Last week, the California Supreme Court told nine brave students it would not consider their constitutional challenge to state statutes that allow thousands of chronically ineffective teachers to remain in classrooms. Although the intermediate court ruling against the students stands as law in California, it is far from the definitive or widespread victory that opponents assert it is. The simple fact is that California’s highest court has not ruled – nor has any state’s highest court, for that matter – on the constitutionality of archaic, quality-blind tenure rules that protect even chronically underperforming teachers. In short, this fight is far from over.
Courts play an invaluable role in movements of social change, including monumental decisions on desegregation, marriage equality, and access to healthcare. But cases like Brown v. Board of Education do not happen overnight. They are the product of long-term incremental action, where even a loss or a decision not to act can pave the way for victory.
Against a backdrop of heated public debate and persistent social advocacy, it is the courts’ role to stand clear of politics and interpret our laws in the face of evolving realities. Sometimes, courts get it right on the first try. Other times, because judicial interpretations do not always keep up with evolving social realities, it takes repeated efforts for the courts to acknowledge that a long-standing status quo is unconstitutional. We saw this recently in the fight for marriage equality, where gay and lesbian couples advocated for equal rights for years – at times only winning strongly-worded judicial dissents – until states and, ultimately, a decision from the U.S. Supreme Court recognized same-sex marriage as a constitutional right.
In California, high school student Beatriz Vergara and her co-plaintiffs similarly recognized a constitutional injustice and began a civil rights movement in the courts that is far from over. For years, parents, students, principals, superintendents, and teachers had called attention to the out-of-date protections that are provided to teachers whose teaching is repeatedly rated ineffective. The concern is a fair one. These policies were enacted in a different era, before laws prohibiting employment discrimination were widespread. Today, there is simply no reason that our education laws should maintain the jobs of persistently ineffective teachers at the expense of student learning.
Even the California appellate court in its ruling against the students called the facts “troubling,” and said that they showed “deplorable staffing decisions... that have a deleterious impact on poor and minority students in California’s public schools.” And the only opinions issued by the California Supreme Court – lengthy and strongly-worded dissents from two judges with notable expertise in education law and policy – also acknowledged troubling evidence of systemic problems that may result from the challenged statutes.
Justice Goodwin Liu, a constitutional law and education policy scholar who won an award from the Education Law Association, wrote in his dissent, “The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state’s highest court.”
Likewise, Justice Mariano-Florentino Cuéllar, who co-chaired the U.S. Department of Education’s National Equity and Excellence Commission, wrote, “The harmful consequences to a child’s education caused by grossly ineffective teachers – the evidence for which the trial court found compelling – are no less grave than those resulting from a shortened period of instruction or financial shortfalls.”
So, the inevitable question remains: Where do parents and students go from here?
Unquestionably, they move forward.
Families in New York and Minnesota are challenging similar teacher employment statutes in those states. And these parents and students are not backing down, despite the difficulties inherent to fighting against policies backed by long-standing and influential political interests.
Although the lawsuits in New York and Minnesota seek to strike down illogical job protections for ineffective teachers just as Beatrice Vergara’s lawsuit did in California, they are using different legal theories and present opportunities for judicial reasoning that did not exist before the California court.
For example, in New York, families have not leveraged the equal protection clause that was used in the California students’ lawsuit. Instead, they have asserted that the challenged statutes result in some or all students receiving less than the “sound, basic education” guaranteed by the New York State Constitution. In Minnesota, in addition to an equal protection claim, the plaintiffs have also raised a direct claim under the education clause of Minnesota’s constitution, as well as an assertion that students’ due process rights are being violated.
Armed with distinct theories of law in different state courts, the plaintiffs in New York and Minnesota will do what many social activists have done before. They will place their trust in the courts to safeguard their constitutional rights. As we move forward in the fight for students’ rights in our public schools, it is up to parents and students around the country to expose educational injustices in the courts, and persuade judges to change the laws that stand in the way of students’ fundamental right to learn.