Can the California Legislature give school districts extra LCFF money for every student in the racial or ethnic subgroup with the lowest test scores?

Plain-English summary

California's Local Control Funding Formula (LCFF) gives every school district a base grant per student plus additional supplemental and concentration grants for "unduplicated pupils": English learners, students eligible for free or reduced-price meals, and encourage youth. State Senator Marie Alvarado-Gil asked the AG whether the Legislature could expand that definition to include all students in whichever ethnic subgroup had the lowest average performance on the most recent statewide assessment exams, while excluding subgroups already funded through other programs.

The AG worked through the math: section 52052 lists six categories of pupil subgroups (English learners, socioeconomically disadvantaged, encourage youth, homeless youth, pupils with disabilities, and ethnic subgroups). Five of those already get supplemental funding through LCFF or other state and federal programs. So the only category that could be selected under the proposal is the ethnic subgroups, defined as Black or African American, American Indian or Alaska Native, Asian, Filipino, Hispanic or Latino, Native Hawaiian or Pacific Islander, White, or two or more races.

In effect, the proposal would identify the ethnic subgroup with the lowest average test scores and give every student in that subgroup supplemental funding, including students with high individual scores. Using 2022-2023 data, that would mean all Black students, regardless of their actual academic performance.

Under U.S. Supreme Court precedent (especially Students for Fair Admissions v. Harvard, 2023), all government use of racial classifications is reviewed under "strict scrutiny." The AG accepted that improving educational outcomes for low-performing students is a compelling interest. But the proposal failed the narrow-tailoring requirement: a race-neutral alternative exists, namely tying supplemental funding directly to low individual test scores rather than ethnic-group membership. The AG also pointed out that California previously ran a Low-Performing Students Block Grant doing exactly that. Because the race-neutral alternative would do the job (better, in fact, because it would reach low-performing students in every ethnic group), the racial classification couldn't survive strict scrutiny.

The opinion explicitly notes that race-conscious remedial programs that are narrowly tailored to redressing past unconstitutional discrimination, like the integration program in Hernandez v. Board of Education, remain permissible. And nothing in the opinion casts doubt on funding mechanisms that don't use express racial classifications.

What this means for you

If you are a California state legislator working on education-funding policy

This opinion is your roadmap for what doesn't work. Don't draft funding formulas that turn on racial or ethnic group membership. The structural form here, "all students in subgroup X get extra funding because subgroup X has the lowest aggregate scores," can't survive strict scrutiny when a race-neutral alternative exists, and one always exists for performance-based funding.

What does work, according to the opinion: tie supplemental funding to individual low test scores (the model of the Low-Performing Students Block Grant); tie funding to socioeconomic status, English-learner status, encourage-youth or homelessness status; tie funding to remediation of past unconstitutional discrimination as established in litigation. The compelling-interest analysis recognizes K-12 education as foundational, so race-neutral tools that move resources to underperforming students will hold up.

If you want race-conscious tools, the only remaining doctrinal hook is remediation of specific past unconstitutional state action. That's the Hernandez framework. It requires litigation-quality evidence of constitutional violations, not just persistent disparities.

If you are a school district administrator

Pure performance-based supplemental funding is constitutional. If you're advocating for additional state aid for your low-performing students, frame the ask in terms of individual student characteristics (test scores, English-learner status, eligibility for free or reduced-price meals, encourage status) rather than in terms of group ethnicity.

District-level race-conscious programs face the same strict scrutiny analysis. If you're running an achievement-focused program, document the race-neutral alternatives you considered and rejected. Strict scrutiny "does not require exhaustion of every conceivable race-neutral alternative" but does require "serious, good faith consideration."

If you are a civil rights attorney working on education equity

This opinion narrows the doctrinal space for race-conscious remedies to address aggregate disparities. The AG explicitly noted the dissents from the recent Supreme Court cases criticizing the colorblindness framework, but applied governing precedent. Litigation strategy for race-conscious remedies needs to either (a) build the historical/constitutional record for a Hernandez-style remediation argument, or (b) reframe the harm in race-neutral terms (poverty, English-learner status, immigration history) that capture the population.

If you are an education policy advocate

The AG's analysis is structural, not California-specific. Any state with a similar achievement-gap-funding proposal will face the same strict scrutiny problem under federal law. Policy energy is better directed at performance-based and need-based formulas that produce similar distributional outcomes without using racial classifications.

If you are a parent or student wondering what funding your school gets

LCFF funding turns on whether you fall into one of the existing unduplicated-pupil categories: English learner, eligible for free or reduced-price meal, or encourage youth. Homeless students typically qualify through meal eligibility. Students with disabilities receive funding through other state and federal channels. The proposal at issue here would not have changed eligibility for any of these. It would have added a new ethnicity-based category, which the AG concluded the federal Constitution would not allow.

Background and statutory framework

California's Local Control Funding Formula was enacted in 2013 and "fundamentally changed how all local educational agencies . . . in the state are funded." It assigns a funding target to each school district, charter school, and county office of education. Each agency reaches its target through a combination of state aid and local property taxes.

The funding target has three components under Education Code section 42238.02:

1. Base grant: a fixed dollar amount per student adjusted for average daily attendance, with grade-span adjustments.
2. Supplemental grant: an additional 20 percent of the base grant for each "unduplicated pupil," defined by section 42238.02(b)(1) as English learners, students eligible for free or reduced-price meals, or encourage youth.
3. Concentration grant: an additional amount for each unduplicated pupil above 55 percent of the district's enrollment.

Districts must spend supplemental and concentration grants to "increase or improve services for unduplicated pupils as compared to the services provided to all pupils" (5 CCR section 15496).

Education Code section 52052 separately requires school districts to measure and report average student performance on standardized exams across six pupil subgroup categories: English learners, socioeconomically disadvantaged, encourage youth, homeless youth, pupils with disabilities, and "ethnic subgroups." The California Department of Education guidelines define ethnic subgroups as Black or African American, American Indian or Alaska Native, Asian, Filipino, Hispanic or Latino, Native Hawaiian or Pacific Islander, White, or two or more races.

The Equal Protection analysis is grounded in U.S. Constitution Fourteenth Amendment section 1 and the Supreme Court's strict scrutiny framework. Strict scrutiny asks (1) whether the racial classification is used to further a compelling governmental interest, and (2) whether the use of race is "narrowly tailored" (necessary) to achieve that interest. Narrow tailoring requires "serious, good faith consideration of workable race-neutral alternatives" (Fisher v. Texas, 2013).

The AG also referenced California Constitution article I, section 31 (Proposition 209), which prohibits the state from granting "preferential treatment" based on race or ethnicity in public education, but the federal analysis was sufficient to resolve the question.

Common questions

Why is this strict scrutiny if the goal is to help disadvantaged students?
Because the U.S. Supreme Court applies strict scrutiny "in every context, even for so-called 'benign' racial classifications." The compassionate purpose doesn't change the standard. A 2023 Supreme Court decision (Students for Fair Admissions v. Harvard) reinforced that point in the higher-education context.

Doesn't the achievement gap itself prove ongoing discrimination?
The Court has held that "ameliorating societal discrimination" is not by itself a compelling interest. To use race in remedial state action, the government generally needs to show a history of unconstitutional state-sponsored discrimination, like California's prior operation of segregated schools (Hernandez v. Board of Education, 2004), and tailor the remedy specifically to that violation.

What's the race-neutral alternative the AG points to?
Tie supplemental LCFF funding to individual low test scores. The Legislature already did something similar with the 2018-2019 Low-Performing Students Block Grant (Education Code section 41570), which allocated $300 million for low-performing students by individual performance, not by ethnic group.

Could the Legislature add an ethnic-subgroup category as a tiebreaker among low-performing students?
The AG didn't address that variant directly. But strict scrutiny would still apply because the use of race remains the trigger for additional funding. The narrow-tailoring analysis would still require comparison to race-neutral alternatives.

Does this affect existing race-data reporting under section 52052?
No. Reporting subgroup performance data is not the same as conditioning funding on group membership. The AG opinion is about funding, not data.

Does Proposition 209 add anything?
Proposition 209 (California Constitution article I, section 31) bars preferential treatment based on race in public education. The AG noted it but didn't reach that issue because the federal analysis resolved the question. Generally, Proposition 209 prohibitions are at least as strict as federal Equal Protection.

What about programs that serve concentrations of low-income students of color?
Programs that serve students based on individual income, eligibility for federal nutrition programs, or other socioeconomic markers are race-neutral on their face and are not subject to strict scrutiny. They can have disparate racial impact without triggering strict scrutiny.

Citations

• Education Code section 42238.02 (LCFF grants and unduplicated pupil definition)
• Education Code section 52052 (pupil subgroups for performance reporting)
• Education Code section 41570 (Low-Performing Students Block Grant)
• 5 CCR section 15496 (LCFF spending rules)
• U.S. Constitution, Fourteenth Amendment (Equal Protection)
• California Constitution article I, section 31 (Proposition 209)
• Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (2023) 600 U.S. 181
• Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 (2007) 551 U.S. 701
• Fisher v. Univ. of Texas at Austin (2013) 570 U.S. 297 (narrow tailoring framework)
• Hernandez v. Bd. of Educ. (2004) 126 Cal.App.4th 1161 (compelling interest in remedying past unconstitutional segregation)
• Brown v. Bd. of Educ. (1954) 347 U.S. 483 (importance of education)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/23-902.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General

OPINION
of
ROB BONTA
Attorney General
KARIM J. KENTFIELD
Deputy Attorney General

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No. 23-902
April 25, 2024

The HONORABLE MARIE ALVARADO-GIL, MEMBER OF THE STATE
SENATE, has requested an opinion on a question relating to state education funding.
QUESTION PRESENTED AND CONCLUSION
Under California's Local Control Funding Formula, or "LCFF," established by the
Education Code, school districts and other local educational agencies receive
supplemental funding based on the number of students they serve who qualify as
"unduplicated pupils" under sections 42238.02 and 2574. May the Legislature expand
the statutory definition of "unduplicated pupil" to provide supplemental funding for all
members of the pupil subgroup that had the lowest performance on the most recently
available statewide assessment exams? The pupil subgroups that would be eligible for
this supplemental funding would be only those subgroups identified in Education Code
section 52052(a)(2) that do not already receive supplemental funding through the LCFF
or other state or federal resources.

No, the Legislature may not amend the LCFF statute in the specified manner. The
only pupil subgroups listed in section 52052(a)(2) that do not already receive
supplemental state or federal funding are what the statute calls the "ethnic subgroups",
which consist of students identifying as Black or African American, American Indian or
Alaska Native, Asian, Filipino, Hispanic or Latino, Native Hawaiian or Pacific Islander,
White, or two or more races. The purpose and effect of the legislative proposal is
therefore to identify the ethnic subgroup of students with the lowest average performance
on the most recent statewide exams, and then provide supplemental funding for all
students in that ethnic subgroup, including students with high individual test scores. By
conditioning state education funding on student ethnicity, regardless of individual
performance, the proposal would violate the federal Constitution.

BACKGROUND
In 2013, the Legislature "fundamentally changed how all local educational
agencies . . . in the state are funded." It established the Local Control Funding Formula,
which "streamlined the number of state funding sources and increased K-12 spending."
The LCFF assigns a funding target to each California school district, charter school, and
county office of education. Each educational agency then receives funding at or above its
target through a combination of state aid and local property taxes.

Education Code sections 42238.02 and 2574 provide detailed rules for calculating
each agency's funding target. We will describe the calculation for school districts, which
is representative of the calculation for all educational agencies. First, school districts
receive a "grade span adjusted base grant." The base grant is calculated as a fixed dollar
amount per student, adjusted for average daily attendance.

Districts then receive additional funding for students classified as "unduplicated
pupils," which the statute defines as three categories of students: English learners;
students eligible for a free or reduced-price meal; and foster youth. For each
unduplicated pupil, a school district receives a "supplemental grant" equal to a
percentage of its base grant. If unduplicated pupils exceed 55 percent of the student
population, then the district also receives a "concentration grant" for each unduplicated
pupil above that threshold. School districts must spend supplemental and concentration
grants "to increase or improve services for unduplicated pupils as compared to the
services provided to all pupils." Although districts may spend the funds on district-wide
services, they must document how the funded "services are principally directed towards,
and are effective in, meeting the district's goals for its unduplicated pupils."

Under state law, student performance must be regularly assessed. Relevant here,
section 52052 requires school districts, charter schools, and county offices of education to
measure average student performance on standardized exams for the following "pupil
subgroups": English learners, socioeconomically disadvantaged pupils, foster youth,
homeless youth, pupils with disabilities, and "ethnic subgroups." Under California
Department of Education guidelines, the ethnic subgroups consist of students identifying
as Black or African American, American Indian or Alaska Native, Asian, Filipino,
Hispanic or Latino, Native Hawaiian or Pacific Islander, White, or two or more races.

ANALYSIS
This request asks whether the Legislature could amend the LCFF definition of
"unduplicated pupil" to add a fourth category of students eligible for supplemental
funding. The new category would consist of all members of the section 52052 pupil
subgroup that had the lowest performance on the most recent statewide assessment
exams. The proposal specifies that any section 52052 pupil subgroup that already
receives supplemental funding, through the LCFF or any other state or federal
resources, would be ineligible for the proposal's additional funding. Because the five
non-ethnic subgroups enumerated in section 52052 all receive supplemental funding
under existing state or federal law, the only pupil subgroup that could be selected to
receive supplemental funding under this proposal would be one of the ethnic subgroups.

The proposal can therefore be re-stated as follows: it would expand the definition
of "unduplicated pupil" to include all students in the ethnic subgroup that had the lowest
average performance on the most recent statewide assessment exams. For example, in
the 2022-2023 academic year, the ethnic subgroup with the lowest average statewide test
scores was Black or African American students. If the proposal had been in effect that
year, all Black students in the State would have been classified as unduplicated pupils,
regardless of whether an individual Black student's test scores were low or high.
Students with low individual test scores from other ethnic subgroups would not qualify
on the basis of their ethnic subgroup affiliation (though they might still be counted as
unduplicated pupils under the existing definition for other reasons, i.e., as English
learners, students eligible for a free or reduced-price meal, or foster youth).

The requestor explains that the purpose of the proposal is to address the persistent
racial achievement gaps in K-12 education in California. As the requestor notes, test
scores for Black students lag statewide averages in both English and Mathematics. In the
most recently reported data, for example, 70% of Black students did not meet English
language standards, compared with 53% of all students who did not meet those
standards. Similar achievement gaps exist for students in other ethnic subgroups; for
example, among students identifying as American Indian or Alaska Native, 66% did not
meet English standards. And these achievement gaps persist whether students are low
income or not. To address these serious disparities, the proposal would classify all
students in the lowest-performing ethnic subgroup, currently Black students, as
unduplicated pupils, thereby triggering additional funding. The requestor reports that
75% of Black students currently qualify as unduplicated pupils under the existing
statutory definition, so the proposal would affect the remaining 25%.

We have been asked to analyze whether this legislative proposal would run afoul
of the state or federal Constitution. In doing so, we recognize the critical importance of
the problem that this proposal seeks to address. As commentators have observed, "[f]ew
goals in education have been as frustrating and urgent as the effort to fix the deep,
generational disparity in achievement . . . in California schools." The persistence of a
racial achievement gap across "cities, rural communities and suburbs" is "a sign that
opportunity is not yet equal for many children in California classrooms."

We also recognize, however, that recent decisions of the United States Supreme
Court have increasingly constrained the ability of government to factor race or ethnicity
into policymaking. Applying those precedents here, we conclude that the proposed
amendment would violate the federal Constitution by conditioning education funding on
student ethnicity. Because we conclude that the proposal would violate federal law, we
need not address whether it would also violate the state Constitution.

The Legislative Proposal Would Violate The Federal Equal Protection Clause.
The United States Constitution provides that no State shall "deny to any person
within its jurisdiction the equal protection of the laws." A "core purpose" of the equal
protection clause is to "do away with all governmentally imposed discrimination based
on race." In the education context, the government may not "separat[e] students on the
basis of race without an exceedingly persuasive justification."

Under United States Supreme Court precedent, "all racial classifications imposed
by" a State "must be analyzed . . . under strict scrutiny." As the Court has explained,
strict scrutiny is the "most rigorous and exacting standard of constitutional review."
First, a court asks "whether the racial classification is used to further compelling
governmental interests." If so, then the court asks "whether the government's use of
race is 'narrowly tailored', meaning necessary, to achieve that interest." Applying
that standard, the Supreme Court has invalidated race-conscious programs in areas such
as government contracting and K-12 school assignments. Most recently, it struck down
a university admissions policy that considered race as one factor in a holistic review of
applications, despite having repeatedly upheld similar policies before, including less
than a decade earlier.

We recognize that dissenting justices have frequently criticized the Court's
modern approach in this area. Justice Sotomayor, for example, argued that the Court's
recent invalidation of a race-conscious university admissions plan "subverts the
constitutional guarantee of equal protection" by "cement[ing] a superficial rule of
colorblindness as a constitutional principle in an endemically segregated society where
race has always mattered and continues to matter." In light of our obligation to apply
governing precedent, however, our analysis must rely on the Court's majority decisions.

Applying those decisions, we conclude that the proposed LCFF amendment "must
be analyzed . . . under strict scrutiny." As explained above, the proposal would allocate
supplemental education funds based on student ethnicity. Using 2022-2023 data, for
example, the proposal is no different from one defining "unduplicated pupil" for that year
to include "all Black students in the State." Although the lowest-performing subgroup
could change in later years, supplemental funding would always be awarded to a single
ethnic group. Because the proposal would "distribute[] . . . benefits on the basis of
individual racial classifications," it must be "reviewed under strict scrutiny."

Applying that standard, we first consider whether the proposed policy would
"further compelling governmental interests." In the context of K-12 education, the
Supreme Court has recognized that the State has a "compelling" interest in remedying the
effects of "past discrimination that violated the Constitution or a statute." In contrast,
the Court has "held that ameliorating societal discrimination does not constitute a
compelling interest that justifies race-based state action."

The stated purpose of the proposed LCFF amendment is to improve educational
outcomes for the State's lowest-performing students, thereby addressing the persistent
racial achievement gap in K-12 education. In our view, the State's interest in
improving academic outcomes for underperforming students is a vital objective. As the
U.S. Supreme Court has long recognized, "education is perhaps the most important
function of state and local governments." By "provid[ing] the basic tools by which
individuals might lead economically productive lives," education plays "a fundamental
role in maintaining the fabric of our society." Indeed, "it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity of an
education." Recent analyses have only reaffirmed that conclusion. And like other
state interests that have been recognized as "compelling," there are clear standards for
"courts . . . to measure" improvements in student performance, including scores on
standardized statewide assessment exams. For these reasons, we conclude that
improving educational outcomes for low-performing students is a "compelling" interest
for federal equal protection purposes.

Strict scrutiny also requires the State to show that its use of race is "narrowly
tailored," that is, "necessary . . . to achieve" its compelling interest. "Narrow tailoring
requires serious, good faith consideration of workable race-neutral alternatives." If
such an alternative "could promote the [State's] interest about as well and at tolerable
administrative expense," then the State generally "may not consider race." The
Supreme Court has emphasized, however, that narrow tailoring "does not require
exhaustion of every conceivable race-neutral alternative."

We conclude that the legislative proposal here is not "narrowly tailored" to
advancing the State's interest in closing student achievement gaps. To begin with, there
appears to be a "workable race-neutral alternative[]." The Legislature could directly tie
supplemental LCFF funding to low student performance by defining "unduplicated pupil"
to include all students who score below a specified threshold on the statewide assessment
exams. The State has implemented a program like this before: it allocated $300 million
for low-performing students in the 2018-2019 fiscal year. And this approach could
advance the State's interest in improving academic outcomes for its lowest-performing
students by directly identifying those students and funding services for them.

Moreover, as compared with the race-neutral alternative, the legislative proposal at
issue is less precisely tailored to advancing the State's interest in funding services for
low-scoring students. Because the proposal limits supplemental funding to students in
one ethnic subgroup, it fails to increase funding for the many students in other ethnic
subgroups with significant educational needs. Using current data, for example, the
proposal would provide additional support for Black students, who make up
approximately 6% of the State's low-performing student population. But it would
provide no further support for students with low scores in other ethnic subgroups, who
constitute about 94% of the low-performing students in the State. In contrast, the race-neutral alternative would increase funding for all low-performing students, regardless of
race or ethnicity. Further, although the identified state interest is to support low-performing students, the proposal would provide supplemental funding for some students
who are already performing well: Black students with high individual test scores. In this
respect, the proposal again contrasts with the race-neutral alternative, which would
increase funding only for students with low individual test scores.

For these reasons, we conclude that the legislative proposal here would not survive
the strict scrutiny analysis. Under governing precedent, the proposal is not "narrowly
tailored" to advancing the State's compelling interest in improving educational outcomes
for its low-performing students.

CONCLUSION
We conclude that the proposed legislative amendment would violate the federal
equal protection clause. Nothing in this opinion calls into question race-conscious state
or local policies that are "narrowly tailored" to advancing a compelling state interest,
such as remediating the effects of past government discrimination. Nor does it cast any
doubt on the legality of education-funding mechanisms that do not rely on express racial
or ethnic classifications.