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.

Sorry, folks — you can just be wrong. Vergara reframes the way the public looks at schools in such a fundamentally anti-teacher union way that it’s going to make some of the most familiar teacher arguments seem idiotic. For example, the frequent CTA refrain that it is “fighting for children” is going to seem laughable (or Orwellian) to anyone who has read Vergara coverage.

To those in denial — to the folks I still meet who think the CTA’s noble talking points are truly reflective of how the CTA wields its power — I’m happy to present evidence that three of the four most influential liberal newspapers in America agree with me. (The other one — the Boston Globe — may also be down on teacher unions, but I couldn’t find evidence it had written a Vergara editorial.)

N.Y. Times: ‘a new chapter in equal education struggle’

When states are sued for providing inferior education to poor and minority children, the issue is usually money — disproportionately more money for white students, less for others. A California judge has now brought another deep-rooted inequity to light: poor teaching.

In an important decision issued on Tuesday, Judge Rolf M. Treu of the Los Angeles Superior Court ruled that state laws governing the hiring, firing and job security of teachers violate the California Constitution and disproportionately saddle poor and minority children with ineffective teachers.

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 plaintiffs in the case, Vergara vs. California, are nine public school students who charged that state laws forced districts to give tenure to teachers, regardless of whether they can do the job, making it virtually impossible to fire even the worst of them.

In a blistering decision, Judge Treu agreed: ”The evidence is compelling. Indeed, it shocks the conscience.”

Washington Post: ‘groundbreaking ruling’

A judge who struck down California’slaws on teacher tenure and layoffs said the decision was based solely on the legal aspects of the case but added that he was mindful of the intense political debate about these issues. It is “beyond question,” he wrote, that there will be further political discourse. We certainly hope so. The issues about education equality laid bare by this groundbreaking ruling cry out for new ways of thinking. …

Treu … found that job protections afforded to teachers violate the rights of minority and low-income students to an equal education because they are the ones disproportionately stuck with the incompetent teachers who are hard, if not impossible, to fire. Constitutional rights in education typically have been tied to equitable funding, so the judge entered new territory by declaring a basic right to an effective teacher.

The trial featured powerful testimony about the effect of incompetent teachers on students. “The evidence is compelling. Indeed, it shocks the conscience,” the judge wrote.

Los Angeles Times:  Lawmakers ‘too deferential’ to CTA

California’s extraordinary protections for public school teachers were dealt a heavy blow Tuesday when a Los Angeles County Superior Court judge ruled that the state’s tenure laws unconstitutionally deprive students of an adequate education. To this extent, the judge’s opinion was absolutely correct: The tenure laws are bad policy. In almost no other field of work is it remotely as hard to fire someone for incompetence, or for not doing the job at all. Lawmakers have been far too deferential to the powerful California Teachers Assn. over the years, and now they have been given a strong prod to change their ways.

I’m glad that this ruling has gotten as much coverage as it has. But it’s odd that no newspaper I could find on Nexis or Google had done an analysis piece about how this might affect the Dem coalition. How can all the party’s minority lawmakers stand proud with the CTA and CFT after this?

I truly am baffled by the absence of stories on this obvious angle. The intraparty fight pitting Asian lawmakers vs. Latino and black lawmakers over Prop. 209 has been covered by the Sacramento media. Why not this?

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.

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.

Over the next six months, however, the Dem coalition is likely to be shaken by the race for state superintendent of public instruction. Despite the predictable barrage of vicious and deceptive ads targeting Democratic reformer Marshall Tuck, he advanced to a November runoff against incumbent Tom Torlakson, who is so slavishly attached to the CTA that his office might as well be in Burlingame at union headquarters. What does this portend?

“… the Golden State’s dominant party could finally have the honest debate about the purpose of public education that it so badly needs. Tuck — like other Democrats such as President Obama, U.S. Education Secretary Arne Duncan and former Los Angeles Mayor Antonio Villaraigosa — believes that public schools are too skewed to the interests of veteran teachers. The power of their unions translates into laws that make it virtually impossible to fire incompetent teachers — and such teachers cluster in the poorest school districts. That’s terrible news for disadvantaged Latino communities.

“A runoff election means Torlakson will have to explain why he joins the teacher unions in embracing this anti-Latino status quo. And why he doesn’t seek to enforce a state law that says student performance must be part of teacher evaluations. And why he refuses to help efforts to make it easier to rid schools of classroom sexual predators.”

That’s from what I wrote for the U-T San Diego.

Torlakson-Tuck fight’s key subtext

The battle over the future of California public education also has another front, in a Los Angeles courtroom. That’s where the Vergara vs. California lawsuit is being heard.

The suit contends that present state laws so protect bad teachers — and so damage the mostly Latino students who end up being taught by them — that they amount to a civil rights violation. Here’s Harvard education professor Jill Anderson’s take on the lawsuit:

“The basic claim in this lawsuit is that California’s handling of teacher tenure, dismissal, and the like are resulting in grossly ineffective teachers being placed in classrooms; that these teachers are disproportionately affecting low-income and minority students; and that this violates the California Constitution’s guarantee of equal protection. In other words, the claim is that California is violating its own constitution by not doing enough to ensure that all children have access to a highly qualified teacher.

“This case represents a fascinating, and potentially pivotal, moment in the history of education litigation based on education rights and equal protection rights in state constitutions. Most of the cases relying on these rights have been about school funding, with the claim that unequal funding violates provisions in state constitutions that guarantee a right to an adequate education or provisions that promise equal protection. But there’s no reason in theory why those rights to an adequate or equal education have to be defined solely in terms of funding, and this case is a good example of how those rights might be used more broadly.”

All of which gets back to my basic point: about how peculiar it is that the CTA/CFT and Latinos are even in the same political coalition. The former should be the latter’s enemy. Maybe by year’s end, the latter will have figured this out.