Vergara East: How Politics, Education Policy and the Law Are Irrevocably Intertwined

The law suits challenging the New York State tenure law came before a judge in Staten Island; the judge combined the two suits and admitted the UFT as an intervener. Down the road the judge will undoubtedly admit other interveners who have the right to file briefs, and, to a limited extent participate in the argument. The suit will be defended by the Attorney-General of the State of New York under the leadership of Eric Schneiderman.

Once the preliminary motions are out of the way the state will make a motion to dismiss the suit and we will be off and running.

In the ideal world, if there ever was one, the suit will be decided on its merits; however, how do you define “merits”? By “merits” do you mean applying the law and relevant legal precedents? Do you mean putting your finger in the air to judge the political winds? Do you mean applying “common sense” and defending the “rights” of children in the classrooms of “ineffective” teachers?

In the real world I believe politics and the courts intersect.

Was the Bush v. Gore, 531 U.S. 98 (2000) decision based on sound legal precedent or political party loyalty?

Remember the Citizens United (2010) decision?

The Supreme Court held in Citizens United that it was unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions …
.
… the ruling … removes[d] the previous ban on corporations and organizations using their treasury funds for direct advocacy. These groups were freed to expressly endorse or call to vote for or against specific candidates, actions that were previously prohibited

Was the Supreme Court decision, once again, based on sound legal precedents or political party loyalty?

In my mind there is no question that from the lowest courts to the highest court in the land politics enters into the decision-making process. No matter what judges say, or do not say at their confirmation hearings or political campaigns (Supreme Court justices in New York State are elected) their life experiences and political loyalties impact decisions.

In 1803 Chief Justice John Marshall, in Marbury v. Madison, seized power away from the executive and legislative branches, creating the concept of judicial review, granting power to justices to invalidate laws made by the legislative and executive branches.

the Constitution was “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” In other words, when the Constitution–the nation’s highest law–conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court’s power of judicial review.

How will the anti-tenure law suit be decided? By that I mean the legal and the political influences.

Forum Shopping:

Why would the litigants file the suit in Staten Island? Probably because Staten Island is more conservative, more Republican, the litigants may feel there is less judicial sympathy for the issue of tenure. Who are the greatest enemies of tenure: Republicans or Democrats? The Democrats for Education Reform (DFER) are strongly opposed to tenure and Davis Boies, one of the lead attorneys for the litigants is also a lifelong liberal Democrat. Staten Island is also the home to many public employees, again, maybe more sympathetic to job protections – ultra liberal Manhattan may have been a better choice to file the suit,

Eric Schneiderman: The Governor in Waiting:

If Governor Cuomo left the Albany mansion the prime candidate-successor would clearly be the Attorney General. In a possible primary election and a November general election Schneiderman would love to have the avid support of the 600,000 member New York State United Teachers, not just a mechanical endorsement but credit for defeating the assault on tenure. Schneiderman has a lot at stake: winning or losing can determine his political future.

Judges and Politics in New York State:

Supreme Court justices in New York State are elected, Appellate and Court of Appeals justices are appointed by the Governor with the consent of the Senate. In New York State “elected” usually means being selected by the geographic party in power and perhaos running in a primary election. Republicans and Democrats in New York State, for the most part, have a cozy relationship, not the acrimony you see at national level. Judges are creatures of the political power structure.

The “Sound Basic Education” Burden

The NYS Constitution states, “the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” … usually referred to as “… a sound basic education.” The Campaign for Fiscal Equity (2003) decision found that “a sound basic education” consisted of “the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” Does the current tenure law prevent students from receiving a “sound basic education” as defined by the Campaign for Fiscal Equity (CFE) decision? The CFE case took a dozen years, and was argued, pro bono, by Simpson Thatcher, of the most prestigious law firms in the city and the question of education funding inequities has been subject to litigation since the seventies. (Levittown v. Nyquist). In my view the current anti-tenure litigation is not ripe ( “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”) it will take years before we know whether the new tenure law achieves its purpose.

Tenure in New York State and Annual Professional Performance Review:

New York State has totally revised the method of assessing teacher performance as well as dismissing teachers. The State guidance document is 166-pages with scores of links. School districts can prefer charges against teachers who have received “ineffective” ratings for two consecutive years. At this point we have no idea how many teachers fall into the two consecutive ineffective ratings category. For teachers in New York City we will not have data until next year.

In New York City well under 100 teachers were charged with incompetence for the 12-13 school year; however about 40% of teachers had their probation extended and over 40% of teachers leave voluntarily within five years. Perhaps retaining “effective” teachers is more crucial than dismissing “ineffective” teachers.

Reticence of Lower Courts to “Make Law” and the Prerogatives of the Legislative and Executive Branches:

I don’t remember the last time a New York State court ruled a law unconstitutional. Federal judges are appointed for life; they can only be removed, impeached, for misconduct. State judges are elected or on the Appellate level appointed by the governor. Judicial candidates are selected by their political party, very occasionally run in a contested primary, and run on a party line in the November election. If both houses of the legislature and the governor support a bill and convert it to a law it would be a heavy lift for a judge to challenge the legislative and executive branches. Yes, a Republican or a liberal Democratic judge might want to embarrass the Governor, a potential presidential candidate; although it is unlikely.

The anti-tenure gang achieved their purpose – they created a national discussion over tenure and incompetent teachers – they ate up the air – how many print media lines? Op ed articles? How many hours of TV time devoted to the question of tenure? The unions have been trying to turn the conversation to collaborative schools, to community schools with wraparound services, to Universal Pre-Kindergarten, with only limited success. Newspapers are extremely conscious of “clicks per article” and the negative article collects more “clicks” than the “feel good” story. Female teachers having sexual encounters with male students garner far more ink than a student winning a prestigious scholarship.

Edwin Chemerinsky, the dean of the University of California, Irvine School of Law and Catherine Fisk, a professor at UC Irvine School of Law, write,

” …the kinds of reforms that school officials, teachers’ unions, education policy experts and legislatures should design through discussion. It is judicial activism of the worst sort for a trial judge to do so alone.”

I believe the California Vergara decision will be reversed and the New York State anti-decision may be dismissed before trial.

Hopefully we can move forward to debate issues that truly impact teaching and learning.

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