See Infra

Digging at the confluence of culture and everything else

Remedial Lessons in Vergara v. California

Earlier this week, a some very smart men wrote some silly things about education. One of them was Judge Rolf M. Treu in his tentative decision to strike down the teacher tenure system1 in Vergara v. California. Vergara is a public interest suit by nine students (or rather, their guardians) brought together by the 501(c)(3) organization Students Matter with the goal of striking down five statutes: the Permanent Employment Statute, the Written Charges Statute, the Correct and Cure Statute, the Dismissal Hearing Statute, and the Last-In-First-Out (LIFO) Statute. The plaintiff’s argument can be roughly distilled as follows:

  1. The five statutes create a statutory scheme that protects teacher’s employment in particular ways
  2. This scheme makes it burdensome, difficult and expensive on schools to correctly hire good teachers and fire bad teachers.
  3. This results in a surplus of bad teachers and deficit of good teachers
  4. The bad teachers end up disproportionately at schools with high concentrations of low SES, non-white, and/or English learner students
  5. A surplus of bad teachers creates significant harm to students
  6. the scheme thus infringes on the students right to equal protection of their fundamental right to education
  7. Ergo, the scheme is unconstitutional

Sounds good so far right? Unfortunately, not so much.

Let me take you way, way back to Marbury vs. Madison, when Chief Justice Marshall firmly established the role of the U.S. Supreme Court as the last guardian of the Constitution. In Marbury, Thomas Marbury was a supporter of the previous Adams administration and was one of 42 “Midnight Judges” appointed in the last hours and minutes before Jefferson’s administration came to power. Jefferson ordered his Secretary of State, temporarily Levi Lincoln and later James Madison not to deliver any of the commissions not already delivered.2 Marbury did not receive his commission, and like any so many Americans to come, sued to get what was owed.3

Marshall wrote a unanimous opinion establishing three questions that controlled the result for Marbury: 1.) was Marbury entitled his appointment as a justice of the peace, 2.) did his suit request the correct remedy for the same, and 3.) was a suit before the Supreme Court the right way to ask for remedy? Marshall smuggled judicial review in his “no” answer to the third, but not before answering the first two carefully. These questions model the basic imperative for the courts to exercise only the power they lawfully have, and to exercise that power judiciously. To put it another way 1.) is there a problem 2) can the court fix it, 3) is the court the right actor to fix it?

So, with that in mind, let’s return to the theory of the case and add in a few missing steps.

  1. The five statutes create a statutory scheme that protects teacher’s employment in particular ways
  2. This scheme makes it burdensome, difficult and expensive on schools to correctly hire good teachers and fire bad teachers.
  3. School administrators have responded by largely giving up on firing bad teachers
  4. This results in a surplus of bad teachers and deficit of good teachers
  5. School administrators get rid of bad teachers by sending them away to understaffed schools
  6. TAs a result the bad teachers end up disproportionately at schools with high concentrations of low SES, non-white, and/or English learner students
  7. A surplus of bad teachers creates significant harm to students
  8. the actions of the school officials, influenced and constrained by scheme thus infringes on the students right to equal protection of their fundamental right to education
  9. Ergo, the scheme is unconstitutionalStriking the statutory scheme would end the infringment
  10. Ergo, the scheme must be enjoined.

That’s a much harder case to make. I’m sympathetic to the facts as presented by the plaintiffs. Teacher tenure may or may not be stupid, but forcing teacher tenure decisions at only 2 years (18 months actually) is definitely stupid.4 Last-in-first-out seniority systems are relics of a bygone era and should be redundant with a well-constituted tenure system. Finally, Americans need to get over this idea that more process is magically better process.5 All of these systems are designed to entice and retain good teachers, but the costs far outweigh the benefits, and the worst off students have been paying the price.

This does not add up to the best, most responsible decision to strike down the statutory scheme. Generally, when statutory systems create surplus bad things while creating particular winners and losers, we have a body that is in charge of dealing with that: the legislature. Here, Treu arrogated, on behalf of the California judiciary, that broad policy making authority. More responsible remedies could have included striking at the more proximal causes of the bad teacher infestation, mandating that school officials refuse to allow bad teachers to teach, whatever the time and money costs required.

Many of you at this point will complain that it is unreasonable to ask schools to spend so much time and money when they have so little of either. Well, them’s the breaks when the courts order you to do something. And lucky for the schools, if the legislature is tired of the state having to pay so much money to bail out schools as they do the job they were always supposed to do, the legislature has ways of making it cheaper. And if that crisis creates enough political and financial pressure to force all of the legislative parties to the table so they can finally fix this mess they lawfully created in the first place? Well, I won’t be shedding any tears.

Footnotes

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One response to “Remedial Lessons in Vergara v. California

  1. ebrew79 07/07/2014 at 17:27

    Teacher Tenure after a year and a half isn’t sound, but people profiting financially off the education of kids are the lowest of the low. http://wp.me/p4oODX-27

    Like

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