BILL ANALYSIS                                                                                                                                                                                                    Ó






                         SENATE COMMITTEE ON EDUCATION
                             Alan Lowenthal, Chair
                           2011-2012 Regular Session
                                        

          BILL NO:       SB 204
          AUTHOR:        Liu
          INTRODUCED:    February 8, 2011
          FISCAL COMM:   Yes            HEARING DATE:  April 13, 2011
          URGENCY:       No             CONSULTANT:Daniel Alvarez

           SUBJECT  :  K-12 Education Governance.
          
           SUMMARY  

          Changes the state-level governance structure for K-12 
          education by reducing the responsibilities and powers of 
          the State Board of Education (SBE) to an advisory role to 
          the Governor, and specifies the role of the State 
          Superintendent of Public Instruction (SPI) is to ensure 
          delivery of high-quality education to the pupils of the 
          state from preschool through grade 12, as specified.

           BACKGROUND  

          The California Constitution specifies that a Superintendent 
          of Public Instruction (SPI) shall be elected by the people 
          at each gubernatorial election. The Constitution provides 
          no further specification of the duties of the SPI (Article 
          IX, Section 2).  The SPI is one of seven statewide elective 
          offices specified in the constitution.  Current law 
          prescribes the responsibilities of the SPI throughout the 
          Education Code including, among other things, superintend 
          the schools of this state.  (Education Code § 33112 et. 
          seq.)

          The California Constitution requires the Legislature to 
          provide for the appointment or election of the State Board 
          of Education.  In addition, the state Constitution 
          specifies the following duties of the SBE:  1) Adopt 
          textbooks for use in grades one through eight (Article IX, 
          Section 7.5); and 2) Appoint, upon the nomination of the 
          SPI, one Deputy and three Associate Superintendents of 
          Public Instruction. (Article IX, Section 2.1)  

          Current law provides for an eleven member State Board of 




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          Education (SBE) appointed by the Governor for four-year 
          terms, with each appointee subject to confirmation by a 
          two-thirds vote of the Senate, with the exception of a 
          student member who serves only a one-year term. (EC § 33000 
          and § 33000.5)

          Current law provides that the SBE determines all questions 
          of policy within its powers. (EC § 33030)

          Current law also requires a biennial report from the SBE to 
          the governor of its actions for the preceding two years, 
          together with recommendations of its needs, and recommended 
          changes for legislation, as necessary. (EC § 33037)

          Beginning in 1991, then Governor Wilson created by 
          Executive Order and appointed a "Secretary of Child 
          Development and Education" to be his cabinet-level advisor 
          on education matters.  The Legislature refused to approve 
          the statutory authorization for this position and the 
          Governor was forced to fund the position with funds 
          redirected from other offices within the Executive Branch.  
          In the past, Governors Davis and Schwarzenegger have also 
          chosen to appoint a Secretary of Education as their 
          cabinet-level advisor on education matters, even though the 
          position had not been specifically authorized in statute.  
          However, in January 2011, as part of his proposed budget, 
          Governor Brown has chosen not to appoint a Secretary of 
          Education and has proposed to eliminate funding for the 
          Office of the Secretary of Education (OSE). 

           ANALYSIS  

           This bill  makes various changes to the state-level 
          governance structure of K-12 education related to the State 
          Board of Education and the State Superintendent of Public 
          Instruction.  Specifically, this bill:

          1)   Requires appointees to the State Board of Education 
               (SBE) to:

               a)        Represent and reside in different 
                    geographical regions of the state.

               b)        Reflect the ethnic and gender diversity of 
                    the state's population.





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               c)        Represent the array of disciplines active in 
                    the public education 
                    system including, but not limited to, teachers, 
                    principals, school district administrators and 
                    financial officers, charter school 
                    administrators, county offices of education, 
                    school district governing boards, classified 
                    employees, and parents.

          2)   Repeals the authority of the SBE "to determine all 
               questions of policy within its powers" and instead 
               clarifies that it is an advisor to the Governor on 
               education policy.

          3)   Repeals the broad authority of the SBE to adopt 
               regulations for the government of the K-12 schools 
               that receive financial support from the state and 
               instead clarifies the SBE shall adopt rules and 
               regulations not inconsistent with the laws of the 
               state for its own procedures.

          4)   Clarifies that the SBE shall make recommendations for 
               the improvement of the administration and efficiency 
               of the public schools of the state and shall report 
               the results, and any recommendations that it makes 
               under this section, to the Governor, as specified. 

          5)   Repeals the SBE power to issue subpoenas to compel the 
               attendance of witnesses.

          6)   Repeals the requirement that the SPI execute, under 
               direction of the SBE, the policies which have been 
               decided upon by the board and instead specifies the 
               role of the SPI is to ensure delivery of high-quality 
               education to the pupils of the state from preschool 
               through grade 12. 

          7)   Requires the responsibilities of the SPI to include 
               among other things:

               a)        Establishing educational expectation for 
                    pupils.

               b)        Apportioning resources to schools.

               c)        Managing statewide educational and financial 




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                    accountability programs.

               d)        Facilitating educational accountability by 
                    administering and promoting the effective use of 
                    data to measure and improve pupil learning.

          8)   Defines educational accountability to include, but not 
               be limited to:

               a)        Measuring pupil and institutional 
                    performance to ensure adequate and equitable 
                    education and compliance with special education 
                    and civil rights law.

               b)        Monitoring the implementation of state and 
                    federal programs.

               c)        Identifying schools that fail to meet pupil 
                    achievement targets.

               d)        Defining and implementing intervention 
                    strategies for schools that fail to meet pupil 
                    achievement targets.

          9)   Clarifies that the Department of Education shall be 
               administered by an executive office known as the 
               Director of Education who serves at the pleasure of 
               the SPI.

           STAFF COMMENTS  

              1)   Need for the bill  :  According to the author's 
               office, several studies in the last decade have been 
               critical of California's education governance system 
               and made recommendations for reform that have yet to 
               be implemented.  All the studies have found the 
               current system overly complex, inefficient, 
               ineffective, and lacking in transparency and 
               accountability.

              2)   Existing state governance structures  vary and, 
               according to information compiled by the Education 
               Commission of the States, can be categorized into four 
               general models:

               a)        The governor appoints members of the state 




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          board of education,
                    the state board then appoints the chief state 
               school officer. This 
                    model is used by 13 states.

               b)        The state board of education is elected and 
          the board appoints the 
                         chief state school officer.  Seven states 
          utilize this approach.

               c)        The Governor appoints the members of the 
          state board of 
                    education and the chief school officer (i.e., 
                    State Superintendent) is elected.  This is a 
                    model used by 11 states, including California.

          1)   The governor appoints the state board of education and 
               the chief school officer.  There are nine states that 
               use this model.

               And finally, 10 states, plus the District of Columbia, 
               function under modified versions of the four models 
               listed above. 
                
               1)   Existing statute establishes specific duties for 
               the SBE and the SPI  ; however, the various provisions 
               of law can be confusing and perhaps even overlapping.  
               For example, the Education Code indicates that the SPI 
               shall "superintend the schools of this state" and also 
               specifies that the SBE shall "determine all questions 
               of policy within its powers."

              2)   Tension between an elected SPI and appointed SBE is 
               not new.  As far back as 1912, it was noted that the 
               juxtaposition of roles between the elected SPI and 
               governor-appointed SBE could cause potential conflict. 
               Numerous attempts have been made to provide a level of 
               clarity on this unique relationship.  

               The voters have rejected attempts to eliminate the 
               elected SPI and increase the authority of the SBE. The 
               elected Superintendent of Public Instruction has been 
               the highest ranking education official since 1849 and 
               has been in charge of the State Department of 
               Education since its creation in 1921. There have been 
               three initiatives, in 1928, 1958, and 1968 which would 




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               have the SPI appointed by the SBE.  All three were 
               rejected by the voters.

               Most recently, in the early 1990's, a dispute about 
               the relative roles and responsibilities of the SBE and 
               the SPI led to a lawsuit known as State Board of 
               Education v. Honig. In February 1993, the Court of 
               Appeal decided that the SPI must: (a) submit to the 
               SBE for approval the nominations of four persons 
               (deputy and associate superintendents within the 
               Department of Education); (b) implement a SBE policy 
               related to additional board staff; (c) implement a SBE 
               policy related to Board review of performance 
               evaluations of key employees of the State Department 
               of Education; and (d) process the Board's legal 
               services contract with a private firm used as 
               litigation counsel by the SBE.

               Staff recommends an amendment to further clarify the 
               role of the SBE by clearly stating on page 3, line 28 
               insert: "The board shall advise the Governor, 
               Legislature, and Superintendent of Public Instruction 
               on policy matters pertaining to elementary and 
               secondary education and shall make annual 
               recommendations to the Legislature regarding ways to 
               improve the quality of public education throughout the 
               state.  The State Board of Education shall carry out 
               duties and functions expressly granted to it by the 
               statutes and constitution of this state. No further 
               duties or functions shall be implied." 

               In addition, staff recommends an amendment to clearly 
               define duties of the SPI to include what seems to be 
               intended by this measure which is setting of policy 
               within and administering the State Department of 
               Education.  Therefore on page 5, between lines 18 and 
               19 amend           EC § 33112, as follows:

               Section 33112. The Superintendent of Public 
               Instruction shall:

               a)        Superintend the schools of this state.

               b)        Set policy for, supervise and administer the 
          State Department of 
                         Education.




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               c)        Ýremainder of section unchanged]

              3)   Prior legislation  .  In 2010, SB 1186 (Liu) was 
               substantially the same as this measure.  However, the 
               measure subsequently was held on the Senate 
               Appropriations suspense file.

               In 1999, SB 839 (Alpert) attempted to clarify the 
               relationships between the SBE, SPI, and then Secretary 
               for Education functions and responsibilities. This 
               measure was never heard in the Assembly Education 
               Committee at the author's request.

               In 1993 and 1994, in response to the court decision in 
               SBE v. Honig, the Legislature passed SB 856 (Dills) 
               and SB 1856 (Dills) to roll back the expanded powers 
               of the Board under the decision.  Both measures were 
               vetoed by then Governor Wilson. The veto message of SB 
               856 read in part:

                    The relationship between the Superintendent of 
                    Public
                    Instruction and the State Board of Education is 
                    both complicated and complementary.  The existing 
                    statutory and constitutional provisions create a 
                    system analogous to the corporate model with a 
                    board of directors and an executive director.  
                    Ideally, a strong Board and a strong 
                    Superintendent serve each other well.

                    The Board reflects California's ethnic and 
                    cultural diversity --an individual cannot.  The 
                    State Board conducts its business in full public 
                    view, with prior notice, and with public input.  
                    A Superintendent, as an individual, does not have 
                    to meet the standards of open government that a 
                    board does.

                    Finally, this bill would restrict all governors' 
                    ability to
                    shape education policy?To deny the chief 
                    executive of the state the ability to articulate 
                    policy objectives in matters of education would 
                    be shortsighted and unreasonable.
           SUPPORT




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          California Language Teachers Association
          American Federation of State, County and Municipal 
          Employees (AFSCME), AFL-CIO
          Small School Districts' Association

           OPPOSITION

           None on file.