A lesson from the New York teacher tenure challenge: Distinguishing legislative action from inaction within positive rights analysis.

• Author: Cooper, Cadesby B.

1. INTRODUCTION

   In recent years, a growing number of states have modified teacher tenure laws governing tenure qualifications, disciplinary and removal processes, and contract renewal standards to make it easier for school administrators to fire incompetent (and competent) teachers. (1) Other states such as Idaho, South Dakota, and Florida have eliminated teacher tenure altogether. (2) While challengers in over eighteen states have sought changes to tenure laws through political avenues, others have turned to the courts. (3) In 2014, a group of California parents and students won a constitutional challenge in Vergara v. California that invalidated a set of state teacher tenure statutes. (4) On the heels of Vergara, two New York plaintiff groups ("Plaintiffs" or "Davids Plaintiffs") filed suit in Davids v. New York (5) to challenge a similar set of teacher tenure laws on the basis of the right to a "sound basic education" under the New York Constitution's "Education Clause." (6)

   The California Court of Appeals eventually reversed the trial court decision in Vergara on the ground that the Vergara plaintiffs did not sufficiently allege an equal protection claim under the California constitution. (7) The Davids plaintiffs, however, could succeed where those in Vergara failed. Even though the policy arguments for invalidating the tenure laws in both cases are essentially the same, the Davids plaintiffs have identified constitutional issues and arguments that are fundamentally different from those made in Vergara.

   The California case was decided on equal protection grounds, with undercurrents of due process analysis, and both of these arguments have been foreclosed in New York by a prior New York Court of Appeals ("Court" or "Court of Appeals") decision. (8) Rather, the Davids plaintiffs seek a remedy through the state's Education Clause, which has been interpreted by the Court of Appeals as a distinct positive right granting a minimum quality of education to New York students. (9)

   The state defendants in both cases, and some scholars, have argued that citizens through their elected representatives should decide the wisdom of teacher tenure policies rather than the courts. (10) Choosing education policy has long been the purview of state legislatures, who are best equipped to create long-sighted, comprehensive education laws. (11) In contrast to courts, legislatures have the ability to conduct research and gather data to determine the best policy outcomes, are comprised of greater numbers of people who hold diverse interests making it more likely that many competing options are vetted, the political legitimacy of being a representative body of the state electorate, and the unique power of the purse, and the insight it provides, to make fiscal compromises in a great number of competing public interest policy decisions. (12)

   These arguments presume that judicial enforcement of the Education Clause, as with any state positive right, necessarily asks the courts to cross the line of judicial power by imposing a duty on a coordinate branch of government, and further, that the courts are not fit to make such decisions. (13) These arguments, however, oversimplify the issue by failing to identify separate inquiries within positive right analysis. First, while courts should respect separation of powers limits by refraining from creating a right that is not grounded in their state constitutions, such an issue is distinct from self-imposed prudential limits that only arise at the end of the positive right analysis, when a court fashions a remedy for a violation. (14) Second, the fitness of a court to decide a given issue is not determinative if the citizenry of a state have constitutionalized a duty on the court to do so. Furthermore, prudential concerns such as deferring to the wisdom of the legislature in questions of policy simply do not exist when the court is asked to invalidate a law, rather than impose a duty to act. (15) Thus, the constitutional issues in positive rights analysis do not fit neatly into the 'separation of powers' category and many of the arguments against judicial recognition of positive rights fail to make this distinction. (16)

   The New York Court of Appeals has found that the constitutional text of the Education Clause imposes a duty on the legislature to provide adequate funding for a system of common and free schools. (17) The plain language of the text reasonably supports this finding. (18) But it is not clear from Court of Appeals' Education Clause precedent, or from the plain language of the Clause, that such a duty extends beyond funding--for example, to imposing a duty on the legislature to refrain from passing laws, as the Davids plaintiffs allege of the tenure laws, that prevent students who attend the free and common schools from achieving minimum levels of learning. (19)

   As the Court of Appeals has already decided that the Education Clause provides a self-executing right to "a sound basic education," and has applied that right to impose a duty on the legislature to maintain adequate funding for the schools, the preliminary issue in Davids is narrowed to whether that right extends outside of the funding context. (20) The preliminary question in Davids is thus whether the framers of the Education Clause in the New York Constitution intended to make it unconstitutional for the legislature to abridge the right of students to minimum levels of learning. Framed this way, the political legitimacy and separation of powers issues control only to the extent that the court should not create such a right without a constitutional basis. Whether such a basis in fact exists in the Education Clause is far from clear. (21)

   Assuming that the text and history supports the extension of the right to non-funding challenges, then the Davids plaintiffs' claim must still survive the evidentiary requirements of the Court's established Education Clause analysis. (22) If the plaintiffs are able to meet this rigorous evidentiary burden, the court is then faced with the final part of positive right analysis--creating a remedy. (23) The propriety of a positive right remedy in turn depends on whether a plaintiff challenges government inaction or action, a framework which the Court of Appeals has implicitly adopted in its Education Clause precedent. (24)

   In the New York public school funding cases, the plaintiffs challenged the legislature's inaction. (25) This led the court to impose a remedy that ordered the legislature to act by providing a constitutional minimum amount of funding to the public schools. (26) While the court took note of jurisprudential concerns in imposing such an order, it nevertheless justified the result as extending from the constitution's Education Clause. (27) In Davids, however, the plaintiffs challenge legislative action. (28) The Davids plaintiffs allege that a collection of tenure policies enacted through collective bargaining agreements incidentally abridge the right of New York students to receive a minimally adequate education. (29) The Davids court will not be faced with prudential concerns at the remedial stage because the plaintiffs ask for the court to merely invalidate an allegedly unconstitutional law. Such challenges to legislative action do not ask courts to select a policy, but to eliminate one that is unconstitutional. (30) Thus, positive right remedies turn on this actioninaction dichotomy, which, in turn, determines whether a court will face prudential concerns in ordering a coordinate branch to adopt a policy that the court has selected. (31)

   This article analyzes the constitutional issues that the Davids court will face in deciding the reach of the Education Clause and briefly notes the evidentiary obstacles to the plaintiffs' claim. This article then applies the Court of Appeals' action-inaction framework to the Davids tenure challenge to argue that jurisprudential issues will not arise in the court's remedial analysis. Part I summarizes the allegations and legal arguments in and procedural history of the Davids case. Part II provides the legal context of the Davids claim and the background and history of the Education Clause. Part III analyzes the Davids claim as a new issue of New York constitutional law, according to the text and history of the Education Clause and the Court of Appeals' sound basic education test. Part IV identifies an implicit remedial framework for positive rights analysis in the Court's Education Clause cases, and argues that this framework demonstrates that the Davids teacher tenure challenge is a justiciable question of law.

2. DAVIDS V. NEW YORK: PROCEDURAL HISTORY AND SUMMARY OF ALLEGATIONS

   In July 2014, two groups of parents ("Plaintiffs" or "Davids plaintiffs") filed separate complaints against the State of New York and several of its education agencies on behalf of their children who attend public schools in New York City, Rochester, and Albany. (32) The trial court thereafter merged the two complaints into Davids v. New York. (33) The Plaintiffs challenge three sets of statutes that implement tenure qualifications and evaluations, tenure disciplinary process, and seniority based terminations. (34) On March 12, 2015, the trial court denied the defendants' motion to dismiss the claims, finding that the allegations set forth a cognizable claim under the Education Clause, and that the claim is justiciable on its face. (35)

   Before the Appellate Division scheduled the parties' oral arguments on this ruling, the legislature enacted modifications to several of the teacher tenure statutes. (36) The defendants renewed their motion to dismiss based on these changes, arguing the case had become moot, and again the trial court denied the motion. (37) On October 22, 2015, the trial court found that the "legislature's marginal changes affecting, e.g., the term of probation and/or the disciplinary proceedings applicable to teachers" were...