In this blog, I take up the first of a two-part discussion of Vergara v. California, a case out of Los Angeles that is now before an intermediate state appellate court and seems destined to be decided, ultimately, by the California Supreme Court.
In a closely watched and controversial decision, the trial court in Vergara v. California ruled that certain statutes governing the employment of teachers violated the right of students in California to a quality education. The sweeping decision struck down several laws granting tenure, establishing procedures for dismissal, and requiring that teacher layoffs occur based on seniority alone. The court ruled that these statutes made it too difficult to terminate the employment of “grossly ineffective” teachers, and that the existence of such teachers was interfering with the right of students, guaranteed by the state constitution, to a quality education.
The case is fascinating for all sorts of reasons, including its lineage. Vergara is a direct descendant of school finance cases, which have been brought both in California and throughout the country. School finance cases, like CCJEF v Rell, currently on trial in Hartford, CT, rely on exactly the same state constitutional provision at issue in Vergara: the right to education. In school finance cases, plaintiffs have argued that unequal or inadequate school funding violates this right. In Vergara, plaintiffs are arguing that obstacles to removing ineffective teachers violate this right. It is the same underlying right in both contexts, just a different theory about how that right is being violated and what can be done to cure the violation.
The question I have is whether the trial court was engaged in “judicial activism” in Vergara. The term “judicial activism” is inherently vague and, in truth, often means no more than: “I really disliked this decision.” But it is also used, in a somewhat more principled fashion, to describe decisions where courts have exceeded the proper bounds of their authority--where they have, in particular, invaded the legislative sphere and decided a question that should be left to the political process. (In this sense, judicial activism is an accusation of improper behavior and a term of opprobrium, not praise.) The question with respect to Vergara, then, is whether the trial court should have left decisions about teacher employment statutes to the legislative process.
Defenders of Vergara would say, with justification, that the trial court was simply enforcing the state constitution, which is what courts can and must do--enforce the law, even if doing so constrains legislative choices. Critics would respond, also with justification, by saying that the language of the state constitution, which guarantees students a right to education, is vague and does not clearly outlaw current teacher employment statutes. The court, critics would continue, should therefore have deferred to the legislature’s decision--questions about tenure and firing teachers are inherently political and ought to be left to the political process, absent some clear violation of the constitution.
As you might be thinking at this point, whether the trial court was engaged in judicial activism in Vergara is a hard question to answer. The constitutional language is indeed vague, and the decision does seem to involve issues that are quite political. On the other hand, constitutional language is often vague, and enforcing it often involves political issues.
If it is hard to answer the question about Vergara alone, perhaps we can at least try to have a consistent answer across different types of cases that involve the same constitutional right. And here we get to the truly key question: Can you make a principled argument that distinguishes Vergara from school finance cases when it comes to judicial activism? In other words, if you think the trial court in Vergara was engaged in judicial activism, do you also think courts that rule for school finance plaintiffs are engaged in judicial activism? (Remember, courts in both sets of cases are enforcing exactly the same constitutional right.) Conversely, if you don’t think the court in Vergara was engaged in judicial activism, do you feel the same way when courts rule in favor of school finance plaintiffs? Put differently: Are rules about firing teachers the kinds of issues that courts should decide, while questions about funding schools are ones that should be left to the legislature--or is it the other way around?
Perhaps I am just seeking a “foolish consistency,” which Emerson reminded us is the “hobgoblin of little minds.” But I personally have a hard time understanding why court involvement in one context (school funding decisions) would be more or less proper than court involvement in another context (teacher employment decisions). Given that each involves the enforcement of a constitutional right--indeed, the very same constitutional right--and threatens to constrain core legislative prerogatives, it strikes me as inconsistent to defend court involvement in one sphere but not the other. One might argue that the cases should come out differently on the merits, and that plaintiffs in one context have made a stronger case based on the law or facts. But is there really a principled argument to suggest that courts should not be involved at all in just one of these contexts and that decisions in one context (but not the other) should be left entirely to the legislative process?
If there is not a persuasive argument about why some aspects of education policy should be immune to court challenge, then fasten your seatbelts. Vergara may unleash challenges to all sorts of education policies--those favored by the left and the right--as lawyers and courts realize the power and scope of the right to education.