Sacramento v. Local Elected School Boards - Part 1

Constitutional Issues in Local California School Board Fights Over LGBT Curriculum

Recently, large parent-driven protests over LGBT curriculum and Pride Month enactments have broken out at local California public school districts.¹ And major policy battles have started over what should and shouldn’t be taught to students.²

In some local public school districts in Southern California, elected school boards have attempted to reject statewide curriculum and textbooks on LGBT curriculum or implemented policies decried as homophobic and transphobic, drawing the rebukes of Governor Gavin Newsom, Attorney General Rob Bonta, and State Superintendent Tony Thurmond.

In one instance, a school board rejected materials relating to slain LGBT Civil Rights leader Harvey Milk, accusing him of being a “pedophile” only to back down after Governor Newsom threatened them with a $1.5 million fine.³ In another local school district, a school board implemented a policy of informing parents if their children had decided to transition after a raucous public meeting in which the School Board President ordered Superintendent Thurmond removed from the meeting for disorderly conduct.⁴

Many of these local elected school board members have resisted the statewide material on LGBT curriculum, claiming to possess constitutional authority, as elected local school board members, to make educational choices independent of what the state wants.

But do they?⁵

The United States Constitution does not provide a right to public education.⁶ However, like in so many other ways, the California Constitution is different.⁷ It expressly provides that “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.”⁸ Thus, California is obligated to provide a free public education for every student.⁹

The fundamental constitutional right to a free public education has practical consequences. In 1924, for example, when a local school district refused to allow a Native American girl to attend a local public elementary school, the California Supreme Court ordered her admitted on the ground of her fundamental right of education.¹⁰ Sixty years later, the California Supreme Court struck down a local public high school’s fee requirements for extra-curricular activities on the grounds that they violated the fundamental right of students to a free education.¹¹

The question that has arisen though in recent LGBT curriculum controversies, is who is ultimately in charge of making public education policy? The state itself or local school districts?

The California Constitution answers the question. “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”¹² As the California Court of Appeals has explained, “by the terms of the mandate itself, primary authority over public education is vested in the Legislature” even though the Legislature has discretion to delegate power to local school districts.¹³

Moreover, the California Constitution provides “The Legislature may authorize the governing boards of all school districts to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established.”¹⁴ This provision, enacted by the voters in 1972, does not create independent authority for local school districts; it gives authority to the State Legislature to delegate authority when it feels the need without the risk of unconstitutional delegation to the local school districts.¹⁵

Finally, the California Constitution provides that “The State Board of Education shall adopt textbooks for use in grades one through eight throughout the State, to be furnished without cost as provided by statute.”¹⁶ This constitutional provision applies only to elementary and junior high schools but does not prevent the Legislature from providing free text books in high schools and adult education.¹⁷

Thus, as repeatedly held by the courts, the state is in charge of public education with local school districts serving as the state’s agents, not as independent political bodies with autonomous decision making power.¹⁸ The state ultimately must follow its own laws in dealing with local public school districts but it always possesses the constitutional authority to change them over the wishes of the district.¹⁹

As the California Supreme Court has summarized, “The Legislature has chosen to implement this ‘fundamental’ guarantee through local school districts with a considerable degree of local autonomy, but it is well settled that the state retains plenary power over public education. Hence, there can be no doubt that public education is among the state’s most basic sovereign powers.”²⁰

Current statute provides that “the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”²¹ The Legislature has recognized the distinct and unique needs of school districts are addressed by local control.²²

The Legislature has also recognized the importance of allowing local school districts to have autonomy in making spending decisions in order to ensure that they can manage their districts efficiently.²³ However, this is something that the Legislature may do, not something that the Legislature is required to do.²⁴

In the landmark decision of Butt v. California, the California Supreme Court explained the general structure of public education governance:

California courts have adhered to the following principles: Public education is an obligation which the State assumed by the adoption of the Constitution. The system of public schools, although administered through local districts created by the Legislature, is ‘one system … applicable to all the common schools. In view of the importance of education to society and to the individual child, the opportunity to receive the schooling furnished by the state must be made available to all on an equal basis. [M]anagement and control of the public schools [is] a matter of state[, not local,] care and supervision. The Legislature’s ‘plenary’ power over public education is subject only to constitutional restrictions. Local districts are the State’s agents for local operation of the common school system and the State’s ultimate responsibility for public education cannot be delegated to any other entity. It is true that the Legislature has assigned much of the governance of the public schools to the local districts, which operate under officials who are locally elected and appointed. Yet the existence of this local-district system has not prevented recognition that the State itself has broad responsibility to ensure basic educational equality under the California Constitution.²⁵

In Butt, the Court addressed a situation where the Richmond School District had planned to close its school district for the final six weeks of the school year because of a lack of funding necessary to operate them.²⁶ Local district parents filed an action to reopen the school, alleging this closure violated their children’s state constitutional guarantees to public education and violated equal protection.²⁷

The trial court agreed with the parents and issued an injunction forcing the state to make an emergency loan to the Richmond School District to enable it to stay open for the remainder of the school year.²⁸ On appeal, the state argued that it was acceptable to close the schools and did not have to fund the schools because of the compelling interest in preserving the autonomy and accountability of local school districts.²⁹

The California Supreme Court rejected the argument, explaining that the tradition of delegating authority to the local school districts did not remove the state’s obligation to provide a free education to every student.³⁰ The students in the Richmond school district were entitled to a free public education and the state had the responsibility to provide that education.³¹ The Court affirmed the trial court’s injunction, holding the state was required to keep the Richmond School District open.³²

Why is there confusion over the subject? Perhaps it is due to the set up of charter cities in California. The California Constitution gives powers to charter cities to govern their own municipal concerns and make laws that over-ride contradictory state laws.³³ It’s a rather complicated field of law but here’s the gist of it.

California has two different types of cities: general law cities and charter law cities.³⁴ Counties and general law cities have to enact laws that are not in conflict with general laws of the state.³⁵ But charter cities are not bound by state laws if the area of law is held to govern municipal affairs rather than govern in an area of statewide concern.³⁶

What constitutes a municipal affair and an issue of statewide concern isn’t fixed as a formula and is often legally debated between charter cities and the state.³⁷ The courts ultimately will make the final decision in any legal disputes.³⁸ And it tends to be an extremely complicated issue.³⁹

Importantly, however, local school districts lack this same constitutional authority.⁴⁰ The only place where a local school district has any of the power of a charter city is when it comes to setting compensation, method of election, and terms of office when the school district is organized along the boundaries of a charter city.⁴¹ But this power doesn’t extend to other educational governance issues that may arise, only the elections of independent school boards.⁴²

Moreover, even if the local school districts had charter city like powers, the courts have long been clear that public education is an issue of statewide concern.⁴³ That means the state is in charge of making laws and policies for public education.

While the current issues related to LGBT curriculum are controversial in some school districts, with those involved holding strong opinions, the local school district boards ultimately lack the constitutional authority to defy the state’s commands on what suitable public education will be for students. While there is leeway in areas the state has left open, that leeway can be curtailed if Sacramento disapproves.

Ultimately, when it comes to the fundamental right of a free public education, it is Sacramento that gets to make the final call, not the local school boards.

1. https://www.latimes.com/california/story/2023-06-06/glendale-braces-for-protests-ahead-of-school-board-vote-to-recognize-lgbtq-pride-month

2. https://www.latimes.com/california/story/2023-07-21/inland-empire-school-board-meetings-sow-chaos-over-textbooks-trans-students

3. https://ktla.com/news/local-news/controversy-continues-over-temecula-school-district-banning-book-with-lgbtq-figures/

4. https://www.ktvu.com/news/california-school-superintendent-kicked-out-verbally-attacked-at-school-board-meeting

5. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.