A Poway High School faculty member hands a laptop to a student. School districts across the state have moved to online learning amid the coronavirus pandemic. / Photo by Adriana Heldiz

Six of California’s biggest school districts have made a very big threat to the governor: Give us more money, or we won’t physically reopen next school year.

Regardless of whether school districts are in the right to say opening without more money is unsafe and impossible, their threat raised a question. Can school districts just decide to stay closed?

The shortest answer is “no,” said John Affeldt, a lawyer specializing in education for Public Advocates, a nonprofit law firm.

(Warning: The realistic answer may also be “yes.” A third possibility is that patchy school district closures could lead to an explosive constitutional fight.)

“At a basic constitutional level, districts have to do what the state tells them to do,” said Affeldt. “They’re not isolated islands of local authority.”

The state Constitution actively charges state government with the duty to create an education system. “California has assumed specific responsibility for a statewide public education system open on equal terms to all,” the state Supreme Court has ruled.

Hold that thought on “equal.” We’ll come back to it.

On top of its constitutional authority, the state also has the power of the purse, said Affeldt. Nearly all of school districts’ money comes from the state. And the state can attach conditions to the money. As in, we won’t give you this money unless it is used for creating a physical space for students to learn.

But Affeldt doesn’t think the state is ready to make such a condition.

“The state’s not at the level of saying every district needs to open to every student, every day starting with the new school year, this fall. It hasn’t created that condition,” he said. “And I’m imagining as policy matter, the state will allow a lot of discretion.”

Richard Barrera, vice president of the San Diego Unified school board, agrees.

“The governor has shown he will pay attention to what local school districts are saying. I can’t see the governor coming and saying, ‘I’m gonna force you to reopen.’ That would run counter to everything he’s done in this crisis, so far.”

There is one final possibility, which I am tempted to call gripping, but my parent friends may have a different word for it.

Let’s say some school districts – like San Diego Unified – don’t physically open. Let’s say some other districts – like rural Julian Union in East County – do.

Suddenly, the equal education mandate in the Constitution becomes extremely relevant.

“That would be ripe for a lawsuit,” said Affeldt.

The problem would be the extreme unevenness in the type of education children are getting. Many leaders, Barrera included, have acknowledged that online learning is a poor substitute for in-person learning. So what happens if half of California’s 6.2 million learners are in online school, while the other half are at real school?

“If there is too wide a variation, such that quality suffers, then that is a constitutional problem,” said Affeldt.

Affeldt himself did not say he would definitely take up a lawsuit in case of wide-scale closures. But he did say he’d consider it.

What We’re Writing

Will Huntsberry is a senior investigative reporter at Voice of San Diego. He can be reached by email or phone at will@vosd.org or 619-693-6249.

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