By John Fensterwald, EdSource
State Superintendent of Public Instruction candidate Sonja Shaw has called the new law that strips the next state superintendent’s authority to manage the California Department of Education an unconstitutional “sweeping power grab.”
On Fox, X and elsewhere, she has vowed to sue Gov. Gavin Newsom and the Legislature to prevent future governors from hiring a new education director who would take over the department she wants to run.
Shaw should ask Bill Honig what he thinks of her chances.
More than three decades ago, then-State Superintendent Honig was sued by the State Board of Education in a power struggle. Honig’s lawyers argued that the 1849 California Constitution protected the state superintendent from the State Board’s and the Legislature’s intrusion on the superintendent’s authority to control his own budget, hire staff and run the department as he saw fit.
Honig lost State Board of Education v. Honig, which was big news in 1993. Honig predicts Shaw will lose, too.
“So the question, then, is: Can the Legislature reshuffle who does what? And I think it’s clear that they can, and (the court’s decision) said that,” Honig, who’s now 89 and living in Santa Rosa, said in an interview.
Newsom announced his restructuring plan in his January State of the State speech. He said bringing the department operations under one executive responsible for creating policies and implementing programs would bring order to a divided system.
A century of commissions and research, including a detailed study in 2025 by PACE, an independent, university-based research center, backed up his position. They agreed that dividing responsibilities between an elected state superintendent and the governor/state board he appointed inevitably created confusion and inefficiency.
Dozens of education advocacy groups, organized by Children Now, and the major school associations representing school boards, administrators, county superintendents and charter schools — those most directly involved with the department and the school accountability system — supported the initiative.
But Shaw, in an interview with Fox News, called the move “a direct assault on California’s Constitution and the will of voters,” who, she said, went to the polls in June expecting to vote for a superintendent candidate whose job includes running the education department.
Shaw, who is president of the Chino Valley Unified School District in Southern California, also accused Newsom of making a “back-door deal.”
“He knows he couldn’t win at the ballot box so he is taking it into his own hands,” she said.
Richard Barrera, Shaw’s opponent in November, also castigated Newsom for stripping the state superintendent of power through a budget trailer bill, Assembly Bill 181.
Newsom chose to avoid the process of sponsoring a bill and shepherding it through the legislative process. Instead, he incorporated some of the ideas proposed by Assembly leaders on education — Darshana Patel and David Alvarez, both from San Diego — and cut a deal in the final days of state budget negotiations, ensuring its passage. It turned out he needed every vote they could round up; about a third of the 120-member Legislature abstained on the vote, the majority of whom were Democrats.
The California Teachers Association, which holds sway with many Democrats, also actively opposed the deal.
Chandra Sharma, Shaw’s chief strategist, said it’s premature to discuss the campaign’s legal strategy, but Shaw is confident that AB 181 “will not pass legal muster.”
“California courts have long held that while the Legislature may implement the Constitution, it cannot use ordinary legislation to undermine or circumvent it,” he said in an email. “Governor Newsom knew eliminating an independently elected Superintendent would never survive a vote of the people, so he bypassed them entirely.”
“You don’t fundamentally alter a constitutional office through a budget trailer bill,” he said.
Shaw can count on the support of Michael Gates, who placed second in the June primary election for state attorney general and will face the incumbent, Rob Bonta, in November. Gates, a Republican, is the city attorney for Huntington Beach.
“The Legislature and governor are wrong to strip the superintendent’s authority — it tragically undermines the public trust and is vulnerable to legal challenge,” Gates wrote in a statement on behalf of the Shaw campaign. “As attorney general, I’ll challenge this latest action in order to restore the superintendent position to the role the People intended.”
Legislature prevails under state constitution
Asked to justify the lawfulness of AB 181, the governor’s office pointed to State Board v. Honig.
Honig, a former teacher and superintendent of a small Marin County school district, had served two terms on the State Board under former Gov. Jerry Brown before successfully running for state superintendent in 1982. As Honig tells it, he and then-Gov. George Deukmejian clashed over policy and school funding. Relations worsened, he said, after Deukmejian appointed State Board members who “were basically given instructions to rein me in.”
“They wanted to expand the powers of the board vis-a-vis the department. They wanted to review the top deputies, take control of the budget — things like that. And that wasn’t the norm,” Honig said.
Before the Court of Appeals Third District in Sacramento could decide whether the State Board did have that statutory authority, the three judges had to consider Honig’s assertion that the state constitution intended to put the state superintendent “in charge and control of the public school system and the state education department.”
The court’s answer was clear: “We reject the argument.”
The 1849 California Constitution established the state superintendent position, but its one-line mention simply said the person would be elected for a three-year term. Three years later, in 1852, the Legislature created the State Board to advise and supervise the superintendent on distributing state funding. In 1913, it was the Legislature, the decision noted, that revised the government code to outline the duties of the State Board and state superintendent. Then, in 1921, the Legislature established the California Department of Education, and designated the State Board to set education policy and put the state superintendent in charge of the department’s operations.
The underlying principle, the judges said, is this: “The entire law-making authority of the state, except the people’s right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution.”
In other words, the constitution’s failure to spell out the job of the state superintendent was not an oversight; it was intentional, according to the judges.
Lawmakers can clarify what they blurred
Over the decades, governors and state legislators have shipped oversight functions to county offices of education. They created the California Collaborative for Educational Excellence to help with school improvement. This offloading of functions from the department, the PACE report said, has blurred lines of authority. Meanwhile, the governor and Legislature didn’t address — until now — the challenge of a bifurcated system in which a governor and state board create policy and programs but lack the authority to implement them.
The Legislature can’t “extinguish” the constitutional position of the state superintendent, the court said back in 1993, but it can “increase or diminish” its power.
Honig wasn’t pleased with the court’s ruling 33 years ago, but he now supports lessening the superintendent’s authority.
“I think it’s a good idea what they’re doing,” he said. “There’s a strong argument that the governor should be held responsible for the management of the department, and he can put in a person who can really get things organized.”
