In an interview in Salon, UCLA law professor Jonathan Zasloff says that Judge Rolf Treu’s decision against tenure and seniority was weakly reasoned. If it were a paper in one of his law school classes, he would give it a B-.
Among other curiosities, the decision represents an aggressive sort of judicial activism, which conservatives usually deplore. Zasloff says: “When we find a ruling we don’t like, we call it judicial activism; and conservatives banged on this drum for years and years and years, and are staying on it even in the wake of Bush v. Gore … But this is certainly a very, very aggressive decision and an example of judicial activism.”
Another curious aspect to the decision is that it embraces “disparate impact,” which conservatives typically oppose.
Zasloff says: “But as with all of these things, it really depends on whose ox is getting gored. And if this means that the California Supreme Court, [if it upholds the ruling], is now saying that as part of California’s equal protection law is that you can entertain things on a disparate impact theory, that would make California in a lot of ways quite progressive, judicially. Justice Robert Jackson famously talked about an area of law having invisible boomerangs. This could be one of them.
“One of the things, of course, if California uses a disparate impact theory for its equal protection claims, and does some very aggressive, progressive moves on that (if we’re gaming this out several years in the future), you could then see conservatives going to the federal Supreme Court and saying, “California using disparate impact in state equal protection law is itself a violation of federal equal protection law principles.” So there are a lot of moves to be made in the wake of this one.”
The decision is not only poorly reasoned but has a weak factual basis, says Zasloff:
“If [Treu's] ruling is going to be upheld, and if he’s going to make a case for it, he needs to find a lot of facts. There was a trial here, there was testimony here; but there seemed to be very few facts that the judge explicitly relied on for his decision. So, he says, “Well, we know that there are a lot of grossly inadequate teachers in the system, and we know that at least some of these grossly inadequate teachers are going to go to low-performing schools, so that means that it’s a constitutional violation.” Wait a minute. There are six or seven different steps in there that you’ve got to make. The teachers’ unions argued, “Wait a minute — the reason the teachers might be grossly inadequate is because of the schools that they’re in, not because of the teachers themselves.” You can think that that’s right, you can think that that’s wrong, you can think that that’s true, you can think that that’s false; but it would seem to me that you’ve got to make an argument as to why you think … these teachers are grossly inadequate. What in fact is going on there? What is going on in these schools? That is the kind of thing a trial judge can and should be doing, and the judge here just didn’t do it.”