May 21, 2020 The Honorable Holly Mitchell Chair, Senate Committee on Budget and Fiscal Review State Capitol, Room 5050 Sacramento, CA 95814 The Honorable Richard D. Roth Chair, Senate Budget Subcommittee 1 on Education State Capitol, Room 2080 Sacramento, CA 95814 The Honorable Philip Ting Chair, Assembly Committee on Budget State Capitol, Room 6026 Sacramento, CA 95814 The Honorable Kevin McCarty Chair, Assembly Budget Subcommittee 2 on Education Finance State Capitol Room 2136 Sacramento, CA 95814 Re: Education Equity Budget Recommendations in Response to May Revision Dear Senator Mitchell, Senator Roth, Assemblymember Ting and Assemblymember McCarty: We represent a coalition of civil rights, advocacy, community, parent, student, and other organizations that have worked diligently on passage and implementation of the Local Control Funding Formula (“LCFF”). LCFF creates an historic opportunity to focus resources on helping 1 California’s highest-need students overcome the barriers they face in closing the opportunity gap and graduating college and career ready. It also promises a new level of transparency and local engagement for parents, students, and community members in the design of their local schools. We are committed to strengthening California’s current K-12 school funding and accountability system to realize its promise to create a more equitable school system. We write in response to the Governor’s budget proposals for K-12 education presented in the May Revise. California faces a crisis unlike any seen before in our lifetimes. The COVID-19 pandemic has caused massive unemployment and a precipitous drop in state revenues. At the very moment when millions of Californians are turning to the State for relief, the State faces a huge budget shortfall hampering its ability to provide essential services. Families across the state are hurting, and, for many, their public school is where they first turn for help. The services provided by California’s K-12 public schools are key to protecting children and families from the harms caused by this health and economic crisis, and to allowing our economy to get back on track. As the legislature makes the difficult decisions necessary to address this dire situation, we urge you to keep equity foremost in mind. As you are aware, the pandemic has exposed deep inequities in our society, and the most severe impacts of the pandemic have been borne by those traditionally most under-resourced and those who already suffered from the highest needs. Students of color, low-income students, LGBTQ youth, foster youth, youth experiencing homelessness, English Learner students, children in the juvenile justice system, and students with disabilities are all disproportionately impacted by the school closures and interruptions to essential services. For example, thousands of families across California are not currently receiving special education services, lack the technology to access remote learning, and struggle to cope with untreated anxiety and trauma, among other concerns. Accordingly, we urge the legislature to build on the commitment to education equity reflected in the Governor’s May Revise and continue to prioritize equity in all major budget decisions by: • • • • Prioritizing public education in the budget and investing above the minimum Proposition 98 guarantee. Avoid disproportionately and unfairly cutting funding for high-need students by avoiding any cuts to the LCFF supplemental and concentration (“S&C”) funds. In conjunction with not imposing cuts on S&C funds, expanding the distribution of the Governor’s $4.4 billion apportionment of federal dollars to K-12 education for Learning Loss Funds while maintaining an equity focus by (1) distributing the $2.9 billion nonspecial education portion to all Local Education Agencies (“LEAs”) with low-income, foster youth, and English learners (collectively “unduplicated pupils”) proportional to the percent of the State’s total S&C funding each LEA currently receives; and (2) ensuring that LEAs are accountable for actually addressing the learning loss being experienced by students with this very significant $4.4 billion investment. Requiring LEAs to identify and report all S&C fund expenditures, and ensuring that unspent S&C funds retain their designation in subsequent years and be used to increase and improve services to unduplicated pupils. 2 • • Requiring schools to conduct a reasonable but meaningful community engagement process to solicit and incorporate feedback about how to spend both LCFF and federal funds. Funding implementation of the Health Education and History-Social Science Frameworks. While we understand that schools will face budget cuts next year, we all have an obligation to avoid concentrating the impact of the budget cuts on the students who have the highest needs and to do everything possible to support them throughout this crisis. I. Protect and Prioritize Public Education If the State fails to provide schools with the funds they need, schools cannot provide students with the services they need. Although California public schools – underfunded even in the best of times – now face significant funding cuts, the State can and must take steps to protect the ability of school funding to recover in future years. We applaud the Governor’s creative approach to protecting the Prop 98 minimum guarantee by making supplemental appropriations of 1.5% of the General Fund, above the Prop 98 minimum, beginning in 2021-22 and continuing for several years, with the eventual result of increasing the Prop 98 share of the General Fund to 40% in Test 1 years by 20232024, but we are deeply concerned about the implications of the cuts that are being proposed. We urge the legislature to further prioritize public education in the state budget by spending above the minimum guarantee. II. Basic Equity Principles Demand Holding LCFF Supplemental & Concentration Funds Constant The May Revise proposes a 10% cut to Local Control Funding Formula (“LCFF”) funds. There is no escaping the fact that the reductions will be painful. But California has a choice: we can allow cuts to disproportionately affect our most underserved students, or we can distribute limited dollars fairly. Under LCFF, LEAs receive three types of funding: (1) base funding, for services that support all students; (2) supplemental funding, for services directed towards unduplicated students; and (3) concentration funding, for districts that enroll more than 55% unduplicated students to use for services that support those student groups. Equity requires that California maintain LCFF’s supplemental and concentration amounts at 2019-20 levels. To achieve the necessary budget reductions, cuts should be made to the LCFF base funding alone. Otherwise school districts that enroll high percentages of underserved students will be hit three times: once when the base perpupil funding decreases, once when the supplemental funding decreases, and once when concentration funding decreases. School districts that enroll low percentages of these students will only be hit once. Our most underserved students should not bear a disproportionate share of the cuts. It is not just and it is not fair. III. Ensure the Federal CARES Funding Is Spent on Equity We believe that both the $1.6 billion in Elementary and Secondary School Emergency Relief (“ESSER”) funds and the $4.4 billion in Coronavirus Aid, Relief, and Economic Security Act 3 (“CARES”) funds proposed for learning loss mitigation (“Learning Loss Funds”) are critical federal supports that must be used to address equity. We particularly applaud the Governor’s proposal to invest over $4 billion in federal Coronavirus Relief Funds together with his GEER funds (“Governor’s Emergency Education Relief”) to mitigate learning loss for high-need students. We believe that the proposal in the May Revise reflects the Governor’s clear commitment to equity and is necessary to address the immense challenges presented by the COVID-19 pandemic and to ensure that the opportunity gap does not widen for California’s highest-need students. Specifically, we appreciate the Governor’s proposal: (1) to allocate an additional $4 billion in federal funding to K-12 education, which will help soften state budget cuts; (2) to identify four specific priorities designed to mitigate learning loss, with an emphasis on reducing harm for high-need students and on providing additional academic services to address gaps, integrated student supports like health, counseling and mental health services, and programs to address student trauma and social-emotional learning; and (3) to allocate the funds with priority to traditionally under-resourced students groups such as students with disabilities and youth experiencing homelessness, amongst others. We urge the legislature to support the Governor’s general proposal, but we also recommend critical amendments. A. Allocation of the Learning Loss Funds We understand that the Governor intends to apportion approximately $1.5 billion in Learning Loss Funds according to LEAs’ special education enrollment and $2.855 billion according to the amount of concentration funds LEAs receive. While we support the Governor’s general approach and believe that such apportionments will help California’s highest-need students meaningfully recover from interruptions in instruction and services they suffer as a result of the pandemic, we are mindful that our proposal to protect S&C funds from cuts will create additional cost pressures on LEAs falling below the 55% concentration of unduplicated pupils. Accordingly, we offer a proposal that expands the distribution of Learning Loss Funds to nonconcentrated LEAs while also maintaining the equity principle at the heart of the Governor’s proposal. We reiterate, this proposal to expand the distribution of the non-special education portion of Learning Loss Funds beyond LEAs with concentration grants garners our support when specifically conjoined with our proposal to protect S&C funds from cuts. Specifically, we propose distributing the funds to LEAs proportional to the percent of the State’s total S&C funding each LEA receives. Under this approach, the state would divide a district’s S&C allocation by the statewide total S&C funds (using 2019-20 figures). It would then multiply that district’s share by the $2.855 billion available to determine the district’s allocation of the federal funds. This approach would reflect the allocation priorities of the roughly $10 billion allocated for S&C funds in 2019-20 (the last year of full LCFF funding), while still prioritizing a higher level of funding for districts facing concentrated need which appears to be the underlying goal of the Governor’s May Revision proposal. Beyond prioritizing equity, this model has the added benefit that it will be relatively straightforward for the State to calculate. B. Establish LEA Accountability for Restoring Learning Loss 4 We believe that the $4.4 billion investment to redress the tragic learning loss brought about by the pandemic should contain clearly defined accountability and assessment metrics to ensure LEAs are assessing and effectively redressing learning loss for high-needs students, including unduplicated pupils as well as students experiencing homelessness, the lowest-performing student subgroup, system-involved youth and youth in alternative schools.1 The Learning Loss mitigation program represents a significant investment of public funds to address a major constitutional obligation of the State to ensure equality of educational opportunity to our children. As such, it is imperative that the State also establish some manner of accountability for the funds. We recommend that, at a minimum, the State condition use of the funds on each LEA recipient’s: (1) establishing a sound method by which to assess the extent to which each of its students may have experienced or be experiencing learning loss during the COVID-19 period, (2) reporting the results of its assessment to the State, (3) establishing a plan to address any such learning loss identified including by way of addressing social emotional, trauma, and other mental health needs, and (4) committing to implement that plan and undergo a follow up assessment for each affected student. C. Expand Learning Loss Funds to Additional Equity Uses We wholeheartedly support the four spending categories the Governor has identified and believe they will help school communities return to school in the fall in a safe and supportive manner. We particularly appreciate the Governor expressly including a commitment to “providing additional academic services” and “learning supports” to address “gaps in core academic skills” and to “providing integrated student supports to address other barriers to learning such as the provision of health, counseling or mental health services” as well as “programs to address student trauma and social-emotional learning” which will be essential to help students heal from the trauma they experienced, and are continuing to experience, during the pandemic. We also understand that the Governor intends for the four categories to be exhaustive, meaning that LEAs may only spend the learning loss funds on the enumerated resources. We believe that restricting the use of these funds towards these equity-focused programs is an important accountability measure that will ensure that LEAs use the funds on direct and effective services for the students who need them. In sum, we urge the legislature to preserve the four funding categories in the May Revise and to prohibit LEAs from spending the Learning Loss Funds on resources not on the list. However, we urge the legislature to add two more spending categories that will support some of the other student groups impacted most severely by the pandemic. Specifically, we recommend adding the following categories to the list of acceptable Learning Loss Fund expenditures: • 1 Resources to compensate for learning loss and services for infants, toddlers, and students with disabilities, including services set forth in children’s individualized family service plans, individualized education programs, and 504 plans LEAs and regional centers failed to provide during the school closures. Alternative schools include all schools that had Dashboard Alternative School Status in the 2019-20 school year. 5 • Resources for students with juvenile justice system involvement, including students in or reentering from the juvenile halls and camps, to address learning loss and other gaps in services during the school closures. These additional categories are necessary to ensure that California’s highest-need students will be made whole for services lost during the closures and will have access to the resources they need to succeed upon their return. D. Use CARES Act Funds to Address and Restore Certain Equity-Focused Programs In addition, we urge the legislature to restore certain key programs for which funding is proposed to be cut entirely in the May Revise, programs that are essential to mitigating the effects of school closures. We urge the legislature to restore funding for the following key programs to provide much needed resources fully consistent with the needs and demands caused by the pandemic: • Community school grants. The May Revise cuts the proposed $300 million for community school grants, instead proposing that $100 million of the ESSER funds go to grants to County Offices of Education to develop networks of community schools. In addition to providing high quality academic programs, community schools provide children and families with integrated health and mental health services as well as counselors to assist with issues including housing, transportation and nutrition. They are a proven strategy to combat the consequences of poverty and provide all children with an opportunity to thrive. These programs are needed now more than ever as more families struggle not only with the threat the pandemic poses to their health and safety and the trauma caused by the disruption to school, work and family life, but also with food insecurity, housing and employment instability, and inadequate access to health care. Community schools done right are uniquely suited to help California’s families with these issues. Such schools can also effectively work with COEs to support education reentry coordination and otherwise effectively support the integration of youth from the juvenile justice system. We also strongly support that the proposed $100 million in ESSER funds could be used for “coordinating health, mental health, and social service supports for highneeds students." However, we urge that the state fully fund the $300 million community school grant program, and that language be included to require that development of new community schools incorporates the best practices used by existing community schools. • Create Accountability Measures for Training and Professional Development Spending. The Governor proposes to allocate $63 million of the Elementary and Secondary School Emergency Relief (“ESSER”) funds available for state level activities towards training and professional development for teachers, administrators and other school personnel. We particularly support the proposal that this training and professional development will address “trauma-related health and mental health barriers to learning." Further, LEAs should be guided to utilize this funding by contracting with external providers who are experts on trauma, health and mental health services, such as School-Based Health Centers. It is essential that the training and professional development provided through 6 these funds be student-centered and equity focused, used to ensure that the adults receive the training necessary to allow them to provide essential support for their students at a time when all students are facing unprecedented stresses and many are experiencing trauma. To ensure that the programs meet this purpose, we ask that accountability mechanisms be put in place to ensure that the effectiveness of training provided is measured and reported. Only with such accountability mechanisms will the state be able to know that the funding is indeed improving student outcomes, as intended. • Reject the proposed cut to early education funding. We have serious concerns about the proposed 10% cut to provider reimbursement rates. Prior to the pandemic, providers were already earning low wages, and they will likely not be able to withstand the proposed rate cuts. It is also critical to recognize that childcare providers are essential workers, whose work allows essential workers to perform essential services for society. Without adequate support, California’s child care programs are on the verge of collapse. Therefore, we urge the legislature to reject the proposed cut to reimbursement rates and instead redirect the childcare workforce and Infrastructure grants funding to backfill this proposed rate reduction. • Restoration of funding for early education slots. The May Revise proposes as “trigger cuts,” to go into effect if additional federal funds are not provided, cuts of $159.4 million that will eliminate 10,000 state preschool slots scheduled to be available April 1, 2020, and another 10,000 scheduled to begin April 1, 2021. Not only are these programs critical to give all of California’s children the opportunity they need to begin their educational careers fully prepared and ready to learn, but the revival of the state’s economy cannot happen if affordable childcare is not available to the families that so desperately need it. We urge that funding be made available to continue to build the state preschool program regardless of whether federal money is provided for this purpose. E. No CARES Act Funds Should be Spent on Law Enforcement The State must put in place protections to ensure that schools do not misspend the learning loss mitigation funding or ESSER funds on ineffective expenditures that do not support students. The State should make clear that schools should not use this funding on law enforcement and purported security expenditures such as physical or digital surveillance, security personnel, student search equipment, or other school hardening measures. Such spending not only is unrelated to addressing challenges schools face due to the COVID-19 pandemic, but it is also ineffective and harms highneed students, including students of color and students with disabilities. Ultimately, we hope that no California schools will attempt to use federal funds reserved for COVID-19 purposes on such ineffective expenditures,2 but we have seen many LEAs attempt to spend Local Control Funding Formula supplemental and concentration funds – which are meant to 2 For a more comprehensive discussion and a survey of the academic research demonstrating the ineffectiveness of school hardening measures, please refer to Public Advocates and ACLU of California’s 2020 Our Right to Resources report, which is available at: https://www.aclusocal.org/en/publications/right-to-resources. 7 support low-income students, foster youth, and English Learners – in this inappropriate manner.3 Indeed, it is particularly important that schools disinvest in school hardening and halt school pushout in the wake of the COVID-19 pandemic, given the urgent need to build inclusive and supportive school communities to allow students to heal and recover. Accordingly, we ask the State bar LEAs from using the CARES funding for such purposes out of an abundance of caution and to remove all doubt that such hardening measures are not an appropriate response to COVID-19. IV. LCFF Supplemental and Concentration funds: Improving Transparency and Protecting Carryover Funds The Local Control Funding Formula was designed with equity in mind, to ensure that funding is directed to providing California’s most vulnerable students with the services they need. These students have been hardest hit by the pandemic and economic crisis we now face. High-need students are likely to have more barriers to engage in remote learning, including less access to technology, home supports, and other resources, which will only serve to exacerbate existing achievement gaps. Yet, as reported in the November report of the California State Auditor,4 LEAs often (1) fail to capture how S&C funds are spent at school sites, and (2) significantly underspend S&C funds compared to what is set out in their LCAPs, and then when those funds roll over to subsequent years, fail to spend them on services to unduplicated pupils – essentially converting S&C funds to base fund uses. LEAs are not providing the transparency and accountability promised in exchange for the increased spending flexibility granted under the LCFF. Just as it is essential that S&C funding be maintained, it is also essential that LEAs be held accountable for spending those funds to benefit those students and not be permitted to circumvent both the intent and the spirit of the law. We urge the legislature to clarify the use and reporting requirements of S&C dollars by firmly embedding fiscal safeguards into our LCFF accountability system to guarantee that LEAs invest these funds in services for our neediest students and families as the legislature originally intended. We ask that the State: (1) require LEAs to clearly identify and report all S&C fund expenditures and unspent S&C funds (expressed both as a shortfall of the Minimum Proportionality Percentage greater than 1.5% and the corresponding dollar figure) as part of their annual reconciliation and reporting requirements, and (2) clarify the law to require that such identified unspent supplemental and concentration funds and the corresponding Proportionality Percentage retain their designation in subsequent years. S&C funds must be dedicated to increasing and improving services proportionally for unduplicated pupils and cannot be treated as unrestricted general funds for use towards any purpose in future years. Requiring LEAs to identify and report all S&C expenditures and unexpended effort toward proportionality will comport with the objectives of the law, increase transparency, and allow for greater community engagement to direct how these funds are invested. 3 See id. (analyzing Local Control Accountability Plans in 136 Southern California school districts and finding approximately 40% of them illegally spent supplemental and concentration funds on law enforcement and purported security measures). 4 California State Auditor Elaine Howle, K-12 Local Control Funding, The State’s Approach Has Not Ensured That Significant Funding is Benefiting Students as Intended to Close Achievement Gaps, November 2019. 8 Clarifying the law in the manner requested is more important now than ever as LEAs face massive budget cuts and will be tempted to backfill losses from LCFF base funds and cuts to the core program with funds dedicated to supplemental programs for high need students. High-need students are already disproportionately suffering from educational disruptions caused by COVID19; we must protect them from further harm by ensuring they receive the benefit of all the supplemental and concentration grant funds they generate. V. Engagement and Transparency for All State and Federal Spending While we understand the importance of minimizing administrative burdens on LEA and school staff during the crisis, community engagement, transparency, and accountability remain the cornerstones of successful school budgeting. Even in times of crisis, it is essential that the State implement strong, reasonable processes to ensure that schools spend their funding responsibly and effectively. Such processes will reduce wasteful spending, help school leaders share best practices so that they can replicate successful programs, reduce investments in ineffective programs, build trust with the school communities, establish buy-in from stakeholders, and focus the services and supports on the very students that must be served with these funds. Indeed, transparent and accountability decisionmaking is particularly important given the rapidly changing conditions and the speed with which LEAs must make their spending decisions. As districts determine their COVID-19 response plans and press forward with school and district plans and budgets, impacted students, families, and communities must be partners in finding solutions that meet their needs. To ensure that LEAs spend all funding with sufficient stakeholder engagement, transparency, and accountability, these funds should be conditioned on LEAs following the following processes: • • • LEAs will engage in a single stakeholder engagement process that will cover all LCFF and CARES funding, including the Learning Loss, GEER, and ESSER funds. LEAs will perform, at a minimum, the required community outreach within four weeks of the State adopting an updated budget after federal taxes are filed on July 15, 2020 and prior to adopting an updated LEA budget based on the State’s updated budget figures. LEAs should offer stakeholders meaningful ways to participate in decision-making as early as possible, rather than only affording opportunities to comment on or ratify District decisions. Community outreach will include, at a minimum: o Inform all stakeholders of the LCFF and CARES funding, including the Coronavirus Relief, GEER, and ESSER funds the LEA will receive and the various opportunities to engage in the process. o Hold at least two meetings with the Parent Advisory Committee and District English Learner Advisory Committee and provide written feedback on the input received. o Solicit feedback from students, including creating a student task force or committee. o Hold at least two online town halls to solicit general community input and have translators available. o Solicit feedback through at least one online survey in multiple languages. o Solicit feedback through a telephone hotline or through a physical address. o Make efforts to perform outreach to families that lack internet access or live in remote areas. 9 • • • • • VI. o Publicize the engagement process and provide information about the proposed budget on the LEA’s website, through robocalls, and through physical postings at school sites and public places in multiple languages. Incorporate feedback into the budget and present it at an August or early September 2020 board meeting, publishing the budget at least 7 days before the meeting and allowing significant oral and written public comment during that meeting. Require the board to vote to finalize the budget in a public meeting that allows significant public comment by September 30, 2020. Adopt a budget report/instructional continuity plan by September 30, 2020 describing, among other things: o How all the federal COVID-19 funds received will be used to mitigate learning loss in line with federal law, o Steps LEA is taking to ensure student access to devices and connectivity, strengthen relationships with families to support student learning and strengthen feedback loops between families and school staff to course correct if strategies are not working, o How LEA intends to measure success of investments, and o How the spending will support high-need students in particular, including lowincome students, English learners, foster youth, system-involved students, students experiencing homelessness, students with disabilities, and students of color. Publish the budget report/instructional continuity plan on the LEA website in multiple languages that reflect community diversity. Incorporate feedback received from the process in the LCAP to be adopted by the LEA board by December 2020. Fund Implementation of the Health Education and History-Social Science Frameworks We commend the Governor for including in the May Revise $7.7 million to implement the Health Education and History-Social Science Frameworks. The pandemic has highlighted the importance of health education and has increased the need for educational supports to help students protect their health and well-being. The Framework provides educators with essential guidance on topics like mental health, healthy relationships, sexual and reproductive health, physical education, and nutrition. It supports educators in delivering this instruction in an age-appropriate way to meet the needs of California’s diverse student population, including students of all genders, sexual orientations, family compositions, housing statuses, income levels, and physical and development abilities. This instruction is critical to help students stay healthy during the pandemic and after. We urge the legislature to adopt the Governor’s proposal. 10 We understand that you share our commitment to equity and will do everything possible to help California’s highest-need students recover from and flourish following the COVID-19 pandemic. Accordingly, we urge you to maintain key provisions of the Governor’s May Revise and to make minor but critical amendments that will further serve California’s high-need students. Sincerely, Sylvia Torres-Guillén Director of Education Equity, ACLU of California Kathy Sher Legislative Attorney, ACLU of California Victor Leung Deputy Litigation Director, ACLU of Southern California John Affeldt Managing Attorney, Public Advocates Liz Guillen Direction of Legislation and Community Affairs, Public Advocates Erin Apte Legislative Counsel, Public Advocates Maria Echaveste President, the Opportunity Institute Shimica Gaskins Executive Director, Children’s Defense Fund-CA Jan Gustafson Corea CEO, CABE - California Association for Bilingual Education Jesse Hahnel Executive Director, National Center for Youth Law Taryn Ishida Executive Director, Californians for Justice Jill C. Rowland, Esq. Education Program Director, Alliance for Children’s Rights Karla Salazar Interim President & CEO, Families In Schools 11 Elisha Smith Arrillaga Executive Director, The Education Trust-West Shelly Spiegel-Coleman Executive Director, Californians Together Megan Stanton-Trehan Director and Adjunct Professor, Youth Justice Education Clinic Center for Juvenile Law and Policy, Loyola Law School Samantha Tran Senior Managing Director, Education, Children Now cc: Senator Connie Leyva Senator Mike Morrell Assembly Member William Brough Assembly Member James Gallagher Assembly Member Monique Limón Assembly Member Jose Medina Assembly Member Al Muratsuchi Assembly Member Patrick O’Donnell Joe Stephenshaw, Director of Staff, Senate Committee on Budget and Fiscal Review Elisa Wynne, Deputy Director of Staff, Senate Committee on Budget and Fiscal Review Megan Baier, Policy Consultant, Office of the President Pro Tem Lynn Lorber, Chief Consultant, Senate Education Committee Christian Griffith, Chief Consultant, Assembly Budget Committee Erin Gabel, Consultant, Assembly Subcommittee on Education Finance Misty P. Feusahrens, Principal Consultant, Assembly Speaker Tanya Lieberman, Chief Consultant, Assembly Education Committee Ben Chida, Deputy Cabinet Secretary, Office of the Governor Jenny Johnson, Deputy Legislative Secretary, Office of the Governor Jeff Bell, Education Program Budget Manager, Department of Finance Jessica Holmes, Assistant Program Budget Manager, Department of Finance Amber Alexander, Principal Program Budget Analyst, Department of Finance 12