David Boies, the superlawyer who chairs a group that is trying to overturn teacher tenure laws in New York and elsewhere, said Monday that his organization is not looking to take the issue to the U.S. Supreme Court — at least not in the short run.
Boies, who helped lead the legal team that won a Supreme Court victory allowing same-sex marriages to resume in California, said his organization is focused on challenging tenure in state courts.
Last month, Boies became chairman of the Partnership for Educational Justice, a group founded by former CNN anchor Campbell Brown to challenge teacher tenure laws. The group says that tenure laws make it too costly and difficult to get rid of weak teachers and that poor students are saddled with the worst educators.
A similar group based in California — led by lawyers Ted Olson and Ted Boutrous, with whom Boies worked on the Supreme Court case regarding gay marriage — challenged and won a judgment in a Los Angeles court against that state’s tenure laws. The judge found that tenure laws violate students’ civil rights under the state constitution. The teachers union and Gov. Jerry Brown are appealing.
Boies said in an interview with The Washington Post that he is crafting a state-by-state strategy regarding teacher tenure because many state constitutions explicitly require the provision of an equal education to all public school students.
“Our initial approach is state law,” he said. “And we’ll see how much progress we can make using state law.”
The U.S. Constitution does not include the right to education. But civil rights activists used the equal protection clause of the Fourteenth Amendment — which says that no state shall deny to any person “the equal protection of the laws” — as the basis for Brown v. Board of Education, the 1954 Supreme Court decision that put an end to racially segregated schools.
Bringing arguments in state court can help lay the groundwork for an eventual Supreme Court case, Boies said. He noted that the fight for gay marriage was initially waged state-by-state. “It helped frame the issue,” Boies said. “It helped raise people’s knowledge about the issue.”
The Partnership for Educational Justice filed a legal challenge to New York’s tenure laws in July. The New York City Parents Union, a better-established group, already had filed a similar suit weeks earlier.
There has been tension between the two groups, with the parents union accusing Brown of trying to run roughshod over the parent group. Last week, a New York State Supreme Court judge decided to combine the complaints.
But tenure is just one factor that creates uneven educational opportunities for poor children, Boies said. He said disparate school funding based on real estate taxes means that public schools in poor communities have fewer resources than those in more affluent neighborhoods. And despite efforts by the federal government and some state governments to make up for those shortfalls, “the children who need the most get the least,” Boies said.
Getting rid of tenure, evening out school spending and allowing parents some choice among public schools would improve outcomes for students, he said.
“If you had fiscal equality and promotion and retention [of teachers] on merits and you had family choice, these three things would go a long way to radically improving our education system,” said Boies, the son of two public school teachers.
Boies, 73, has been quietly involved in education groups for several years. He is on the board of StudentsFirstNY, which is part of the national organization founded by Michelle Rhee, the former D.C. Schools Chancellor who recently announced she is stepping down as chief executive of that group. Boies also supports Teach for America and hosts an annual picnic for TFA members from the New York metropolitan area.