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How Vergara's Arguments Compare

Publication Date: 
February 11, 2014
Daily Journal
Chase Scheinbaum

Professor Bill Koski proposes weak points in a lawsuit seeking to strike down teacher tenure laws in California for The Daily Journal. 

The plaintiffs are presenting a theory that teacher tenure laws violate the state constitution's equal protection clause, a claim legal experts see as both a novel attack on union-bargained statutes, and a difficult case to make.

Several major education cases of the past five decades in which plaintiffs prevailed have each made constitutional claims. But Stanford Law School professor William Koski, who is involved in two ongoing education reform lawsuits in California, and Robert C. Fellmeth, a University of San Diego School of Law professor and former assistant U.S. attorney, said they see substantive differences between those suits and Vergara.


"There was a tight causal link in Reed, but Vergara will have difficulty showing that the rules tie administrators' hands," Koski said. Compared with Reed and other landmark education cases, "causal theories and evidentiary issues are dramatically amplified here," Koski said.

"I agree with the plaintiffs, but it is a difficult case," Fellmeth said. In his view, the equal protection claim is "weak." "Children are not a 'suspect class' - even impoverished children are not," he said.


Koski said that striking down the tenure statutes is "a pretty bold request, given that it's not a class action." Again, he made a comparison with Reed, saying that it "was a targeted case on a specific evidentiary base. This is a much bigger stretch especially given the class is amorphous." Plaintiffs have "loosely tied" the claims to minority and low-income students, he said.