Indeed, if courts can order legislatures to abolish tenure, what else might they require? If plaintiffs pick the right judge and present the right experts, can they get judges to require that preschool teachers serving poor or minority children have a teaching credential from a school of education? Can judges order schools to adopt the Common Core if they think that will help ensure that all students are held to an equal standard? Can judges order legislators to double teacher pay if that’s what they think it will take to ensure that poor and minority students have good teachers?
These are anything but academic concerns. Within days of the announcement, the champions of judicial activism and big government were avidly launching big plans. Kevin Welner, director of the National Education Policy Center, the go-to outfit for teachers’ unions and schools of education, explained in the Washington Post: “Although I can’t help but feel troubled by the attack on teachers and their hard-won rights,” the decision “could be a very good thing.” He observed that Vergara makes possible a new era of “judicial activism,” and that courts could use the precedent to micromanage transportation and buildings, restrict school choice, dictate funding formulas or accountability practice, and on and on. He concluded, “If the relatively anemic facts and evidentiary record in Vergara support the striking down of five state statutes, it’s almost mind-boggling what the future may hold for education rights litigation in California.”