In our latest Legal Beat column, which was just published by Ed Next, Martha Derthick and I discuss a case, Renee v. Duncan, where the 9th Circuit held that teachers seeking alternative certification could not count as highly qualified under No Child Left Behind. Thus, Teach For America (TFA) members would not count as highly qualified and schools that currently employ TFA teachers, which are almost entirely in poor and underperforming districts, would have had to drastically limit their numbers. Fortunately, Congress fixed this judicially mandated nonsense and attached language to a continuing budget resolution allowing for teachers seeking alternative certification to count as highly qualified.
Unfortunately we did not have space in our article to address how the case exposes one of the glaring pathologies of judicial policymaking. The lawsuit was brought by Public Advocates, which claimed that students were being harmed “nationwide” by the Department of Education’s policy of allowing teachers seeking alternative certification to count as highly qualified. If Public Advocates and its attorneys had their way, they would have imposed their own preferred policy on the state of California through the courts. But one has to ask, how would Public Advocates and its motley assortment fellow litigants ever have the capacity to really know the interests of those who would be affected by their lawsuit? The obvious answer is that they could not.
The adversarial legal system, combined with peculiar features of American law like class actions, allows a single group or individual to claim to speak on behalf of millions of people that they do not, and never will, know. Elected institutions, however imperfect, do a far better job of sorting the various interests and needs of the public. What, after all, would parents of children in schools with large numbers of TFA teachers think about Public Advocates’ claim to be helping their kids? When informed of the massive loss of teachers in their schools, I suspect that they would tell Public Advocates to put their allegedly good intentions back where they belong. After all, the interests of these parents are already represented on school boards, in state legislatures, and in Congress.
Hence, the other lesson of Renee v. Duncan is that just because a special interest group grandiosely styles itself a “Public Advocate” hardly means that it is one.