California Attorney General Opinion 23-902

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

ROB BONTA

Attorney General

_______________

:

OPINION :

: No. 23-902

of :

: April 25, 2024

ROB BONTA :

Attorney General :

:

KARIM J. KENTFIELD :

Deputy Attorney General :

The HONORABLE MARIE ALVARADO-GIL, MEMBER OF THE STATE

SENATE, has requested an opinion on a question relating to state education funding.

QUESTION PRESENTED AND CONCLUSION

Under California’s Local Control Funding Formula, or “LCFF,” established by the

Education Code, school districts and other local educational agencies receive

supplemental funding based on the number of students they serve who qualify as

“unduplicated pupils” under sections 42238.02 and 2574. May the Legislature expand

the statutory definition of “unduplicated pupil” to provide supplemental funding for all

members of the pupil subgroup that had the lowest performance on the most recently

available statewide assessment exams? The pupil subgroups that would be eligible for

this supplemental funding would be only those subgroups identified in Education Code

section 52052(a)(2) that do not already receive supplemental funding through the LCFF

or other state or federal resources.

No, the Legislature may not amend the LCFF statute in the specified manner. The

only pupil subgroups listed in section 52052(a)(2) that do not already receive

supplemental state or federal funding are what the statute calls the “ethnic subgroups”—

which consist of students identifying as Black or African American, American Indian or

Alaska Native, Asian, Filipino, Hispanic or Latino, Native Hawaiian or Pacific Islander,

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White, or two or more races. The purpose and effect of the legislative proposal is

therefore to identify the ethnic subgroup of students with the lowest average performance

on the most recent statewide exams, and then provide supplemental funding for all

students in that ethnic subgroup, including students with high individual test scores. By

conditioning state education funding on student ethnicity, regardless of individual

performance, the proposal would violate the federal Constitution.

BACKGROUND

In 2013, the Legislature “fundamentally changed how all local educational

agencies . . . in the state 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

Education Code sections 42238.02 and 2574 provide detailed rules for calculating

each agency’s funding target. We will describe the calculation for school districts, which

is representative of the calculation for all educational agencies. First, school districts

receive a “grade span adjusted base grant.” 4 The base grant is calculated as a fixed dollar

amount per student, adjusted for average daily attendance. 5

Districts then receive additional funding for students classified as “unduplicated

pupils,” which the 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

1

Cal. Dept. of Education, Local Control Funding Formula, LCFF Overview,

https://www.cde.ca.gov/fg/aa/lc/ (as of Apr. 22, 2024).

2

Sato v. Orange Cnty. Dep’t of Educ. (9th. Cir. 2017) 861 F.3d 923, 929.

3

See Cal. Dept. of Education, LCFF Frequently Asked Questions,

https://www.cde.ca.gov/FG/aa/lc/lcfffaq.asp (as of Apr. 22, 2024).

4

See Educ. Code, § 42238.02, subd. (d).

5

See Educ. Code, § 42238.02, subds. (d), (i).

6

Educ. Code, § 42238.02, subd. (b)(1); see id., § 2574, subd. (b)(2); see also id.,

§ 42238.01 (defining each category in more detail).

7

Educ. Code, § 42238.02, subd. (e); see id., § 2574, subd. (c)(2).

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pupil above that threshold. 8 School districts must spend supplemental and concentration

grants “to increase or improve services for unduplicated pupils as compared to the

services provided to all pupils.” 9 Although districts may spend the funds on district-wide

services, they must document how the funded “services are principally directed towards,

and are effective in, meeting the district’s goals for its unduplicated pupils.” 10

Under state law, student performance must be regularly assessed. Relevant here,

section 52052 requires school districts, charter schools, and county offices of education to

measure average student performance on standardized exams for the following “pupil

subgroups”: English learners, socioeconomically disadvantaged pupils, foster youth,

homeless youth, pupils with disabilities, and “ethnic subgroups.” 11 Under California

Department of Education guidelines, the ethnic subgroups consist of students identifying

as Black or African American, American Indian or Alaska Native, Asian, Filipino,

Hispanic or Latino, Native Hawaiian or Pacific Islander, White, or two or more races. 12

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 section 52052 pupil

subgroup that had the lowest performance on the most recent statewide assessment

exams. The proposal specifies that any section 52052 pupil subgroup that already

receives supplemental funding—through the LCFF or any other state or federal

resources—would be ineligible for the proposal’s additional funding. Because the five

non-ethnic subgroups enumerated in section 52052 all receive supplemental funding

under existing state or federal law, the only pupil subgroup that could be selected to

receive supplemental funding under this proposal would be one of the ethnic subgroups. 13

8

Educ. Code, § 42238.02, subd. (f); see id., § 2574, subd. (c)(3).

9

Cal. Code Regs., tit. 5, § 15496, subd. (a).

10

Cal. Code Regs., tit. 5, § 15496, subd. (b)(1)(B), (2)(B).

11

Educ. Code, § 52052, subd. (a)(1), (2)(A)-(F), capitalization omitted.

12

See Cal. Dept. of Education, FAQs—Race and Ethnicity Collection and Reporting,

https://www.cde.ca.gov/ds/sp/cl/refaq.asp (as of Apr. 22, 2024).

13

As noted, section 52052 enumerates five non-ethnic subgroups: English learners,

socioeconomically disadvantaged pupils, foster youth, homeless youth, and pupils with

disabilities. (See Educ. Code, § 52052, subd. (a)(2)(B)-(F).) The first three subgroups

are already defined as unduplicated pupils under the LCFF. (See id., § 42238.02,

subd. (b)(1).) Students experiencing homelessness also qualify as unduplicated pupils

because they are eligible for a free or reduced-price meal. (See Cal. Dept. of Education,

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The proposal can therefore be re-stated as follows: it would expand the definition

of “unduplicated pupil” to include all students in the ethnic subgroup that had the lowest

average performance on the most recent statewide assessment exams. 14 For example, in

the 2022-2023 academic year, the ethnic subgroup with the lowest average statewide test

scores was Black or African American students. 15 If the proposal had been in effect that

year, all Black students in the State would have been classified as unduplicated pupils,

regardless of whether an individual Black student’s test scores were low or high.

Students with low individual test scores from other ethnic subgroups would not qualify

on the basis of their ethnic subgroup affiliation (though they might still be counted as

unduplicated pupils under the existing definition for other reasons, i.e., as English

learners, students eligible for a free or reduced-price meal, or foster youth).

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—currently Black students—as

unduplicated pupils, thereby triggering additional funding. 18 The requestor reports that

LCFF Frequently Asked Questions, https://www.cde.ca.gov/FG/aa/lc/lcfffaq.asp (as of

Apr. 22, 2024); Educ. Code, § 42238.02, subd. (b)(1).) And students with disabilities

receive supplemental funding through other resources. (See Cal. Dept. of Education, VII.

Special Education Financing, https://www.cde.ca.gov/sp/se/sr/taskforce2015-

financing.asp (as of Apr. 22, 2024).)

14

See Educ. Code, § 52052, subd. (a)(2)(A).

15

For ease of reference, we will refer to this subgroup as Black students.

16

All testing statistics cited in this opinion were gathered from the California Department

of Education’s reporting tools. (See California Assessment of Student Performance and

Progress, Test Results for California’s Assessments, https://caaspp-

elpac.ets.org/caaspp/Default (as of Apr. 22, 2024); California School Dashboard,

https://www.caschooldashboard.org/reports/ca/2023 (as of Apr. 22, 2024).)

For example, among students who are not economically disadvantaged, 34% did not

17

meet English language standards, compared with 53% of Black students and 50% of

American Indian or Alaska Native students who are not economically disadvantaged.

18

Although the request letter focuses on the achievement gap for Black students, the

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75% of Black students currently qualify as unduplicated pupils under the existing

statutory definition, so the proposal would affect the remaining 25%. 19

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

lowest-performing ethnic subgroup could change in future years.

19

See Senator Marie Alvarado-Gil, letter to Senior Assistant Att’y Gen., Marc J. Nolan,

Sept. 18, 2023, at p. 2.

20

Cal Matters, Mind the achievement gap: California’s disparities in education,

explained, https://calmatters.org/explainers/achievement-gap-california-explainer-

schools-education-disparities-explained (as of Apr. 22, 2024); see also California Task

Force to Study and Develop Reparation Proposals for African Americans, Final Report,

at p. 267, https://oag.ca.gov/system/files/media/full-ca-reparations.pdf (as of Apr. 22,

2024) (Reparations Report) (describing the “harmful intergenerational effects” of racial

disparities in student opportunity and achievement).

21

Cal Matters, Mind the achievement gap: California’s disparities in education,

explained, supra. A recent state task force thoughtfully examined the role of the State

and the federal government in contributing to present-day educational inequality. (See

Reparations Report, supra, at pp. 240-281.) From the operation of expressly segregated

schools to the enactment of discriminatory residential settlement policies, the report

documents how governments at all levels contributed to enduring disparities in

educational outcomes.

22

See, e.g., Cal. Const., art. I, § 7, subd. (a) (“A person may not be . . . denied equal

protection of the laws”); id., art. I, § 31, subd. (a) (under Proposition 209, the “State shall

not . . . grant preferential treatment to . . . any individual or group on the basis of race . . .

[or] ethnicity . . . in the operation of . . . public education”).

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The Legislative Proposal Would Violate The Federal Equal Protection Clause.

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

basis 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

race 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

23

U.S. Const., 14th Amend., § 1.

24

Palmore v. Sidoti (1984) 466 U.S. 429, 432.

25

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (2023) 600

U.S. 181, 217.

26

Johnson v. California (2005) 543 U.S. 499, 505, italics, internal quotation marks, and

alterations omitted.

27

Miller v. Johnson (1995) 515 U.S. 900, 920.

28

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at pp. 206-207, internal quotation marks omitted.

29

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at p. 207, internal quotation marks omitted.

30

See, e.g., City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469; Parents Involved

in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (2007) 551 U.S. 701.

31

Compare Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,

supra, 600 U.S. at p. 230 (invalidating race-conscious admissions policy), with Fisher v.

Univ. of Texas at Austin (2016) 579 U.S. 365 (upholding similar policy), and Grutter v.

Bollinger (2003) 539 U.S. 306 (same).

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We recognize that dissenting justices have frequently criticized the Court’s

modern approach in this area. Justice Sotomayor, for example, argued that the Court’s

recent invalidation of a race-conscious university admissions plan “subverts the

constitutional guarantee of equal protection” by “cement[ing] a superficial rule of

colorblindness as a constitutional principle in an endemically segregated society where

race has always mattered and continues to matter.” 32 In light of our obligation to apply

governing precedent, however, our analysis must rely on the Court’s majority decisions.

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 ethnicity. 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,

32

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at p. 318 (dis. opn. of Sotomayor, J.); see also, e.g., Gratz v. Bollinger (2003) 539

U.S. 244, 304 (dis. opn. of Ginsburg, J.) (“The stain of generations of racial oppression is

still visible in our society, . . . and the determination to hasten its removal remains vital”);

City of Richmond v. J.A. Croson Co., supra, 488 U.S. at pp. 529-530 (dis. opn. of

Marshall, J.) (preventing “governmental entities . . . from acting to rectify the scourge of

past discrimination . . . is not the Constitution’s command”).

33

Johnson v. California, supra, 543 U.S. at p. 505.

34

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, supra, 551 U.S. at p. 720;

see also Johnson v. California, supra, 543 U.S. at p. 505 (“We have insisted on strict

scrutiny in every context, even for so-called ‘benign’ racial classifications, such as race-

conscious university admissions policies, [and] race-based preferences in government

contracts” citations omitted).

35

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at pp. 206-207, internal quotation marks omitted.

36

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at p. 207; see, e.g., Hernandez v. Bd. of Educ. (2004) 126 Cal.App.4th 1161 (school

district’s prior operation of racially segregated schools had justified race-conscious

remedial integration policies). The requestor has not identified past discrimination as a

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the Court has “held that ameliorating societal discrimination does not constitute a

compelling interest that justifies race-based state action.” 37

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 measure” 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.

justification for the legislative proposal here.

37

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at p. 226.

38

See ante, fns. 16-17.

39

Brown v. Bd. of Educ. (1954) 347 U.S. 483, 493.

40

Plyler v. Doe (1982) 457 U.S. 202, 221; see ibid. (emphasizing “the importance of

education in maintaining our basic institutions, and the lasting impact of its deprivation

on the life of the child”).

41

Brown v. Bd. of Educ., supra, 347 U.S. at p. 493.

42

See, e.g., U.S. Dep’t of the Treasury, Office of Economic Policy, Racial Differences in

Educational Experiences and Attainment (June 9, 2023),

https://home.treasury.gov/news/featured-stories/post-5-racial-differences-in-educational-

experiences-and-attainment (as of Apr. 22, 2024) (emphasizing the adverse life-long

consequences of “[r]acial differences in childhood educational experiences”); see also

ante, fns. 20-21; cf. Serrano v. Priest (1976) 18 Cal.3d 728, 765-766 (recognizing

education as a “fundamental interest” under state equal protection analysis).

43

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at p. 214; see id. at p. 215 (describing standards for courts to evaluate other state

interests recognized as “compelling”).

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Strict scrutiny also requires the State to show that its use of race is “narrowly

tailored,” that is, “necessary . . . to achieve” its compelling interest. 44 “Narrow tailoring

requires serious, good faith consideration of workable race-neutral alternatives.” 45 If

such an alternative “could promote the [State’s] interest about as well and at tolerable

administrative expense,” then the State generally “may not consider race.” 46 The

Supreme Court has emphasized, however, that narrow tailoring “does not require

exhaustion of every conceivable race-neutral alternative.” 47

We conclude 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. The 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 advancing 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

44

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., supra, 600

U.S. at p. 207, internal quotation marks omitted.

45

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, supra, 551 U.S. at p. 735,

internal quotation marks omitted.

46

Fisher v. Univ. of Texas at Austin (2013) 570 U.S. 297, 312, internal quotation marks

omitted.

47

Grutter v. Bollinger, supra, 539 U.S. at p. 339; cf. Williams-Yulee v. Fla. Bar (2015)

575 U.S. 433, 454 (to survive strict scrutiny in First Amendment challenge, state action

must “be narrowly tailored, not . . . perfectly tailored,” internal quotation marks omitted).

48

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, supra, 551 U.S. at p. 735.

49

See Educ. Code, § 41570; Cal. Dept. of Education, Low-Performing Students Block

Grant, https://www.cde.ca.gov/fg/aa/ca/lpsbg.asp (as of Apr. 22, 2024).

50

Although test scores are only one metric for evaluating student performance, the

proposal itself uses test scores to identify the highest-need students. We will therefore

use the same metric to compare the proposal to the race-neutral alternative.

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proposal would provide additional support for Black students, who make up

approximately 6% of the State’s low-performing student population. But it would

provide no further support for students with low scores in other ethnic subgroups, who

constitute about 94% of the low-performing students in the State. 51 In contrast, the race-

neutral alternative would increase funding for all low-performing students, regardless of

race or ethnicity. Further, although the identified state interest is to support low-

performing students, the proposal would provide supplemental funding for some students

who are already performing well: Black students with high individual test scores. In this

respect, the proposal again contrasts with the race-neutral alternative, which would

increase funding only for students with low individual test scores.

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.

51

See Connerly v. State Pers. Bd. (2001) 92 Cal.App.4th 16, 32 (“[P]ersons similarly

situated with respect to the legitimate purpose of the law [must] receive like treatment”).

52

See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, supra, 551 U.S. at

p. 735; Connerly v. State Pers. Bd., supra, 92 Cal.App.4th at p. 37 (strict scrutiny

requires “convincing evidence that race-based remedial action is necessary”).

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