The Egalitarian Fallout of Vergara v. California

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Last week, in what promises to be the start of a protracted and important judicial battle, a judge in California struck down five statutes in the state’s Education Code on the grounds that they prevented children attending public schools from receiving an education that is commensurate with their state constitutional right to equal protection under the law. The statutes judged unlawful were those preventing Californian district school boards from withholding tenure from incompetent teachers or firing them once they had gained it, plus another obliging them to give priority to their more long-serving, but less effective, teaching staff over more recent, but more effective, teaching appointments when, for economic reasons, lay-offs had to be made.

Some have welcomed the court’s ruling, arguing that removal of the statutes in question will benefit, not just the children whose education would otherwise have been impaired by incompetent teachers but the economy more widely.

Economist Eric Hanushek, senior fellow at Stanford’s Hoover Institution, testified on behalf of the several schoolchildren who brought the case. He welcomed the ruling in the pages of the New York Times.  Citing a 2013 study on the long-term impact of teachers on the life-chances of their pupils, published by the National Bureau of Economic Research, Hanusehek remarked

Each year a grossly ineffective teacher continues in the classroom reduces the future earnings of the class by thousands of dollars by dramatically lowering the college chances and employment opportunities of students. There is also a national impact. The future economic well-being of the United States is entirely dependent on the skills of our population. Replacing the poorest performing 5 to 8 percent of teachers with an average teacher would, by my calculations, yield improved productivity and growth that amounts to trillions of dollars.

Given those impressive-sounding statistics, how might anyone, save those with a special interest in feather-bedding themselves, object to the court’s ruling against the statutes which supposedly enable ineffective teachers to remain in their posts? Surely, these statutes belong to a bygone age, whatever justification they may once possibly have had.

One who thinks that they do is Frederick M. Hess, director of education policy studies at the American Enterprise Institute. Commenting on the court ruling in USA Today, Hess notes:

Teacher tenure laws pre-date the advent of equal employment laws or modern hiring practices. These protections made some sense a century ago… [by] serving as a useful check on abusive management. In that era, after all, schools could and did routinely fire teachers for being pregnant, failing to conform to height and weight charts, being thought gay or holding the wrong political views. Today, while such practices are pretty much gone, the laws linger on.

I am not so sure, and certainly have no special interest at stake, being now retired and not even a U.S. national, let alone a Californian. I base my doubts upon two principal considerations to which others commenting on the case have drawn attention.

First, as has been astutely observed by James Ryan, formerly a law professor at the University of Virginia, now dean of Harvard’s Graduate School of Education, it is difficult to see where this same line of reasoning might end in the name of equality of educational opportunity:

It is… worth recognizing that, if this suit is successful and education rights in state constitutions are read broadly, who knows where cases like this might stop? This is a case about teachers. But surely poor and minority students have unequal access to all sorts of resources. One wonders if those who brought this suit are willing to press their equality claims to their logical conclusions and challenge the vast array of inequalities poor and minority children might experience in public school systems.

It’s easy to envision a claim asserting a right to attend a socioeconomically diverse school. Reams of research indicate that high-poverty schools suffer from numerous obstacles and difficulties that majority middle-income schools do not. Indeed, concentrated poverty may be the single best predictor of school performance and high-poverty schools remain the most difficult nut to crack in attempts to improve educational outcomes. The effects of attending a high-poverty school are not simply the aggregate effects of out-of-school poverty, either; the schools themselves disadvantage those who attend, regardless of their families’ socioeconomic status.

One can envision a lawsuit arguing that school district lines and attendance zones that result in high-poverty schools are denying poor children their right to equal educational opportunity. There is no reason in logic why such a claim could not be made and made quite strongly. Indeed, the argument in Vergara is that California statutes regarding teachers make a child’s educational opportunity dependent on family income. That is also true with respect to school-district lines and attendance zones that cluster poor kids in high-poverty schools.

Just such considerations are currently being advanced in the United Kingdom to oblige schools in receipt of state funding to admit equal proportions of socio-economically disadvantaged children to ensure that their educational prospects are not blighted by being obliged to be taught together in disproportionate number. There are many in Britain who cannot afford private school fees for their children yet can afford to live in a leafy suburb that ensures their children are able to attend state-funded schools that are not overrun by children from disadvantaged backgrounds who for a variety of reasons are frequently harder to teach; and, thus their presence negatively impacts students from better domestic circumstances.

As just indicated, the effectiveness of their teachers is by no means the sole, or even the most important, relevant variable in determining how much progress at school children make. Of far greater importance is their familial background, including the socio-economic standing of their parents. Those celebrating this week’s court decision might not have so wide a grin on their faces if they subsequently find themselves called on by their states to dip more deeply into their pockets to equalize familial incomes or increase grants to schools with less advantaged children in the name of greater equality of educational opportunity.

Secondly, being obliged to abandon a ‘last-in-first-out’ policy where lay-offs have to be made among public school teachers is liable to have a very detrimental effect upon their overall effectiveness which is invariably dependent on the willingness of more senior colleagues to mentor and informally help and to advise more junior less-experienced colleagues, especially upon appointment. Such willingness might well start to dry up once every newcomer has become a potential competitor for the job of every long-serving teacher. As has been noted by David B. Cohen, a California teacher and Associate Director of Accomplished California Teachers, a teacher leadership network run out of Stanford University’s Graduate School of Education:

Seniority is a rational basis for handling layoffs… Seniority serves a compelling state interest by providing a bulwark against politically or fiscally motivated layoffs, and by fostering the necessary collaboration to help schools thrive… Eliminating LIFO [“last-in-first-out”]… creates competition in place of collaboration; if layoffs are looming, there’s a perverse incentive to protect oneself at the expense of others.

Only someone who has never worked in a school or university as a teacher will be inclined to doubt how much new teaching appointments rely upon the willingness of more senior peers to help them in learning how to ply their trade well. How much of that willingness would be forfeited under a dispensation in which seniority no longer counted for anything?

No one is suggesting that grossly incompetent teachers should be able to remain in post, but the fact that in California only so few teachers are formally dismissed should not be construed, as the court there did earlier this week, to mean that grossly incompetent teachers there are allowed to remain in their positions because of the difficulty in firing them. Many such teachers resign of their own volition once the long-drawn out firing procedures begin, and so don’t formally count as dismissals in the statistics.

It should not be lost sight of that teaching is both a vocation and profession, nor that ideally a school should be a community of scholars with all the reciprocity and collegiality implied by such a notion.