By Ben Velderman
EAGnews.org

LOS ANGELES – The battle to reform teacher tenure and end “last in, first out” school layoff policies has taken an unusual turn in California.

Instead of trying to repeal those measures in the union-friendly state legislature, some reformers are doing an end run around the process and are asking the courts to declare the bulletproof teacher job protections unconstitutional.

MORE NEWS: Know These Before Moving From Cyprus To The UK

The reformers, in this case, are nine school children and their parents who are being represented by attorneys from the nonprofit organization Students Matter.

The families are suing the state over several specific teacher job protections enshrined in California’s education code: teacher tenure, seniority layoff protections (“last in, first out”), and the due process laws governing teacher dismissal.

Their attorneys argue that the laws have the effect of keeping “grossly ineffective” teachers in the classroom – particularly in schools that serve low-income and minority communities – and result in students being denied their constitutional right to an equal education.

They define grossly ineffective teachers as those “who fail to provide their students with the most basic tools necessary to compete in the economic marketplace or to participate as a citizen in our democracy.”

The case is known as Vergara et al. vs. California, and at first glance, it appears to be just another gimmicky lawsuit destined to generate a few sensational headlines and little else.

But Students Matter is no two-bit operation that’s run by lawyers who advertise on daytime television.

As LA Weekly put it, Students Matter is “represented by superstar attorneys Theodore Boutrous and Theodore B. Olson, the pair who successfully argued … that Proposition 8, banning same-sex marriage in California, was unconstitutional.”

MORE NEWS: How to prepare for face-to-face classes

The pair’s reputation extends far beyond the Proposition 8 case. Olson is a former U.S. Solicitor General who served under President George W. Bush, and Boutrous is one of the most highly regarded attorneys in the nation.

In other words, the families’ lawsuit is in very capable hands.

The lawsuit overcame its first legal hurdle last month when Los Angeles County Superior Court Judge Rolf M. Treu “rejected arguments by the state’s attorney general’s office that the lawsuit should be dismissed because, among other things, there is no constitutional right to a quality education,” reports the Los Angeles Times.

Treu ruled that there are constitutional issues involved in the lawsuit and allowed the case to proceed, according to the Associated Press. A trial is expected sometime next year.

The Students Matter suit will have to overcome many more such obstacles before reformers can start assuming that the battle for education reform should move from the state house to the courthouse.

Still, this previously untried legal approach has the potential to “change the face of education in California,” notes the Orange County Register.

It seems safe to say that if Students Matter wins this case, it will change the face of education and education reform all across the nation.

And that must have teacher union leaders and status quo defenders more than a little worried.

‘Grossly ineffective teachers’

In theory, the Students Matter position is pretty straightforward: The California Constitution guarantees that all children have equal access to a quality education, yet too many students are being taught by ineffective teachers.

And since the state’s laws regarding teacher tenure, seniority rights and dismissal procedures are responsible for keeping ineffective teachers in the classroom, the laws are subverting the students’ constitutional guarantee and should therefore be declared unconstitutional.

In short, the group will argue that not every student is being treated equally.

“As a result of these arbitrary distinctions (about hiring and firing),” the group’s complaint reads, “children of substantially equal age, aptitude, motivation, and ability do not have substantially equal access to education. Because education is a fundamental interest under the California Constitution, the statutes that dictate this unequal, arbitrary result violate the equal protection provisions of the California Constitution.”

Students Matter attorney Enrique Monagas puts it more simply.

“These laws handcuff administrators’ hands and keep them from hiring the best possible teachers and firing the least effective teachers,” Monagas tells EAGnews.

Research shows that when district-wide layoffs occur in California, low-income and minority schools are more likely to lose teachers due to “last in, first out” rules, and are likely to have ineffective teachers transferred into their classrooms as replacements.

“The grossly ineffective teachers – the bottom five percent – are really holding students back,” Monagas says.

‘No judge is going to become a super-legislature’

Dick Komer is a senior attorney with the Institute for Justice, a libertarian law firm that focuses on civil rights issues. He was involved in a 1992 lawsuit that argued school vouchers should be allowed under the California Constitution.

“We got nowhere,” Komer tells EAGnews. “And this seems to be a farther leap than what we were trying to do.”

The biggest challenge, Komer says, will be to get a California judge to do “by fiat what the legislature cannot do.” And that won’t be easy.

“Conservative judges don’t want to interfere with the legislative process, and liberal, activist judges love public schools,” Komer says. “No judge is going to become a super-legislature.”

Not surprisingly, Monagas disagrees.

“We think we have a really high chance of winning this case,” he says.

Monagas points to a previous Supreme Court ruling that found school districts have a constitutional right to equal funding. He thinks that a constitutional right to a quality education isn’t much of a leap.

One thing is for certain: If Students Matter succeeds in getting teacher tenure, seniority, and dismissal laws removed from the law books, it will reverberate throughout the nation. While only a handful of states currently have educational guarantees written into their constitution, that number would surely increase in the wake of a favorable decision.

As one observer noted, “It would be revolutionary in its consequences if it succeeds.”