Martin Jenkins received wide praise last week following his nomination by Gov. Gavin Newsom to the California Supreme Court. Jenkins, 66, who’d be the first openly gay justice on the high court, served for three decades on state and federal courts, where he was characterized as a hard-working judicial “moderate.” Since last year, he has been Newsom’s appointments secretary.

However, attorneys who had sought to persuade the courts to be allies in demanding more money for California schools had a different, more muted take on the appointment, tied to a particular ruling. Four years ago, as a justice on the state court of appeal, Jenkins dashed their hopes. He wrote the decision that there was no constitutional basis for two lawsuits arguing the state inadequately funded K-12 education. Months later, a majority of the state Supreme Court agreed with Jenkins’ opinion, and the lawsuits died.

Now, with Jenkins’ nomination all but certain to be approved, it could be years, if not longer, before other advocates try again. Lawyers will be wary of turning to the courts, “short of another justice retiring from the court,” said Aaron Tang, a law professor at the UC Davis School of Law.

The lawsuits

Together, the two related lawsuits, filed in 2010 in the midst of the Great Recession, amounted to a massive effort by civil rights groups, school organizations and advocates for low-income students to convince California courts that low per-student funding deprived students their fundamental right to a public education.

Plaintiffs in Campaign for Quality Education v. California included the nonprofit law firm Public Advocates and high-powered pro-bono lawyers representing low-income families. A coalition of school organizations representing school boards, school administrators and the state PTA, along with the Youth & Education Law Project at Stanford Law School, focusing particularly on the interests of low-income students, filed Robles-Wong v. California. It was named after student plaintiff Maya Robles-Wong, who, a decade ago, was a junior at Alameda High School. The California Teachers Association also participated in the case.

In their lawsuits, lawyers argued the state set high expectations, through rigorous academic standards, like the Common Core standards, which the state adopted the year the lawsuits were filed, but insufficiently funded schools to ensure students could attain the standards. They pointed to California’s low ranking in per-student funding, high student-to-teacher and counselor ratios, low test scores nationally and big disparities in achievement among racial, ethnic and income groups as evidence.

Advocates would have elaborated with witnesses and more evidence (including, perhaps, the impact of a more equitable school funding system, the Local Control Funding Formula, which was adopted in 2013), but they didn’t get the chance. They couldn’t get past the first red light, establishing a constitutional basis for proceeding to trial.

First, Alameda County Superior Court Judge Steven Brick, then Jenkins, writing the majority opinion in a 2-1 decision by the San Francisco-based 1st District Court of Appeal, ruled that funding levels are strictly the Legislature’s prerogative. The state Constitution’s vague directives that the Legislature “provide for” and “keep up and support” public schools and “encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement” are silent on mandating a minimum level of education quality and funding, Jenkins wrote in April 2016.

Jenkins implied that judges shouldn’t assume they know better than lawmakers how to set appropriate funding levels. “Rather, the constitutional sections leave the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch,” he wrote.

Four months later, in August 2016, the California Supreme Court voted 4-3 not to hear the two cases and let Jenkins’ ruling stand. The four justices chose not to comment, but two of the three justices in the minority, Goodwin Liu and Mariano-Florentino Cuéllar, issued lengthy dissents.

‘Paper promise’ without funding

After noting in his 11-page response the low performance of California’s students compared with students in other states, Liu wrote, “The schoolchildren who brought these actions do not claim they are entitled to a world-class education. They ask only whether the California Constitution protects them from being deprived of a minimally adequate education.” California’s children deserve to know whether their fundamental right to education was a “paper promise or a real guarantee,” he wrote.

Liu expressed the hope that someday the issues raised by the two lawsuits would come before the court again. Last week, plaintiffs’ lawyers declined to comment directly on Jenkins’ nomination, stating they never discuss judges whom they might appear before. But they too said they’d like a chance, with a full trial, to persuade Jenkins and the others to change their minds.

Although Jenkins’ conclusions were “very disappointing,” Stanford Law School professor William Koski, one of the Robles-Wong attorneys, wrote in an email that “if and when presented with a case documenting the continued failure of the state to sufficiently fund education and the continued underperformance of California’s students, particularly African American and Latinx students, I would hope that Justice Jenkins would take the opportunity to revisit his decision.”

John Affeldt, managing attorney of Public Advocates, said he hopes Jenkins would “keep an open mind if it comes to him again.” Jenkins would have a “broader role” to shape law as a member of the Supreme Court than he had as a justice of a court of appeal. The conversation would be different, he said.

That conversation may not happen, however. Since that Supreme Court declined to hear the case, one justice retired, and Joshua Groban, an appointee of former Gov. Jerry Brown, took his place. His position on funding adequacy is an unknown. But Jenkins would replace Justice Ming Chin, who, while recognized as the court’s most conservative justice, did join with Liu and Cuellar in voting that Robles-Wong and Campaign for Quality Education should be heard.

So swapping him for Jenkins makes four, maybe five justices who would appear reluctant to confront the Legislature on levels of education funding.

In a 2017 analysis of the case in the Columbia Law Review, Koski wrote that since California is often seen as “a bellwether” on where the nation is headed, the state Supreme Court’s decision not to hear the lawsuits may signal, after five decades of litigation throughout the nation, the judiciary’s “wariness of and weariness with the remedy of demanding money to cure educational ills.”

Kosksi said that shouldn’t mean giving up the fight for sufficient and equitable school funding. Instead, he suggested that the “next generation” of education litigation should be smaller bore lawsuits focused on “judicially manageable, discrete educational wrongs and remedies.”

Jenkins’ opinion in Robles-Wong was his most significant ruling on K-12 education as an appellate judge. In 2016, he wrote the ruling upholding an element of Gov. Brown’s public pension reform law of 2012 without taking on the larger issue of whether employers have the power to significantly modify existing employees’ pension benefits. The Supreme Court unanimously agreed with that view.

Jenkins could become second Black justice

Jenkins, a registered Democrat, would be Newsom’s first nominee to the court and would be the second Black justice, with Leondra Kruger, on the current court. In elevating his appointments secretary to the job, Newsom said, “I’ve seen firsthand that Justice Jenkins possesses brilliance and humility in equal measure.”

Tang, from UC Davis School of Law, said that while he too disagreed with Jenkins’ school finance ruling, it was “carefully written and thoughtful.” Jenkins “grappled with the arguments, so there is no reason to conclude anything but that he would be a highly respected justice on the court.”

Jenkins must be confirmed by the Commission on Judicial Appointments, made up of Attorney General Xavier Becerra, Supreme Court Chief Justice Tani Cantil-Sakauye and J. Anthony Kline, the state’s senior appeals court justice. He would serve two years, and then face election for a 12-year term.

Story originally published by EdSource.