Suing for Reform

  • Public-Policy Reform
  • 2014

Philanthropists have been funding lawsuits as a way to improve public policies for more than a century. Booker T. Washington secretly financed the Giles v. Harris case back in 1903, and throughout the rest of his life paid for other litigation aimed at undoing racial disenfranchisement (see details in the 1903 entry). Today, public-interest law philanthropy is funded by innovative donors interested in topics such as school reform, and carried out by nonprofits like the Institute for Justice and the Goldwater Institute.

One charitable litigator is Silicon Valley entrepreneur David Welch, who spent several million dollars between 2011 and 2016 building a court case that California’s teacher-tenure laws deprive students of the right to be educated as guaranteed by the state constitution—by, for instance, granting permanent employment after just 18 months on the job, making it nearly impossible to fire even the most terrible teachers, and requiring school districts to lay teachers off based on seniority rather than competence. Welch and his wife had first tried traditional education philanthropy, giving money to bring new teaching methods and technology into schools. They soon realized, though, that in many public schools, incompetent teachers made necessary educational improvements impossible. So in 2011 they founded a group called Students Matter and gathered facts about the forces blocking school reform.

Nine students told Welch their education had suffered after they were stuck in classrooms with poor teachers. The donor hired a top-flight legal team to help them assemble a court case. He also funded an accompanying public-relations campaign to fend off the massive counterattack by teacher unions that predictably followed.

In 2014 a judge of the Los Angeles Superior Court ruled that “there are a significant number of grossly ineffective teachers currently active in California classrooms” and that this causes thousands of students to fall years behind in math and reading. “The evidence is compelling. Indeed, it shocks the conscience,” wrote Judge Rolf Treu in his Vergara v. State of California decision striking down seniority-based job protections for unionized teachers. This prompted other philanthropists and education reformers to consider similar donor-funded lawsuits in states like New York, Connecticut, New Jersey, New Mexico, and Oregon, with the aim of eliminating rigid procedures that block dismissal of incompetent teachers.

The California education bureaucracy and unions appealed the Vergara decision. And in 2016, a three-judge panel overturned the verdict, bringing widespread criticism from legal scholars and newspaper editorial boards. California’s Supreme Court declined further review of the case, 4-3, despite urging from one its justices that “the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review.” David Welch’s nonprofit, Students Matter, asked the California legislature to act where the courts would not, by improving the state’s laws on evaluation, retention, and dismissal of teachers.

  • Philanthropy magazine reporting,
  • Sponsor of Vergara case to its conclusion,
  • Institute for Justice educational litigation,