Why I’m Not Outraged by the Vergara Reversal

Last week, the California appellate court overturned Judge Rolf Treu’s decision in Vergara v. California. In the original 2014 decision, Treu struck down California’s statutes regarding teacher tenure, layoffs, and dismissal. He declared that it violated the state’s constitutional promise of equal protection by sticking poor and minority students with lousy teachers who were almost impossible to fire.

On the one hand, Treu’s decision was easy to like. In California, tenure and related policies have made it tough and expensive to terminate anyone. Treu’s decision was stuffed with statistical claims from academic experts laying out the stats and why this matters. The legislature has shown no inclination to do anything, leaving districts such as Los Angeles without recourse.

Given all that, I know I’m supposed to be outraged about the reversal, as plenty of people are. But I’m not. Since many of my friends are puzzled by my stance, I’ll try to explain.

First, courts are not intended or designed to be in the business of governing public agencies. Rather, courts are places where rights are secured and defended. This makes courts useful guardians of access to schooling, but poorly suited to monitor the quality of policy or practice. Courts are not legislative bodies. They’re not good venues for finding compromise and they can’t readily return to former decisions and void precedent if things go wrong. More generally, when courts wade into social policy, they have an unfortunate habit of imposing unworkable, bureaucratic requirements; failing to weigh costs and benefits; and short-changing practical considerations.

Second, I’ve been concerned about how far Vergara is supposed to stretch. If courts can order legislatures to abolish tenure, what else might they require? If plaintiffs pick the right judge and present the right experts, can they get judges to require that preschool teachers serving poor or minority children have a teaching credential from a school of education? Can judges order schools to adopt the Common Core or shutter charter schools if they think that will help ensure that all students are held to an equal standard? If you’re thinking, “Hell, yeah!”, where should this end? For instance, the logic of Vergara would seemingly justify a suit asking the court to strip the California legislature of the right to authorize charter schools if some are poor-performing and if those disproportionately affect poor and minority students. Remember, within days of the Vergaradecision, Kevin Welner, director of the union-friendly National Education Policy Center, explained in the Washington Post that courts could use the Vergara precedent to micromanage transportation and buildings, restrict school choice, dictate funding formulas or accountability practice, and much more. I disagree with those who imagine that judges wading into all this will be good for schools and kids.

Third, when judges like Treu tell legislatures that statutes governing tenure, dismissal, and seniority, the judges don’t have the authority to write new laws. The legislature may or may not comply with their directives. Even if they do, the judge has to decide whether any new laws satisfy his criteria. If not, he’ll tell the legislature to try again. And around we go. Meanwhile, unions will sue to overturn the decision. Through all this, districts will need to decide to actually act on the changes—and decide when it’s safe to act. This dance is familiar. New Jersey is into its fifth decade of back-and-forth in equity finance litigation. The bureaucracy, legal headaches, and judicial-legislative-district square-dancing have not encouraged strong or nimble leadership. Vergara and its imitators are a recipe for drawn-out, bureaucratic paralysis.

Finally, I’m bothered by the hypocrisy evident throughout. Many cheering Treu’s creative declaration that tenure is incompatible with the California constitution have recently denounced the Washington state Supreme Court for its creative declaration that charter schools are incompatible with their state’s constitution. On the other side, the unions celebrating the California judiciary’s newfound restraint have enthusiastically supported efforts to use the courts to invalidate democratically-adopted school choice laws. This kind of posturing has become a hallmark of our age, but it still rankles.

I understand and embrace the motivation behind Vergara. All of our children do deserve good schools, and I appreciate the desire to do something to address stubborn, unmoving problems. But there are more than a few cases where a given remedy does more harm than good, and I fear this is one of those times.

– Rick Hess

This first appeared on Rick Hess Straight Up.

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