A common mantra of the education reform movement in response to evidence that “teacher quality” is a comparatively trivial cause of education disparities is, “So? If we can do something, anything, to improve outcomes, shouldn’t we?” This is more PR than argument; no, you shouldn’t just do anything. And in any case, you need to demonstrate pretty tight causation to radically upend a carefully built system. Yet, just as policy affection for technocracy seeped into takings jurisprudence in Kelo, policy affection for “labor flexibility” when it comes to workers seems to have seeped into Vergara. The resulting opinion featured a questionable weighing of some evidence over other evidence (in a bench trial, where there was no jury) but, more so, legal reasoning that strained to find a violation of equal protection rights by conflating perfect equality of outcome with basic equality of opportunity–a distinction that makes all the difference in equal protection claims.
Slate’s up–still reporting on education in their business section for some reason–with a story about how the judge in Vergara v. California relied on a basically made up statistic–that 1-3% of California teachers are “grossly ineffective”–to strike down tenure as violating the equal protection rights of children of color, who are disproportionately likely (based on trial testimony) to be assigned to a “grossly ineffective” teacher protected by tenure. The Court had to ignore copious evidence in order to rely on this fact–including the very limited role any individual teacher plays in determining standardized testing outcomes used to make this “grossly ineffective” distinction. But, as the legal expert cited in the Slate story points out, the bigger problem is the shaky legal reasoning. And indeed, it is a befuddling opinion not because the Court repeatedly chose to weigh the plaintiffs’ fuzzy data and testimony significantly more heavily than that of the State, but because the equal protection scheme required for it to make sense would result in infinite equal protection violations.
On June 10, a Los Angeles County Superior Court issued a tentative decision in Vergara v. California, a case challenging several California state statutes that taken together comprise California’s teacher tenure regime. The suit was brought by StudentsMatter on behalf of the students and challenged the tenure rules on an equal protection clause theory, specifically, that because tenure protected bad teachers by making them difficult to fire, and because lower-rated teachers tend to be somewhat more concentrated in schools located in communities of color, tenure de facto disproportionately forced bad teachers on children of color.
StudentsMatter brought an equal protection challenge (under the California constitution) to the tenure rules. In equal protection cases, plaintiffs have to show that the state “has adopted a classification that affects two or more similarly situated groups in an unequal manner;” and, where the classification impacts a fundamental right or interest, the burden it creates must be undue—it must be a “real and appreciable” impact. Tenure rules obviously do not classify students, assigning children of color to grossly effective teachers or vice versa. Nevertheless, in Vergara the Court held that because tenure rules keep grossly ineffective teachers in the classroom (or make it expensive to discharge them), and because the evidence suggests those teachers predominate in minority schools, a classifications results from the law. This is not typically sufficient for an equal protection claim, either in federal or California courts.
Nevertheless, the Court saw a cognizable equal protection claim and, because the laws in question impacted a “fundamental interest” (sometimes termed a “fundamental right” in federal courts), applied the strict scrutiny level of review to the statutes. The Court relied on provisions in the California Constitution and three California cases (Serrano I and II and Butt) to classify equal educational opportunity as a “fundamental interest.” As in federal equal protection challenges, where a government act impacts a fundamental interest, the burden it creates cannot be “undue” (think courts accepting parental notification laws, despite abortion being a fundamental privacy right).
Strict scrutiny is often referred to as being “strict in name, fatal in fact,” because so few laws survive strict scrutiny. Once the court chooses to apply strict scrutiny to a challenged law, the burden shifts to the state (the defendant in every instance) to prove by a preponderance of the evidence that the law is narrowly tailored to achieve a compelling government interest. Thus once the Court here chose to apply strict scrutiny, tenure was doomed (World War II is a compelling interest; teacher due process is not).
In Serrano I and II and Butt, at issue were (1) the funding system of the schools; and (2) a decision to close some schools six weeks early as a function of lack of funding. The opinion notes, as it must, that at issue in these cases was “equality of education,” not, as the “quality of the educational experience,” which is what (per the Court) is at issue in Vergara. After all, there was no question of equality of set up, but rather, equality of outcomes; that has to be the case, because the premise of the suit in the first place was that tenure leads to bad outcomes for children of color.
The plaintiffs needed to show that teacher tenure directly harmed a fundamental interest in an unavoidable and burdensome way, and the effect was felt by a readily identifiable class.
What is curious about the tentative decision is that it relies on hazy connections and disputed studies to conclude that harm was direct, that there was a fundamental interest burdened, and that the effect could be truly felt by an identifiable class. It relies, that is, on standardized testing metrics and bordering on anecdotal evidence (most significantly, that a single bad teacher can transform an “educational experience” into a negative, unequal one—a fact which if true would make provisioning education impossible).
As defendants argued, it is difficult to imagine a scenario where there would not be differential “qualit[ies] of educational experience” as a result of any number of government regulations, policies, or individual decisions. The opinion skates over this distinction as one of shading rather than a dispositive distinguishing difference between the three foundational cases and Vergara itself.
This is a critical point, so it is worthwhile to quote the case the Court draws from, Butt.
It therefore appears well settled that the California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts. The State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.
Butt v. State of California (1992) 4 Cal.4th 668, 685
The emphasis there is added because it is almost precisely the opposite of what the Court concludes in Vergara; i.e., because teacher quality is a “critical” factor in educational outcomes, the opportunity for an education is inherently compromised–you’ll always have “the worst teachers.” The only conclusion to draw from Vergara seems to be that the very existence of the 1-3% of “grossly ineffective” teachers in California schools constitute an “undue” burden on the opportunity of students to get an education. But there is no discussion of why this 1-3% of teachers are truly a function of tenure, since, again, there will always be some percentage of the worst teachers, whatever you call them. That is, while it is may be true that the tenure scheme discourages school districts from firing these teachers, why should we assume there won’t still be 1-3% of ineffective teachers? After all, we never know who the worst teachers are until after they’re done having taught some group of students.
The California Supreme Court in Butt understood this. In response to the state’s defense in that case that the early closure of the school did not have an appreciable effect on education, the Court held that:
[T]he Constitution does not prohibit all disparities in educational quality or service. Despite extensive State regulation and standardization (see discussion, post), the experience offered by our vast and diverse public school system undoubtedly differs to a considerable degree among districts, schools, and individual students. These distinctions arise from inevitable variances in local programs, philosophies, and conditions…Moreover, principles of equal protection have never required the State to remedy all ills or eliminate all variances in service.
Butt, supra, at 686
The issue in Butt was that the six-weeks-early closure was so dramatic; students were losing 20% of the school year, and it was done out of desperation, with no ameliorative plan in place. Which matters, because, “a planned reduction of overall term length might be compensated by other means, such as extended daily hours, more intensive lesson plans, summer sessions, volunteer programs, and the like. An individual district’s efforts in this regard are entitled to considerable deference.”
The Vergara opinion is written very persuasively, but the arguments require some things which do not seem to have been in evidence as sufficient proven. For example,
- That the 1-3% of “grossly ineffective” teachers merit this distinction based on some reliable metric or confluence of metrics, not merely standardized tests, which are not administered uniformly, across all subjects covered by tenure;
- That the classification as “grossly ineffective” has some absolute qualitative meaning, and is not merely relative, i.e., not just those 1-3% who performed in the bottom 1-3%; otherwise, tenure would have no meaningful rule, since you will always have a bottom 1-3%;
- That teacher quality as measured is sufficiently calibrated to individual talent and work ethic, rather than factors beyond the teacher’s control. This is because only then do we know that it is tenure directly causing the retention of the 1-3% ineffective teachers;
- That tenure lacks any salutary effect commensurate with or greater than the impact of poor quality teachers. For example, does teacher tenure also protect expensive and talented teachers who may otherwise be terminated due to budgetary concerns? Or alternatively, does it help attract and retain talented individuals who would otherwise not work at a particular school, district, the state, or work as a teacher at all? If the answer to either is “yes,” then enjoining tenure could work a net negative effect on educational outcomes–again, based on the lottery of who gets put into a classroom that would have otherwise had a talented teacher.
- That the disproportionate number of bad teachers teaching in communities of color is sufficiently attributable to an inability to terminate the teachers;
- That chance exposure to a single grossly ineffective teacher alone constitutes an undue burden on the “equality of educational opportunity” that is a fundamental right per Butt.
The reason the above are necessary despite the heightened level of scrutiny is because without them, there is little reason to conclude that tenure is a meaningful cause of any disparity whatsoever. The ruling lays out the impact of bad teachers thus: $1.4 million of dollars in lost future earnings as a result of “grossly ineffective” teachers per student; and 9.4 months of instruction lost because of teachers in the bottom 5% (measured by standardized tests). Why the former has anything to do with equality of educational opportunity is not discussed. As for the latter, how eliminating tenure will eliminate the mathematical concept of a “bottom 5%” is not taken up either; in other words, the causal connection is assumed, not explicated.
The implications of Vergara are bordering on revolutionary. In essence, any government scheme that played any role whatever to comparatively statistically worse outcomes for one group in the mean would violate the equal protection clause. If that sounds appealing, consider that affirmative action in education was also defanged by an equal protection claim. Such a ruling would make it impossible for the state to provide education to the public unless it could prove no regulation would ever result in any disparity—again, a problem foreseen by the majority in Butt.
This is an absurd infinite loop of equal protection claims. In Vergara the two parties stipulated to the fact that tenure in particular played no part in how students are assigned to teachers, and in fact, there was no particular statewide regulation regarding student assignment to teachers. Thus if Vergara is good law, any student who gets a statistically lower-ranked teacher–or a particularly hot classroom, or a regularly late bus driver, or is seated next to a disruptive student–has an equal protection claim. These types of differences are why there must be an undue burden on a fundamental right (since there’s no suspect classification) in equal protection claims. The burden placed on a fundamental interest here seems to be “exposure to bad teachers which hurts outcomes in perpetuity.” The decision is saying specifically that exposure to bad teachers unduly burdens the fundamental right to an equal education because of outcomes down the road. But tenure doesn’t itself expose some random group of students to bad teachers. It might contribute to that happening, but it doesn’t itself do that. Math exposes them to the bad teachers, because there have to be “bad teachers,” so long as you’re ranking them. There can’t not be.