to educate students, but to generate excessive tax revenues to fund new programs and entitlements that are not Constitutionally mandated, and to promote the political agenda of wealth redistribution.

I want to bring to the City Attorney's attention the unconstitutionality of the State of California's new education funding law - the Local Control Funding Formula or "LCFF".

What most people do not know if that the law limits K-12 per pupil funding to 2007-08 levels of funding not to be reached until the year 2021. That means that CUSD will have flat funding of under $8,000 per pupil for 14 years straight.

Contrast that to Laguna Beach which receives over $16,000 per pupil. Why are Laguna Beach students entitled to better educational opportunity than CUSD students? That is a question that has been litigated for 44 years. In 1976, the California supreme court ruled that the California Constitution mandates that every student have an equal opportunity to achieve equality of educational opportunity defined by the courts to be: "... opportunity to:

• obtain instruction in all state mandated core subjects that align with minimum state mandated Content Standards and Curriculum Frameworks,
• obtain high quality staff,
• obtain program expansion and variety,
• obtain beneficial teacher-pupil ratios and class sizes,
• obtain modern equipment and materials,
• attend school is high-quality buildings.

Under California's new education funding formula it is impossible for our students to reach their academic potential because the State of California by design, implemented a funding formula that it knew was not sufficient to provide our students with instruction in all state mandated core subjects that align with minimum state mandated Content Standards and Curriculum Frameworks, high quality staff, program expansion and variety, beneficial teacher-pupil ratios and class sizes, modern equipment and materials, high-quality buildings.
The LCFF determines per pupil funding as follows:



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, and/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, and/or are in Foster Care.

In December 2006 the State of California commissioned a study to determine the minimum cost to educate a student in California. Source: Efficiency and Adequacy in California School Finance: A Professional Judgment Approach https://cepa.stanford.edu/sites/default/files/19-AIR-PJP-Report(3-07).pdf at page Xiii

According to the State's own study (conducted in Dec 2006), the minimum cost to "adequately" educate a student in California in 2007-08 was $8,932 per pupil.

"The Results Adequate Per-pupil Cost Estimates by Locale Exhibit 4-2 compares the AIR projected per-pupil expenditures derived from the program specifications designed by the Blue and Gold PJPs to the actual per-pupil expenditures reported in the SACS fiscal files supplied by the CDE.7 These figures are pupil-weighted so that they represent per-pupil expenditures for the district attended by the average student within each of four district categories. In addition to the overall statewide average, average per-pupil expenditures within different types of districts provided. The district categories include urban, suburban, towns and rural districts.8 The exhibit shows that the statewide average “adequate” per-pupil expenditures for the 2004-05 school year range from $11,094 to $12,365, which represents a 53 to 71 percent increase over what was actually spent that year ($7,246). However, it is important to recognize that the figures show large variation across the four district categories defined above. The results suggest that students in urban districts require the highest per-pupil expenditure (from $11,508 to $12,718) to provide an adequate education, while necessary per-pupil expenditures ($8,932 to 9,414) are lowest for districts that lie in towns. Nevertheless, it must be noted that the suggested ranges of adequate per-pupil expenditures for both district types are well above what was actually spent. The implied increase in per-pupil expenditure that is required for urban districts to achieve adequacy ranges from $4,119 to $5,329 (56 to 72 percent, respectively), while for town districts this range is $1,528 to $2,492 (21 to 34 percent, respectively)."

When the state of California implemented the LCFF it set the LCFF Base Grant at $6,500 per pupil; a number that the state knew was insufficient to provide any student with even a minimum education. This was done on purpose. The law is designed to redistribute wealth, not educate students.

By intentionally underfunding K-12 public education (especially the wealthy suburban school districts), provides the State with the ability to use "surplus" tax revenues to create new programs and entitlements that are not constitutionally mandated.

The best example-

The California Constitution gives education funding a unique priority above all other state funding obligations by requiring:

"from all state revenues there shall first be set apart the monies to be applied by the State for support of the public school system..." Cal. Const. art. XVI, §8. (Emphasis added).

Yet, the State's 2016 5-year infrastructure plan does not allocate a single penny to K-12 public education. $51 billion of the $55 billion dollar plan is spent on transportation aka "High Speed Rail". Why should taxpayers be forced to pay for a facilities bond so that the State can spend $51 billion on Jerry Brown's train? If the state of California wants to change it's spending priorities from education to transportation that must be done with a vote of the people. The State cannot implement an education funding law that discriminates against students simply because of where they happen to live, and irrespective of a student's individual wealth, race and ethnicity. Such discrimination against our students is hostile and oppressive and constitutes invidious discrimination and is unconstitutional under Federal and State Equal Protection Laws.

LANDMARK US SUPREME COURT CASE SAN ANTONIO v. RODRIGUEZ (1973)

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).

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. 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.

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.

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:

"... 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. " San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973) at [17]

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 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 "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. California's funding system does not.

The Base grant is set at $6,500 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). The new law limits K-12 funding to 2007-08 levels + inflation by the year 2021.

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

Source: http://nces.ed.gov/programs/di...

The State average per pupil funding in California in 2011-12 was $9,608.

The National average per pupil funding in 2011-12 was $11,363.

It must be determined, as a matter of law, that California is intentionally underfunding every school district that has a low percentage of students that are English Language Learners, Receiving Free and Reduced lunch and or are in Foster Care.

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 per student at Richmond Elementary School to a high of $121,001per student in New Jerusalem Elementary. 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

Our children should not be forced to attend schools that lack sufficient funding to provide students with a minimum education, and tax payers should not be forced to be a blank checkbook for an abusive and oppressive State and local government.

I have drafted a complaint and would like to challenge California's LCFF in Federal Court as a violation of equal protection laws of the United States Constitution because the continued lack of adequate funding has resulted in a notable decline in the academic performance of students across all demographics. CUSD is no longer educating students, and is in fact preventing students from reaching their academic potential as evidenced by LCAP data and historical test data.

Please help me bring equality of educational opportunity to every student in California. Let's spend our tax money on the education of our students and not on a legacy for Governor Brown in the form of High Speed Rail.