Tag: litigation

Can Litigation Save American Education?

Next week, the case of Vergara v. California goes to trial. The question being litigated is whether or not the state’s laws on teacher tenure (“permanent employment”), dismissals, and last-in-first-out layoffs disproportionately harm poor minority kids, thereby violating California’s constitution.

Plaintiffs in the case feel they have the evidence to prove this point (see the links above), and so far the courts have acknowledged that their view is at least plausible. Certainly these laws are incompatible with efforts to maximize the quality of the teaching workforce. And it does seem as though they do the most damage in districts and schools serving the most disadvantaged kids. But will a victory by the plaintiffs in this lawsuit do substantial and lasting good?

That’s less obvious. For one thing, these employment practices can be found in many places where they are not codified in state statutes.They are employment guarantees and benefits of the sort that are often sought and obtained by teachers’ unions in collective bargaining with districts. So getting rid of the laws won’t necessarily get rid of the practices.

More broadly, over a dozen states have explicit constitutional provisions demanding that they create “uniform” education systems—a more stringent equality requirement than is contained in California’s constitution—and it’s not at all obvious that this seemingly strict legal guarantee has made any difference in the quality of educational opportunity in those states.

It’s easy to empathize with the desire to see state legal precedents enforced, and bad laws overturned. But neither state constitutions nor legal precedents have been able to secure either the uniformity or the quality of American education systems, and there is no reason to expect that to change no matter how the Vergara case is decided. More than half a century after the victory in Brown v. Board of Education, poor African-American kids are  still disproportionately likely to be assigned to lousy schools. I wrote about this 11 years ago, and little has changed since then. Lawsuits can redress specific legal wrongs, like compelled segregation, but they can’t produce educational outcomes that require the coordination and relentless dedication of thousands or even millions of people, year after year.

For those who really want to maximize the quality of education offered to disadvantaged and minority students—indeed to all students—the best hope is to study the different sorts of education systems that have been tried around the world and across history, and then ensure universal access to the best among them: a free educational marketplace.

 

The Court Tackles a Hard Case: Implications for ObamaCare?

The Supreme Court hears oral argument today in an important pre-emption case, Bruesewitz v. Wyeth, which asks whether the National Vaccine Injury Compensation Act of 1986 pre-empts state law “design defect” suits brought against vaccine manufacturers. I’ve discussed this complex case more fully in an op-ed at the Daily Caller, but in a nutshell, Congress passed the Act to address the risks inherent in vaccinations through a federal no-fault ”Vaccine Court” rather than through the vagaries of state tort law. It did so because the inability to make vaccines entirely safe, plus uncertainty surrounding causation, coupled with the penchant of state juries to discount those issues in favor of sympathetic plaintiffs, had rendered most manufacturers unwilling to produce needed vaccines at reasonable costs.  

In drafting the statute, however, Congress left things unclear, to put it charitably. Thus, the Court will have to make sense of this language:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine… if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

Although the Act allows victims to sue over manufacturing defects, conduct that would subject a manufacturer to punitive damages, and a manufacturer’s failure to exercise due care, nowhere does it define “unavoidable”—and there’s the nub of the matter. In the case before the Court, a three-judge Third Circuit panel decided unanimously for Wyeth, as did the district court. But in another case five months earlier, a nine-member Georgia Supreme Court, facing similar facts, decided unanimously for the plaintiff.

And behind it all is the question whether Congress should have pre-empted state law in the first place. It probably should have here, but that’s a close call. And the implications for ObamaCare are not absent in this case, which could be a portent of the complex and uncertain litigation that lies ahead if the scheme is not repealed. As I say at the outset of my post, hard cases make bad law, but bad law too makes hard cases, and this is one. Does anyone think that ObamaCare is anything but bad law? We’ll know once we figure out “what’s in it,” as the lady said.

No Cheers for Title IX

For supporters of Title IX, it’s time to put down the pom-poms.

From the start, Title IX has been an unnecessary and destructive imposition of government and bureaucracy into college sports, substituting regulation and litigation for the free choices of women and men. But yesterday’s ruling that competitive cheerleading isn’t a sport – a decision worth reading just for its brilliant illustration of the torturous athlete-accounting and word-parsing Title IX demands – highlights how truly absurd it has become.

For one thing, tell the women (and men) in competitive cheer that it isn’t a sport – most would probably beg to differ. Much more important, when we have judges ruling what does or does not constitute a sport we have clearly given up way too much freedom in our supposedly free society. Finally, the very basis for Title IX – the notion that women will be systematically and unfairly barred from various activities by misogynistic colleges – just makes no sense, especially today. The fact is, women make up the very large majority of college students, and hence can dictate terms to schools. At least, they can dictate terms if schools want to keep competing in the sport we call “staying in business.”

Which brings us to what probably really scares Title IX fans: Women almost certainly don’t want to participate in intercollegiate athletics as much as men do, a likelihood evidenced by everything from hugely greater male participation in open-access intramural sports, to men choosing ESPN and women choosing Facebook while on the Web. The problem, of course, is that to admit that would be to lose the ability to push schools around with the big ol’ federal government.

Sure, You Can Get a Business License — If Your Competitors Approve

Our friends at the Pacific Legal Foundation have filed another important suit in the battle for the right to earn an honest living.  PLF senior attorney (and Cato adjunct scholar) Tim Sandefur has the scoop:

Michael Munie is a St. Louis businessman who’s been in the moving business since he was 16 years old. He has a federal license that lets him move people’s household goods from one state to another. And he has a state license that allows him to move things within St. Louis. But he’s not allowed to move things from St. Louis to anywhere else in Missouri unless he gets permission from his competitors first.

That’s right—Missouri law dictates that whenever a person applies for a license to run a moving business, the state’s Department of Transportation must notify all the existing moving companies and give them the chance to object. If they do—which, of course, they always do—the applicant must prove that there’s a “public necessity” for a new moving company. What does “public necessity” mean? Nobody knows. There are no standards, no rules of evidence, no nothing.

Read the rest and find out more here.  Cato doesn’t litigate, of course – other than filing amicus briefs – but we certainly support those that do, including PLF, the Institute for Justice, the Goldwater Institute, the Mackinac Center, and many others.