The recent opinion in Vergara v. California deserves the attention it has attracted – and more. It has implications – some good – beyond the weakening of public sector unions. The plaintiff child has successfully attacked both the state’s system for tenuring and de-tenuring teachers and also the LIFO (last in, first out) statute that, in case of layoffs, protects teachers by time of service. If upheld on appeal, that would be a heap of change in the structure.
The court says the tenuring process is too short to allow good administrative judgment – effectively one year and a half. Thereafter, the de-tenuring process is torturous, very long, unpredictable – and expensive – to the district (the union covers teachers’ defense costs). Both practices are held to impair the quality of instruction and to do so in a manner uneven from child to child, thus violating their “fundamental right to equality of the educational experience.” These systemic wrongs are aggravated in districts serving low-income populations, intensifying the violation of equal protection. The seniority system (LIFO) has similar effects with the same conclusion. The case involves state law only. In striking down the tenure part of the system, Judge Rolf Treu emphasized these two sections of the state constitution:
Article I, Section 7(a): “A person may not be … denied equal protection of the law.”
Article IX, section (5): ‘The legislature shall provide for a system of common schools … supported in each district.”
He used both sources again in condemning LIFO. Favoring seniority, it is said, offends rationality and, like tenure, injures children without justification – especially the poor. Taken altogether, this is not equal protection.
I will address the two holdings in order, concentrating upon the tenure problem. As for the flaws in these statutes, Judge Treu relies on precedent construing the educational right of the child and the corresponding duties of the state. The (state) constitution “is the ultimate guarantee of a meaningful educational opportunity … to the student” who also enjoys a “fundamental right to basic equality in public education.” The court thus perceives the right, first, as one of peculiar weight and significance; hence, second, one that must be satisfied by education of basically similar and proper quality for children in similar circumstances.
The history of judicial response to this two-fold claim in the courts of California is instructive.
In school cases, the state supreme court has spoken in terms similar to, yet importantly different from, those deployed by majorities in the U.S. Supreme Court in suits claiming a federal right respecting equality in spending. The federal decisions have not treated differences in educational opportunity with odium of the sort that has attached to distinctions by race. The state bears the heaviest sort of burden in justifying the latter; but the supreme court has not found the child’s interest in schooling to be ”fundamental.” Hence, it has not required the state to provide powerful justification for spending disparities. For example, large differences in per-pupil spending between and among school districts do not violate the 14th Amendment when these are in large part caused by great gaps in property value per pupil from which districts must raise local taxes. (Rodriguez v. San Antonio, 1974)
By contrast, the California high court has, for over 40 years, read its state constitution to make schooling a special good whose unequal provision in similar cases demands some rational justification. Serrano v. Priest so decided in 1971. Note that the court did not in that case forbid spending differences as such. Indeed, one possible and rational justification for diversity in spending per pupil would be local (district) preferences – but only if the districts have the same capacity to raise money for schools. Equal capacity can be made a reality by various forms of “district power equalizing” or DPE. (Presumably, districts would also be required to spend some minimum). Thus, in spite of all the confusing media talk in the 1970’s about the right to spending equality, the Serrano idea itself allows differences based on the degree of local willingness to tax private property.
Judge Treu does not refer to this rather important refinement. Nor shall I, any further except to emphasize that in California, “equality” is a concept more sophisticated than simple dollar identity across the state for children in similar circumstances. Note that Serrano also left open to the legislature the choice of a fairly designed and properly subsidized voucher system to institute parental choice for all families in public and private schools, irrespective of their wealth.
Prop XIII (1978) complicated the hope for such simple devices that would equalize the capacity, either of districts or families, to spend for schooling. But the core ideal remains intact, giving California a special place in equitable education theory and inviting experiment.
Serrano was to be restated by the state high court in 1992 in a challenge to a six-weeks early closing of a financially collapsing school district. Butt v. California held that such an expedient deprived its students of their fundamental right to basic equality in education.
Thus armed by precedent, Judge Treu found the existing system of tenuring and de-tenuring to be a denial of the child’s right to expect a competent teacher. The details of the legal morass that constitutes the tenure/de-tenure system has been reasonably explained in the media. Summarizing: Under existing law, it is quick and easy to get life tenure as a teacher; it is thereafter a long, hard and very expensive process for a district to discharge a tenured incompetent. Given this, there is every temptation for the district authority simply to ignore the tenured bungler or else provide him an assignment with minimal capacity to do harm. Thus, Judge Treu decided the flaws were systematic and serious; kids who suffer miseducation from such foozlers are deprived of equal protection of a fundamental right.
Though I consider California’s tenure system an abomination, it is an integral part of the global structure of a basically moribund system.
Its dissolution would be laudable but in fact would introduce similar new hurdles for equity. By empowering the administrator, we substitute one form of tyranny over the child for another. With the continuance of the frozen management structure, choice and retention of teachers may be no less random than today. The judgment of incompetence is both difficult and distasteful. The temptation is strong to avoid decision and assign the teacher to some harmless cloister. Still, I would be glad to see tenure go.
But the scene is tragi-comic, especially given the rational alternative available. I refer to the state’s empowerment of parents to make their own choice among schools, choices which, in a roughly consistent way, identify the good school and its good teachers. That judgment is one the parent makes strictly by the standard of this particular child’s best interest, not for the sake of a school district’s professional correctness.
Judge Treu’s decision may be a step in that direction. Though only obliquely, it raises the core question: who, in the end, is the proper locus of authority over the child. Vergara “empowers” the administrator-stranger, who may be simply another wrong place to locate this prerogative.
Perhaps the next step toward rescuing the “fundamental interest” of the child should be the law’s recognition and declaration of the student’s right to a decision about his or her teacher and school, not by strangers, but by that person who best knows him and who – with the child – will, for life, bear the consequences of that decision. If, as Judge Treu says, teacher tenure is an issue sufficient to invoke “the fundamental right to equality of the educational experience,” how could a court fail to recognize and rescue the child’s even more crucial interest in his or her own parents’ authority to choose the school? The issue is plainly one within the reach of the equal protection theory regnant in the jurisprudence of California.
The middle class in this state takes that authority to be fundamental. Parental control over school choice, either by selection of family residence or in the decision to pay private tuition, is perceived as a given. Such parents covet this power of theirs to decide as being itself the “best interest” of their child. It is the ability, on the one hand, to bypass the tenured clout of the union, or on the other to escape the professional preference of administrative strangers. Most of us prefer to risk the errors of fathers and mothers – mistakes made out of affection and coupled with the opportunity to learn by and correct them.
The court also struck down those other statutes called “LIFO” that protect the senior teacher in case of layoffs. Judge Treu finds this practice the cause of indefensible inequality in instruction, which inequality, again, is more evident where the student population is heavily poor and or minority. These laws are, for both reasons, a violation of California equal protection. The judge cites nothing to support his claim other than his observation that the logic of LIFO separates students systematically from more competent teachers. What he seems to mean is that, in those cases where the junior teacher is plainly superior, the administrator could decide correctly. But how often this is the case is unconsidered; it is in tension with the court’s earlier concern about the difficulty of judgment in these cases, and no consideration is given to the counter proposition that teaching experience is itself of some positive weight. The court’s perfunctory handling of this issue is troubling.
It becomes more so, when the court attributes to LIFO a more serious degree of negative effect in districts serving lower-income families. Are the less seasoned teachers in these districts systematically better than their seniors? This is surely possible, and is accepted widely by those who believe the protected senior teachers in the city tend to be those who couldn’t get offers from the suburbs; their juniors are conceived to be fresh, well-educated folk ready to save the store. This is plausible, but the opinion is virtually void of evidence to support it, citing one report of the state department of education (which itself cites “experience” as a positive factor).
Given the state’s judicial history in similar litigation, Vergara v. California could be affirmed. There is barely enough here for the judiciary to give this discriminatory and corrupt system the jolt it deserves. And I hope it does so.
But, if the long-range outcome were merely the death of tenure and LIFO, the servile posture of the lower-income family would be unaltered. The old and awkward union-bound edifice will simply be replaced by a simpler, more efficient model of hegemony, still keeping the poor family in its place.
