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Where Courts Rule, And Where They Shouldn’t

Courts have been setting ground rules for public education for a long time - since Brown v. Board of Education was decided 60 years ago at least, and probably for longer than that.

Judges have told us how to integrate schools, how to draw district boundaries, and how to finance and allocate the cost burdens of public education. Now, in a ruling that might expand judges’ reach even further, a California court has struck down the state’s law granting tenure to public school teachers.

In California, the state Constitution provides that the Legislature “shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.” Courts have interpreted this to mean that every California student is entitled to a good public education. That is not a controversial proposition; the difficult part is to decide what such an entitlement means.

The challenge to teacher tenure landed in front of Judge Rolf Treu in the Los Angeles County Superior Court. The plaintiffs were nine students from various school districts, represented by a Silicon Valley-based organization called Students Matter. They argued that certain laws, including those governing tenure, allow ineffective teachers to remain in the classroom, and that such teachers are disproportionately assigned to teach low-income and minority students. Their opposition - California teachers unions - argued that striking down tenure would be harmful to good teachers as well as bad ones, and thus harmful to students as well.

Treu ruled that tenure laws deprive children of their constitutional right to an education. Theodore Boutrous Jr., an attorney for the plaintiffs, said that the unions’ attorneys’ arguments “fell completely flat.”

The unions, unsurprisingly, plan to appeal. Joshua Pechthalt, the president of the California Federation of Teachers, said, “We believe the judge fell victim to the anti-union, anti-teacher rhetoric and one of America’s finest corporate law firms that set out to scapegoat teachers for the real problems that exist in public education.”

Beyond the question of whether tenure hurts students, however, this case raises another issue: Should the courts be deciding that question at all?

Consider this case in light of Abbott v. Burke, a 1985 case in New Jersey that continues to serve as a fulcrum on which New Jersey’s courts and its Legislature vie for control over school funding. The state Supreme Court has repeatedly ordered the Legislature to draft a law that will achieve “substantially equivalent funding” for schools; time and again, the Court has found the Legislature’s attempt unsatisfactory.

Or consider a decision by the Kansas Supreme Court this March, which similarly found that disparities between school districts’ funding violated the state Constitution. The Court ordered legislators to potentially appropriate tens of millions of dollars for the benefit of poorer school districts. It rejected the argument that judiciary lacks authority to make such education funding decisions.

I think the courts are wrong when they assume the role of legislators in deciding how public money should be spent. But I am inclined to find more merit in having judges examine structures that might impair educational quality, including tenure among others. The two scenarios are not quite the same.

A given amount of money may be adequate or inadequate, depending on how effectively it is spent. When a state constitution establishes a right to an adequate education, to whom does it implicitly assign the responsibility of determining what level of education is adequate? Logically, since defining educational adequacy is a policy matter, that determination falls to the legislature. Courts, including California’s, have tried to sidestep this argument by applying equal-protection arguments, saying poor students suffer when funding is inadequate. However, this again equates education spending with education quality, which is a determination courts are not in a good position to make.

As the policy-making branch of government, a state’s legislature should set educational standards, not its judges. A governor who believes legislators’ standards are inappropriate might have standing to bring that argument to the courts. If the executive and the legislature deadlock, it is entirely appropriate for the judicial branch to referee the conflict.

But when private plaintiffs go to court to complain that not enough money is being spent, the results are different. As was the case in New Jersey and Kansas, such actions can result in judges second-guessing both legislators and executives. Judges thus put themselves in a policy-making, money-appropriating role that is incompatible with that of the judiciary.

Do judges also overreach when they second-guess laws that provide tenure protection for teachers?

That is probably an argument the teachers unions will make when they appeal Treu’s decision and others like it that may arise in its wake. Students Matter is reportedly considering filing lawsuits in other states to tackle their tenure laws as well. But if unions successfully argue that judges are overreaching by striking down tenure laws, they will be implicitly asking the courts to stay out of the role of setting educational policy altogether. They will have no further credibility if they come back to court to ask for more money.

If the California Constitution’s education requirement means anything, it means that every student is entitled to a good education, which, among other things, is an education that does not come from a tenure-protected burnout who goes through the motions until it is time to collect a pension. The vast majority of teachers do not fit this description. Union objections notwithstanding, it will not shake the educational firmament if tenure laws are stricken. It might even be one step toward making public education operate in the interests of students who attend school, rather than in the interests of the adults who work there.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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