Thursday, April 06, 2006

John Affeldt

I've been working on education law and policy since I started practicing law 15 years ago at Public Advocates fresh out of a federal clerkship. My entry into the field came by way of challenging the discriminatory use of tests in education, most notably the use of IQ tests to place African Americans in special education classes and the CBEST teacher test in California. As a result of a Public Advocates lawsuit and our continuing efforts to defend its injunction, California is the only state to prohibit the use of IQ tests to place African Americans in special education, the court having found such tests discriminatory and their scores to underestimate African American students intelligence. Our ten-year challenge to the CBEST led to requirement that teacher tests be job-related and resulted in substantial modifications to the CBEST (including a quadrupling of the the time allowed) to the benefit of tens of thousands of test-takers each year. Working on testing issues led me to want to challenge as well the underlying lack of equal opportunities to learn that contribute, in part, to test testing disparities. Together with co-counsel from Morrison & Foerster and the ACLU, I was one of the lead counsel on the recently settled Williams v. California lawsuit which successfully challenged California's failure to provide all students with sufficient instructional materials, qualified teachers and decent facilities. In addition to litigation, I have worked closely with community organizers, researchers, and other policy advocates in seeking to build a active statewide, community-based educational justice movement in California. This work has involved me in both providing technical assistance to grassroots community advocates and in policy work in Sacramento and has led to Public Advocates' opening a Sacramento office staffed by an experienced policy advocates, Liz Guillen.

To me, making education a fundamental right would mean that under state and federal constitutions, each person would be recognized as having a right to a minimally decent preschool to grade 12 education. This would mean qualified teachers, enriching curriculum, sufficient instructional materials, decent facilities and extra support as needed for English Learners, special ed students and students who just need a little extra attention and support. Every graduate of such a system should have the opportunity to compete equally for higher education or vocational education opportunities as they choose. An individual's future should be determined by their choices, not by the happenstance of where he or she went to school and by a haphazard distribution of decent educational opportunities.

Thanks (initially, at least) to a case on which Public Advocates also served as a lead counsel, Serrano v. Priest, California is one of the few states where education has been declared a fundamental right and serves as a useful example when thinking about this question on the national level. Having education considered a fundamental right under state law has given ammunition in California for some victories such as the recent Williams settlement and the California Supreme Court ordering the State to intervene to stop the Richmond schools from closing 6 weeks early in the early 1990's. Still, the fundamental right to education here has not led to universal adequate education for all students. Courts may be bold in case language but have been more constrained by political and practical realities in ordering relief. Thus, the original Serrano decision ordering equal funding for schools was limited to revenue limits and through other permissible permutations has allowed rather large and irrational inequities in funding among districts to arise again. Similarly, in the Richmond case (Butt v. California), the Court ordered the State to intervene to keep the schools open but put the burden on the district to pay off a substantial loan which the district continues to be burdened with to this day. Ultimately, among other lessons here, is that we must keep in mind that making education a fundamental right--and keeping it such--will be not just a legal battle, but a political one, requiring sophisticated policy and community advocates, researchers, messaging and a broad, energized community base--in sum, an effective, ongoing political movement.

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