Earlier this week, California Superior Court Judge Rolf Michael Treu held that California's teacher tenure system violated the state constitution. Treu's June 10 decision in Vergara v. California has been widely praised by education "reformers," up to and including President Barack Obama's worst cabinet appointment, Education Secretary Arne Duncan. But the decision is a disaster, a caricature of "legislation from the bench" by an inept judge.
The line of precedents cited by Treu to justify his extraordinary intervention are, in themselves, unexceptionable. The California courts have long held that under both the 14th Amendment of the U.S. Constitution and the state constitution education is a fundamental right that must be provided on equal terms. This doctrine is salutary; indeed, like Justice Thurgood Marshall, I think the Supreme Court erred by not reading the 14th Amendment the same way.
The question, however, is whether this doctrine is applicable to these cases. There is one huge difference between this week's case and the previous holdings. Previous precedents involved cases where poor school districts were being treated differently under state law. In Serrano v. Priest I and II, the issue was one of poorer school districts receiving fewer resources, and Butt v. California concerned a school district closing six weeks early because of a lack of resources. These were clear cases of equal protection violations: Poor districts were treated differently than affluent ones in ways that almost certainly had deleterious consequences for the education of students in the former.
In this case, however, there's no formally unequal treatment; the tenure system created by statute in California statute applies to all school districts. For most of the conservatives cynically praising Treu's decision, this should be the end of the discussion; to their thinking, as long as districts are treated the same there's no equal protection violation. But conservatives are wrong about this. A statute that formally treats people or groups the same can violate equal protection if the effect of the law is discriminatory. Education policy provides a particularly vivid example of the vacuity of the conservative premise that formally equal treatment is sufficient. Reading Brown v. Board to require nothing but the elimination of de jure discrimination in pupil assignment has allowed far too many local educational systems to be both separate and unequal in practice.
So there's nothing wrong with a disparate impact analysis per se. But if Treu's opinion were to fulfill its premise, he needed to make the case that California's tenure system disproportionately burdens the educational opportunites of the poor. And it's here that his amateurish policy analysis manifestly fails to deliver the goods.
The logic of Treu's holding runs like this:
- California's tenure system makes it very difficult to fire poor teachers;
- Poor teachers tend to be concentrated in districts with less affluent students; and therefore
- California's tenure system unconstitutionally discriminates against poor students.
Treu's opinion provides relatively strong evidence for the first two points, but his logical train derails completely on point #3.
My strong objections to Treu's analysis here should not be construed as a full-throated defense of California's tenure practices. For reasons explained by the Atlantic's Dana Goldstein, California's tenure system is not one I would design if it were my job to craft educational policy for the state of California. But the 14th Amendment does not require optimal policy; it requires nondiscriminatory policy. And Treu's assertion that the tenure system discriminates against poor districts fails to address crucial "compared to what" questions. Treu considers the downside of tenure: making it more difficult to fire incompetent teachers. But there are also upsides: most importantly, job security makes teaching a more attractive profession to talented potential teachers. As Goldtsein observes, "For high-poverty schools, hiring is at least as big of a challenge as firing, and the Vergara decision does nothing to make it easier for the most struggling schools to attract or retain the best teacher candidates." Treu simply assumes, not only without evidence but in the face of logic and reason, that there is a group of highly skilled teachers waiting to fill the least desirable teaching jobs in the California school system, despite the fact that these jobs aren't particularly remunerative and, thanks to Treu, now must also be insecure.
The imaginary group of skilled educators chomping at the bit to take the most challenging teaching jobs—even though Treu has made the jobs even less attractive—isn't the only can opener his poorly reasoned opinion assumes. He also seems to think that the identification of incompetent teachers is a straightforward process, and in the absence of tenure protections school systems would be run as pure meritocracies. In practice, however, evaluating teachers is a difficult, labor-intensive job, and giving administrators unfettered discretion is likely to lead to cronyism, discrimination, and people rewarded based on their willingness to suck up to superiors rather than their talent and initiative in teaching.
These questions aren't purely hypothetical; Treu's shaky causal logic could be tested in a number of ways. As Treu points out, many states provide less or no tenure protection to teachers. A serious opinion would then consider the question of whether these states are less likely to concentrate poor teachers in poor school districts. He might also consider whether teacher tenure has led to poor educational outcomes in other national contexts. But Treu's opinion is the opposite of serious; it just uncritically takes the shoddy arguments made by reflexive opponents of teacher's unions at face value and, even worse, reads them into the state constitution.
Educational opportunities in the United States remain tragically unequal. But clumsy, unjustified judicial policy-making will make these problems worse before it makes them better. And the California state constitution does not require the California legislature to agree with Michelle Rhee.