Politics & Policy

Second Thoughts on Vergara

Conservatives ignore the dangers of judicial activism when they cheer court-ordered school reform.

Last week, in Vergara v. California, California judge Rolf Treu struck down tenure for California’s teachers, declaring that it violated the state’s constitution by sticking poor and minority students with lousy teachers who are almost impossible to fire. Judge Treu was right on the merits, but that’s not the end of the story.

On the one hand, it was an easy decision to like. The costs of teacher tenure are staggering. In California, tenure and related policies have made it arduous and enormously expensive to try to fire a lousy teacher after just two years on the job. These costs explain why an average of just 2.2 tenured teachers a year, of the 275,000 employed in California, are fired for poor performance. Treu’s decision was stuffed with statistical claims from academic experts laying out why this matters. A Democratic state legislature has shown no inclination to do anything about the tenure nightmare, leaving districts such as Los Angeles without recourse.

Moreover, teachers’ unions have unabashedly and aggressively used the courts to pursue their policy objectives, which are to protect generous benefits, challenge layoffs, attack school choice, and force states to spend more on K–12.

In looking at this use of the courts, it’s hard not to figure that what’s good for the goose is good for the gander. This explains the cheers that greeted Vergara in school-reform circles. “Judge Rolf Treu made a historic decision that will reverberate well beyond California,” Jeb Bush wrote. “Morally we know that all children deserve a chance to learn in the classroom. Now a series of indefensible laws denying them that right have been struck down.” In a Washington Post op-ed, Michelle Rhee, former schools chancellor of Washington, D.C., deemed it “a clear win for all children in California public schools . . . [and] also a huge win for California educators and the teaching profession as a whole.”

So, what’s not to like about Vergara? Quite a lot, actually.

Sixty years after the U.S. Supreme Court’s ruling in Brown v. Board, it’s clear that courts, while they can ensure access to education, do a poor job of promoting quality. The courts have a long history of ordering legislatures to spend money or change policy, but they’ve often imposed unworkable, bureaucratic requirements and failed to weigh costs and benefits.

Indeed, 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 if they think that will help ensure that all students are held to an equal standard? Can judges order legislators to double teacher pay if that’s what they think it will take to ensure that poor and minority students have good teachers?

These are anything but academic concerns. Within days of the announcement, the champions of judicial activism and big government were avidly launching big plans. Kevin Welner, director of the National Education Policy Center, the go-to outfit for teachers’ unions and schools of education, explained in the Washington Post: “Although I can’t help but feel troubled by the attack on teachers and their hard-won rights,” the decision “could be a very good thing.” He observed that Vergara makes possible a new era of “judicial activism,” and that courts could use the precedent to micromanage transportation and buildings, restrict school choice, dictate funding formulas or accountability practice, and on and on. He concluded, “If the relatively anemic facts and evidentiary record in Vergara support the striking down of five state statutes, it’s almost mind-boggling what the future may hold for education rights litigation in California.”

The Vergara ruling rested on the legal doctrine of “disparate impact,” which holds that if a seemingly neutral law disproportionately affects some racial or ethnic groups, that law can be viewed as discriminatory. Vergara opens the door to judges’ second-guessing everything from Advanced Placement course offerings to graduation requirements to football tryouts to elementary reading instruction. 

Given their enthusiasm for judicial activism, race-based policy, and the wisdom of academic experts, it’s no surprise that liberal school reformers like Vergara and the precedent it sets. But those who are skeptical of such things have cause for concern. If courts decide that civil-rights claims can be stretched to dictate personnel management in education, it’s hard to see where they would stop. Given that reformers are already champing at the bit to launch copycat suits in many locales, the slope may soon get very slippery indeed.

Unfortunately, conservatives have tended to forget core principles and common sense when it comes to education, so excited are they to be working with liberal allies and to receive some mainstream-media love. The result has been a tendency to oversell modest tactical victories while ignoring long-term costs. This has led too many conservatives to initially cheer No Child Left Behind, Obama’s Race to the Top, and Common Core, only to suffer buyer’s remorse later.

Let this history be an object lesson: As reformers look to launch copycat litigation across the land, conservatives ought to feel more trepidation than enthusiasm. It also, once again, illustrates the import of a school-reform agenda that is conservative in both ends and means.

— Frederick M. Hess is director of education policy studies at the American Enterprise Institute and author of the K–12 chapter in the YG Network’s Room to Grow.


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