Liberals and Equal Protection


Will California judges hear a case challenging teacher tenure?

California’s Supreme Court has the opportunity to make a civil-rights breakthrough by agreeing to hear a landmark case that challenges teacher tenure laws on equal protection grounds. Let’s see if the court’s liberals have the courage of their convictions.

Four years ago, nine public school students sued to overturn California’s lifetime teacher job protections and “last-in-first-out” policies, which have concentrated ineffective teachers in poor and minority communities. Reams of evidence in Vergara v. State of California show how disadvantaged students are the most harmed by these laws.

Teachers in California receive tenure after two years, making them nearly impossible to fire. Fewer than 0.002% of teachers statewide are dismissed for unprofessional conduct or poor performance. Thousands are ranked grossly ineffective, yet only about 20 have been terminated over the last decade. In Los Angeles Unified School District, it takes upward of 10 years and between $250,000 to $450,000 to fire a teacher. Administrators typically reassign lousy teachers to less desirable schools in poor areas.

Due to seniority rights, inexperienced teachers are disproportionately assigned to poorer schools. State law also mandates that the newest hires be the first dismissed during budget layoffs regardless of performance. During a recent budget crunch, Oakland laid off 90% of teachers, including many Teach for America alums, in some low-income schools.

A single year with a grossly ineffective teacher can cost a classroom of students $1.4 million in lifetime earnings. Meanwhile, seniority-based layoffs reduce lifetime student earnings by an estimated $2.1 million per teacher laid off. In 2014 Los Angeles County Superior Court Judge Rolf Treu struck down tenure laws, noting that the evidence of their destructive impact “shocks the conscience.”

Yet last month the state’s second appellate court ruled that students harmed by the laws didn’t have enough in common to make an equal-protection claim under California’s constitution. In other words, the disadvantaged students weren’t all black or Hispanic. Yet California’s Supreme Court has held that the mere abridgement of a fundamental state right like education is enough to contest an equal-protection violation.

The appellate court also ruled that the plaintiffs failed to show that the “statutes inevitably cause a certain group of students” to receive an inferior education. Instead, school administrators, albeit hamstrung by the laws, are supposedly to blame. Under this ruling, it would be nearly impossible to make equal-protection claims under the California constitution. A school-funding formula that results in lower-income schools receiving less money couldn’t be challenged. Nor could school-district boundaries that produce segregated schools.

Vergara relies on a statistical disparate-impact analysis that the left uses to bludgeon businesses. We think disparate impact is unconstitutional, but if it’s the law then progressives can’t pick and choose when it applies. The nine students have asked California’s Supreme Court to hear the case, and the future of millions will depend on their decision.

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