Tuesday, June 17, 2014

Vergara impact - Calling on reformers to embrues Vergara

Calling on reformers to embrace lawsuits like Vergara, using "the examples set by civil rights activists of the last century, who successfully challenged Jim Crow segregation laws that harmed an earlier generation of black and brown children":

The impact of Vergara extends beyond California's borders. As with the Indiana Supreme Court's ruling on the legality of school vouchers two years ago in Meredith v. Pence, the ruling offers reformers a road map to spur the much-needed transformation of American public education.

Like California, every state constitution have some form of Equal Protection Clause that effectively determine that the state government's responsibility for education goes beyond providing all children with classrooms. This includes providing kids with high-quality teachers and curricula that prepares them for success as adults. Based solely on this clause, reformers can file suits demanding courts to strike down tenure laws and reverse-seniority layoff rules as unconstitutional because they effectively put states in the position of protecting laggard teachers in violation of their duty to kids.

There are also the rulings from funding equity torts similar to those cited by Treu in Vergara, which also hold that states are required to provide adequate, and ultimately, high-quality education to students attending traditional district schools. Given the similarities between school funding tort rulings in California and those in other states, reformers can easily craft a strong legal argument that tenure and teacher dismissal laws currently on the books lead to kids receiving inadequate and unequal education.

Then there is the fact that California's own constitution requires the state to "promote intellectual, scientific, moral, and agricultural improvement". This is a clause that found in 14 other state constitutions, according to a Dropout Nation analysis. Not only do California and other state governments have leeway in shaping public education, they are also responsible for ensuring that all kids are provided high-quality teaching and curricula. Even in states with constitutions that don't have such broad language, state governments are both charged with structuring education as they see fit and obliged to provide all kids with high-quality teachers. Thanks to Vergara as well as the earlier Meredith ruling, reformers can argue that states cannot keep teacher quality laws on the books that run counter to their constitutional obligation.

Thanks to Vergara, reformers now have an important guide to using courts to spur systemic reform. And they should embrace it.

Over the past three years, Dropout Nation (along with activists such as Bruno Behrend) has explained how teacher quality reform activists and others can use the approach of filing torts similar to those undertaken with some success by adequacy and equity advocates. Parent Power activists such as the Connecticut Parents Union have been quick to utilize this approach in their efforts to end Zip Code Education policies that lead to parents facing prison time for daring to provide their kids with high-quality education, while Alice Callaghan and the parents of nine Southern California children (who, along with school reform group EdVoice), filed theVergara suit have also taken to the courts for redress. The American Civil Liberties Union has also been active on this front, especially its Southern California unit, whose latest lawsuit, Cruz v. Californiais similar to Vergara. But most reformers have yet to undertake such an approach. Thanks to Vergara and Parent Power activists within the school reform movement, reformers has no excuse for not using the courts to push for the transformation of public education.

By using the courts to take on policies and practices that have violated the constitutional rights of children — especially those from poor and minority backgrounds — to high-quality education, reformers are embracing the examples set by civil rights activists of the last century, who successfully challenged Jim Crow segregation laws that harmed an earlier generation of black and brown children. At the same time, by working through the courts, which are charged by federal and state constitutions with interpreting laws (and thus, rejecting legislation that violates the principles contained within them), reformers are also holding legislators accountable.

While some of my fellow conservative and libertarian reformers, like our movement conservative peers, will bristle at what they fear to be judicial activism, the reality is that judges are supposed to serve as a backstop against legislatures more-concerned with favoring their interests than with following the law and protecting the rights of children and families. [Of course, the fact that conservatives have been more than willing to pursue legal avenues when it suits them -- including the sensible lawsuit in the Zelman case that led to the U.S. Supreme Court's ruling protecting school choice -- is one they conveniently ignore.]

We have a long way to go for the Vergara ruling to fully sustained as law by the courts. But the ruling will help spur reforms in California that will benefit our children along with good-and-great teachers. And reformers in other states, as well as at the national level, should be filing their own Vergara suits right now.


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