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.