The Judiciary Is a Slow Boat to Justice in Education

It’s been a frustrating year for school reformers seeking to break the death grip teachers’ unions hold on public education. Victory was within reach in California with two big cases: Vergara v. State of California, a California Court of Appeal case concerning the elimination of teacher tenure, and Friedrichs v. California Teachers Association, a U.S. Supreme Court case that considered ending compulsory union dues for non-unionized teachers. But hopes were dashed when the judges in both cases sided with the teachers, forcing reformers back to the drawing board.

Nevertheless, as the plaintiffs in these cases scored enough points to justify pursuing future litigation, efforts to renew these judicial battles are in order.

In Friedrichs, independent teachers contended that union rules requiring them to pay substantial “agency fees” to support unions’ collective bargaining work violated their First Amendment rights. They seemed likely to win the case, at least until the untimely death of Justice Antonin Scalia. Ultimately, the U.S. Supreme Court deadlocked 4–4 on March 29, which had the effect of upholding a lower court’s decision, which was favorable to the unions.

In Vergara, a Los Angeles trial court amassed an impressive body of evidence to how the Golden State’s laws governing teacher tenure, dismissals, and layoffs are harming disadvantaged students. According to the evidence, once they gain tenure, it’s virtually impossible to fire many teachers, regardless of performance. And in California, teachers are up for tenure after a mere 16 months on the job. Moreover, the legal costs of sustaining a teacher dismissal — which range from $40,000 to $400,000 — deter districts from even making the attempt. Too often, these tenured incompetents wind up on the faculties of low-income schools.

In a 2014 case that led to Vergara, Judge Rolf Treu of the California Superior Court shamed the union-dominated education establishment. He concluded that the “effect of grossly ineffective teachers on students” was a violation of “equal protection of the laws” and “shocks the conscience.” Though California’s Court of Appeal reversed this decision, the appellate judges did not dispute Treu’s characterization of the tenure system, writing that “deplorable staffing decisions” are having a “deleterious impact on poor and minority students.” However, the court concluded that inept administration — not the laws per se — was the culprit.

Then, on August 22, California’s Supreme Court handed down a 4–3 ruling refusing to hear an appeal of the Vergara reversal. Though a legal victory for the teachers’ union, the court had no kind words for its tenure system. Two stinging dissents contended that the appellate court “likely erred” in its reasoning, and the chief justice appended an unusual explanatory note that the Supreme Court’s decision only meant that “a grant of review is not appropriate at the time of the order.”

Perhaps in another time or place, students and independent-minded teachers who are being shortchanged by public education will receive the justice they deserve from a slow-moving judiciary.

In the meantime, look to individual and political action. 

Homeschooling enrollment has increased by more than 60 percent over the past decade, and there’s every reason to believe even more growth is coming, as parents realize home education is one guarantee of intellectual liberty. Homeschool cooperatives are another attractive arrangement for parents who need help hand with teaching and setting up extracurricular activities for their kids. 

Political action depends on Democrats breaking ties with their union benefactors and Republicans living up to their promise to be champions of liberty. Neither is beyond the realm of possibility.

During the Vergara proceedings, Democratic state legislator Susan Bonilla bravely tried to amend the tenure law to keep it from protecting inept teachers. But the California teachers’ union swiftly squashed the measure. In North Carolina, the Republican-led legislature has moved to end tenure for newly hired teachers while expanding state-aid for private school choice — what unions fear and loathe most.

Another promising initiative is the education savings account now in the process of implementation in several states. This mechanism enables parents to use their state subsidies to purchase educational services from a wide variety of approved providers — not only schools — in order to customize their children’s education.

While the wheels of justice grind ever so slowly, there ought to be no delay in individual and political action to liberate families from government-run schools that protect the interests of a privileged few over the welfare of students.

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