The Egalitarian Fallout of Vergara v. California

Last week, in what promises to be the start of a protracted and important judicial battle, a judge in California struck down five statutes in the state’s Education Code on the grounds that they prevented children attending public schools from receiving an education that is commensurate with their state constitutional right to equal protection under the law. The statutes judged unlawful were those preventing Californian district school boards from withholding tenure from incompetent teachers or firing them once they had gained it, plus another obliging them to give priority to their more long-serving, but less effective, teaching staff over more recent, but more effective, teaching appointments when, for economic reasons, lay-offs had to be made.

Some have welcomed the court’s ruling, arguing that removal of the statutes in question will benefit, not just the children whose education would otherwise have been impaired by incompetent teachers but the economy more widely.

Economist Eric Hanushek, senior fellow at Stanford’s Hoover Institution, testified on behalf of the several schoolchildren who brought the case. He welcomed the ruling in the pages of the New York Times.  Citing a 2013 study on the long-term impact of teachers on the life-chances of their pupils, published by the National Bureau of Economic Research, Hanusehek remarked

Each year a grossly ineffective teacher continues in the classroom reduces the future earnings of the class by thousands of dollars by dramatically lowering the college chances and employment opportunities of students. There is also a national impact. The future economic well-being of the United States is entirely dependent on the skills of our population. Replacing the poorest performing 5 to 8 percent of teachers with an average teacher would, by my calculations, yield improved productivity and growth that amounts to trillions of dollars.

Given those impressive-sounding statistics, how might anyone, save those with a special interest in feather-bedding themselves, object to the court’s ruling against the statutes which supposedly enable ineffective teachers to remain in their posts? Surely, these statutes belong to a bygone age, whatever justification they may once possibly have had.

One who thinks that they do is Frederick M. Hess, director of education policy studies at the American Enterprise Institute. Commenting on the court ruling in USA Today, Hess notes:

Teacher tenure laws pre-date the advent of equal employment laws or modern hiring practices. These protections made some sense a century ago… [by] serving as a useful check on abusive management. In that era, after all, schools could and did routinely fire teachers for being pregnant, failing to conform to height and weight charts, being thought gay or holding the wrong political views. Today, while such practices are pretty much gone, the laws linger on.

I am not so sure, and certainly have no special interest at stake, being now retired and not even a U.S. national, let alone a Californian. I base my doubts upon two principal considerations to which others commenting on the case have drawn attention.

First, as has been astutely observed by James Ryan, formerly a law professor at the University of Virginia, now dean of Harvard’s Graduate School of Education, it is difficult to see where this same line of reasoning might end in the name of equality of educational opportunity:

It is… worth recognizing that, if this suit is successful and education rights in state constitutions are read broadly, who knows where cases like this might stop? This is a case about teachers. But surely poor and minority students have unequal access to all sorts of resources. One wonders if those who brought this suit are willing to press their equality claims to their logical conclusions and challenge the vast array of inequalities poor and minority children might experience in public school systems.

It’s easy to envision a claim asserting a right to attend a socioeconomically diverse school. Reams of research indicate that high-poverty schools suffer from numerous obstacles and difficulties that majority middle-income schools do not. Indeed, concentrated poverty may be the single best predictor of school performance and high-poverty schools remain the most difficult nut to crack in attempts to improve educational outcomes. The effects of attending a high-poverty school are not simply the aggregate effects of out-of-school poverty, either; the schools themselves disadvantage those who attend, regardless of their families’ socioeconomic status.

One can envision a lawsuit arguing that school district lines and attendance zones that result in high-poverty schools are denying poor children their right to equal educational opportunity. There is no reason in logic why such a claim could not be made and made quite strongly. Indeed, the argument in Vergara is that California statutes regarding teachers make a child’s educational opportunity dependent on family income. That is also true with respect to school-district lines and attendance zones that cluster poor kids in high-poverty schools.

Just such considerations are currently being advanced in the United Kingdom to oblige schools in receipt of state funding to admit equal proportions of socio-economically disadvantaged children to ensure that their educational prospects are not blighted by being obliged to be taught together in disproportionate number. There are many in Britain who cannot afford private school fees for their children yet can afford to live in a leafy suburb that ensures their children are able to attend state-funded schools that are not overrun by children from disadvantaged backgrounds who for a variety of reasons are frequently harder to teach; and, thus their presence negatively impacts students from better domestic circumstances.

As just indicated, the effectiveness of their teachers is by no means the sole, or even the most important, relevant variable in determining how much progress at school children make. Of far greater importance is their familial background, including the socio-economic standing of their parents. Those celebrating this week’s court decision might not have so wide a grin on their faces if they subsequently find themselves called on by their states to dip more deeply into their pockets to equalize familial incomes or increase grants to schools with less advantaged children in the name of greater equality of educational opportunity.

Secondly, being obliged to abandon a ‘last-in-first-out’ policy where lay-offs have to be made among public school teachers is liable to have a very detrimental effect upon their overall effectiveness which is invariably dependent on the willingness of more senior colleagues to mentor and informally help and to advise more junior less-experienced colleagues, especially upon appointment. Such willingness might well start to dry up once every newcomer has become a potential competitor for the job of every long-serving teacher. As has been noted by David B. Cohen, a California teacher and Associate Director of Accomplished California Teachers, a teacher leadership network run out of Stanford University’s Graduate School of Education:

Seniority is a rational basis for handling layoffs… Seniority serves a compelling state interest by providing a bulwark against politically or fiscally motivated layoffs, and by fostering the necessary collaboration to help schools thrive… Eliminating LIFO [“last-in-first-out”]… creates competition in place of collaboration; if layoffs are looming, there’s a perverse incentive to protect oneself at the expense of others.

Only someone who has never worked in a school or university as a teacher will be inclined to doubt how much new teaching appointments rely upon the willingness of more senior peers to help them in learning how to ply their trade well. How much of that willingness would be forfeited under a dispensation in which seniority no longer counted for anything?

No one is suggesting that grossly incompetent teachers should be able to remain in post, but the fact that in California only so few teachers are formally dismissed should not be construed, as the court there did earlier this week, to mean that grossly incompetent teachers there are allowed to remain in their positions because of the difficulty in firing them. Many such teachers resign of their own volition once the long-drawn out firing procedures begin, and so don’t formally count as dismissals in the statistics.

It should not be lost sight of that teaching is both a vocation and profession, nor that ideally a school should be a community of scholars with all the reciprocity and collegiality implied by such a notion.

Reader Discussion

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on June 19, 2014 at 13:06:20 pm

What is of greater concern to me is this:

Why are the courts making these determinations. Listening to some of the justifications given / data, it would seem as if this is a "political question" best determined by the peoples representatives. It is not for the court to make these "balancing" determinations - that is the duty of the Legislature.
In Washington state for example, the Court is busy preparing to cite the Legislature for contempt because the Legislature has not provided funding sufficient to meet the Justices determination of what is proper. simply because there is a constitutional provision to provide funding for schools (or that education is the primary duty of the state) does not mean that it is the role of the courts to make the political determination of what constitutes proper funding level to meet the definition of "primary." Does it mean all funding must go to education - surely not. And if it does not, then clearly this means that the Legislature is to make those types of determinations - not the bloody courts!!!!!
Oh, for a politician with some #$$#@@!!!!!!!

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Image of gabe
on June 19, 2014 at 13:16:26 pm

If we are to examine extensions of applications and implications of the Vargara case, we should certainly be clear about the nature of any “rights” involved, and the sources or origins of those “rights.”

All rights, or claims of right, are based upon offsetting and concomitant obligations or set of obligations. If there is a “right to education” or a “right to equal quality in education” there must be an obligation on the part of someone to provide whatever is regarded as the essential of education, in whatever degree of equality may be claimed.

For simplicity, can find examples to the United States.

Where it was deemed important (indeed essential) that children receive some degree of education, it was the obligation of the parents to provide it. Where they could not provide instruction directly, they obtained services of others as teachers, and undertook to provide economic and physical support as well as status and dignity in return for teachers undertaking of what were their familial obligations.

That did not absolve parents of all obligations related to the education processes at particular levels. Even as late as the first quarter of the 20th century, parental involvement, particularly in elementary education, was still socially requisite and practiced even as the processes for education were becoming institutionalized into “Education Systems.”

What can be observed is a historical transfer or delegation (and emancipation from), in varying degrees and formats, of the direct familial obligations in matters of education. Those transfers, many initially for provision of better and more extended instruction, were initially to local political structures, within the effective participation of those originally paternally obligated, and were matched by increased obligations of taxation or other services.

As with the course of most institutionalization, the development of “Education Systems,” led to the development of an internal grouping of interests within the systems, much of it, initially, unrelated to self-aggrandizement, but ultimately taking on aspects of an internal Guild, with its own objectives disparate from those of original parental responsibilities.

With increasing urbanization, and the dilution of commonalities of familial responsibilities and objectives, coupled with advantages to the Guild, the obligations necessary for the maintenance and expansion of “Education Systems,” were transferred, by stages, further from the original parental contacts, to larger political bodies, diluting still further the involvement and participation or role of familial responsibilities and objectives; resulting ultimately in the shift of originally familial functions to those of large municipalities and states; the depersonalization of the underlying obligations.

If the obligations that support the “right to education,” or to any other related claim of right, are now the obligations of larger political bodies, the issue arises: why are the obligations so located in our society, how did they come to be there, should they remain there.

The concentration has been upon how the obligations are being met, which does merit inquiry. But equally important is consideration of whether those obligations or the primary responsibilities for their performance have been misplaced. Perhaps if we can at least partially resolve that latter consideration, solutions to the remainder of the issues will fall in place.

We are beginning to see a “recapture” of obligations by parental groups who, for generations, have never directly experienced those obligations and the conditions they entail. Personal involvement is becoming more extensive and is revealing to more parents the nature of the obligations involved. Smaller political bodies are forming where individual capacities are insufficient for the obligations. We may be on the road back.

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R Richard Schweitzer
on June 19, 2014 at 13:27:21 pm

If a state legislature, within the police powers of the state to protect the environment of educational facilities, were to require (or authorize) random body cavity searches of attending students, what recourse to judicial constraint be in order?

There is a role for the judicial process.

However, in the case you cite, we have another example of the use of the legal system has a facility or means of accomplishing social objectives.

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Image of R Richard Schweitzer
R Richard Schweitzer
on June 19, 2014 at 15:25:36 pm

No dispute re: a judicial role in affording some guard against an overly zealous legislature.

My issue is with the arrogation to itself by the court to "commandeer" what is certainly a political question -i.e., what is sufficient funding? or perhaps to put in in terms that may mimic your comments below: To what extent shall the Legislature "obligate" the taxpayer to provide for the performance of the States obligation to educate? In what manner shall the performance of this obligation lessen the ability of the taxpayer to provide for the States performance of other obligations - say roads, police, etc.?
Unquestionably there are some matters that, given an errant legislature, the courts should provide some recourse for the citizen.
Unfortunately, the courts have been unable to restrain themselves in recent years.

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Image of gabe
on June 20, 2014 at 12:38:48 pm

And it gets worse:

Now comes a report in today's Seattle Times that certain education lobbyists are pushing to redefine what a basic education is and that it should "constitutionally" include the attainment of certain levels of intellectual competence (my abbreviated wording). " OK, MR(S) Legislature - Johnny can't do his math - increase funding until he can" - signed: Your Black Robed Masters!!!!!

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Image of gabe
on June 20, 2014 at 14:10:25 pm

Every year we get to hear and read about the poor state of American public education and it is all true - to a point. If you blacks and hispanics from the studies, public education does just fine standing up to other countries. So what is the solution?

Eliminate public schools completely and go to tuition vouchers. Let parents decide which schools to send their kids to, including private schools and religious schools, and let the schools compete for the vouchers. Schools can decide on their own if they want unionized teachers and how it effects their ability to compete for vouchers. This removes the government, school boards and the teachers unions from continuing on as the destructive elements they have become and puts the power of education back in the hands of parents where it belongs.

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Paul Foote
on June 20, 2014 at 15:05:17 pm

Would be nice; unfortunately, a number of state constitutions have a provision mandating a state duty to educate its children. quite a task then to undo this.
I must say that while I applaud the result in Vergara v. California, I am not at all happy with the means by which it was accomplished.
Perhaps, if the Legislature itself were to have eliminated tenure or at least made it significantly more difficult to achieve, I could abide by it.
Then again, anytime anyone socks it to the Teachers Union, I do feel a certain joy!!!

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Image of gabe
on June 20, 2014 at 23:35:45 pm

The June 10, 2014 “Tentative Decision” of Vergara v. California states, “Sixty years ago, in Brown v Board of Education (1954) 347 U.S. 483, the United States Supreme Court held that public education faculties separated by race … were denied the equal protection of the laws under the 14th Amendment of the United States Constitution... coming to the conclusion (of) the importance of education to our democratic society… is a right which must be made available to all on equal terms”.
It then moves onto the California Supreme Court’s Serrano v Priest (1971 & 1976) called Serrano II, “… the then-existing financial school system in of the California Constitution… the equal protection of the California Constitution holding that: the strict standard applied in such (suspect classifications or fundamental interests) cases…, then to Butts v State of California 1992 providing “… basic equality of educational opportunities”.
I have added the above to elevate Gabe’s post(s) -- to my own thoughts – yet I am not implying that Gabe may (or may not) agree with me.
Anyone who has read some of my previous posts will note that I was a young student in a New England city school system that was not segregated –well before Brown v BOE. The l14th Amendment was a well-documented statement of the ‘Civil Rights Amendment’ of specific limited enumerations – to outlaw the “the Blue Laws” of the southern states, and give the black population citizenship of both the U.S. and the State. The Northern states had never believed that the 14th would apply to them, because of the specific limited enumerations of protection, generated from the ‘Civil Rights Amendment’.
The student challenges of “the equal protection” in Vergara v. California were three in nature; the Permanent Employment, Collectively “Dismissal, and Last In-First Out Statutes.
The Court was “… asked to directly assess how the challenged Statues affect the educational experience... and summarized “All Challenged Statutes are found unconstitutional… “.
This Court states, “… it is not the function of this Court to dictate… (to) the legislature…”, -- yet it already has -- here. “That this Court’s decision will and should result in political discourse is beyond question …”,-- is “certainly beyond question” when it’s initial statement referred to “In coming to its conclusion…” the Court significantly applied… ”the 14th Amendments equal protection”Clause.
Let no reader be confused by the State’s summary. This State Court was put under the abridgement and usurpation of the federal court’s 14th Amendment degree of 1954 (noted above). This case of Vergara v. California would not have come about without this unconstitutional ‘degree’.
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.