A California judge declared the state’s strong teacher-tenure laws unconstitutional in a rebuke that promises to spur similar challenges around the country.
The student plaintiffs in the lawsuit against the state and two teachers unions successfully argued that statutes protecting teacher tenure, dismissal procedures and “last-in, first-out” layoff policies serve more often to keep ineffective instructors in the schools—hurting students’ chances to succeed.
In Tuesday’s decision in Vergara v. California, Los Angeles County Superior Court Judge Rolf M. Treu cited the Supreme Court’s 1954 Brown v. Board of Education “separate but equal” ruling, writing that the laws in this case “impose a real and appreciable impact on the students’ fundamental right to equality of education.”
Let’s stipulate that getting rid of teacher tenure is a good thing for students, especially poor and minority kids who are most dependent on getting a quality education from the public schools. School reform advocate and former Florida governor Jeb Bush released a statement emphasizing the commitment to quality education for all students and quoting the court’s finding that there is “no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms” and that “both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged” by tenure rules.
It is hard not to take delight in the outcome, but is this good judging and appropriate legal reasoning? John Yoo of the University of California-Berkeley Law School tells me via e-mail:
Vergara v. California is a great result achieved in the worst way. California public schools have done a terrible job providing education to the poorest minority students in the inner cities; it is imperative that innovation be introduced into the system. California’s antiquated rules about teacher tenure and seniority have stood in the way of meaningful reform. Everyone concerned about shaking up the educational bureaucracy to return focus on teaching students — rather than protecting teachers rights — should support the judge’s good intentions.
But whether teachers should have tenure, how they are fired, and what their employee rights are, should be a decision for the elected representatives of the people of California, not for judges. The theory of this decision is that these policies violate the constitutional rights of students because they produce an inferior education, the courts could decide to take over the California public school system and make every decision from employees to funding to buildings to curriculum. They could arguably decide how much of the California state budget should go to education rather than police, fire, or roads. These are essential decisions for a democracy to make.
There are nevertheless some mitigating factors. Yoo observes that “judges in California are elected, and so the people could remove this judge if they disagree, though that would take years and would not reverse the decision.” He also points out that prior California decisions “crossed this Rubicon years ago. . . . [when] the California Supreme Court used this logic to find that funding of schools had to be equal throughout the state and essentially eliminated local tax support for local schools.” If there is judicial overreach here, it happened some time ago.
Nevertheless, conservatives should not be shy about pointing to the court’s findings of fact and conclusions that the teachers’ unions are protecting rotten teachers at the expense of the most vulnerable kids. Endemic teacher incompetence is a disgrace, a result of mostly Democratic politicians’ dependence on Big Labor money. On the state level, school reformers should continue to push to rid the system of anti-educational tenure laws and to provide school choice for kids to escape cruddy schools. On the federal level, the most effective use of taxpayer dollars would be to convert the Education Department into a dispenser of vouchers for under-served students and to act as a clearinghouse for education research and innovation. We know what bad teachers look like, but cultivating good ones and using their best practices to expand good teaching techniques are worthy endeavors.
So as a believer in judicial restraint, I have to rap the judge’s knuckles. But his decision, even if overturned on appeal, should be a wake-up call for schools, politicians and parents.