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What the California Education Decision Got Wrong
Vegara v. California — the ruling knocking down union-backed protections for bad California teachers — is a great result achieved in the worst way. California public schools have done a terrible job providing education to the poorest minority students in the inner cities; it is imperative that innovation be introduced into the system. California’s antiquated rules about teacher tenure and seniority have stood in the way of meaningful reform. Everyone concerned about shaking up the educational bureaucracy to return the focus to teaching students rather than cosseting teachers should support the judge’s good intentions.
But whether teachers should have tenure, how they are fired, and what their rights are as employees should be decisions for the elected representatives of the people of California, not for judges. The theory of this decision is that these policies violate the constitutional rights of students because they produce an inferior education, and that, as a result, the courts can decide to take over the California public school system and make every decision from employees to funding to buildings to curriculum. They could arguably decide how much of the California state budget should go to education rather than police, fire, or roads. These are essential decisions for a democracy to make.
There are two things, however, to say in the judge’s defense. First, judges in California are elected, and so the people could remove this judge if they disagree (though that would take years and would not reverse the decision). Second, the California courts crossed this Rubicon years ago in the Serrano decisions, where the California Supreme Court used this logic to find that funding of schools had to be equal throughout the state and essentially eliminated the ties between the local tax base and local schools. The judge here may have thought he was following Serrano to its logical conclusion, rather than engaging in a fancy bit of activism to achieve an altogether worthy result.
Nonetheless, the California courts should never have made the fateful decision to interfere with the running of the schools then or now, and pressing a mistaken idea further undermines one of the fundamental responsibilities of a democracy. Vergara is only a single decision by a state trial judge, and I expect it will eventually be reversed on appeal to the California Supreme Court. I think that the California courts understand the political thickets involved in running the schools, a role for which they have no authority or competence. It will also give them the opportunity to return back more sovereignty to the people.
Published in General
Kudos to Prof. Yoo for remiding us that process matters, even when we all agree on the outcome. But it’s worth asking why the courts seem to be getting ever more involved in (what should be) legislative decisions.
While some of it is doubtless a consequence of increased activism, I think that gridlock in the legislative system may also be playing a subtle but major role.
Through a number of various mechanisms, the legislative process both in California and on the federal level has slowed to the pace of molasses. Conservatives typically champion this development, viewing the passage of laws as tantamount to growing the size of government. But I wonder if, in a democracy, there isn’t a sort of unseen pressure for the will of the majority to be heard, and by artificially retarding the legislative process, that pressure may inevitably shift more decision making into the hands of the judiciary.
This is a good example of the sort of case my liberal activist friends would put before me and say, “I know you approve of the substantive outcome of the case. Do you approve of the activism necessary to reach that outcome?”
I don’t approve of the activism, but I cannot help but smile at the irony of the ultra-liberals—the teachers’ unions and their progressive allies—getting hoist by their own petard of what is essentially a disparate impact theory.
The judge’s rhetoric notwithstanding, the challenged provisions (tenure, dismissal, layoff by seniority) all have justification sufficient for a reasonable basis test. It is only the greater burden on minority students (probably real) that pushes this case into “compelling interest” territory.
Although I agree with Prof. Yoo on the wrongfulness of the court’s approach, perhaps the silver lining will be that progressives will feel the evil that judicial activism can wreak.
I agree with the kudos (this seems like a better test of principles than Illinois Nazis, and I think John gets the balance perfectly), and agree with the descriptive part of Mendel’s analysis, but want to check that you didn’t intend it to be normative, Mendel.