Chiefs for Change on Direct Student Services in ESSA.
Lawyers, arguing about Vergara:
Justice Boren’s understanding of the term “inevitably” appears to be sharply different from the Court’s holdings in Serrano. After all, it was conceptually possible for low-income neighborhoods to spend substantially higher portions of their incomes on property taxes. To be sure, they would “tend to” avoid doing so because of the costs and consequences, but it would have been conceptually possible for them to do so. By Justice Boren’s logic, their failure to do so was their local failure, not the failure of the California public treasury to equalize local property taxes. Justice Boren thus ignored the clear meaning of the term “inevitably” from Serrano as “inevitably given the evidence, and given a realistic and fact-based understanding of human behavior.”
When the plaintiffs made the decision to advance a facial challenge, they took on the burden of proving that “no application of the statute would be constitutional.” In order to do so, they would have to prove that the operation of these teacher tenure laws inevitably led to the harms shown. Proving that the harms occurred and that students suffered isn’t sufficient. And proving that the laws contributed to them, or created the circumstances for them to occur, or made it difficult to have any other outcome also isn’t enough.
But when this court repeatedly signaled their disappointment with the high bar that plaintiffs set for themselves in choosing this approach, they may have been suggesting that they would be more sympathetic to an “as applied” challenge to the same laws. Smart plaintiffs will take note.