In Vergara, Los Angeles Superior Court Judge Rolf Treu cited gaps in test scores between minority students and white students in California and evidence that minority schools were far more likely to have the worst teachers in concluding that three state laws protecting teachers’ jobs and prerogatives were unconstitutional violations of student rights.

Treu likened the Vergara case to Brown vs. Board of Education, the famous 1954 Supreme Court case in which justices held Kansas’ “separate but equal” public schools for whites and blacks were unconstitutional.

But the Kansas case involved a state whose education policies resulted in white schools having more money and resources than black schools. In Vergara, while there are stark differences in test scores between schools with mostly Latino and African-American students and schools with mostly white and Asian-American students, these schools receive similar funding from the state under the ADA (average daily attendance) formula. And while the worst teachers congregate at minority schools because of official rules and unofficial practices rewarding veteran teachers with clean records, it’s difficult to contend the state laws that allow this to happen were crafted with a racial animus.

However, some liberal legal experts have long made the case that showing laws have a “disparate impact” on minorities through statistics and real-world effects should be enough to invalidate them on equal protection grounds. This is how the U.S. Equal Employment Office defines the term:

Disparate impact refers to policies, practices, rules, or other systems that appear to be neutral, but result in a disproportionate impact on protected groups. Disparate treatment is intentional. For example, testing a particular skill of African Americans only is disparate treatment.

The Texas case involving allegations of housing discrimination against minorities that was heard by the U.S. Supreme Court on Jan. 24 was the first time that justices have taken a case in which lower-level courts had taken the “disparate impact” theory into serious consideration in their rulings.

Scalia: ‘No, no, no, no,’ numbers don’t confirm bias

The Overlawyered blog’s and Forbes magazine’s coverage of oral arguments in the case should have the California Teachers Association and the California Federation of Teachers doing handstands. The Supreme Court’s conservative majority lacerated attorneys making the “disparate impact” argument holding that the state of Texas’ policies were unconstitutional. Justice Antonin Scalia said these attorneys …

... conflated racial disparities, which can happen for all sorts of reasons, with deliberate racial discrimination, which is what racists do … .

“No, no, no, no,” Scalia said. “Racial disparity is not racial discrimination. The fact that the NFL is largely black players is not discrimination. Discrimination requires intentionally excluding people of a certain race.”

During the questioning … the court’s conservatives got to enunciate conservative concerns about the spreading use of disparate impact. … the Supreme Court has previously outlawed explicitly racial solutions to disparities, such as rigid quotas …

The analogies between Texas public housing laws and California education laws are not precise. But if Scalia’s framing of what constitutes unconstitutional racial discrimination — conscious, intentional, consequential bias in the crafting of a law — holds for a majority of the high court, then the California education status quo is likely to survive the Vergara case.

Justices eager to rebuke Obama administration?

One housing-law expert even thinks the Supreme Court’s conservative majority is spoiling to get this view explicitly stated in the Texas case so as to rebuke an Obama administration which has gone overboard in pushing “disparate impact” litigation.

The Court has wanted to examine this issue, as evidenced by accepting cert three times. It has repeatedly said that it only wanted to look at whether disparate impact applies under the Fair Housing Act and not what standard would apply if it does exist, even though there are many circuit court decisions using disparate impact, and they have used conflicting standards. Typically, the Court would want to decide an issue that is in conflict between the circuits, especially here, where HUD has already tried to resolve the conflicts with a rule. The Court’s refusal to consider a standard suggests that the majority of the justices already know disparate impact will no longer apply under the Fair Housing Act.  …

In some disparate impact cases, the theory has worked effectively to lessen racial discrimination and the perpetuation of illegal segregation. However, the substantial increase in the use of the theory … has caused the theory to be attacked and probably struck down. The takeaway is one of the pendulum having swung too far one way and now swinging back to the middle … .

That’s from Mike Skojec, partner at the national law firm of Ballard Spahr.

Leondra Kruger has been confirmed to a seat on the Supreme Court of California, a position to which she was nominated by Governor Jerry Brown last month. Governor Brown previously appointed Goodwin Liu (confirmed in 2011) and Tino Cuellar (confirmed in August).

These appointments make the California Supreme Court a court of national interest, in part because a Democratic President would likely consider Brown’s picks if there is a future U.S. Supreme Court vacancy on his or her watch. Brown’s picks share diversity, elite credentials, and youth. Given that prior judicial experience is a big asset for those hoping to land on a Supreme Court shortlist — it’s not required, but it’s helpful — Brown’s nominations likely expand the set of candidates to be considered if or when there is a future SCOTUS vacancy under a Democratic president in the next few Presidential election cycles.

As the picture above suggests, Kruger has already handled big cases before SCOTUS, representing the Obama administration. If Kruger, Liu and Cuellar are intrigued by this possible promotion, that seems to make it more likely that individually or together they will stake out bold new stands on major issues. There’s a pent-up desire among millions of liberals for more Warren Court-style sweeping rulings addressing perceived issues of social justice. A Democratic president, even a center-left politician, would see appointing activist judges to the high court as an easy way to please big Dem constituencies.

Brown vs. Board of Education for 21st century?

This could bode very well for the reformers behind the Vergara vs. California case.

The trial court judge, Rolf Treu, likened state laws that funnel the worst teachers to the schools with the most troubled students to segregated schools that existed in the South before the 1954 Brown vs. Board of Education ruling, one of the most monumental in U.S. Supreme Court history. The state is now appealing Treu’s finding that teacher protection laws are unconstitutional because of their negative effect on minority students, and the case is close to certain to end up before the California Supreme Court.

If I were a CTA or CFT lawyer, this dynamic would worry me a lot — especially after reading the Vergara editorial in the most influential journal of liberal opinion, the New York Times:

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

The judge in Vergara vs. California today released his final review of the case, affirming his preliminary decision in June, that five state statures governing teacher employment rules violate the California constitution by denying students access to a quality public education.

In his final ruling, filed yesterday, Judge Rolf Treu, said, “plaintiffs have met their burden of proof on all issues presented.”

The decision effectively starts the clock for the defendants — the state and its two largest teachers unions, which joined the case — on whether to appeal. They have 60 days to decide.

Implications many for governor, state Dems

Cal Watchdog has had extensive coverage of the Vergara decision and its educational and political implications.

Here’s part of a piece from Monday — “Vergara appeal decision: Nixon goes to China for Jerry Brown?”:

He is on cruise control for re-election, so if he backed an appeal — especially on narrow grounds — he wouldn’t face the blowback that [state Superintendent of Public Instruction] Torlakson would.

But at this point in his life, Brown isn’t necessarily thinking about the short term. He may be thinking about history and his lasting legacies.

 Here’s part of a piece from June 12 — “The left-wing theory driving Vergara ruling.”

A point that hasn’t been made nearly enough by the MSM is that the Vergara vs. California ruling rejecting the state’s lax teacher tenure practices depends on a legal doctrine associated with lefty causes. That doctrine deals with “disparate impact” and holds that if a seemingly neutral law has the real-world effect of hurting discrete groups, that law can be seen as de facto discriminatory under constitutional equal protection provisions.

It is most associated with employment discrimination lawsuits challenging standardized tests in government employment. In public education — at least until this week — the doctrine had mostly been invoked in litigation targeting the sharp differences in student discipline by race.

Here’s part of the piece about the Vergara ruling’s potential to dynamite the California Democratic Party coalition from June 24 — “Vergara’s grim implications for CA Dems ignored”:

[The] landmark court ruling [portends a highly] … consequential rift between California Democratic factions. The Vergara vs. California decision posits that state policies which protect mostly white veteran teachers and funnel the worst teachers to schools in poor minority neighborhoods are an unconstitutional affront to equal protection laws. The judge explicitly likened his ruling to Brown vs. Board of Education, the 1954 U.S. Supreme Court ruling that “seperate but equal” public school systems were unconstitutional.

This puts the Democratic coalition at great risk. Its most powerful members — the CTA and the CFT — are accused of orchestrating an assault on the interests of the children of blacks and Latinos — its most loyal voters.

Now we have a landmark court ruling that portends another, even more consequential rift between California Democratic factions. The Vergara vs. California decision posits that state policies which protect mostly white veteran teachers and funnel the worst teachers to schools in poor minority neighborhoods are an unconstitutional affront to equal protection laws. The judge explicitly likened his ruling to Brown vs. Board of Education, the 1954 U.S. Supreme Court ruling that “seperate but equal” public school systems were unconstitutional.

This puts the Democratic coalition at great risk. Its most powerful members — the CTA and the CFT — are accused of orchestrating an assault on the interests of the children of blacks and Latinos — its most loyal voters.

Politicians on a hot tin roof

This can’t be finessed away. Or at least it can’t be finessed away if the media ask about it. It’s now been three weeks since the ruling, and as far as I can tell via Google and Nexis, I’m the only print journo in California who thinks this is an interesting angle that merits coverage.

I wrote about it in a Sunday editorial. Notice how the Latino lawmaker I got a comment from — Assemblywoman Lorena Gonzalez — tries to finesse the implications of the Vergara decision.

“The Vergara decision represents a new challenge to those of us who support both the civil right of every child to a quality education and the original intent of teacher tenure which protects academic freedom and provides basic worker protections of due process for education professionals,” the San Diego Democrat wrote in an email.

“Should the decision be upheld on appeal, the Legislature will have to develop a new legal paradigm to protect both students and teachers. I look forward to participating in those discussions.

“In the meantime, I will continue my efforts to hold the California Department of Education accountable for its failure to protect the rights of English language learners. This failure highlights that there are problems in civil rights protections for students that have negative consequences for far more children than teacher tenure.”

Latino pol: It’s the Education Department’s fault!

So Latino students’ civil rights have indeed been violated. But it’s not the CTA or the CFT’s fault. It’s the California Department of Education that must be held “accountable.” Wow, that’s a stretch.

Why aren’t the Sac Bee, the LAT or the Bay Area News Group interested in this angle?

Why don’t Dan Walters or Dan Morain or any beat reporter covering the state government think this is juicy stuff?

You’ve got me.

In one sense, the astonishing result is a reminder of how powerful the legal doctrine of equal protection has become. Treu did not agree as a matter of law that “every child, everywhere, deserves great teachers.” But he did conclude that union job protections for teachers, including bad teachers, had fostered inequalities of opportunity so grave as to shock the conscience.

Explicitly drawing a comparison between Vergara and Brown vs. Board of Education, Treu ensured that similar litigation will spring up around America. It is a surprising reversal of roles for political partisans, many of whom associate bold, consequential readings of equal protection clauses with traditionally liberal causes, plaintiffs, and judges. (Indeed, lead counsel in the plaintiff’s case was Theodore Boutrous Jr., who successfully litigated the challenge to Proposition 8, which banned same-sex marriage in California.)

Silicon Valley muscle

But in another sense, the Vergara case reveals how the power of Silicon Valley now reaches far beyond technology, politics or even the economy as a whole. The priorities and perspectives of some of Silicon Valley’s most socially involved figures now shape the most basic legal concepts undergirding American life.

David Welch, a longtime fiber-optic communications entrepreneur, founded and chairs the board of Students Matter, the group responsible for organizing and pursuing the Vergara case. A board member of the National Resources Defense Council, he does not fit the stereotype of the movement conservatives often presumed to spearhead legal action against teachers unions. Yet at the same time, neither does Welch’s profile match the prevailing view of Silicon Valley’s youthful, web-centric titans. Rather than pursuing public policy outcomes in realms like surveillance or gay marriage, Welch sought structural change in K-12 education — without relying on the internet, like Mountain View heavyweight Khan Academy.

Welch’s efforts underscore how Silicon Valley can no longer be presented as “disrupting” settled institutional practices in a one-dimensional way. Although the buzzword of disruption has come in for its share of scorn, critics will feel pressured by events to acknowledge that the change wrought by Welch scrambles typical partisan battle lines, rather than reinforcing Randians-versus-the-masses cliches.

Divided Democrats

Democrats, for instance, are now as deeply divided on education reform as they have been since the civil rights era. In California, the differences are striking. Tom Torlakson, the incumbent superintendent of public instruction, benefited from $2.5 million in independent expenditures by the California Teachers Association this primary election. LAUSD Superintendent John Deasy, by contrast, penned an op-ed for the Los Angeles Times touting his “responsibility and privilege” to make good on Judge Treu’s ruling.

Democrats nationwide who remain loyal to teachers unions will likely face an opportunity to change their political calculus. Education reformers are looking to pattern lawsuits off of the Vergara case in Connecticut, New Jersey, New Mexico, New York, Oregon and elsewhere, according to Politico — along with a “relentless public relations campaign, backed by millions of dollars from reform-minded philanthropists, to bring moms, dads and voters of both parties to their side.”

In that fashion, it’s clear that even Silicon Valley’s most powerful figures can’t single-handedly change America’s legal landscape. Although Welch has proven instrumental in achieving an early victory essential for a broader national attack on teacher unions’ tenure regimes, that kind of reform movement requires more than money or influential figureheads. Like most large-scale political efforts, without an energized, broad base of ordinary Americans, it will fizzle out and fail.