Vergara Overturned (For Now), But the Conversation Continues
Two weeks ago, I expressed my ambivalence toward the courts (again) while talking about a creative workaround for a Washington Supreme Court decision declaring charter schools unconstitutional. I then mistakenly allowed myself to believe we would be free of legal discussions for a while. No such luck. And this time, stuff’s complicated.
Last week, a California Court of Appeals panel overturned the now-famous Vergara v. California ruling. For those who don’t remember, this ruling struck down California’s teacher tenure statute along with other seniority-based policies like the state’s last-in-first-out (LIFO) dismissal policy, which paid no heed to effectiveness. Why? Because the court determined that those policies disproportionately harm low-income and minority students, thereby violating the California Constitution’s requirement that the state provide a “meaningful, basically equal educational opportunity” to all students.
A raft of evidence presented by the plaintiffs—a groups of students—and their attorneys showed that seniority-based personnel policies, and especially policies like tenure that make it nearly impossible to let ineffective teachers go, are bad ideas. Among the most compelling pieces of evidence presented during trial:
- A single classroom of kids taught by a highly ineffective teacher (in the bottom 5 percent of effectiveness ratings) would lose out on an aggregate $1.4 million in lifetime earnings.
- Students taught by teachers below the 50th percentile of effectiveness lost between 9.5 and 11.5 months of learning.
- Thanks to the “due process” required by tenure, letting an ineffective teacher go in California could take up to 10 years, and cost anywhere from $50,000 to $450,000. As a result, only about two teachers were dismissed per year due to performance between 2003 and 2013—in a state with 277,000 teachers.
- Thanks to the “Dance of Lemons,” or the tendency to simply pawn off ineffective teachers on other schools rather than let them go, black students and Latino students in the Los Angeles Unified School District were 43 percent and 63 percent, respectively, more likely to be taught by a teacher in the bottom 5 percent of effectiveness ratings.
After reviewing this and other evidence, Judge Rolf Treu famously wrote:
Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.
There is no question the Vergara case surfaced incredibly important data and arguments, or that it spotlighted the critical issue of tenure reform in American education (an issue that my Independence Institute friends have often discussed in both long and short form). In fact, the appellate decision didn’t dispute the overall policy implications of seniority-based personnel laws. Instead, it argued that:
… [p]laintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
So, these policies are probably not good ideas. But the statutes themselves do not, in the court’s view, “inevitably” lead to the disturbing outcomes outlined in Vergara. Or, put another way, the soundness of these laws from a policy perspective is wholly divorced from the legal perspective on them.
That’s a pretty sterile way to look at the situation, but… I can’t say I totally disagree with it. Even when the first Vergara decision was issued, I highlighted some concerns that the ruling tiptoed dangerously close to a court making policy decisions better left to the legislature. Rick Hess of the American Enterprise Institute echoed those concerns in a postmortem blog post yesterday. Allowing courts to dictate policy is a very dangerous proposition, and one that I have often taken issue with when it comes to educational choice policies and other reform-related suits.
Now, that doesn’t mean I’m not disappointed by the appellate ruling, or that I’m not frustrated that these statutes—statutes that harm kids in very real ways in order to further the interests of adults—will continue to stand for now. Heck, even the California appellate panel itself seemed frustrated with the decision it had to make.
It also doesn’t mean that I’m completely sold on the fact that Vergara necessarily falls short of a legitimate issue to be decided by the courts. In fact, the appellate decision made clear that a constitutional argument against California’s teacher policies wasn’t completely off the table, even going so far as to throw in a helpful legal strategy hint for the plaintiffs’ attorneys—a strategy that may be employed when those attorneys appeal the case to the California Supreme Court. Check it out:
Plaintiffs still could have demonstrated a facial equal protection violation, however, by showing that the challenged statutes, regardless of how they are implemented, inevitably cause poor and minority students to be provided with an education that is not “basically equivalent to” their more affluent and/or white peers. (See Butt, supra, 4 Cal.4th 668, 685.) It is possible, though not certain, that plaintiffs could have made such a showing by proving that any implementation of the statutes inevitably resulted in the consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students.
I’m no lawyer (phew!), but I think that’s a pretty unmistakable prompt for the legal team behind Vergara to take another approach and address an important deficiency in the higher-stakes legal battle to come. The bar set by the appellate panel will be a hard one to reach, but there are some awfully smart folks working on Vergara. Here’s hoping they take the free advice and put it to good use.
In the meantime, I suppose we have to swallow the insufferable union gloating about a “victory for educator due process.” But hey, at least there’s some entertainment value there.
I can’t help but smile about the fact that NEA says “due process” in the article linked above instead of “tenure.” Why? First, because I don’t find Colorado’s due process maze to be something I’d clink a glass (full of fruit punch, obviously) to. It’s hard to imagine California’s is much better. Second, because it means that someone in NEA’s communications department has been paying attention to national poll data, which clearly shows that tenure remains a tremendously unpopular policy with Republicans (23 percent support), Democrats (34 percent), parents (27 percent), and the general public (29 percent) alike.
Let’s not make the mistake of thinking of the appellate Vergara ruling as a vindication of a broken policy. Instead, it’s an admission that while the policy is broken, the courts may not be able to fix it. That’s a very important distinction.