David Boies spoke to reporters last year after the Supreme Court ruled in favor of gay couples in California. (Joshua Roberts/Bloomberg)

David Boies is an accomplished civil rights attorney who is probably best known for his Supreme Court cases, in which he has represented Al Gore and Californian gay couples seeking to marry. Now he is working on behalf of kids in urban schools, but his approach is a controversial one. He argues that teacher tenure denies students their right to an equal education, guaranteed in Brown v. Board of Education and many state constitutions.

Boies is chairman of the Partnership for Educational Justice, the group started by former news anchor Campbell Brown that has organized a lawsuit to eliminate tenure in New York. The group is planning more cases in other states. A similar effort succeeded in California earlier this year, and Gov. Jerry Brown is appealing that case.

Last week, Wonkblog talked about teacher tenure with Jesse Rothstein, an economist at the University of California, Berkeley who supports teacher tenure. Rothstein's research has shown that without teacher tenure, recruiting and retaining talented teachers would be even more difficult than it already is. On Monday, Wonkblog met with Boies to talk about teacher tenure -- specifically what it means for education to be a civil right and whether state and federal governments should provide equal funding to districts in wealthy and poor cities.

The debate over tenure, Boies said, might be a distraction from other, larger issues in the public schools where progress might be possible. "Everybody needs to step back and understand that this is part of a broader problem," Boies said. "I think both sides can probably find areas of agreement."

An edited transcript of the interview is below.

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I wanted to start with Brown v. Board of Education. It's been 60 years. What do you see as the legacy of Brown vs. Board?

We are continuing to segregate our schools. While people now will say that segregation is based on economics, the history of this country has deprived many African American families of the same economic opportunities that other people have enjoyed. We segregate our schools in a way that is not only undesirable, but fundamentally at odds with the basic principles of our country.

Our basic principles in this country are that everybody deserves an opening shot. If you don't have an equal education, if you don't have equal home environment, you can't have that. You have many inner-city schools that are serving students whose lives are already severely challenged because of the economic and social circumstances of their families. Not only are they not getting the extra help that they need and deserve, they're not getting help that is remotely comparable to the educational opportunities that are given to children in upper income suburbs.

Teacher tenure is an important issue, but it's only one part of a much, much larger problem. Because teacher tenure is such a flash point, people are focusing on that issue, separate from the broader issue of how we provide educational equality to our students. Everybody needs to step back and understand that this is part of a broader problem. It would be desirable if both sides could get together on the issues that they agree on. I think both sides can probably find areas of agreement.

So what are some of those areas of agreement?

I think one of the areas of agreement is the need to increase educational budgets. I think another area is the need to move towards fiscal equality. Really just for historical reasons, we've evolved a funding mechanism for schools that was neighborhood based. As our neighborhoods have become increasingly unbalanced in terms of economic and social characteristics, that method of funding is increasingly untenable.

What the federal government can do is to help in terms of equalizing funding. There is a national obligation and a national imperative to improve our education system.

States can do that as well. There are state constitutions that compel that. The state constitutions in various places including California, including Florida, talk about the right to an education. They don't talk about the right to an education provided by Miami-Dade or Los Angeles. It is an obligation of the state of Florida, the state of California.

The issue of equal funding for schools across a state -- that might be another case.

Absolutely.

We're talking about not just tenure, we're talking about financing of the education system -- what else? Are there are other areas where you think people who are looking to improve the education system in this country could use the courts and the precedent of Brown vs. Board?

If you had fiscal equality, and you had promotion and retention on the merits, and you had some family choice, those three things would go a very long ways toward radically improving our education system. I believe we will have initiatives in other states before the New York case is over with. The decision has not been made.

I talked to Jesse Rothstein of Berkeley last week. He made two arguments about tenure that I'm hoping you can respond to. He pointed out that staffing in urban schools is often very difficult for reasons unconnected to tenure. Principals may have teachers they don't like very much, but they're worried about dismissing them, because they know that it's an unattractive job. It's emotional stressful. The pay is low compared to what people with a college education make elsewhere.

If the point is eliminating teacher tenure will not solve all the problems of inner city schools, he's 100 percent right about that. If he's saying that he thinks the improvement would be a relatively small improvement, I think that doesn't fit with the experience of educators.

Rothstein also argued that teacher tenure is attractive to people considering the profession, that people who are in other lines of work where their compensation is based in large part on how they perform, like finance, for example, are paid much better, and that if teachers were no longer protected by tenure, they'd have to be paid more in order to attract the same number of applicants and applicants of the same quality to the profession.

As a matter of theoretical economics, everything that affects a person's job can theoretically affect how much money they're going to want for it. But remember, teacher tenure helps the people that are already there and hurts the people that are coming in. You may feel that you would be a really great teacher, and the district would want to keep you, but if they have to lay people off, you're going to get laid off no matter how good you are. When you come to work for my law firm and you do a really good job, we're not going to lay you off. It is not at all clear to me that teacher tenure is a draw to bring new people into the system.

Second, I think that very rarely do the people who want to become teachers, who are going to be really good teachers, base that decision on whether they will get tenure. While I agree completely that attracting good teachers is difficult, and we need to spend more time doing that -- in part by paying them more money -- I don't think there's any evidence for the idea that somehow tenure  attracts good teachers. In fact, I think the evidence is to the contrary.

The strategy you outlined earlier -- working through different states, looking at different states constitutions, to pursue educational equality in many respects is an ambition one, I think many people would feel that the courts are not the right venue for this discussion. They would feel that these problems need to be solved through elected representatives, legislators, governors, people like that. What do you feel about that?

This problem has to be addressed at every level. It has to be addressed by governors. It has to be addressed by legislators. It has to be addressed by school boards. But when you're talking about constitutional rights, the courts are the place that you go to vindicate those rights. The reason that we have written constitutions is because we believe they are certain rights that people ought to have even if the legislators don't provide for them. It would have been a tragedy if the United States Supreme Court, 60 years ago, had said, "Well, go to the legislature in Kansas, ask them for this relief."

We went through this in the marriage equality battle, where there were some people who said, "Stick to the legislators." If we had stuck to the legislators, we would not have marriage equality in Pennsylvania or Virginia or Oklahoma or Utah, any of these states. We wouldn't even have it in California. There's a limit to how far you can go legislatively.

Finally, can you talk to us about your parents, who were teachers?

Yes, both public school teachers. They taught in Illinois and California. My father was a high school American history teacher, which is what I would have done if I hadn't become a lawyer. My mother was an elementary school teacher. They taught in the Illinois schools until I was 13, and then they moved out to California.

My father had been in the Army and had gone through southern California on his way to the Pacific in World War II in December and January. Coming from northern Illinois, he thought he had found paradise. He came home, and for the the next five or six years, talked about California. When I was 13 -- I was the oldest -- he sold his house, put his furniture in storage, loaded my mother and their four children into the station wagon and drove to southern California. This was 1954. He didn't have a house. He didn't have a job, but by September he had both, because California was growing. The baby boom generation was coming to school. There was a lot of need for teachers. He taught first in Lynwood, and then the Fullerton high school district in Orange County.

I still run into people, when I go back to California, who were taught by my father, and say that it was one of the best experiences they had. He was a great teacher. They were both dedicated teachers, strongly in favor of public education.

And how do you think they would have felt about these issues? Did they talk about them at all?

They did. This was an era in which the National Education Association was much less of a union than it became, and my father was very strongly of the view that teaching was a profession and he didn't want to see it "unionized." My mother was a particularly strong Democrat and pro-union generally, but she also believed that education was a profession. I think that they would oppose the way teacher tenure has developed.

I talk to a lot of teachers who feel the same way about teaching being a profession. That seems to be one of the major areas in which there ought to be agreement but there isn't. Teachers feel that efforts to change the way classes are taught, the way schools are administered, are an imposition on their autonomy as professionals. Do you think there's some kind of reconciliation to be had here?

As I say, I think there are areas of common ground, but fundamentally, there is an issue as to whether teachers ought to be evaluated on the merits or not. Every other professional is. No professional likes to be. I don't like my clients evaluating me. Doctors hate it when boards begin to view their work. No professional likes it, but I think most professionals recognize that it's necessary for the integrity of the profession. In any profession, whether it's teachers or doctors or lawyers -- the more we say we're not going to evaluate those people on the merits, I think that's when the profession goes into decline.

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Further reading: 

  • Rothstein and economist Dean Baker explain why tenure encourages young people to become teachers.
  • Boies will pursue a state-by-state strategy for advancing education equality in the courts.
  • American Federation of Teachers president Randi Weingarten calls the lawsuits "smoke screens."