Editor's note: This post is the fifth entry of a multi-part series of interviews featuring Fordham's own Andy Smarick and Jack Schneider, an assistant professor of education at Holy Cross. It originally appeared in a slightly different form at Education Week's K-12 Schools: Beyond the Rhetoric blog. Earlier entries can be found here, here, here, and here.
Smarick: For several decades some education advocates (including teachers’ unions), after failing to win in legislatures, have successfully used state courts to achieve one of their top priorities: increasing K–12 funding. In a historical twist, some in the reform community, unable to win in legislatures, are now using state courts to overturn tenure rules.
Regardless of your views on any specific policy matter, what do you think of the general strategy of using courts instead of the elected branches to achieve K–12 policy goals? More specifically, what do you think of the Vergara decision, which overturned California's laws on seniority and tenure?
Schneider: It's a good question. Because this is an issue around which there's a lot of philosophical yoga. Liberals and conservatives alike bend themselves into all kinds of positions—advocating judicial restraint and judicial activism—depending on whether they like the outcome of a case.
Frankly, I see no problem with using the courts if the elected branches fail to act. The desegregation cases of the 1950s and 1960s are a great example of this. States and school districts were in violation of the law, and the courts—the Supreme Court as well as lower courts—stepped in to...