Photo: Fred Dufour/Getty Images
Why It's Problematic to Fix Teacher Tenure through the Courts
Education

Why It's Problematic to Fix Teacher Tenure through the Courts The moral questions surrounding education will never be resolved with legal finality

By Photo: Fred Dufour/Getty Images

Yesterday, a California judge ruled that tenure rules protecting incompetent public school teachers from being fired are discriminatory and unconstitutional. Such laws, the judge wrote in Vergara v. California, “result in grossly ineffective teachers obtaining and retaining permanent employment.” Because such teachers are “disproportionately situated in schools serving predominantly low-income and minority students,” tenure violates the equal protection clause of the state constitution. 

Teachers union leaders reacted with outrage. Dennis Van Roekel, president of the three-million-member National Education Association, called the lawsuit “yet another attempt by millionaires and corporate special interests to undermine the teaching profession.” American Federation of Teachers president Randi Weingarten deemed it “a sad day for public education.” 

But no one should have been surprised by the outcome. Vergara represents the next logical step in over a half-century of education litigation, a force for reform that may now be turning against the school and teacher groups that have historically been its greatest supporters.

 

As the Vergara judge was quick to note, this year marks the sixtieth anniversary of Brown v. Board of Education. That ruling is rightly seen as landmark moment in the ongoing struggle for civil rights. But it was also a highly problematic vehicle for change. The Supreme Court’s directive to desegregate with “all deliberate speed” didn’t prevent the state of Virginia from shutting down public schools serving black children for years on end. The U.S. Department of Justice still needs to employ teams of lawyers to enforce Brown today. 

Brown also didn’t prevent states from starving desegregated schools of resources. That led to a second wave of litigation focused on education finance. After the U.S. Supreme Court narrowly ruled in 1973 that unequal state education funding doesn’t violate the equal protection clause of the fourteenth amendment, legal battles shifted to state courts. Advocates for equal funding won a string of cases in the 1970s, before adopting an even more ambitious goal in the 1980s: requiring states to provide funds that are “adequate” to give students an education of a certain quality. If some students had additional needs due to impoverishment or disadvantage, funding would have to increase accordingly.

The equality/adequacy distinction is crucial. Lawsuits requiring desegregation or equal funding simply take whatever education society has chosen to provide as a given. If a public school exists, all students must be admitted. If rich schools get a certain amount of money per student, poor schools must, too. This is consistent with rights-focused litigation in which the nature of the right itself is not really up for debate. There’s not much confusion about what it means to have a marriage license, for example. The contentious legal question is whether marriage licenses should be limited to heterosexual people. 

The adequate education theory of school finance litigation, by contrast, required courts to decide what, exactly, “education” means. This question is particularly subject to the legal process because, unlike most public services, the right to a free education is enshrined in all state constitutions. As the judge noted in quoting prior precedent, public education is “uniquely a fundamental concern of the State.” 

From the perspective of those advocating for more school funding, teachers unions prominently among them, this had the advantage of creating nearly infinite grounds for ongoing litigation. Nearly any educational arrangement could be plausibly challenged as “inadequate.” The Abbott v. Burke school finance case in New Jersey, for example, has compelled the state to provide hundreds of millions of extra dollars to urban school districts in Newark and elsewhere that serve large numbers of poor and minority children. As a result, those children have access to early education and other services they would certainly not have received otherwise. 

The Abbott case is also approaching Jarndyce v. Jarndyce levels of complexity and longevity. The suit recently entered its fourth decade and has produced so many decisions that the plaintiffs have adopted a Rocky sequel-style numbering system to keep track. The latest, from 2011, is known as Abbott XXI. 

As long as adequate education quality was judicially defined in terms of spending levels, class-size ratios, and access to services, school systems and teacher organizations were happy to use the legal system to force recalcitrant legislatures to cough up additional funds. But it was inevitable that someone would decide to challenge laws regulating the use of those funds, and that a judge would, as in Vergara, react to evidence of poor children being disproportionately taught by incompetent teachers with the same revulsion that his predecessors felt about race-based discrimination and inequitable finance.

 

Brown v. Board was undoubtedly a crucial step in the unfinished march toward racial justice. School finance litigation provided critical resources to poor school districts left to starve as their wealthier neighbors prospered. If upheld after a certain appeal, Vergara may protect vulnerable students from teachers who are unable or unwilling to provide the learning environment those children desperately need. 

But the court system is also an inherently problematic venue in which to resolve fundamental education questions. Deciding whether schools are providing children with a good enough learning environment requires us to decide what we want our children to learn and what kind of citizens we want them to be. That, in turn, flows from our convictions and values about the nature of just and civilized society. Such questions can never be resolved with legal finality. They represent the unending project of debate in an open society, the balancing of sometimes irreconcilable priorities that we manage with democratic and inherently political institutions. 

Which means that we should expect more Vergaras in the futureand expect to never be fully satisfied with the result.

Kevin Carey directs the education policy program at the New America Foundation. 

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