If you take an interest in the intersection of American education and law, the news this month has clearly been dominated by one story: The death of Antonin Scalia has transformed the ideological complexion of the Supreme Court during one of the most consequential terms of recent years. That means reformers can probably expect a tie vote in the matter of Friedrichs v. California Teachers Association, which threatens to drastically weaken public employee unions by outlawing the fees that help fund their organizing activities. Scalia’s remarks during oral arguments gave the impression that he’d join a 5-4 majority against the unions, but his death virtually assures that the case will now be determined by a lower court ruling. No historic decision, no generational shift in the status quo. Nothing to see, basically.
But that doesn’t mean that we’ve dispensed with the question of labor by any stretch. Friedrichs isn’t the only potentially earth-shaking case concerning teachers’ unions; in fact, it isn’t even the only one originating in the Golden State. The other, of course, is Vergara v. California, which was heard in a state appeals court Thursday.
A brief explainer for those of you who have been vacationing in some happy place far away from the intricacies of employment law: Vergara was originally decided in favor of the plaintiffs in June 2014, when Superior Court Judge Rolf M. Treu held that five laws governing teacher tenure, seniority, and firing were invalid under the California Constitution. Those laws remain in effect for now, as Judge Treu issued a stay in the ruling as the case made its way through the appeals process. Nearly two years later, it has at last received its (second) day in court.
The litigants all accept the central premise that teacher quality is a critical determinant of academic achievement, and the present system is failing students by the tens of thousands. But the state of California (along with its two predominant teachers’ unions, the California Teachers Association and the California Federation of Teachers, who intervened in the suit) contends that its hiring, firing, and retention policies are necessary to attract qualified candidates and keep them in the profession. The plaintiffs, represented by the nonprofit group Students Matter, argue a position that should be familiar to education reformers: In granting tenure after just two years, the state isn’t taking nearly enough time to vet employees who often stay on the payroll for decades; the “last in, first out” approach to layoffs prizes the length of that tenure over the actual merits of the teachers who stand to lose their jobs; and the current dismissal process is complex bordering on byzantine, making it extremely difficult to fire the truly incompetent.
The challenge will be proving that those practices, some of which are already politically unpopular with California voters, disproportionately inflict lousy teachers on minority and low-income students. (Therein lies the basis for the case—if these pupils are uniquely burdened as a class, they're being denied their right to an equitable education under the state constitution.)
Judge Treu certainly thought that they did, memorably saying that the unfair toll exacted from disadvantaged students “shocks the conscience.” If yesterday’s proceedings were any indication, that claim may face more scrutiny this time around. Responding to an attorney for the state, one member of the three-judge panel remarked that “there’s probably nobody in this room who didn’t have a bad teacher at some point.” The unions assert that any disparate impact can’t be blamed on the laws themselves, but rather on poor implementation by school districts, which are too hesitant to let bad teachers go and too hasty to give mediocre ones gold-plated job security.
Unfortunately, the outcome of this review won’t bring any more finality than the one that proceeded it. No matter how the judges rule (a decision will likely come down sometime in May), the losers will appeal to the state supreme court, setting off more months or years of legal wrangling before the case reaches its conclusion. Even more disappointingly, California lawmakers haven’t shown any willingness to tackle these issues in the interim. Legislative solutions, open to review and testimony from stakeholders on all sides, are virtually always preferable to unwieldy judicial action. But bills aimed at overhauling tenure policy and limiting the importance of seniority were scotched by Democrats in the Assembly Education Committee last year. Meanwhile, more than thirty state legislatures across the country have enacted major changes to teacher employment policy since 2009.
Ultimately, that’s a good thing. If we return to the foundational assumptions of this case—that the work of teachers in the classroom is the sine qua non of academic progress—it’s not hard to find areas of agreement. As AFT President (and reform uber-foil) Randi Weingarten put it in a recent interview, “The best teachers should be the ones that are rewarded. Worse teachers should not be given tenure.” Reformers, labor organizers, families, and the public at large should all be pulling in the same direction—to acknowledge (and remunerate) our best teachers like the gifted professionals they are, weed out the bad apples doing harm to children, raise the standards for those entering the field, and even increase the share of new teachers from minority backgrounds. If the path to those goals runs through the courts, we’ll take what we can get; the Vergara litigation strategy is already being adopted by groups elsewhere. But dozens of states have now demonstrated that valuable ground can be gained through the democratic process. That’s a goal worthy of our attention, whatever the judges decide.
