On June 10, 2014, in Vergara v. California, California trial judge Rolf Treu handed down a decision invalidating a number of California educational statutes under the state constitution’s Equal Protection Clause. The statutes relate to teacher tenure and seniority, and the basic theory is that these statutes are unconstitutional because they made it too hard to get rid of incompetent teachers in public school classrooms. While teacher tenure and seniority have come under a great deal of criticism, Judge Treu’s opinion is badly reasoned and will probably be overturned on appeal. (The decision is also a “Tentative Decision,” so there’s some chance it will be modified before it becomes final.)
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Three California constitutional provisions are relevant here. First, there’s the Equal Protection Clause, art. I, § 7(a), which looks a lot like the federal one:
A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . .
The state and federal clauses don’t need to be interpreted the same way-as discussed below, the state clause may be stricter in some ways-but in practice the clauses are often interpreted similarly.
Next, there’s a general educational clause, art. IX, § 1:
A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.
This clause, by its own terms, is hortatory, only establishing a broad goal rather than an enforceable guarantee, so it only plays an atmospheric role here.
Finally, there’s common school provision, art. IX, § 5:
The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.
This third clause contains a guarantee that some sort of “common” and “free” school system should exist, but stops short of guaranteeing anything specific in terms of educational quality or policies (beyond the six-month minimum).
So virtually all the legal analysis here stems from the Equal Protection Clause.
Thus, for instance, in Serrano v. Priest (1971), the California Supreme Court rejected a contention that school finance equalization was mandated by the common-schools clause, but it held that disparities in educational funding between districts could proceed under the state’s Equal Protection Clause. (The U.S. Supreme Court rejected a similar claim under the federal Equal Protection Clause in 1973, but in 1976 the California Supreme Court reaffirmed its 1971 decision as resting on the state Equal Protection Clause, which in this case is stricter.) Similarly, in Butt v. California (1992), the California Supreme Court determined that it was unconstitutional for the state to allow a local school district to close six weeks early because of budget shortfalls; this case also relied primarily on the Equal Protection Clause, though the analysis was informed by more specific educational provisions-for instance, to establish in the first place that the state had assumed a positive obligation to provide public education.
Because education is considered a fundamental interest under the California Constitution, and because (as the court mentions at the very end of its opinion) poor and minority students are disproportionately affected, the challenged statutes were analyzed under “strict scrutiny.” Strict scrutiny is the most demanding form of constitutional analysis: under this analysis, a statute that discriminates is struck down under the Equal Protection Clause unless it serves a compelling government purpose and the discrimination is necessary to further that purpose.
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The plaintiffs challenged three sets of statutes. First, there was the Permanent Employment Statute, Cal. Educ. Code § 44929.21(b):
Every employee of a school district . . . having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position . . . requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall . . . become a permanent employee of the district.
The governing board shall notify the employee, on or before March 15 of the employee’s second complete consecutive school year . . . , of the decision to reelect or not reelect the employee . . . . In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year. . . .
The court started out by observing that there was some number of “grossly ineffective teachers”-perhaps 1% to 3% of all teachers, or 2,750 to 8,250-and that these teachers had very bad effects on the students in their classes. Next, the court examined the effect of the statute. Because the decision of whether to make a teacher permanent has to be made before March 15 of the second year, there’s in fact less than two years to make the decision. But the “induction program for new teachers” already lasts two years, so teachers are permanently rehired (or not) without having much basis for an informed opinion. “As a result, teachers are being reelected who would not have been had more time been provided for the process.” The court opined that three to five years would be a better timeframe for the tenure decision-which is what a number of states have.
Strangely, though, on the court’s own terms, this discussion doesn’t establish that “grossly ineffective teachers” are being tenured. At worst, teachers are being tenured without an adequate basis; but this doesn’t imply low quality. Indeed, the court’s own reasoning undercuts the point to some extent: in the L.A. Unified School District, “the time constraint results in non-reelection based on ‘any doubt.'” If anything, this should lead to a bias away from anyone who shows any signs of being incompetent.
The court struck down this statute as not satisfying strict scrutiny, but the reasoning connecting the Permanent Employment Statute to any educational effect seems totally lacking.
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Next, the plaintiffs challenged the Dismissal Statutes, Cal. Educ. Code §§ 44934, 44938(b)(1)-(2), 44944. These statutes are too lengthy to quote here, but they set forth a system of notice and formal hearing with elaborate procedural protections for dismissal of permanent employees.
The court reviewed evidence that teachers’ procedural protections are so substantial that it costs “$50,000 to $450,000 or more” to fire anyone, as a result of which “dismissals are ‘extremely rare'” and thus “grossly ineffective teachers are being left in the classroom.” Moreover, while due process is required to fire anyone from a government job, the protections involved here were greater than required by due process. Note that this Dismissal Statute is in the educational code, so its procedures apply only to permanent employees covered by the educational code. Other state employees, who have the same constitutional due process rights, are merely covered by the ordinary procedural protections of the civil service system, which are substantial but lesser.
Thus, the Dismissal Statute results in the de facto inability to fire grossly incompetent teachers, without any excuse in the teachers’ due process rights. Therefore, the court held, this statute also failed strict scrutiny.
The court’s reasoning on this point is better than on the last point, since at least the Dismissal Statute seems to have some connection to educational quality-provided we’re willing to assume that the teachers who would be fired without the statute would more likely be the incompetent ones. (The court didn’t bother to prove this last assumption, but it’s not a crazy assumption.) But this is taking a short-term view: if firing a teacher becomes easier, school districts might tenure more marginal cases, and what does that equilibrium look like?
Moreover, this statute is being struck down under the Equal Protection Clause. Why is the overall level of educational quality an Equal Protection concern? Presumably bad education is consistent with Equal Protection, as long as it’s uniformly bad; and so far, the court hasn’t shown any inequality.
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Finally, the plaintiffs challenged the Last In-First Out statute, Cal. Educ. Code § 44955. This is also a lengthy section, but the important language provides that in case of layoffs, with some exceptions, only seniority counts:
[T]he services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.
The court struck down this statute as well because, in its view, being able to fire teachers based on quality rather than seniority self-evidently results in a higher-quality remaining workforce. This reasoning is subject to the same critique as the previous reasoning: we would have to assume that, without the statute, teachers would be laid off on grounds more relevant to teaching quality; and even if that’s the case, what is the connection between overall educational quality and Equal Protection?
Moreover, there’s at least some reason to doubt that eliminating seniority-based layoffs would have the claimed beneficial effect. Public employment generally, and public school employment in particular, is relatively insensitive to incentives. Extremely secure employment has its obvious drawbacks, but it also has some advantages: when job security is such an important perk of public employment, governments may be able to get away with offering their employees lower wages than they would otherwise have to. Highly secure employment may or may not be beneficial overall-but changing the regime would alter public spending, as well as the composition of the government workforce. Moreover, because teachers’ salaries will plausibly rise to compensate for the loss in job security (recall that this decision doesn’t touch the structure of teachers’ unions), school districts may be able to afford fewer teachers. How do we know the overall results on educational quality? Perhaps quality will increase, but the analysis requires more than the cavalier treatment that the court offered, as though it were logically self-evident.
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At the very end of the opinion, the court finally offered a theory (merely hinted at earlier in the opinion) that would link the challenged statutes to inequality-which is the only concern of the Equal Protection Clause. The court cited a California Department of Education document that said:
Unfortunately, the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators. Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequalities.
But this is a thin reed. Mere disparate impact is insufficient to make out a violation of the U.S. Constitution’s Equal Protection Clause, as the Supreme Court held in Washington v. Davis (1976). True, here we’re talking about the California Constitution’s Equal Protection Clause, which is more sympathetic to claims of systemic, de facto inequality. But it seems that merely stating that certain communities have more bad teachers than average shouldn’t be enough to invalidate every provision that increases the number of bad teachers. While the inequality discussed here does have something to do with tenure and seniority, it probably has more to do with patterns of teacher assignment to underprivileged schools. Surely a more straightforward way of addressing the concentration of underqualified teachers in underprivileged schools would be to address the assignment practices that send underqualified teachers to those schools. At the very least, deciding on the best way to improve the education of minority students and students in underprivileged areas is a contested empirical debate-precisely the thing that courts are least qualified to do.
In sum, while public teacher tenure and seniority may be bad ideas, the court’s analysis of why they violate the Equal Protection Clause is severely under-reasoned. The opinion’s earnest tone, and its constant-constant-insistence that this is merely legal analysis, not policy judgment, make it even less satisfying. The smart money would bet that this opinion will be reversed on appeal.
True, California has educational guarantees in its constitution, which the federal government lacks, so education probably merits greater judicial oversight under the state constitution than under the federal one. But this opinion precisely demonstrates the pitfalls of judicial oversight. There are clearly great disparities in education, and many of these disparities are correlated with race and class. And a great many policies contribute in some way to those disparities: the inflexibility associated with teachers’ unions, teacher assignment rules, the partial reliance on local property taxes to fund schools-and, one might add, the fact that public schools in underprivileged areas benefit from a somewhat captive audience that can’t easily escape by paying for private schools. Should courts strike down every one? Just the ones that plaintiffs bring before them in a particular case? Or should it look primarily at policies that contribute the most to the problem and have the least justification? These problems are ill-suited to judicial resolution. Of course, some problems of educational inequality clearly violate a constitutional provision: Brown v. Board of Education (1954) is an obvious example. But the further one gets from intentional discrimination and the closer one gets to ingrained, systemic problems, the more carefully judges should tread.
Alexander “Sasha” Volokh is an associate professor of law at Emory Law School. An archive of his previous Reason.org articles is available here.