Thursday, April 14, 2016
Breaking News California Appellate Court Reverses Vergara Which Held Calif Tenure Statutes Unconstitutional
On April 14, 2016, a California appellate court reversed a lower court decision which declared several California tenure statutes unconstitutional under state law. Download Vergara Court of Appeals Opinion
In a lengthy well-reasoned opinion the court rejected a facial challenge to the statute and reasoned that if poor students were receiving an inferior education it was because of staffing decisions, reasoning:
It is possible that the challenged statutes—in the way they pertain to teacher tenure and seniority—lead to a higher number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection violation, which requires a classification affecting similarly situated groups in an unequal manner. (Cooley, supra, 29 Cal.4th 228, 253.)
Assuming that poor and minority students encounter more grossly ineffective teachers and that this impacts their constitutional right to “basic educational equality” (Butt, supra, 4 Cal.4th 668, 681), the constitutional infringement is the product of staffing decisions, not the challenged statutes. Even if the statutes were struck down, the harm at issue—the disproportionate assignment of inferior teachers to poor and minority students—could still occur as before. (Any system will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect, do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators from assigning the worst teachers to schools serving poor and minority students.
This case attracted significant media attention, several amicus briefs and copycat cases in other states. This high profile case was backed by former CNN reporter Cambell Brown.
Mitchell H. Rubinstein
Tuesday, September 8, 2015
California Law Review and the American Constitution Society is hosting a panel discussion, "What to Make of Obergefell?: A Moderated Discussion with Professor Melissa Murray" this week. The panel discussion will be September 10 at the Boalt Hall campus and will address the Supreme Court's decision in Obergefell v. Hodges. Participants include Elizabeth Gill, ACLU of Northern California; Alexandra Robert Gordon, California Deputy Attorney General; and Maxwell Pritt, Boies, Schiller & Flexner, L.L.P.
Tuesday, October 8, 2013
The Iowa Law Review with the Innocence Project of Iowa and the University of Iowa Center for Human Rights will present Professor Jon Gould on "Predicting Wrongful Convictions" on October 10. The free lecture will be held in the Levitt Auditorium on the Iowa law school campus. Gould is a professor at the American Univesity's Department of Justice, Law & Society and Principal Investigator at the department's Preventing Wrongful Convictions Project. Professor Gould's article, which includes three co-authors, is scheduled to be published in an upcoming issue of the Iowa Law Review.
Wednesday, August 15, 2012
Robin Charlow (Hofstra) has posted "Batson 'Blame' and its Implications for Equal Protection" on SSRN. Here is the abstract:
Twenty-five years ago Batson v. Kentucky held that equal protection is violated when attorneys exercise racially discriminatory peremptory jury challenges and supply pretextual explanations for their strikes. Findings of Batson violations are tantamount to rulings that attorneys have discriminated and lied. Not only do Batson findings potentially subject violators to sanction under standards of professional ethics, but they also amount to imputations of personal fault or “blame” for socially undesirable conduct. This article explores, from both practical and theoretical perspectives, the problem of the attribution of personal fault to attorneys that is inherent in a finding of a Batson violation. On the practical side, although the blaming effect seems inevitable, it may prove counterproductive to Batson‘s goal of eliminating racial discrimination in jury selection. In terms of constitutional theory, Batson enforces the Constitution’s equal protection guarantee, and blame appears to be an inexorable consequence of either of the two dominant theories of equal protection analysis: “anticlassification” theory, used by the Supreme Court’s majority, and “antisubordination” theory, urged by Supreme Court dissenters and many academics. Assuming blame is unavoidable under either current theory, and yet that it interferes with rooting out discrimination, this Essay explores a third possible alternative view of equal protection — “antibalkanization” — which might resolve the problem of discriminatory peremptory strikes without necessarily implicating personal blame.
The Iowa Law Review has accepted the paper for publication.