ISSUE PRESENTED
Does the California Constitution afford California public school students a right to an opportunity to acquire basic literacy skills?
Alternatively: Does the California Constitution guarantee the right of every student in California’s public school system an opportunity to not remain illiterate?
SHORT ANSWER
Yes. Although the California Constitution does not mention any specific qualitative or substantive standards for education, an appreciable body of historical and legal sources reflects the State’s assumed constitutional obligation to provide its citizens with a public education that includes, at minimum, the opportunity for students to achieve literacy in the English language.
ANALYSIS
The meaning of the word “education” is the core issue in establishing the constitutional right to an opportunity to attain literacy. The following discussion demonstrates that historical accounts pertaining to the drafting of the California Constitution, as well as current statutory language and jurisprudence, support the notion that literacy is, and always has been, presumed to be included in the definition of “education.” The California courts, Legislature, and the State’s constitutional framers, have all appreciated that no citizen can possibly have an education—let alone a basic, rudimentary, adequate, or quality education—if he or she is illiterate. Were the opportunity to become literate not inherent in the fundamental right to an education, the right to an education would be rendered meaningless. The opportunity to become literate is the foundation upon which the right to education is premised.
A. California Constitution & Judicial Interpretation
The fundamental right to an education as interpreted by the California courts is found primarily in article IX of the California Constitution. Courts have recognized education as a constitutionally protected right because of its universal relevance in society, its importance in preserving democracy, and its significance in shaping the culture. Literacy, as a foundational element of education, must be constitutionally protected for precisely the same reasons. Being literate is indispensable to one’s capacity to fully participate in society, and to exercise other constitutionally protected rights. An illiterate person, for example, cannot exercise his right to contract (CAL. CONST. art. I, § 9), or his right to petition the government for redress of grievances and to access information concerning the conduct of the people’s business (CAL. CONST. art. I, § 3).
Given the section’s title and what the language of the section commands the Legislature to encourage, it seems that education is a necessary precursor to intellectual, scientific, moral, and agricultural improvement. In Section E of this memorandum, I discuss the utility of interpreting the language of section 1 in precisely this manner, as I believe it bolsters the section’s capacity to support additional rights, like the right to literacy.
The right to education is also enshrined in article IX, section 5, which directs the legislature to “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 . . . .” Whereas section 1 explains why education is imperative, this mandate provides clear direction for how the State ought to encourage education.
Article IX, section 7.5 (titled “Textbooks”) can potentially be read to directly provide a right to literacy. This section instructs the State Board of Education to “adopt textbooks for use in grades one through eight throughout the State, to be furnished without cost as provided by statute.” It could be argued that the Constitution would not mandate textbooks if it were constitutionally permissible for students in the public school system to remain illiterate. Additionally, and as I discuss in Section B of this memorandum, section 7.5 may be particularly germane to a right to literacy claim in light of one particular case that discusses section 7.5, in which the court provided some insight as to how the Legislature may and may not interpret the requirements of article IX.
Finally, article XVI of the California Constitution (titled, “Public Finance”), section 8 (“Funding School Priority”) states, “From all state revenues there shall first be set apart the moneys to be applied by the state for support of the public school system and public institutions of higher education.” This section indicates that support for education is first in line for state revenues; such a preeminent status would be squandered if the revenues were not used to ensure the basic foundation for education: literacy.
a. MacMillan Co. v. Clarke
In MacMillan Co. v. Clarke, 184 Cal. 491 (1920), the California Supreme Court considered whether the Free Text-Book Act of 1917, which provided free textbooks to high school students, was constitutional. The petitioner in MacMillan asserted that the Act was unconstitutional because there was no express authority under the California Constitution permitting such an allocation of resources. The court found that the Act did not violate the Constitution. Before making its decision, however, the court raised an argument on behalf of the petitioner asserting that a section of the Constitution prohibiting the Legislature from giving gifts to individuals (a section now codified at article XVI, section 6) could potentially be read as prohibiting the giving of books to high school students. The court rejected this argument partly by reasoning that “the free school system with all its equipment [i.e., the free books] is not primarily a service to the individual pupils, but to the community, just as fire and police protection, public libraries, hospitals, playgrounds, and the numerous other public service utilities . . . .” MacMillan, 184 Cal. at 500. This reasoning illustrates the oft forgotten fundamental truth that the denial of any individual’s right to education (or, more fundamentally, the denial of an individual’s opportunity not to remain illiterate) is obnoxious, not only to the uneducated or illiterate individual himself, but also to the general welfare.
While the above language and sentiment is certainly noteworthy for the purposes of establishing a right to literacy, perhaps the most salient portion of Macmillan is the court’s description of what a “rudimentary education” in 1879 included:
To argue that . . . the scope of school service is limited to rudimentary education in the ‘three R's' and such equipment as was deemed sufficient when our Constitution was adopted, is to place our public schools under the blight of the ‘dead hand,’ with no chance for expansion and development in line with our growing culture and civilization.
MacMillan, 184 Cal. at 499 (emphasis added). This is likely the clearest and most affirmative statement by any California court to this day regarding what an education includes. It reiterates that the opportunity for students to learn to read and write is fundamental to California conception of education.
b. Veteran’s Welfare Board v. Riley
Veterans' Welfare Bd. v. Riley, 189 Cal. 159 (1922) is a pertinent for a fairly narrow observation made by the California high court. Briefly, some background on the case: Veterans’ Welfare Bd. involved a petition for a writ of mandamus regarding the validity of the Veterans’ Educational Act of 1921. The particularities of the case are not especially relevant, except to note that one of the questions the court addressed was whether the Legislature can designate veterans as a special class (and thereby provide them with a special education) when the sole basis for doing so was gratitude or moral obligation. The court answered that question in the affirmative. Veterans’ Welfare Bd., 189 Cal. at 208. In coming to its conclusion, the court offered language that is useful for asserting a constitutional right to literacy. First, the court observed that, “the function of education is to fit the scholar for the problem [sic] of every-day life and these problems are increasing.” Id. at 166. The court then stated that by making education compulsory, that State has “not only assumed the function of giving an education to the children, but has also insisted upon the surrender by the child and by its parents of the time necessary for that education.” Id. During the time in which a student is in school, “[t]he young man or woman . . . has been a financial burden instead of an asset to [his or her] parents.” Id.
These observations by the court are powerful because they articulate the State’s duty to the vast number of children—and their parents—who do not have a choice in their educators. Literacy is, and long has been, imperative to handling the problems of everyday life. When the State fails in its duty to provide its captive students with the opportunity to become literate, it does not only leave students ill-prepared to handle the milieu of problems they will experience after they graduate, it also imposes an immediate burden on society by restraining the students from benefitting from other activities or experiences. Whether or not students would engage in opportunities that allow them to become literate without State-provided compulsory education is irrelevant—the State has taken that opportunity away. Thus, if the State holds students in classrooms without helping them become literate, the State creates both immediate and future harm.
c. Serrano I & II
The seminal cases of Serrano v. Priest, 5 Cal. 3d 584 (1971) (“Serrano I”) and Serrano v. Priest, 18 Cal. 3d 728 (1976) (“Serrano II”) (collectively, “the Serrano cases”) resulted in the California Supreme Court striking down the State’s previous public school financing system, which had caused the amount of basic revenues per pupil to vary substantially among districts thereby depriving some students of an adequate education. In both cases, after affirming education as a constitutional right that is subject to a strict scrutiny analysis, the court ruled that the unequal financing schemes involved in the Serrano cases hampered some students’ fundamental right to an education. The cases are relevant for establishing a constitutional right to access to literacy because, in each case, the court reflected upon the importance and quality of a State-provided education.
In Serrano I, the court declared that the fundamental right to education in California “[s]urely . . . means more than access to a classroom.” Serrano I, 5 Cal. 3d at 617. This language is significant because it implies that there is a constitutional baseline standard of education; the fundamental right to an education is offended if students do not have access to a classroom. By commenting on the quality of education, the court established precedent for future courts to say when the State has failed to meet its educational obligations. Serrano I, however, is also significant for another reason: the court explained why education is a fundamental interest. The explanation by the court in Serrano I can be used to explain why literacy is also a fundamental interest. The Serrano I court said that education is a fundamental interest for two reasons: “first, education is a major determinant of an individual's chances for economic and social success in our competitive society; second, education is a unique influence on a child's development as a citizen and his participation in political and community life.” Id. at 605. Because literacy is an essential component of education, this argument is directly applicable in the context of the right to literacy as well. Literacy, like education is a fundamental right because “it is ‘preservative of other basic civil and political rights.’” Id. at 608 (quoting Reynolds v. Sims, 377 U.S. 533, 562).
In Serrano II, the court offered insight as to what a “quality education” encompasses (in addition to access to a classroom). Without commenting on whether a “quality education” (as opposed to simply “an education”) is a fundamental interest, the court listed some of the hallmarks of a quality education: “higher quality staff, program expansion and variety, beneficial teacher to pupil ratios and class sizes, modern equipment and materials, and high-quality buildings.” Serrano II, 18 Cal.3d at 748. While this list of what comprises a “quality education” suggests that it is something to aspire toward, the adjectival modifiers in the list confirm the California judiciary’s presumption that there are indeed basic standards for an education (even though the court did not list them). The articulation of “quality education” standards, furthermore, affirms that the court may comment on constitutional educational standards.
d. Hartzell v. Connell
In 1984, Hartzell v. Connell, 35 Cal. 3d 899 (1984) greatly expanded the definition of education under the California Constitution. In Hartzell, a taxpayer with two children in the Santa Barbara High School District challenged the district’s plan to charge students a fee to participate in certain extracurricular activities offered by its schools. Sitting en banc, California Supreme Court held that the “the imposition of fees as a precondition for participation in educational programs offered by public high schools on a noncredit basis violates the free school guarantee of the California Constitution . . . .” Hartzell, 35 Cal. 3d at 917. In so ruling, the court explained that extracurricular activities “encourage active participation in community affairs, promote the development of leadership qualities, and instill a spirit of collective endeavor.” These results, the court found, are “directly linked to the constitutional role of education in preserving democracy, as set forth in article IX, section 1, and elaborated in Serrano I . . . .” Hartzell, 35 Cal. 3d at 911.
Hartzell may therefore be used to suggest the existence of a constitutional right to literacy, even though literacy is nowhere mentioned in Constitution, because Hartzell found extracurricular activities are part of an “education,” despite there being no mention of extracurricular activities in the Constitution. If extracurricular activities—which are, by definition, not part of the standard educational curriculum—are integral to the constitutional right to education, then surely literacy is integral to that right as well. Literacy is unquestionably more imperative to civic and political participation than are extracurricular activities. Yet, the California Supreme Court has found that the limit of constitutional protection goes beyond the curricular. As the court observed,
Without high quality education, the populace will lack the knowledge, self-confidence, and critical skills to evaluate independently the pronouncements of pundits and political leaders. Moreover, education provides more than intellectual skills; it also supplies the practical training and experience—from communicative skills to experience in group activities—necessary for full participation in the “uninhibited, robust, and wide-open” debate that is central to our democracy
Hartzell, 35 Cal. 3d at 908 (1984) (internal citations omitted). Perhaps at no time in recent history has that statement been more salient than today. And for that reason, establishing the right to literacy may be more important than ever.
e. Butt v. California
Almost two decades after the Serrano cases, the California Supreme Court continued the trend of commenting on educational equality in Butt v. California, 4 Cal. 4th 668 (1992). Butt involved a scenario in which some public schools proposed to close their doors six weeks before the end of the school year due to budget constraints. Among other impacts that the school closures would have had, one pertinent consequence would have been the curtailing of a first grade teacher’s classroom instruction in “phonics, reading comprehension, creative writing, and handwriting skills.” Butt, 4 Cal. 4th at 688 n.16. The trial court concluded that these kinds of consequences stemming from the school closure would have “a real and appreciable impact on the affected students' fundamental California right to basic educational equality” Butt, 4 Cal. 4th at 688. Consequently, the trial court issued an injunction preventing the closures. Affirming the trial court’s decision (at least on this issue), the California Supreme Court found that “[i]n extreme circumstances at least, the State ‘has a duty to intervene to prevent unconstitutional discrimination’ at the local level. [citation].” Id. That duty, the court said, is derived not only from the Constitution, but also from “the pervasive role the State itself has chosen to assume in order to ensure a fair, high quality public education for all California students.” Id. at 689.
While the Butt case centered on the equality of the amount of time spent in the classroom, it is obvious that the amount of time was significant only because of the educational instruction intended to occupy the time. The time itself would be of no concern to the State if the time would be spent idly; but as the court observed, the amount of time in question (six weeks) was necessary to enable teachers to fulfill the State’s constitutional obligation to provide a basic level of education. In footnote 16 of the opinion, the court listed the various harms that would have transpired had the schools been permitted to close early, including (as mentioned above) the restriction of a first grade teacher’s literacy instruction. Thus, in holding that all students are constitutionally entitled to an equal, baseline ¬amount of education, the court also held that students are entitled to a baseline quality of education. Were it not the court’s understanding that a basic level of educational quality is required for “educational equality,” then the six weeks that the students would have missed would not have mattered. The time missed was only relevant because it meant that the students would miss out on necessary educational instruction—to wit, in part, instruction aimed at helping students become literate.
Unfortunately, nowhere in the Butt opinion did the court provide an explicit definition of “basic” or “basic educational equality.” Neither did it clarify whether the word “basic,” as used in that phrase, is meant to modify “educational” or “equality.” Nevertheless, the court did offer somewhat of a benchmark from which to identify constitutional violations in the context of education. It said, “Unless the actual quality of the [school] district's program, viewed as a whole, falls fundamentally below prevailing statewide standards, no constitutional violation occurs.” Id. at 686–87 (emphasis added). In offering that benchmark, it is significant that the court used the term quality because it affirms the notion that schools may be considered constitutionally equal if they meet a basic level of quality. It confirms that this case was not merely about the time students spent at school, but rather about the instruction that the students would have been denied had their schools closed early.
Taken as a whole, Butt is the first apparent demonstration of the judiciary’s capacity to hold the Legislature directly accountable for a school district’s failure to ensure basic constitutional standards of educational quality. Accordingly, the case may be read to stand for the proposition that “basic educational equality” cannot exist where some schools deny students the necessary instruction to develop (among other basic educational skills) the skills necessary to become literate. The case also reveals that, in instances where schools have failed to meet their constitutional duty to provide an opportunity for students to achieve basic skills, the State is obligated by the California Constitution to intervene.
f. Williams v. California
A settlement reached in Williams v. California in 2005 offers some concrete standards to help define Butt’s notion of “basic educational equality.” Williams, like Butt, also concerned the lack of equal opportunities for some students to obtain a basic education. The plaintiffs in Williams alleged causes of action (including violations of article IX, sections 1 and 5) against the State of California, the California Board of Education, the California Department of Education, and the California Superintendent of Schools (collectively “defendants”). Plaintiffs alleged that the defendants deprived them of equal access to the basic educational tools (e.g., textbooks, seats in classrooms, adequate facilities, and trained teachers) they needed to learn. These deprivations, the plaintiffs contended, were extreme departures from accepted educational standards and thus constituted both statutory and constitutional violations.
The terms of the Williams settlement included a package of legislative proposals relating to the State’s assurance of proper educational materials, qualified teachers, clean and safe schools, adequate school funding, and—perhaps most importantly—the creation of verification methods to ensure compliance with the settlement agreement. Given the claims alleged, the terms of the settlement alone reflect the State’s understanding that it has a constitutional duty to provide its public school students with an education of basic quality, which inherently includes providing them with certain basic educational necessities—necessities that, like the amount of instructional time at issue in Butt, would obviously be useless if they were not employed to develop students’ basic educational skills. After all, the utility of the requisite educational tools is in their capacity to be used to provide students with a basic education. If the State is not ensuring that the educational tools it has provided through the Williams settlement are being used to provide students with realistic opportunities achieve literacy, then the tools are useless—it is as if the tools were not provided at all.
It should be emphasized that, although the Williams settlement resulted in the creation of new educational standards, the settlement should not be seen as rebellious to the notion that the Legislature ultimately remains responsible for setting educational standards. Rather, the settlement merely confirms the actuality (hinted at in the line of cases beginning with MacMillan) that the constitutional right to an education is not hollow, and failures by the Legislature to safeguard that right can be rectified by the courts. The settlement shows that the word “education,” as it is used in article IX, includes inherent assumptions about educational quality (like the right to literacy), such that the Legislature cannot, through action or inaction, permit the ignorance of basic educational necessities.
g. Campaign for Quality Educ. v. California
Though it is a significant for a multitude of reasons relating to educational law, Campaign for Quality Educ. v. California, 209 Cal. Rptr. 3d 888 (Ct. App. 2016), review denied (Aug. 22, 2016) (“Campaign”) is most relevant here because it indirectly calls into question the impact of the Butt case and the Williams settlement. In Campaign, plaintiffs alleged that the State violated certain school children's constitutional right to an education of “some quality.” Plaintiffs also argued, in the alternative, that the Legislature failed to meet its constitutional duty by employing an irrational educational funding scheme. In a 2-1 decision upholding the district court’s dismissal of the plaintiffs’ claims, the court found that “sections 1 and 5 of article IX do not provide for a education of ‘some quality’ that may be judicially enforced by appellants.” Campaign, 209 Cal. Rptr. 3d 888, 888. Although this holding seemingly implies that a publicly-provided education may be of “no quality,” the court attempted to explain “that [its] interpretation of sections 1 and 5 of article IX flows not only from the language of article IX itself, but from a consideration of its purpose.” Id. at 898. The purpose, the court found, was to declare “great principles and fundamental truths,” not to “mandate the Legislature to act in a particular manner regarding what precise laws shall be made to implement these principles and truths.” Id.
Even in light of the court’s explanation, it still strains the imagination to a consider a mandate requiring an education to be of “some quality” as a precise law, rather than a principle or fundamental truth. The dissenting judge in the case acknowledged this. Nevertheless, the holding in Campaign (perhaps intentionally) left open the possibility for courts to interpret the word “education,” since the right to an education is one of the “great principles and fundamental truths” bestowed by the state charter. Campaign, thus, does not preclude a claim that seeks to ground the right to literacy in the right to education.
The court’s decision in Campaign is most likely indicative of the court’s reluctance to interpret the term “some quality.” Were the court to have agreed that the Constitution requires an education of “some quality,” it would have inevitably opened the door to a wave of constitutionally based challenges to legislative actions aimed at achieving “some quality.” However, with respect to a claim asserting a right to literacy, the court should have fewer reservations (if any at all) because the definition of “literacy” is far less evasive than the definition of “some quality.” As opposed to an opaque standard, literacy is a specific ability that can be conceptualized by an objective measure.
In a concurring opinion written by Judge Siggins in the Campaign case, Judge Siggins argued that “the academic standards articulated in our Education Code” essentially define “the constitutional right to a quality education” and that any claims of systemic inadequacy “should arise under the statutes . . . without resort to the general language of article IX.” Id. at 918 (conc. opn. of Siggins, J.). An argument that asks the court to hold that literacy is a necessary component of an education under the Constitution is consistent with Justice Siggins’ concurrence. As explained more thoroughly in Section C, the Education Code states quite explicitly that all students have a constitutional right to literacy in the English language. In fact, the Education Code declares the right to literacy “among the most important.” Cal. Educ. Code § 300 (West). A right to literacy claim can therefore arise under both the statues and article IX.
Following the court’s ruling in Campaign, the appellants petitioned the California Supreme Court for review, but the state high court declined to hear the matter. Upon that rejection, both Justice Liu and Justice Cuellar filed dissenting statement. Justices Liu, who has a notable affinity for this issue (see infra Section F), saw the case different from the majority of the appellate court, and agreed with Judge Pollack, who wrote the dissenting opinion in Campaign. As opposed to a question of constitutional interpretation that might intrude on the Legislature’s province, Justice Liu framed “[t]he question at the heart of this case,” as one that asked “whether California's K–12 education system has fallen below a minimum level of quality guaranteed by our state Constitution.” Campaign, 209 Cal.Rptr.3d at 919 (diss. statement of Liu, J.). Without commenting on whether the plaintiffs might have actually established a constitutional violation, Justice Liu said that the question in Campaign was, nonetheless, one that “only this court can definitively resolve.” Id.
B. Engelman’s Interpretation of Article IX, Section 7.5
Article IX, section 7.5 reads, “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.”
In 1991, Engelmann v. State Bd. of Educ., 2 Cal. App. 4th 47 (1991) addressed the meaning of article IX, section 7.5. The case involved a developer of textbooks (specifically for reading courses, interestingly enough) for elementary school students who challenged the procedures and criteria under which textbooks were evaluated and rejected by the State Board of Education. The challenged procedures were not in accordance with provisions of the Administrative Procedures Act (“APA”). The central question in Engelmann was whether the delegation of constitutional authority to the Board to select textbooks rendered all of its rules and procedures for adopting textbooks beyond the reach of the APA. The trial court ruled that the rules and procedures were not beyond the reach of the APA, but that the Legislature still could not intrude on the Board’s authority to select books. The appellate court affirmed, stating, “short of its power to make the ultimate selection among textbooks, the Board is no different than any other executive agency, and thus the governing procedures and criteria it develops for the purpose of selecting textbooks must comply with the APA.” Engelmann v. State Bd. of Educ., 2 Cal. App. 4th 47, 49 (1991).
Engelmann may be useful in establishing a right to literacy because it draws a fairly clear line between judicial and legislative authority in the context of article IX. The case suggests that, although the Legislature is responsible for explaining how a right is to be secured, the judiciary may not permit the Legislature to inhibit that right. In the court’s words: “It is well established [that] the Legislature may define, limit, or condition a constitutional power or right so long as it does not unduly burden the exercise of that power or right.” Id. at 54. As applied to a right to literacy claim, this principle would offer our court a basis for reconciling the Campaign decision with the notion that education includes, among other things, literacy. The court in Engelmann explained that “[p]resumably the Legislature could not hamstring the Board [of Education] by mandating procedures or criteria which would effectively eliminate any discretion on the Board's part to choose among texts.” Id. at 63, n.18. In our case, this would mean that the Legislature has the power to “define” education, so long as it does not define it in a way that permits students to remain without access to literacy. In other words, the Legislature may not “hamstring” its public school students by implementing policies that “effectively eliminate” the students’ rights to education. Permitting a public school system that denies students an opportunity to become literate would certainly eliminate the students’ rights to education.
C. Statutory Language Evidencing a Constitutional Right to Literacy
Numerous sections of the California’s Education Code explicitly mention the State’s duty to ensure that all students in its public school system have the opportunity to become literate. These statutes establish a right to literacy independent of, but in addition to, the Constitutional right. In any case, though, the statutory basis for the right is ultimately grounded in the Constitution—the statutes simply make the existence of this fundamental right undeniable.
Before discussing the Education Code’s affirmation of the right to literacy, it is first worth recalling some important, previously discussed language from the California courts. In Butt, the California Supreme Court indicated that the government’s duty to safeguard basic educational equality is derived, in part, from “the pervasive role the State itself has chosen to assume.” Butt, 4 Cal. 4th at 689. That the Legislature has acted in a particular manner to fulfill its constitutional duties does not, however, mean that the statutory iteration of a right is not rooted in a constitutional mandate. As the appellate court in Campaign observed, “‘all intendments [of the California Constitution] favor the exercise of the Legislature's plenary authority.’” Campaign, 209 Cal. Rptr. 3d at 894 (quoting Methodist Hosp. of Sacramento v. Saylor, 5 Cal.3d 685, 691 (1971)). These quotes are helpful to recall because they demonstrate that, while the courts must allow the Legislature to give effect to the Constitution, the courts may hold the Legislature accountable for the effects to the Constitution that the Legislature has already provided.
Whereas, The government and the public schools of California have a moral obligation and a constitutional duty to provide all of California's children, regardless of their ethnicity or national origin, with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important.
Cal. Educ. Code § 300 (West) (emphasis added). Here, without reservation, the California Legislature—with direct approval from the citizenry on two separate occasions (1998 and 2016)—articulated that all of California’s children have a constitutional right to “literacy in the English language.”
Moreover, while section 300 refers to “skills” in the plural, only one skill—literacy—is specifically referenced in the statute. That skill is noted as being “among the most important.” If any court were to ignore this unequivocal recitation of the State’s constitutional duty to provide “all of California’s children” with access to literacy, then the judiciary’s impunity in this area of law would presumably be boundless.
Cal. Educ. Code § 435 (West) (emphasis added). The operative word in the above passage is the conjunction, “and.” Under California law, an “English learner” must either be an immigrant, or communicate primarily in a language other than English. Students who, through no fault of their own, are left by the public schools system unable to communicate proficiently in any language, and therefore do not have the “opportunity to participate fully in society,” are not mentioned.
Presumably, the inattention to this increasingly large segment of the K-12 population is a result of the Legislature’s assumption that, given the State’s dedication to education, there should not be any native English-speakers who are illiterate upon graduation. Unfortunately, this is not the case. Still, in spite of the irony (or perhaps fueled by it), section 30 bares the State’s recognition that every student’s mastery of the English language is fundamental and cannot be compromised.
The Legislature hereby recognizes that it is the policy of the people of the State of California to provide an educational opportunity to the end that every pupil leaving school shall have the opportunity to be prepared to enter the world of work; that every pupil who graduates from any state-supported educational institution should have sufficient marketable skills for legitimate remunerative employment; that every qualified and eligible adult citizen shall be afforded an educational opportunity to become suitably employed in some remunerative field of employment; and that these opportunities are a right to be enjoyed without regard to economic status or the characteristics listed in Section 220.
Cal. Educ. Code § 51004 (West) (emphasis added). An educational opportunity that prepares students to enter the world of work is not one that permits illiteracy. Furthermore, and undoubtedly, the most “marketable” skill—and the most necessary skill—for remunerative employment is literacy. In fact, the Legislature states this much in the “California Reading and Literacy Improvement and Public Library Construction and Renovation Bond Act of 2000,” codified at section 19985, et seq. It there reads: “The Legislature finds and declares the following: Reading and literacy skills are fundamental to success in our economy and our society.” Cal. Educ. Code § 19985.5 (West).
Section 51210, titled “Course of Study, Grades 1 to 6,” and Section 51220, titled “Course of Study, Grades 7 to 12” also address the role the State has in cultivating literacy. Section 51210 lists among the courses of study in grades 1-6, “English, including knowledge of, and appreciation for literature and the language, as well as the skills of speaking, reading, listening, spelling, handwriting, and composition.” Cal. Educ. Code § 51210 (West). Section 51220 lists among its courses, “English, including knowledge of and appreciation for literature, language, and composition, and the skills of reading, listening, and speaking.” Cal. Educ. Code § 51220 (West). That spelling and handwriting are not mentioned in the latter section suggests that, by Grade 6, students should have mastered these skills. Indeed, other, more advanced areas of study are the focus of the latter section—areas that build upon the skills that have (or should have) been acquired in Grades 1-6.
D. Constitutional History
Official historical accounts unequivocally support the claim that the constitutional right to education is one that assumes a right to an opportunity to not remain illiterate. This sentiment was widely expressed during the California Constitutional Convention of 1879 (the “Convention”), where a host of delegates voiced their understanding that the right to education obviated a right to literacy in the English language.
The delegates present at the Convention believed that the right to the opportunity to become literate was inherently secured by their adoption of article IX, and specifically their adoption of article IX, section 1. This was apparent during their discussion of article IX at the Convention on January 20, 1879. On that date, after the presiding Secretary of the Convention read aloud article IX, as proposed by the Committee on Education, Delegate Samuel A. Holmes of Fresno proposed an amendment to section 1 of that article (which read then as it reads today). Delegate Holmes’ amendment suggested that all of section 1 be stricken in favor of the following language: “The Legislature shall provide a thorough and efficient system of free schools, whereby all the children of this State may receive a good common school education.” 2 DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA 1087 (1881) (hereinafter, the “DEBATES”). Deliberation ensued among the delegates over whether the existing language was sufficiently specific, or whether it was a “glimmering generality.” Id. 1087-89. Delegate Charles W. Cross of San Bernardino acknowledged that the debate over whether to accept Holmes’ amendment involved two factions: one faction held that the State ought only to provide an education in the “common English branches”; the other faction believed that it was beneficial for the State to assume the role of educating its citizens beyond the common schools (e.g., by providing free university education). Id. at 1087. Delegate Cross then explained,
The section as here proposed by the committee certainly does involve the expenditure of public funds for encouraging education not limited to reading, writing, spelling, arithmetic, grammar, and geography, but this to encouraging the promotion of intellectual, scientific, moral, and agricultural improvement. The section as presented by the committee takes the position of the latter class, while the amendment represents the sentiment that the education at public expense should be limited to the common English branches.
Id. (emphasis added). The contention among the delegates was, therefore, whether the State should provide a right to education that either went beyond ensuring access to literacy, or far beyond it. The amendment was, obviously, vetoed. But none of the delegates on either side of the debate contended that the right to education did not include the right to an opportunity to become literate. As Delegate Cross’s statement reveals that the section, as it currently reads, intends literacy (that is, proficiency in reading, writing, spelling, and grammar) to be used for the further purpose of promoting intellectual, scientific, moral, and agricultural improvement.
The entire discussion among the delegates over article IX (which is now reflected in pages 1087 through 1113 of the DEBATES) offers a plethora of historical basis for the constitutional right to literacy. And, today, in light of the current status of California’s education system, some of the delegates’ comments are simply uncanny. For instance, in discussing a bill proposed at the 1872 Convention that was substantially similar to article IX, section 1, Delegate Henry Larkin of El Dorado stated that the idea of the 1872 bill “was to give each child of the State an equal opportunity of learning the common branches of education; that there should be equality from one end of the State to the other in the facilities to acquire education.” 2 DEBATES, at 1088. At another point during the Convention, in the context of a debate over whether a provision requiring the teaching of only English in primary and grammar schools should be eliminated from the Constitution, Delegate Alphonse Vacquerel of San Francisco stated,
If nobody teaches a child to read or write will he know it by instinct? I say no; therefore the necessity of education; and the more education man receives, the more learning he possess, and the more superiority he has over those more ignorant.
3 DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA 1397 (1881).
The notion that becoming literate, and having an education, was a fundamental aspect of California citizenship was one of the themes of the Convention. In fact, lamentably, the persistent importance of literacy to many of delegates was indicative of the sort of nativism that was prevalent throughout California politics during that time period. The ability to read and write in English, and to continue to build upon one’s education after graduation from common school was seen as a way to protect Californian and American culture (the Anglo-Saxon notion of it, that is). Still, literacy was, by the same token, also viewed as the most potent method of growing the young California economy (hence the inclusion of “agricultural improvement”) and maintaining a productive society; it was seen as necessary to keep citizens out of the already overcrowded jails and in the labor force.
E. Novel Argument: Meaning of Article IX, Section 1
It is important to note that article IX, section 1 does not command the Legislature to engage in the promotion of improvement. If that were the intended meaning of this section, the Constitution would read simply, “the Legislature shall by all suitable means promote . . . improvement.” The right to education in California, thus, does not stem from the State’s duty to promote improvement, but rather from the State’s duty to encourage the promotion of improvement. The act of encouraging the promotion of improvement is the act of maintaining an education system. The act of promoting improvement is the acting of educating. Therefore, by becoming educated, one has the capacity to improve.
To be more specific, the right to an education under the California Constitution provides every citizen with the right to an opportunity to improve himself and society, if he so desires. One who has realized his right to education is, by definition, able to improve himself and society through intellectual, scientific, moral, and agricultural means. This does not mean that every citizen has the right to learn how to promote these kinds of improvements; it only means that the State must maintain a system of education that provides citizens an opportunity to become competent enough to make these improvements individually. Of course, the State may find it suitable to make these kinds of improvements on its own, but article IX, section 1 sets forth the broad mandate that the State educate citizens who are able to make these improvements on its behalf.
This reading finds support in history. During the Constitutional Convention of 1879, Delegate Herrington of Santa Clara questioned the meaning of the “encouragement of promotion” language in this section 1. He suggested that the language was superfluous because the Legislature would already be “doing the thing directly” by maintaining a system of common schools. DEBATES, at 1090. Delegate Eli T. Blackmer responded that, consistent with the California militia’s notion of “promotion,” encouraging the promotion of a thing means that “[i]t might encourage his promotion to some higher position.” Id. at 1091. This exchange between Delegates Herrington and Blackmer indicates that the obligation for the State to “encourage the promotion” of improvement is a charge on the State to create a system of schools whereby the schools furnish students with the necessary skills to advance themselves, and thereby society, “to some higher position.” The State is obligated to encourage the advancement of improvement, not to autocratically attempt to advance improvement through State agents. The demand in article IX, section 1 is as much about preserving democracy as it is about propagating a productive citizenry.
Education, therefore, need not be an evasive term because article IX, section 1 offers a guiding definition. However, in order to accept that definition, education cannot be conceptualized as a possession, devoid of intrinsic meaning. Education must be recognized as an ability that is comprised of skills—skills that enable one to continue improving long after the State’s instructional intervention is complete. One of the skills necessary for continuous improvement is, of course, literacy. Just as we must learn to write words before we can write sentences, we must become literate before we can become educated. And just as we must learn to write sentences before we can write a story, we must become educated before we can make intellectual, scientific, moral, and agricultural improvements.
F. Justice Liu: Education, Equality, and National Citizenship
Justice Goodwin Liu of the California Supreme Court has strongly expressed his belief that citizenship and civic duties are dependent upon education. Long before writing his Dissenting Statement in Campaign, Justice Liu (then Professor Liu) wrote an article titled Education, Equality, and National Citizenship that was published in the Yale Law Journal in 2006. In that article, he observed that, despite successful educational adequacy litigation taking place at the state level, “the most significant component of educational inequality across the nation is not inequality within states but inequality between states.” Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330, 330. The thesis of his article was, accordingly, that the Citizenship Clause of the Fourteenth Amendment ought to be understood as “encompass[ing] a legislative duty to ensure that all children have adequate educational opportunity for equal citizenship.” Id. at 335.
Justice Liu supported his thesis by presenting a “historical account of proposals for federal education aid between 1870 and 1890, [showing] that constitutional interpreters outside of the courts understood the Citizenship Clause to be a font of substantive guarantees that Congress has the power and duty to enforce.” Id. His strategy—to examine legislative action during a time where the founders’ intent was easier to recall—is an applicable strategy in arguing for a right to literacy. Moreover, Justice Liu’s assertion that national citizenship includes a right to an adequate education is hardly different from the assertion that California citizenship includes that right as well. The foundation of both claims is that education is necessary to exercise the duties that society expects its citizens to undertake. Therefore, should the right to literacy case ever reach the state high court, Justice Liu would undoubtedly be receptive to an argument in his own style.
CONCLUSION
The California Constitution imbues its citizens with a right to education that includes the right to the opportunity to become literate. Any contrary reading of the Constitution is nonsensical and disrespectful to each and every Californian. By maintaining an education system that fails to appreciate the essentiality of literacy to education, the Legislature has not only violated its constitutional obligation, it has duped California taxpayers on their investment in education; it has condemned business owners to operate without skilled employees; it has left our local police forces scouring for qualified officers; and it has forsaken the State Board of Education to continually want for qualified teachers. Literacy is fundamental to education and necessary to a properly functioning society. Neither the State’s constitutional framers, nor the California Legislature, nor the California judiciary can rationally assert the contrary.