The line of precedents cited by Treu to justify his extraordinary intervention are, in themselves, unexceptionable. The California courts have long held that under both the 14th Amendment of the U.S. Constitution and the state constitution education is a fundamental right that must be provided on equal terms. This doctrine is salutary; indeed, like Justice Thurgood Marshall, I think the Supreme Court erred by not reading the 14th Amendment the same way.
The question, however, is whether this doctrine is applicable to these cases. There is one huge difference between this week’s case and the previous holdings. Previous precedents involved cases where poor school districts were being treated differently under state law. In Serrano v. Priest I and II, the issue was one of poorer school districts receiving fewer resources, and Butt v. California concerned a school district closing six weeks early because of a lack of resources. These were clear cases of equal protection violations: Poor districts were treated differently than affluent ones in ways that almost certainly had deleterious consequences for the education of students in the former.
In this case, however, there’s no formally unequal treatment; the tenure system created by statute in California statute applies to all school districts. For most of the conservatives cynically praising Treu’s decision, this should be the end of the discussion; to their thinking, as long as districts are treated the same there’s no equal protection violation. But conservatives are wrong about this. A statute that formally treats people or groups the same can violate equal protection if the effect of the law is discriminatory. Education policy provides a particularly vivid example of the vacuity of the conservative premise that formally equal treatment is sufficient. Reading Brown v. Board to require nothing but the elimination of de jure discrimination in pupil assignment has allowed far too many local educational systems to be both separate and unequal in practice.
So there’s nothing wrong with a disparate impact analysis per se. But if Treu’s opinion were to fulfill its premise, he needed to make the case that California’s tenure system disproportionately burdens the educational opportunites of the poor. And it’s here that his amateurish policy analysis manifestly fails to deliver the goods.
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