Will Newsom quickly settle a school facilities lawsuit as Schwarzenegger did?

The article was updated on Jan. 14 to clarify that students were questioned during pre-trial depositions in the summer of 2001. The lawsuit was settled before going to trial.

Gov. Gavin Newsom faces a decision in his last year as governor similar to one former Gov. Arnold Schwarzenegger faced in his first year two decades ago: How to deal with a lawsuit demanding that the state fix unhealthy and inadequate school facilities?

In 2004, Schwarzenegger, a political novice, moved quickly and, within a half year of becoming governor, settled a lawsuit that his predecessor, Gray Davis, had dragged out in San Francisco County Superior Court for more than three years. The landmark agreement that Schwarzenegger and his aides negotiated in 2004 redefined the state’s oversight over school facility conditions.

Nearly a quarter-century later, with some schools in equally deplorable shape as they were back then, a lawsuit filed in late October calls on the Alameda County Superior Court to declare unconstitutional the state system of doling out billions of dollars in state bond money to renovate schools. 

The lawsuit argues that, with few exceptions, the system of matching grants rewards students in property-rich districts that can afford to issue large facility bonds while ignoring deteriorating schools in property-poor districts that can’t afford to maximize matching state grants. 

Lawyers for the state have not yet responded in Miliani R. v. State of California, and Newsom hasn’t commented. But as the case moves forward in 2026, the governor, while not directly named as a defendant, will stake out his administration’s position one way or the other.

The question is: Will he act like Schwarzenegger or Davis, ignoring an aid formula that Newsom has acknowledged needs to be changed?

Asked what advice he’d give to Newsom, Schwarzenegger, who is now a health advocate and fitness mentor, said in an interview, “I think it’s a good opportunity now to go and fix it again.”

A question of a constitutional right

The more recent lawsuit has echoes of the 2000 class action lawsuit Eliezer Williams v. State of California, named after a sixth grade student at Luther Burbank Middle School in San Francisco, which, according to the lawsuit, was “infested with vermin and roaches and students routinely see mice in their classrooms.” 

Both lawsuits raise a similar question: Does the state’s constitutional obligation to provide all students with an equal opportunity to learn include safe, adequate and fully equipped school buildings?

In an editorial in May 2000 that still resonates today, now-retired Sacramento Bee Editorial Page Editor Peter Schrag wrote: “There’s little in last week’s lawsuit about the wretched state of the schools that many of California’s poorest children are forced to attend that wasn’t known before. …

“But that makes the allegations in this suit all the more scandalous and the posture of the defendants all the more indefensible. How can something that everybody ought to know only too well — the local districts, the state Department of Education, the governor, the Legislature — be tolerated year after year, decade after decade?”

Davis to districts: It’s your job

The Williams lawsuit and testimony describe deteriorating buildings with malfunctioning heating and air conditioning, broken toilets, classrooms with mold, and cockroach and, in some cases, rat infestations. But Williams also challenged the lack of up-to-date textbooks and the employment of unqualified teachers in the cited 46 schools in 19 school districts that primarily served low-income children.

In fighting the lawsuit, Davis argued that local districts should fix their own schools in accordance with state safety and health codes.

To make the point, O’Melveny & Myers, the politically connected outside law firm that Davis hired to handle the lawsuit (the firm had donated to Davis’ campaigns), countersued 18 of the districts, recalled Mark Rosenbaum, the lead attorney for the American Civil Liberties Union of Southern California, one of the nonprofit law firms representing the plaintiffs.

During three weeks of depositions in summer 2001, the state’s attorneys grilled 13 students, aged 8 to 17, named in the lawsuit.

“A pattern emerged, as the state’s lawyers repeatedly hinted that the problems described were not so bad,” San Francisco Chronicle reporter Nanette Asimov wrote. “Some witnesses cried. Others became frightened when the questioning took on the tone of an interrogation. And some were defiant, angry at suggestions that they had lied or exaggerated.”

Asimov included a feisty exchange between the state’s’ attorney Michael Rosenthal and Alondra Jones, 17, who attended Balboa High School in San Francisco.

“Did the mouse droppings you saw on the floor affect your ability to learn in U.S. history at all?” he asked.

“No,” she answered.

“You got an A, even though there were a number of unfair conditions in this class, right?” he asked.

“Just because the state failed doesn’t mean I have to,” she replied. “It didn’t impede my ability to learn, but I’m pretty sure you didn’t have mouse droppings in your classrooms. … Why do I have to?”

During much of 2002 and 2003, attorneys in the case attended daylong, monthly, court-encouraged mediation sessions that prolonged the trial. “But were they serious? No, they were not serious. But the judge wanted us to try, and we did. And they never came forward with a serious offer,” Rosenbaum of the ACLU said.

That ended in 2003, when, in a two-part recall election, voters booted then-Gov. Davis and elected Schwarzenegger, the actor and professional bodybuilder who charted his own political path as a Republican. Once in office, he quickly dismissed the outside lawyers, who had billed the state $18.5 million, according to the Chronicle, and indicated he intended to settle the case.

Schwarzenegger didn’t need convincing

Schwarzenegger says that before his election, he was aware of the case and had already formed an opinion. As founder and champion of After-School All-Stars, a national nonprofit that offered sports and tutoring in schools, he had toured California and was aware of the Williams lawsuit. He saw bedsheets blocking the wind in broken windows and broken toilets, he said.

“I didn’t see those kinds of conditions in Santa Monica or in Malibu and San Diego,” he said. “I had this assumption that the Democrats were really strong when it comes to equal education. Why would they then let something like that happen? Why would Gray Davis delay this suit?”

Soon after the election, Rosenbaum, the lead attorney for the ACLU, got a call from an aide that Schwarzenegger wanted to meet in the tent outside the Capitol building, where the governor could smoke cigars.

Rosenbaum recalled that Schwarzenegger told him, “Look, Mark, I don’t support affirmative action. I know you do, but I do feel that if I’m going to oppose affirmative action, I’ve got to give these kids a fair shake.”

 “I’ll never forget that,” Rosenbaum said.

Things moved quickly after that. Months later, lawyers on both sides announced they had reached a deal, and within weeks, the Legislature had passed four bills committing about $1 billion ($1.7 billion in today’s dollars), including $800 million for emergency repairs for the state’s neediest schools and money for textbooks.  

Other key elements, which gave teeth to the commitments, included:

• New reporting requirements for annual school accountability report cards;
• A complaint process, with notices posted in every classroom, informing students and parents how to report troublesome school conditions and shortages of textbooks and materials;
• Annual inspections of every school by county offices of education.

Some counties initially resisted the Williams inspections, Rosenbaum said, but over the next several years, a young attorney, Brooks Allen, worked cooperatively and patiently with the counties on their responsibilities. The ACLU of Southern California and Public Advocates jointly issued an annual report documenting compliance with the Williams settlement and its impact for several years.

The rise of state construction aid

The Williams settlement was a pragmatic fix, not a permanent solution to an underlying inequality — a disproportionate reliance on vast differences in school districts’ property wealth as the basis for funding major school repairs and building renovations. The $800 million was a one-time infusion of funding.

State aid for school construction was in its infancy when the Williams lawsuit was filed. Since 2000, state voters have approved $44 billion in bonds for TK-12 new construction and renovations. Still, that’s less than 20% of what individual districts issued in their own bonds for school construction during that time. Only 15% of California school districts are meeting annual facility capital renewal spending standards, according to the Center for Cities + Schools at UC Berkeley. 

Nonetheless, the School Facilities Program has made a significant difference for many school districts, especially for the wealthiest districts — those with the most taxable property per student — and a limited subset of the poorest districts that qualify for hardship aid. Under a first-come, first-served allocation system in which the state funds 60% of qualified renovations, districts with the most taxable property per student got, on average, more than 2.5 times the state aid as districts with the least property per student from 1998 to 2023, the Center for Cities + Schools found.

Only in the past year has the Legislature required districts seeking state building aid to submit a five-year building master plan. That will likely put the state in a better position to identify which portables are the oldest and which districts’ facilities most need modernization. 

Schools in districts named in the most recent suit, Miliani R. v. the State — Del Norte, San Bernardino, Stockton, Salinas, Lynwood and others — haven’t fared well since the Williams lawsuit. The portables with mold and leaky roofs, buildings with malfunctioning air conditioning, and fields with gopher holes are 25 years older, and the districts argue they can’t afford the repairs they need under the current system.

Two years ago, when the Legislature was considering putting a $10 billion bond, with $8.5 billion earmarked for TK-12, on the 2024 ballot, John Affeldt, managing attorney for the nonprofit law firm Public Advocates, sent a 21-page letter to lawmakers warning that students and organizations it represents would sue unless the formula for distributing money was rewritten.

The changes in Proposition 2, the $10 billion bond measure voters passed in November 2024, included:

• Adding a slightly bigger share of the state match for low-property wealthy districts with predominantly low-income students;
• Expanding the threshold for hardship assistance for tiny districts with little assessed property;
• Setting aside 10% of the bond for small districts — those with fewer than 3,500 students, although this advantage is available regardless of their property wealth.  

When lawmakers and the Coalition for Adequate School Housing, the lobby for school districts, school building contractors and architects, made what Public Advocates dismissed as minor concessions, Public Advocates filed Miliani R. 

Both Affeldt and Jack London, a partner in the San Francisco law firm Morrison Foerster, which is a pro bono counsel in Miliani R., had prominent roles representing plaintiffs in the Williams lawsuit. They could give Newsom a short course in California facilities litigation if, like Schwarzenegger, he reached out.  

Then there’s Brooks Allen, the lawyer who also worked on Williams with Affeldt and London.

Two decades after Williams, he now serves in the dual role as education adviser to Newsom and executive director of the State Board of Education.

Allen declined to say what, if any, advice he has given Newsom on Miliani R.