If Vergara Reversal Holds, NY and MN Tenure Lawsuits Appear Doomed


It is now in vogue to sue states regarding their education statutes regarding teacher evaluation and retention.

This vogue recently took a critical hit when on April 14, 2016, the California appeals court overturned the June 2014 Vergara ruling by L.A. County Superior Court Judge Rolf Treu regarding the unconstitutionality of California statutes governing teacher retention.

If the California appeals court reversal stands, then below is the part of the CA ruling that likely spells doom for similarly-styled litigation that tries to argue that teacher evaluation/retention statutes should be overturned because they advance "disparities in education opportunity":

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators--not the statutes--ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court's job is merely to determine whether the statutes are constitutional, not if they are "a good idea."

On April 13, 2016, Campbell Brown's nonprofit, Partnership for Educational Justice (PEJ) was behind the filing of this lawsuit in Minnesota to do exactly what the California lawsuit tried to do in declaring education statutes unconstitutional based upon implementation and whether the statute is "a good idea."

In other words, the Minnesota lawsuit reads too much like the California lawsuit, and if the Minnesota judges take the California reversal as a precedent, then Brown's PEJ has hit a wall regarding its teacher-eval-and-retention, statute-confronting tact.

To wipe out the state statutes governing teacher retention and evaluation would be a real coup fof PEJ and other organizations antagonistic to teacher job protections; to just go for implementation of the statutes is not as far-reaching.

The California suit originally addressed implementation, but the focus was later narrowed on the constitutionality of certain ed statutes. The Minnesota lawsuit challenges both statutes and implementation, as does this 2014 New York lawsuit, which is also sponsored by PEJ.

Brown has been pretty quiet about the Vergara reversal. On April 14, 2016, she tweeted this message about Vergara being sent to the CA Supreme Court:

Indeed, Students Matter founder David Welch has vowed to appeal to the CA Supreme Court. However, his brief message includes nothing substantive to confront the issue that it is not the statutes themselves that dictate teacher assignment and therefore, the statutes themselves do not violate equal protection.

In other words, unless those New York or Minnesota statutes include language that specifically dictates implementation, and unless that statute-directed implementation can be show to clearly result in inequity among students, then Campbell Brown's anti-teacher crusade could well have already received its fatal blow.


Originally posted 04-17-16 at deutsch29.wordpress.com

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who's Who In the Implosion of American Public Education.


She also has a second book, Common Core Dilemma: Who Owns Our Schools?.