The wrong venue to rewrite laws.

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Two Liberal Judges Take a Stand Against Tenure

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In a victory for teachers’ unions, the California Supreme Court on Monday refused to strike down the state’s generous tenure laws -- which a lower court had said violated students’ rights to an adequate education. Significantly, the court’s 4-3 ruling didn’t break down on purely partisan lines. Two prominent liberals, each of whom could be contenders for the U.S. Supreme Court in a Hillary Clinton administration, dissented. That’s evidence of a growing divide among liberals about whether favoring teachers might actually be a bad thing for students.

In 2014, a California lower court judge struck down teacher tenure provisions as violating the state constitution. As I noted the time, California’s laws seem poorly designed, allowing tenure after just two years and even when the teacher may not be fully credentialed. Aside from the badness of the law, I criticized the judicial decision harshly for its lack of well-developed constitutional reasoning. Among other things, the court simply asserted in a single paragraph that poor schools tend to get worse teachers, and that this counts as a violation of the equal protection of the laws.

In April, a California appeals court saw things the same way, and reversed the lower court’s decision. It said the court hadn’t assembled enough evidence to conclude that poor schools were being victimized by the tenure rules. It could be, the court readily admitted, that poor schools get disproportionately weak teachers, but that might be the result of teacher churn at those schools, individual choices by teachers with seniority, or other aspects of the system having nothing to do with the tenure provisions.

The appeals court also rejected a broader claim recognized by the lower court. The idea was that because students have a fundamental right to an education under California’s constitution, any students who get a subpar education because tenure rules assign them to bad teachers are subject to a violation of their constitutional rights.

The appeals court said that this was “not an identifiable class of persons sufficient to maintain an equal protection challenge”; a plaintiff can’t just show up in court and say that somewhere out there, some unspecified, random person is suffering from a violation of equal protection. That’s just not specific enough for a court to judge.

You’d expect the California Supreme Court to have upheld the appeals court’s decision. The conservative justices would probably be skeptical of sending courts on a fishing expedition to strike down state laws under expansive interpretations of the state’s constitution. And, in general, conservatives are skeptical of decisions that might eventually require the states to spend more money on education. As for the court’s liberals, they might be expected to side with the teachers’ unions.

But it didn’t exactly happen that way. Four justices voted not to hear the case. Three dissented, saying that they would have considered the case -- and likely would have struck down the tenure law.

Two of the three dissenters, both liberals appointed by Governor Jerry Brown, wrote explanations for their votes. Both are former law professors who enjoy strong reputations among their liberal peers, and both could be considered to fill Justice Stephen Breyer’s seat should Hillary Clinton be elected and he retire in the next four years.

Justice Goodwin Liu, who worked briefly in the Bill Clinton administration before becoming a law professor at the University of California at Berkeley, is often mentioned as someone who could become the first Asian-American justice on the U.S. Supreme Court. President Barack Obama nominated him to the U.S. Court of Appeals for the 9th Circuit, but his nomination was blocked in the Senate ostensibly because he had written in favor of affirmative action.

In the teacher tenure case, he wrote to insist that the California Supreme Court should have reversed the appeals court’s rejection of the broad protection claim. He reasoned that in this case, “Students have asserted an equal protection claim on the ground that they are being denied significant educational opportunities that are afforded to others.” And he cited a state precedent from 1912 in which the court considered equal protection claims of students in a school district that cut the school year short by six weeks.

Liu’s argument from precedent is pretty unconvincing. The plaintiffs in the earlier case were easily identified as the students who lost part of their school year, unlike the unspecified students in the tenure case.

What seemed to move Liu more were academic research cited by the trial court, especially a widely publicized study by economists Raj Chetty, John Friedman and Jonah Rockoff finding that even a single year with an ineffective teacher can cost students a significant amount in lifetime earnings.

The economists could well be right -- but that doesn’t mean that the state court should entertain a lawsuit based on the theory that some students somewhere have suffered a constitutional violation for having had a bad teacher.

The other notable dissenter was Justice Mariano-Florentino Cuéllar, who was a professor at Stanford University and also worked in the Obama White House. Cuéllar has focused especially on education issues, and co-chaired a National Equity and Excellence Commission under the auspices of Obama’s Department of Education.

Cuéllar argued directly that it shouldn’t matter whether students were burdened randomly. He cited with approval the trial court’s statement that subpar education in California schools “shocks the conscience.” And he said that because the plaintiffs “raise profound questions with implications for millions of students across California … they deserve an answer from this court.”

It’s remarkable that movement liberals such as Liu and Cuéllar would take such strong stands in a case that both must know could become relevant in any later confirmation hearings. Both seem deeply and sincerely concerned about how teacher tenure affects educational quality. They’re right to be worried about that -- even though it’s properly a question for the California legislature, not the courts.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net