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Law & Courts Opinion

Gay Marriage and Vergara

By Rick Hess — June 30, 2014 3 min read
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School reformers explaining why I should be more enthusiastic about Vergara and the copycat lawsuits being filed in New York and elsewhere have repeatedly drawn a parallel to gay marriage. Roughly put, the argument goes, “Gay marriage was getting nowhere via the democratic process, so advocates took to the courts and won big. They’re now on a roll and public opinion is following. This is the way we ought to tackle teacher tenure.” Without wading into the gay marriage debate, I’ll just note three big problems with the analogy.

First, gay marriage is about access, not quality. Courts are good at mandating access. They can order a justice of the peace to file the paperwork and allow same-sex couples to marry. If the justice doesn’t comply, he’s breaking the law. It’s all relatively straightforward. On the other hand, if courts were being asked to ensure that same-sex couples get a satisfactory wedding experience, things would be dicier. Vergara and its imitators don’t deal with access to schools -- they ask the courts to ensure that personnel management policies are configured in a fashion that satisfies academics and judges. (Imagine the challenges if gay marriage suits were asking courts to ensure that same-sex couples wishing to marry in rural Idaho would have access to a talented, sympathetic rabbi.)

Second, gay marriage is relatively self-executing. State officials must recognize the marriages or face arrest. When it comes to providing services, it’s a whole different ballgame. Judge Treu ordered the California legislature to enact new policies. The legislature may or may not comply. Then the judge will have to decide whether any new laws satisfy his criteria. If not, he’ll tell the legislature to try again. And around we go. Meanwhile, unions will sue to overturn the decision. Through all this, districts will need to decide to actually act on the changes -- and decide when it’s safe to act. This dance is familiar. New Jersey is into its fifth decade of back-and-forth in equity finance litigation. Despite remarkable outlays, the districts are still a mess. And the bureaucracy, legal headaches, and judicial-legislative-district back-and-forth have not encouraged strong or nimble leadership. Vergara and its imitators are likely to yield drawn-out bureaucratic paralysis rather than the clean outcomes of the gay marriage suits.

Third, the champions of Vergara seem not to recognize that they’re wielding a double-edged sword. Proponents of gay marriage had little fear that opponents could seize on their precedent to strip same-sex couples of additional rights. On the other hand, proponents of Vergara are generally big believers in the importance of school and school district autonomy (that’s why they want systems to be free to remove teachers who aren’t getting it done). The thing is, once judges start dictating what constitutes acceptable educational practice, there’s no reason they should stop at tenure laws. Unions and their allies can ask courts to use the same precedent to overrule policies governing teacher pay, assignment, or hiring. The logic of Vergara would justify a suit asking the court to strip the California legislature of the right to authorize charter schools if some are poor-performing and if those poor-performing schools disproportionately affect poor and minority students. It would seem to invite plaintiffs to ask the court to regulate Advanced Placement and IB course offerings, and the quality of these offerings, given evidence that they may be related to college-going and college success. All I can say is that I disagree profoundly with anyone who thinks judges wading into all this will be good for schools and kids.

Gay marriage is concretely framed by the right of specific individuals to claim a designated government-recognized label. It allows for a remedy that’s largely self-executing and that requires little action from legislators, bureaucrats, or other actors. Vergara is a whole different beast.

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