Jun 11 2014, 4:53pm CDT | by Forbes
Conservatives who cheered a California judge’s decision yesterday blocking that state’s public-school tenure rules should think twice before attempting to sue the teachers’ unions into submission elsewhere.
The history of judicial intervention in public school policy is rich with examples that have horrified and angered conservatives, including forced busing programs and long-running fights over court-overseen mandates to equalize per-pupil spending. In 1973, the U.S. Supreme Court came within one vote of establishing a constitutional right to equal funding that could have given judges the power to dictate school funding and tax policies nationwide.
So it’s worth looking at the tentative ruling by Los Angeles Superior Court Judge Rolf Treu in light of what it could mean for future plaintiffs, not the assault on teacher-union perks conservatives are so excited about now.
In the surpringly concise, 16-page ruling, Judge Treu – a Republican appointee – acknowledges the “intense political debate” over school policy and said it is “not this Court’s function to question the wisdom” of the state’s laws governing teacher employment. But he nevertheless struck down laws effectively granting California teachers tenure after less than two years and requiring school districts to lay off teachers in order of seniority. He also struck down dismissal statutes that granted teachers extraordinary power to challenge firings, in what the judge dubbed “uber due process.”
All these laws, passed at the behest of the powerful unions representing some 275,000 teachers statewide had the effect of discriminating against poor and minority students, the judge wrote. He got there by applying the doctrine of strict scrutiny under the California state constitution, a method of analysis reserved for the most serious cases of discrimination that the U.S. Supreme Court refused to use in the 1973 school-funding decision mentioned above, San Antonio v. Rodriguez.
“The evidence is compelling,” he wrote. “Indeed, it shocks the conscience.”
The plaintiffs, financed by Silicon Valley entrepreneur David Welch, proved that the challenged laws “present a real and appreciable impact on students’ fundamental right of equality of education and that they impose a disproportionate burden on poor and minority students,” he said. The decision was based on California’s version of the 14th Amendment requiring equal protection under the laws, as well as a provision requiring the state to provide a “free school in every district.”
That phrase “fundamental right of equality of education” can be used in ways that will set conservative teeth on edge, however. For an example, look at the long-running case in New Jersey known as Abbott v. Burke. The case, originally decided by the New Jersey Supreme Court in 1985, held that the New Jersey Constitution’s guarantee of “thorough and efficient” free schools meant the system of unequal funding through property taxes was discriminatory.
The final chapter heading on this web page says it all: The case is now referred to as Abbott XX. Or Abbott XXI, since the 20th iteration of Abbott ended, like all the others before it, with an impasse between the state’s legislative and judicial branches over how to equalize school funding. Each time the Supreme Court tells the legislature to draft a law guaranteeing “substantially equivalent funding” for schools, the legislature passes a law that fails the Supreme Court’s test. The court ordered an immediate $246 million increase in funding for the 1997-98 school year, mandated early education programs, and ordered the legislature to fund a $9.8 billion building improvement program that the Abbott plaintiffs — represented by the Education Law Center backed by the state teachers union — still complained was inadequate and unconstitutional.
When Gov. Chris Christie signed a budget in June 2010 cutting school funding by $1.1 billion, the Abbott plaintiffs went back to court, where the judges ordered a $500 million increase for the 31 poor and minority school districts covered under Abbott. This year, the plaintiffs filed another motion arguing the Christie administration hasn’t followed the court-ordered formula.
Even Arne Duncan, the Obama administration’s Secretary of Education, praised the Vergara ruling as a “mandate” to fix “laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students.”
But conservative activists who take up the cudgel of state constitutional guarantees of an equal public education should keep the New Jersey example in mind. If they succeed in breaking the teachers’ union, other activists might try to use the same tool to attack the tax bases of wealthy suburbs, crack zoning laws that have the de facto effect of creating segregated school districts and even dictate higher taxes to fund higher teacher salaries.
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