Pioneers! O Pioneers!

Two of the nation’s premiere appellate attorneys are leading separate litigation efforts against the California public education system, which, if successful, could dramatically alter the K-12 landscape in the Golden State and beyond.

First, former Solicitor General Theodore B. Olsen of Gibson, Dunn & Crutcher and the non-profit Students Matter filed a lawsuit last year in Superior (state) Court on behalf of nine California public school students against the state of California, the state department of education, and three separate public schools districts. The groundbreaking lawsuit alleges that California laws governing teacher tenure, teacher dismissal, and “last in/first out” hiring policies too often result in the assignment of ineffective teachers, particularly to low-income students. Plaintiffs claim these hiring and assignment practices lower academic achievement for students, thereby depriving them of their right to “equal opportunity to access quality education” as guaranteed by the California Constitution. The two largest California teachers unions recently intervened as defendants. Trial is set for January 2014.

In a separate effort, appellate attorney Michael Carvin, with the law firm Jones Day, and the Center for Individual Rights filed a lawsuit last month on behalf of ten California teachers against the National Education Association (NEA) and the California Education Association in federal district court in California. The lawsuit challenges the state’s “agency-shop rule,” claiming it violates teachers’ rights of free speech and free assembly because mandatory union dues (up to $1,000 per year) are spent mostly on political activities supporting the Democrat Party.

The Daily Caller’s Paul Bedard writes that a 2012 Supreme Court ruling in Knox v. Service Employees International Union, which restricts how public unions can get money from nonmembers for political uses, may provide a mechanism for striking down the controversial agency-shop rule.

In the Knox case, Justice Samuel Alito wrote that agency-shop rules deserve further scrutiny: “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.”

Carvin, lead counsel for plaintiff teachers, explains it this way: “Forcing educators to financially support causes that run contrary to their political and policy beliefs violates their First Amendment rights to free expression and association and cannot withstand First Amendment scrutiny.”

These cases taken together tackle long-standing and controversial policy issues surrounding the K-12 system. Both bring to the forefront basic notions of how we think about the teaching profession. Both are worth watching closely.

Beth T. Sigall

May 13, 2013