Is Neel Kashkari a secret judicial activist or just targeting public schools?

by Russell's Rants

Originally published October 26, 2014

336b89844e95656ac8efe1eb6a9fa979In trying to unseat California Governor Jerry Brown, his Republican challenger, Neel Kashkari, has run one television advertisement, repeatedly, called “Betrayal.” You’ve seen the ad, which features Kashkari rescuing what appears to be a drowning child from a pool. The pool is supposed to be a metaphor for California’s failing schools under Brown’s leadership – with Kashkari giving the youth a tug out of danger.

What Kashkari doesn’t say in the 30 second commercial, however, is that he is being specifically critical of the decision by Governor Brown to appeal a Los Angeles Superior Court judge’s ruling earlier this year – which ruling is a blatant example of conservative judicial activism.

The fact that Kashkari has made this semi-notorious court case the centerpiece of his gubernatorial campaign shows both his desperation to find something to run on and his hypocrisy in choosing an issue that contradicts the supposed traditional Republican view of the judiciary.

The case in question is Vergara v. California, in which Superior Court Judge Rolf Treu, a Pete Wilson appointee to the bench, ruled in June that the California Education Code’s teacher tenure and removal procedures violate the fundamental right of schoolchildren to an equal and quality education. Of all the causes for low-performing schools, Treu decided that these particular rules were to blame for ineffective teachers who were situated in schools serving poor and minority students – as opposed to say, low teacher pay, infrastructure disrepair or educational funding sequestration.

It was an interesting ruling given that two of the plaintiff students actually attend charter schools (which do not have teacher tenure) and another two (the Vergara sisters themselves) attend a pilot public school in Los Angeles where there is no tenure and teachers can be fired without cause, including “ineffectiveness.”

Sounds like Judge Treu decided to wade into a raging political fight about educational reform – but he did so on the basis of rather general principles of constitutional law, citing, of all things, Brown v. Board of Education, the 1954 Supreme Court ruling that invalidated “separate but equal” in racially segregated schools. When liberals used to do this kind of thing late last century, the conservatives called it judicial activism by unelected judges.

Now conservatives want in on what they formerly criticized.

USA Today opined that “[t]he decision, if upheld, also could clear the way for lawsuits about issues that are rarely fought in courts.”

The newspaper went on:

The case used a novel approach, borrowing civil-rights strategies from unions and school advocates, who have used lawsuits to fight to equalize school funding between rich and poor districts. . . . “Now it’s going to be a strategy that both sides use when they can’t win in political branches,” [quoting an education lobbyist sympathetic to the ruling].

And Kashkari is rather vague about what education policies of Brown he is complaining. All he says is in the ad is that “when kids in failing schools begged Jerry Brown for rescue. . . . HE BETRAYED THEM.” You need to go to Kashkari’s website to see another web video referencing the Vergara case more directly.

Yet, teacher tenure was nowhere in Kashkari’s crosshairs before the June 10, 2014 ruling in Vergara. A review of Kashkari’s 33-page “Education Plan To Transform Schools,” which is also posted on his website, makes no mention of teacher tenure reform. In fact, his plan’s only mention of “tenure” is to bemoan the lack of “tenured professors” in the California State University system, which he believes would help ameliorate the “bottleneck” of courses. So a natural question would be: if tenure helps attract and keep qualified university teachers, why is it so bad for primary school teachers?

Kashkari’s real educational agenda is pretty obvious from the plan on his website, the main focus on which is to promote private charter schools to replace, or become a deregulated model for, traditional school. Charter schooling must not poll well because Kashkari does not mention it by name in any of his television advertising.

Kashkari frames the debate with Brown as one over the latter’s “betrayal” of failing schools – without ever saying expressly how he proposes to privatize, deregulate and defund them. Instead, he embraces a brazen example of conservative judicial activism on an issue he never cared about as the core of his campaign.