But the decision written by Judge Anthony Kennedy could have profound implications for public education, starting with the Vergara lawsuit in Los Angeles. In that case, Superior Court Judge Rolf Treu ruled last summer that California laws protecting tenured teachers from being fired for incompetence amounted to unconstitutional affronts to minority students’ right to an equal public education because the laws have the effect of funneling the worst teachers to the most troubled schools in poor minority areas. The ruling is being appealed by the state government.

Treu’s decision cited how poorly Latino and African-American students did in standardized tests administered by Los Angeles Unified School District. This reflected the arguments made by the high-powered legal team hired by a Silicon Valley billionaire who represented the students in the Vergara case.

In the fall 2014 “Education Next” reform journal, Joshua Dunn of the University of Colorado-Colorado Springs and Martha Derthick, a University of Virginia emeritus professor, considered the implications of Vergara’s success. “Should California’s courts accept the group’s legal rationale, which hinges on disparate-impact analysis, the floodgates could open for litigation calling for even greater judicial control over California’s schools. … Anyone could challenge any law, however neutral in design, with a claim that it was somehow related to an unequal outcome.”

The broadness of this legal argument was bluntly attacked in the state’s appeal, which asserted that Treu’s ruling offered “no factual and legal bases” for its conclusion that California’s teacher-labor laws were unconstitutional.

Texas case pivoted on de facto housing segregation

There are two big reasons to wonder, however, if the U.S. Supreme Court ruling will affect the Vergara appeal, which seems certain to end up before the California Supreme Court.

The first is that Texas’ implementation of federal housing laws meant to discourage housing segregation isn’t necessarily an apples-to-apples comparison with California’s implementation of education laws. Treu’s opinion cites Brown v. Board of Education, the landmark 1954 Supreme Court case that led to the declaration that “separate but equal” public schools were unconstitutional.

Texas is accused of implementing a federal law in a way that hasn’t changed historic patterns of racial segregation. California isn’t Texas; it has embarrassing moments, such as this later-invalidated 1964 referendum, but it can’t be considered a Jim Crow state when looking at the historical context.

The second is that justices seem to be aware that reducing legal judgments about what is prohibited discrimination to raw numbers detailing what racial groups are doing well and which aren’t is a recipe for legal chaos.

The fear of this being the eventual result led some observers to be appalled by Kennedy’s decision. But others noted that it has escape hatches for future rulings involving “disparate impact.” This was pointed out by law partners and employment law experts Paul F. Hancock and Andrew C. Glass in their analysis for Scotusblog.com.

In describing the requisite pleadings-stage safeguards, the Court relied upon Wards Cove v. Atonio, in which it held that to sustain a disparate-impact case, a plaintiff must identify a specific policy of the defendant and adequately plead that such policy is the cause of the disparity. To distinguish meritless from meritorious claims, the Court directed lower courts to “avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations” into every FHA decision. Thus, the Court held that a “racial imbalance does not, without more, establish a prima facie case of disparate impact,” and that a plaintiff can no longer maintain a disparate-impact claim by pleading a mere “statistical disparity.” Disallowing claims where a plaintiff cannot establish a “robust” causal link to a defendant’s actual policies serves to eliminate suits seeking to hold a defendant liable for alleged racial disparities it “did not create.”

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.

Unlike with most major announcements, the appeal wasn’t mentioned on the AG’s or the governor’s websites as of Saturday night or disclosed in the mass emails routinely sent to journalists by statewide officeholders. It was apparently leaked to a handful of news organizations, including The Los Angeles Times, which posted the story early Saturday.

The notice of appeal cited several issues, including that “changes of this magnitude, as a matter of law and policy, require appellate review.”

The notice also faulted the trial judge, saying that he had “declined to provide a detailed statement of the factual and legal bases for [his] ruling.”

The one-page appeal did not offer any sweeping defense of tenure laws, unlike the positions staked out by state lawyers this spring when the case was argued before Los Angeles Superior Court Judge Rolf Treu. The appeal’s detached tone seemed designed to minimize the political fallout of the governor siding with teachers unions in a legal fight that builds off the incendiary argument that teacher unions are bad for minority students. It faults the judge’s handlilng of the lawsuit and steers clear of larger issues.

Torlakson had put out a statement early Friday that trashed the ruling and compared it to blaming firefighters for fires.

CTA/CFT legal strategy normally used by GOP

Meanwhile, a report on the EdSource blog illuminated the legal strategy that the California Teachers Association and the California Federation of Teachers will pursue in appealling the trial court victory won by the Students Matter reform group, which is funded by Silicon Valley tech tycoon David Welch.

“We have good grounds on appeal that the California equal protection law does not require the invalidation of these provisions of the California Education Code,” said Jim Finburg, the San Francisco lawyer representing the unions.

Treu’s ruling pivoted on the equal protection law. He found teacher protections in four state laws had the effect of funnelling the worst teachers to mostly minority schools, to the detriment of students in those schools. He said the negative impact this had on Latino and black students “shocks the conscience.”

The legal theory that neutrally worded laws can be found unconstitutional if they have a negative “disparate impact” on certain groups has been fought over in courts across America for years, most prominently in fights over civil service tests, especially for firefighters and police.

The Vergara case breaks new ground in that it cites large discrepancies in educational performance among racial groups as evidence of the “disparate impact” that tenure laws in California have on Latino and black students.

The “disparate impact” argument is normally made by Democratic activists on the left and ridiculed by Republicans. In the Vergara case, at least in the CTA/CFT appeal, it appears the normal positions will be reversed.

The deadline for the filing of the unions’ appeal is late October.

Barring an unexpected development, the Vergara appeal will be heard by a panel of judges from the 2nd District Court of Appeal at the state courthouse in Los Angeles.

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.

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.

Take it away, The Federalist. This is from a May 2012 post:

“At the historic Edmund Pettis Bridge in Selma, Alabama, U.S. Secretary of Education Arne Duncan announced an initiative to examine disparities in achievement, academic opportunity, and discipline to determine whether schools across the country are discriminating against racial and ethnic minorities. 

“The Department of Education would use both data collection and investigations of individual school districts—called compliance reviews—as part of this initiative. The Department would seek to root out both direct discrimination and indirect discrimination, i.e., facially neutral policies and practices that have a disparate impact.

“This was a change in policy by the Obama Administration. The Department during the Bush Administration had not used ‘disparate impact analysis in its examination of complaints or compliance reviews.’ When the Department finds what it deems to be discrimination, Secretary Duncan noted, ‘it can ultimately withhold federal funds in extreme cases to schools and districts that refuse to remedy discrimination.’ The Department planned to begin thirty-eight compliance reviews by the end of the fiscal year, including reviews of discipline issues in five states.

“Secretary Duncan seemed to assume that disparities are caused by discrimination, whether intentional or unintentional. Martin Luther King, Jr. ‘would have been dismayed to learn of schools that seem to suspend and discipline only young African-American boys,’ he said. There are ‘deep’ and ‘pronounced disparities in discipline,’ and there is ‘still’ a ‘need to challenge policies which subsidize or needlessly result in grossly disparate impacts for children of color.’ 

Similarly, Attorney General Eric Holder said in a speech that it is ‘quite simply, unacceptable’ that ‘students of color’  are ‘disproportionately likely to be suspended or expelled,’ asserting that the disparities were at a minimum due to unintentional discrimination by schools.”

If conservatives were utterly dispassionate about the Vergara ruling, this assocation with Holder-think might bother them. But that’s not going to happen. A brutal setback for the CTA and CFT is going to be deeply enjoyable almost no matter what the context.