Can educational equity be won through the courts?

Travis Pillow

The education system shortchanges disadvantaged students, and may violate their civil rights. But can a legal crusade to change the way teachers are hired, fired and assigned to schools fix that problem?

Drawing on the history of education-related civil rights litigation in California, David Boies, a lawyer leading the charge in Vergara v. California and similar lawsuits around the country, argues in a recent opinion column that the state’s highest court should hear the case, which an appellate court recently rejected.

In 1971, the California Supreme Court intervened under similarly dire circumstances to invalidate California’s school finance scheme. Five years later, the court had the courage to reaffirm the fundamental right to equality of educational opportunity under the California Constitution. By adhering to this bold commitment and recognizing education as a basic civil right, the Supreme Court paved the way for other states to adopt similar holdings.

Now the Vergara case presents the California Supreme Court with an important opportunity to reassert California’s bold leadership in the fields of education and civil rights. The high court has an opportunity to correct the injustice of the Court of Appeal’s decision, which overturned the trial court’s landmark ruling in a flawed and disappointing retreat from California’s historic commitment to educational opportunity.

Education researcher Doug Harris, however, argues the plaintiffs in the lawsuit have a tough road ahead of them.

To see why, note that the case requires establishing two main facts: #1 that disadvantaged students typically have worse teachers; and #2 that this inequity is caused by these personnel policies.

Fact #1 is indisputable. I would be surprised if the Vergara defense team could have found a credible expert to testify that disadvantaged students have teachers of the same quality as more advantaged students. Just about every study on the subject, using all types of measures of teacher performance, have come to the same conclusion. Of course, it’s true that achievement gaps are caused mainly by poverty and family factors, but that’s beside the point.

The real challenge is establishing Fact #2. There is just not clear evidence that tenure causes these inequities, as the appeal’s court rightfully pointed out. The problem is the large number of other factors that may cause inequity in teacher quality.

Harris also raises another question: If the plaintiffs win, what will assure the legal outcome will lead to meaningful improvements in educational equity? Jack Coons — a key figure in past California equity lawsuits — has explored that question on this blog.

Perhaps the next step toward rescuing the “fundamental interest” of the child should be the law’s recognition and declaration of the student’s right to a decision about his or her teacher and school, not by strangers, but by that person who best knows him and who – with the child – will, for life, bear the consequences of that decision. If, as Judge [Rolf M.] Treu says [in a trial court ruling siding with the plaintiffs], teacher tenure is an issue sufficient to invoke “the fundamental right to equality of the educational experience,” how could a court fail to recognize and rescue the child’s even more crucial interest in his or her own parents’ authority to choose the school? The issue is plainly one within the reach of the equal protection theory regnant in the jurisprudence of California.

The middle class in this state takes that authority to be fundamental. Parental control over school choice, either by selection of family residence or in the decision to pay private tuition, is perceived as a given. Such parents covet this power of theirs to decide as being itself the “best interest” of their child. It is the ability, on the one hand, to bypass the tenured clout of the union, or on the other to escape the professional preference of administrative strangers. Most of us prefer to risk the errors of fathers and mothers – mistakes made out of affection and coupled with the opportunity to learn by and correct them.

It’s possible to imagine a legal and constitutional regime that guarantees that right — the right to educational self-determination. Regardless of how they’re finally resolved, Vergara and similar lawsuits in other states have helped revive the idea that every child should have a legal right to an equitable education.

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