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When Should the Courts Intervene?

By Jack Schneider — December 16, 2014 6 min read
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In this post, Jack and Andy Smarick discuss the recent Vergara decision and consider more generally the practice of pursuing educational policy changes through the courts.

Smarick: For several decades, some education advocates (including teachers unions), after failing to win in the legislature, successfully used state courts to achieve one of their top priorities: increasing K-12 funding. In a historical twist, some in the reform community, unable to win in the legislature, are now using state courts to overturn tenure rules.

Regardless of your views on any specific policy matter, what do you think of the general strategy of using courts instead of the elected branches to achieve K-12 policy goals? More specifically, what do you think of the Vergara decision, which overturned California’s laws on seniority and tenure?

Schneider: It’s a good question. Because this is an issue around which there’s a lot of philosophical yoga. Liberals and conservatives alike bend themselves into all kinds of positions—advocating judicial restraint, or judicial activism—depending on whether they like the outcome of a case.

Frankly, I see no problem with using the courts if the elected branches fail to act. The desegregation cases of the 1950s and 1960s are a great example of this. States and school districts were in violation of the law, and the courts—the Supreme Court as well as lower courts—stepped in to address that. Now, I don’t think the courts are particularly effective when there isn’t the political will to carry out their rulings—they’re better at establishing principles than at hashing out policy details. But I’m not opposed to the third branch on ideological grounds.

Obviously the courts, just like legislatures, can make mistakes. And I think that was the case in Vergara. The logic of the case was that teacher tenure and dismissal practices deny students equal access to a quality education. But though it’s certainly true that students in California have unequal access to quality instruction, there isn’t compelling evidence that those statutes are to blame.

Should tenure, dismissal, and layoff practices change? Yes. Even teachers agree. But I’m not sure there’s sufficient grounds for a lawsuit.

Smarick: I wholeheartedly agree that Brown was correctly decided. But not all policy disagreements rise to the level of constitutional principles. If they did, we’d be governed entirely by judges instead of primarily by elected branches.

That’s my concern with your formulation that judges should move in when someone decides that the elected branches have “failed to act.” Name an issue—environmental protection, tax policy, agricultural subsidies—and I’ll produce a group furious that the elected branches have “failed to act” as it wants. That would be an entry pass for the courts into every corner of every policy.

For decades now, state courts have decided they can intervene in K-12 funding. Now they’re doing so in educator policies. Is anything off limits?

Here’s what I mean. Below is the first paragraph of three newspaper articles I’ve fabricated based on hypothetical court decisions using your “failed to act” framework.


  • “The Massachusetts Supreme Judicial Court overturned the state’s cap on charter schools in the city of Boston. The decision, relying on research finding charter students learn a year more annually than comparable students in district schools, wrote ‘It is unconscionable to prevent the substantially higher-performing charter sector to grow when the district has languished for so long. Since the Legislature has failed to lift the charter cap to help poor students, we must.”
  • “A federal court today ordered D.C. Public Schools, the school district in the nation’s capital,’ to immediately cease and desist its disproportionate enrollment of affluent, non-minority students.’ Recent research found the district’s percentage of white students to be five times higher than the charter sector’s. The court wrote ‘these results are unconstitutionally inequitable; since the district has not acted, we must immediately mandate the even distribution of non-poor, non-minority students among district and charter schools.’”
  • “Today, the Supreme Court of New Jersey ordered the state to permanently end Newark’s traditional school district and replace it with a fully chartered system. The decision read, ‘Through prior decisions, this Court dramatically increased district funding, and the state tried countless interventions, including a two-decade takeover. All of this has failed. Research finds the city’s charter sector providing students with seven to nine additional months of learning annually. Since the state has failed to end the failed urban district, we must do so and direct the creation of a new charter-based system of schools.”

Are you OK with these decisions?

Schneider: To be clear, the issue is not merely “a failure to act.” It is failure to act, as I note above, when states and districts are “in violation of the law.”

Brown was decided on the grounds that schools were in violation of the equal protection clause of the 14th Amendment. And though the evidence used in the trail may not be thoroughly compelling, the logic of the decision—that separate is inherently unequal—is hard to argue with.

In the Vergara case, Judge Rolf Treu’s decision was grounded in much weaker logic. The California state constitution guarantees equal opportunity to achieve a quality education. Yet it isn’t clear that laws involving tenure, dismissal, and layoffs—products of collective bargaining—deny equal opportunity, since they apply everywhere in the state. Funding, it seems to me, is a different question, because it does vary from place to place. So establishing a legal violation isn’t such a leap.

Now, is there still room to debate the importance of funding in quality schooling? Yes. There is lots of grey area here. And, as the new California funding formula makes clear, addressing the issue through new laws is extraordinarily complex. Translating ideals into technical solutions is a monumental task.

Still, in each of your examples, I don’t see a clear legal violation. Nor does the logic really hold, in my eyes. Insofar as that is the case, then, no—I’m not OK with those decisions.

Smarick: If state courts were simply trying to square contradictory provisions in different state laws, I’d agree that with you that there’s no problem. But in the funding cases, in Vergara, and, therefore, in the cases I created, courts are doing something far bolder. The courts are referring back to state constitutional provisions that are generally very vague and highly aspirational—things like requirements that the state provide a “thorough and efficient” system of public schools.

When courts invoke such language, they give themselves enormous authority. The court can decide what “thorough and efficient” looks like and then mandate just about anything under the sun it believes serves that objective. I honestly don’t know where this stops. When a court invokes the state’s vague, expansive K-12 obligation, it could conceivably require more or less testing, different content standards, blended learning, different teacher preparation rules, private-school choice, and on and on.

Schneider: I actually agree with you here. But I have a feeling our solutions are quite different, since I imagine you’d like to see the courts pull back significantly.

I, on the other hand, would like to see states define educational rights in a much more concrete and robust way. Because you’re right that state constitutional provisions tend to be vague and aspirational. And that’s a very bad combination insofar as it raises hopes but establishes no clear pathway for realizing them. Tell me what “thorough and efficient” means with regard to funding. Tell me what it means with regard to school segregation. Tell me what it means with regard to the quality of facilities.

Imagine the lawsuits then.

The opinions expressed in K-12 Schools: Beyond the Rhetoric are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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