Education reform through the courts and why it’s necessary

November 15, 2013

Marcellus McRae

In California – and in many other states – the Legislature has proven devastatingly ineffective at ensuring equal educational opportunity in our public schools and protecting the fundamental rights of students.

Fortunately, our government has another branch – the judiciary – whose express purpose is to protect constitutional rights, to step in when popular will or an ineffective legislature tramples the rights of the voiceless and the powerless. It is in the courts where legal challenges to statutes that infringe on constitutional rights can be resolved, free from powerful special interests and lobbyists.

Vergara v. California, the lawsuit filed last year against the State of California by nine public schoolchildren and sponsored by the nonprofit organization Students Matter, challenges the outdated teacher tenure, dismissal and layoff system in California that entrenches grossly ineffective teachers in classrooms while pushing highly effective, but less senior, teachers out. Because these laws keep ineffective teachers in schools, especially when there are effective teachers willing to take their places, these laws violate students’ fundamental right to equal educational opportunity.

This week, Plaintiffs – public schoolchildren from all over California from 8 to 17 years old – filed with the court a mountain of evidence demonstrating that the statutes violate the Equal Protection Clause by forcing school districts to keep failing teachers in the classroom year after year, with devastating consequences for the students assigned to their classrooms. The state and the teachers unions that intervened to justify the statutes, on the other hand, asked the court in September to summarily dismiss Plaintiffs’ claims without any trial at all. This week, I and the other attorneys on the case, Theodore B. Olson and Theodore J. Boutrous, filed a motion full of compelling evidence to demonstrate how the State of California is knowingly forcing school districts to keep ineffective teachers in the classroom, and the real-world consequences that this has on students.

In a Los Angeles Daily News article about the Vergara lawsuit, a representative of the California Teachers Association accused the Plaintiffs of “circumventing the legislative process to strip teachers of their due-process rights.”

This accusation is simply not true. The uncomfortable truth for many is that this suit merely seeks determinations that are consistent with what the Constitution demands; namely, that teacher employment provisions take student educational needs into account. Rather than attempting to subvert California’s constitution, this suit is aimed at enforcing the constitution’s guarantee of equal educational opportunity.

The role of the courts and impact litigation in education reform is far from new. A long line of cases has paved the way and laid the foundation for the Vergara challenge today.

Perhaps the most famous education equality lawsuit, Brown v. Board of Education, decided in 1954, ended the forced segregation of public schools in America, establishing that separate is not equal.

It is hard to imagine now that some opposed the Supreme Court’s ruling in Brown v. Board of Education as an improper exercise of judicial power. It is even harder to imagine where we would be as a nation had the Supreme Court declined to act. Yet it did, and in doing so, it educated the nation that fundamental interests trump fear of change, ignorance and the misinformed view that constitutional provisions are mere suggestions rather than rights. Just as we cannot countenance statutes that engender racial marginalization, we cannot countenance statutes that engender educational marginalization of any child, let alone our most vulnerable children.

The landmark California state case Serrano v. Priest, litigated in the mid-1970s, challenged the system of funding school districts through property taxes, claiming the vast differences in the personal wealth of families living in different districts resulted in wide discrepancies in school funding that jeopardized the quality of public education in poorer districts.

The Serrano case recognized that a child’s right to an education is a fundamental interest guaranteed by the California Constitution.

And in Butt v. State of California, decided in 1992, the California Supreme Court ruled that “the State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.” Laws that inflict a “real and appreciable impact” on the fundamental right to education and that are not narrowly tailored to serve a compelling state interest are unconstitutional.

We know now that educational quality depends on more than just curriculum and a classroom. Just as students have a fundamental right to access facilities and educational resources that meet a basic threshold of quality, students have a constitutional right to equal access to an effective teacher.

Children do not have a voice in the legislative process, a seat at the bargaining table or vast amounts of funds to lobby lawmakers. The challenge to California’s harmful and outdated teacher employment system must be brought to the courts. When decisions made above children’s heads violate their fundamental right to have an equal opportunity to learn – denying many of them their only shot at elevating themselves out of poverty – the only recourse these children have to defend their fundamental rights is the courts. It is the judicial enforcement of these rights that will compel legislatures in California and other states to fulfill their obligation to respect the educational rights of all our children.


Marcellus Antonio McRae, a partner in the Los Angeles office of Gibson, Dunn & Crutcher, is currently representing nine California public schoolchildren in the statewide education equality lawsuit Vergara v. California, sponsored by the nonprofit organization Students Matter. Mr. McRae is a member of Gibson, Dunn & Crutcher’s Litigation, White Collar Defense and Investigations, International Trade Regulation and Compliance, and Media and Entertainment Practice groups.

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