A California state court last week issued an absolutely blockbuster decision. The court held that California’s teacher tenure law was unconstitutional. The California law gives teachers tenure (and makes them almost impossible to terminate for poor performance) after, effectively, less than two years of service. The court held the law was unconstitutional on the grounds that, as implemented, it denies children in poor schools their right to an equal education.
According to an article in The Wall Street Journal:
“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.’ …
The ruling also agreed with the plaintiffs' arguments that the poorest-quality teachers tend to end up in economically underprivileged schools and ‘impose a disproportionate burden on poor and minority students.’”
Details with respect to how hard it is to fire poorly performing teachers in California can be found in these editorials in The Wall Street Journal and the Chicago Tribune. One example: In ten years, nineteen California teachers have been terminated for poor performance.
Obviously, the teachers’ unions are upset, but then their purpose is to protect their members’ job. That is what unions do. If they aren’t doing that, they’re not doing their job. The Illinois Education Association likes to claim that their interest is quality education. The IEA has run ads on WGN radio during Cubs-Cardinals games, and that is what they say. But it’s not true. Their main interest is their members’ jobs and benefits. During an appearance of Illinois Governor Pat Quinn and his challenger Bruce Rauner before the IEA, of the nineteen questions asked by the moderator, a former IEA president, one was on school funding, while eleven were on teachers’ pay, benefits, pensions, and collective bargaining rights.
The question is: What is the purpose of the public schools? To provide an education for our children or to provide jobs for adults. Pro-union people (i.e., people in favor of the latter) will say we can do both. No, we can’t. One has to take priority. In my opinion, it’s providing an education for our children. That means, among other things, that we need to be able to terminate poorly performing teachers so we can replace them with good teachers.
The decision in the California case is right as a policy matter. The question, however, is whether it is right as a process/procedure matter. Modifying tenure so it doesn’t interfere with providing a quality education to the children is definitely the right thing to do. The question is whether it is the courts that should be doing it.
For example, the California court cited Brown v. Board of Education in its opinion. Certainly, Brown v. Board of Education was a case where the courts had to act. The Supreme Court had to overturn its own decision in Plessy v. Ferguson, in which the Court said separate-but-equal was constitutional. Plessy v. Ferguson was completely wrong, and the Supreme Court needed to say so. (Perhaps the best explanation of why Plessy v. Ferguson was wrong from the beginning can be found in the dissent of Justice John Marshall Harlan in that case.)
The question then is: If separate-but-equal needed to be held unconstitutional in Brown v. Board of Education, what about teacher tenure in this California case? The point is they are different. Brown v. Board of Education was not about education. It was about fundamental civil rights. Government cannot divide citizens into two classes, white and black. Preventing that was the purpose of the Fourteenth Amendment (and Thirteenth and Fifteenth). Separate-but-equal does not fit within “No State shall … deny any person within its jurisdiction the equal protection of its laws,” and the Supreme Court needed to say so.
Teacher tenure laws are not the same. Teacher tenure laws do not rise to the level of a constitutional issue. I understand that the California legislature was not acting, nor was the governor. However, that is not the question. As I have said before, just because the legislature won’t do what you want it to do does not mean you get to go to the court. The legislature gets to decide, and the courts are not supposed to second-guess them. Courts don’t second-guess legislatures. Courts enforce constitutional rights. And no matter how important education is, it is not a constitutional right under the federal Constitution.
So what do we do with respect to laws that are as bad, with respect to how they affect educational quality, as the California teacher tenure law? We have to beat them in the legislature and with the executive – and in public opinion. We have to shame those who support such laws with the results of the laws they support. It is incredibly sad that so many children, especially poor children, will be consigned to a poor education while this fight goes on. But our system assigns these questions to the legislature. We need to respect the system to protect our liberty.
Comments