Academic journal article Education Next

Teacher-Tenure Decision Is Not an Abuse of Judicial Power: Vergara Precedents Are Multiple, Judge's Actions Restrained

Academic journal article Education Next

Teacher-Tenure Decision Is Not an Abuse of Judicial Power: Vergara Precedents Are Multiple, Judge's Actions Restrained

Article excerpt

In June, a judge declared California's seniority protection laws unconstitutional. Citing the 1954 Brown decision, Judge Rolf Treu, in Vergara v. California, declared the laws in violation of the equal protection clause of the California state constitution because they limited minority access to effective teachers.

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Teachers unions are aghast that a judge has interfered with their special privileges. Their close ally, Michael Rebell, who has filed multiple adequacy lawsuits against state legislatures, told a reporter, "It is basically unprecedented for a court to get into the weeds of a controversial education policy matter like this." Invoking judicial restraint doctrine, he expects other judges to "defer to the legislative branch, which ... knows more about the workings of these policies."

Given Rebell's connections to teachers unions, his conversion to judicial restraint doctrine is only to be expected. More surprising are the criticisms of Vergara voiced by Education Next's own judicial observers, Martha Derthick and Joshua Dunn. Also calling for judicial restraint, they argue that the principles enunciated in Vergara could allow any child to file suit against his teacher. The reaction of Frederick Hess, of the American Enterprise Institute and Education Next, is no less apocalyptic: "If courts decide that civil-rights claims can be stretched to dictate personnel management in education, it's hard to see where they would stop."

But Judge Treu did not dictate to the California legislature; he said only that its current policies are unconstitutional. Nor does he require any specific new remedy, leaving that job to the legislature.

This is hardly the first California education law to be declared unconstitutional. In the famous Serrano case (1977), the court ruled the state's spending formula unconstitutional on disparate-impact grounds. Subsequently, Rebell and other union-backed attorneys persuaded state courts from Kentucky and New Jersey to New York and Washington to declare state expenditure policies unconstitutional on the grounds that they are "inadequate," a standard so vague and amorphous as to make Vergara seem as precise as a mathematical equation. …

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