I was inclined to agree with Bricker about the lack of an EP violation here, until I read the article on this case at MSNBC this morning. That article said that the lawsuit alleged that bad teachers who can’t be fired are deliberately moved to low-income and/or minority schools. If that’s true, I think the students might have a point.
How can anyone read that and blame the problem on teachers unions? The problem is an appalling passing-the-buck culture among management.
Look, if you have a bad teacher, follow protocol for firing the teacher. If you’re serious about doing so, and if you follow through on the protocol in a timely manner, the teacher is likely to resign. And if they don’t, well, you fire them. You don’t send them on to a school where poor parents without a strong educational background won’t know how to get rid of them. That’s incredibly unethical, and the movement should be to fire the corrupt, lazy administrators that pass the buck like that.
Is it actually possible to get rid of a teacher for just being bad at teaching?
Of course. The idea that tenure means you cannot be fired is a myth.
I knew teachers could be fired for misconduct, but I was not aware that teachers could be fired simply for being bad at their job. Your article indicates that firing teachers for incompetence is not exactly a common occurrence and is a fairly recent development.
Read the article. “Incompetence” basically means being bad at your job in that case.
Teachers, even those who have tenure, can always be fired for cause. In every district that I have ever heard of, now and in the past, being a terrible teacher is sufficient cause. What makes it “hard” is that incompetent administrators don’t want to measure and document these failures in order to show cause.
Plus, there is the fact a near majority of teachers quit within 5 years, and that you can be fired for pretty much any reason with no explanation before you have tenure. Making it easier to fire tenured teachers is really not why some schools are bad, and there is very little evidence that doing so improves things.
I am not particularly upset with the decision from a lay standpoint. An 18 month tenure period does seem ridiculously fast, and regardless of whether the blame lies with administrators or the statute California’s system doesn’t seem to be working too well.
Having said that, it seems to me there’s a huge standing issue here. I know California has some weird rules about standing, but I find it very hard to see how any people (even public school students) have standing to challenge a statute establishing the terms of someone else’s employment.
If the judge defines it as a civil rights issue though, doesn’t that give the plaintiffs standing?
Not exactly. Finding that a civil right is implicated is only part of the analysis (“injury-in-fact”.) And even that is an oversimplification.
This is an equal protection challenge; in order to strike down the statute, he would have to find that it makes an insupportable classification between students. It doesn’t appear to classify them at all. Courts are required to uphold laws against constitutional challenges if there are non-constitutional grounds to do so. Here, it seems the first remedy should have been an injunction telling administrators to stop shuffling bad teachers into poor/minority school districts.
Imagine a law changing the operating hours of public schools. Now imagine a group of students challenge it because the new school hours conflict with their work schedules. Is there an equal protection violation there? Hard to see one.
As I read the argument, the plaintiffs allege that the principles of a California case from the seventies, Serrano v. Priest, 487 P.2d 1241 (1971), govern this decision. Serrano (which apparently had two runs through the system, generating the cited Serrano I and a Serrano II at 557 P.2d 929) ended with the California Supreme Court invalidating a school financing system under the theory that Brown v. Board of Education makes education a right which must be available to all on equal terms, and the financing scheme in Serrano failed to pass strict scrutiny. That scheme was described by the Serrano court as:
In shorter summary: back in the seventies, the state was sued because wealthy areas were able to fund their schools to a much greater degree than poorer school districts, and the California Supreme Court held that this scheme violated the equal protections rights of its students.
Now, building on that precise rationale, the trial court in Vergara holds that vesting teachers with tenure in 18 months, retaining them by seniority, and making it extraordinarily expensive to fire a teacher, all combine to deny students those same equal protection rights, since the impact of poor teachers is far more destructive in poor districts than in wealthy ones.
So my short answer is – these plaintiffs have standing because the plaintiffs in Serrano had standing.
Again – Serrano dealt with a finance scheme that didn’t classify students either. But…
There’s much more that can be done with strategic litigation on War on Drugs, actually.
[ul]
[li]Challenges to police policies that disparately enforce drug laws against people of color[/li][li]Challenges to police tactics that violate privacy rights (e.g., doorway drug dogs)[/li][li]Challenges to state drug laws under state constitutional privacy provisions[/li][li]Challenges to treatment of research scientists who want to study drugs [/li][li]Challenges to drug testing regimes in employment and schools[/li][li]Challenges to aspects of decriminalization schemes that are not in the scope of the CSA[/li][li]Challenges to collateral consequences of drug convictions, procedural and substantive[/ul][/li]
Some of those are a bigger reach than others, but none of them are a bigger reach than, say, litigating gay marriage ten years ago. The problem is that drug convicts aren’t much of a cause celebre, and the people with the criminal law experience tend not to be connected to the big centers for impact litigation. But that’s slowly changing.
I saw that. I just think the district funding issue is an inapposite analogy. Mostly because this…
… doesn’t seem to pass the causation requirement.
So: I think this decision is bunk.
But it’s the same kind of bunk that has been used to advance other theories for years.
In arguing for textualist approaches to analysis, I sometimes point out to my opponents that vesting power like this in the judiciary is unwise. Sure, I say, now the courts are doing something you like, so you favor these expansive readings, replete with penumbras and emanations. But sometime down the line, the courts may decided they like some policy you don’t, and then you won’t be happy you have legitimized this kind of analysis.
Here is an example of this bird coming home to roost.
The opinion rests reasonably soundly on prior case law. It expands Serrano in generally the same way that Serrano expanded the rationale of Brown.
But for all that, it’s still, in my view, crap. It’s a substantive change to the law that – rightly or wrongly – the people of California, through their elected representatives, adopted. And it’s not a change that rests on the text of the California constitution, but on the penumbras and emanations that prior case law has wafted into being.
But this is the trap: how can anyone who supports the judicially-born expansion of rights in Serrano now claim this decision is fatally flawed? In essence, it does the same damn thing: the judge substitutes his idea of how the law should be crafted for the legislature’s idea.
Well… it’s a factual finding. 
(See “Dance of the Lemons,” “churning,” and a quote from a 2007 California Department of Education report for examples of what the court expressly found credible).
Here are some more thoughts:
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I wouldn’t get too hung up on either the standing issue or the classification issue. In CA, either race or income is a suspect class subject to strict scrutiny for education, and I don’t think an appellate court is going to knock the case back down because of standing. The preliminary ruling doesn’t really do this analysis properly, but the final ruling may have more detail. In any case, I think standing and classification are easy hurdles for the plaintiffs to overcome.
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The preliminary ruling muddies the analysis between Federal EP and California EP jurisprudence. And while you can treat them similarly in most cases, they aren’t the same and a proper ruling should analyze them differently. Unless the trial court clears that up for the final ruling, my guess is the appellate court will send it back to them for re-analysis.
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If it is the case that a school district is sending bad teachers to minority schools or low-income schools, that’s almost certainly an EP violation. But… unlike the old school financing system, here the violation doesn’t appear to be baked into the statutes. It looks to me (and it’s hard to tell) that the trial court is doing essentially a disparate impact analysis. But, my feeling here is that the appellate court will be reluctant to overturn a statute just because of a disparate impact, and will ask the trial court to see if there’s a remedy that can be crafted which fixes the EP violation without overturning the statute. Normally, we’d get a settlement or a consent decree, but in this case, based on who is funding the plaintiffs, we’re probably not going to get that. Nevertheless, if it’s possible for a school district to remedy the EP violation without having to overturn the statutes, then the appellate court is probably going to go that route.
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There’s a lot of weird stuff in the analysis that reads to me like the trial court is saying that a fundamental right to education is the same as a fundamental right to the best education possible, and that’s not true in California. For example, the ruling states that the LIFO system means that a school district may let a more competent teacher go while retaining a less competent one. If that’s true, from a policy standpoint, it’s annoying. But students aren’t entitled to the most competent possible teachers, they’re only entitled to a basic level of competence. Even if you’re letting more competent teachers go, as long as you keep a minimum level of competence in your teachers, that should be enough. If the trial court can’t make it clear how the LIFO system must result in students getting incompetent teachers, I don’t think that’s going to hold up on appeal. The same goes with the 18th-month policy for tenure. Sure, a longer period might get you better teachers, but if it’s possible to get competent teachers with the 18th-month policy, then that’s all that’s required. The trail court seems to think that these laws cause the students not to get competent teachers, but the preliminary ruling doesn’t really spell out how, so we may get more detail in the final ruling.
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There’s a lot of flowery language in the ruling, which is kind of weird for this type of ruling. It kind of smacks to me of a political motivation for the ruling. That’s not a legal issue though, but I could see an appellate court being irritated by it.
Great post.
The court finds that due to a result it characterizes as “churning,” the inevitable actual result of LIFO is a greater concentration of incompetent teachers in strongly minority, strongly poor districts.
Am I correct in my understanding that since this is a finding of fact, that it can’t/won’t be disputed by the appeals court (unless they find it completely and totally ridiculous)? (Though they could obviously dispute the legal implications of it.)
That’s overstating it a little. Appellate courts review findings of fact based on a sufficiency of evidence standard (we call it “competent, substantial evidence” in Florida). Basically, they ask if there the evidence could support the trial court’s view and if so, accept it. It doesn’t have to be “completely and totally ridiculous” to be overturned; if there are five elements to a claim, and the evidence is insufficient to establish one, the trial court’s factual finding in that regard can be overturned.
Yes, I read Vergara, and the quote above is another example of why in reading your posts here that it occurs to me that you think the opinion is bunk.
Vergara isn’t about penumbras or “emanations” which are referenced during privacy debates.
A better analogy to liberal overreaching would be busing. This judge has a better idea on how to solve a problem in the education system than the legislature, and it happens to be to attribute lousy educations to the 1 to 3 percent of bad teachers, and the solution is to make 100 percent of the teachers fireable at will because for some reason making them all fireable will cure the 1 to 3 percent problem.
A preposterous misuse of analogy would probably be entertaining (but not instructive!) at this point. One in seven men will get prostate cancer as they get older. Also, as some more extreme feminists have pointed out, all men are potential rapists. Both of these problems can be solved by the mandatory removal of all adult men’s genitals through surgical process. The species can be propagated by freezing the sperm of boys masturbating, and then "Bad Teacher"s TM can be artifically inseminated, solving all those problems at once!
I teach in the California State University system (contract; non-tenure track). My wife is a tenure-track faculty member in the CSU. Also, some of my work over the past four years has involved mentoring groups of teachers in San Diego County, under a federal government grant, to improve the teaching of American History in county schools. My comments are less about the legal specifics than the general issues.
Despite the fact that my wife is getting close to applying for tenure, and the majority of my friends are either tenured or tenure-track academics, i’m actually not a supporter of the tenure system, at least as it currently stands. While it is true that college and professors and teachers can be fired for incompetence even if they have tenure, there are times when the tenure process makes this much harder than it should be.
Tenure was originally introduced to protect employees against what were, at the time, common instances of people being fired simply for personal or political beliefs that had nothing to do with their intellectual abilities or teaching skills. This was particularly the case in colleges and universities, where presidents essentially ran the institutions as fiefdoms and were very happy to fire anyone who was politically or morally or religiously unorthodox. It happened at public universities; it happened at prestigious private institutions like Stanford.
I think we still need this system. An employee should, for example, be able to criticize the way his or her college or school is run without fearing that it will lead to termination. An employee should not have to worry about his or her political affiliation affecting job security. An employee should not have to worry about his or her out-of-work activities affecting job security. But it is possible to have a system that protects employees in this way, while also having a system that allows us to get rid of people who can’t or won’t do the job well.
I think that a two-year tenure clock is far too short, especially when the granting of tenure raises the bar so much in terms of the difficulty of firing someone. In the university system, the typical tenure clock is 6 years, and that’s a much more realistic measure, in my opinion.
I also strongly oppose the simplistic seniority system, whereby the last hired are the first fired in times of budget crisis or other troubles, without any regard at all for qualities such as enthusiasm, commitment, pedagogical ability, subject knowledge, and willingness to keep up with new subject matter and new methods. When i was working with San Diego County teachers, one of the folks i was working with had won a county-wide teaching award, and went on to win the state-wide equivalent, and yet she lost her job in the job crunch of 2010 because she was a junior hire. She got it back again fairly quickly, but not because she was a great teacher; she got it back because they found money to hire people back, and she happened to get in before the seniority cutoff for that round.
The problem, though, is what to put in place of these systems. What so many critics of the education system, and of teachers, fail to understand (or, more likely, don’t really care about) is that evaluating teacher quality is difficult and takes time and money. It’s not enough simply to look at test scores, because so often the tests themselves are flawed measures of educational ability, and students can be taught to pass the tests without ever actually learning very much at all. Every student in my freshman history classes has passed tests all through his or her school career, and has scored in the top half of his or her school district, and yet some of them can barely construct a sentence.
While i agree with LHoD that pass-the-buck administrations need to shoulder a considerable amount of the blame here, i also think that part of the pass-the-buck attitude comes from the fact that it can be so difficult to get rid of poor teachers, and the union needs to bear some blame for that. I’m a big supporter of unions—i’m a union member myself (California Faculty Association)—but i think that there are ways in which the teachers’ union could protect its members while allowing a more flexible system.
Part of the problem, of course, is that the union and employment system has become an adversarial one, similar to a courtroom. We don’t expect defense attorneys to admit that their client is guilty, and to throw in the towel; similarly, unions tend to see themselves as defense attorneys for their members, and this sometimes comes at the cost of determining whether or not the member is actually worth defending. You see it with teachers’ unions, police unions, firefighter unions, and unions in the private sector.
I’m not quite sure what the solution to this problem is. After all, people pay union membership dues precisely so they’ll have someone to take their side in disputes over employment. But i think that one way that unions could continue to do their job of safeguarding their members, while also increasing their effectiveness and gaining more public support in the process, would be to demonstrate a greater willingness, in some instances, to concede that some people have lost their claim to union support because they have failed to live up to the standards required of teachers. How that would work in practice is something i don’t really know. I certainly don’t claim to have all the answers.
While i have no trouble believing that your legal analysis here is correct, i think that this whole rationale is a rather problematic way to look at the issue of teacher employment.
If we live in a society where there are competent teachers in the system, but also better teachers who are missing out on jobs due to the tenure and seniority system, isn’t that a problem? Shouldn’t we, ideally, want the best teachers possible in the classroom? I never like to see anyone lose their job, and i would love every competent teacher in the state and in the country to have a job, but in a world where there will always be some people out of work, why not do our best to make sure that the people we give jobs to are the ones who perform those jobs the best?
Of course, this again leaves us with the question of exactly how to measure teacher quality. If we do it on tests or passing rates alone, we risk encouraging corruption within the grading system itself, as had happened in some places, where teachers fudge the results. Also, leaving hiring and firing decisions up to the sole discretion of school principals leaves the system open to the subjective likes and dislikes, whims and preferences, and personal relationship of that principal. A public school system, in which the public has a vested financial and social interest, should not allow itself to be subverted by corrupt individuals seeking to establish a fiefdom, any more than it should allow itself to be subverted by intransigent unions or vocal (anti-)education activists whose main aim is to crush unions rather than to actually improve education.
As i said before, i don’t have a solution to all of this, but i’m not sure that the free-market, anti-government attitude of the plaintiffs (or, to be more correct, the man with the money behind the plaintiffs) in this case will actually fix things.