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Education policy maven Rick Hess of the American Enterprise Institute think tank offers straight talk on matters of policy, politics, research, and reform. Read more from this blog.

Law & Courts Opinion

My Take on the Vergara Verdict

By Rick Hess — June 11, 2014 2 min read
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There’s lots and lots to be said on Vergara. I don’t feel inclined to join the pile, so I’ll make three points and then call it. The bottom line: I agree with the verdict but am worried about where this leads.

First, I think the plaintiffs were clearly right on the merits. California’s employment laws have made it ridiculously tough on school systems to do anything about lousy teachers. There are 275,000 teachers in California. Even if just one to three percent of teachers are lousy, as defense expert David Berliner estimated, one would expect 3,000 to 8,000 teachers to be dismissed each year for unsatisfactory performance. Instead, the average is just 2.2. Meanwhile, Los Angeles superintendent John Deasy testified that it costs his school system between $250,000 and $450,000 to remove just one tenured teacher for poor performance.

Second, in the course of the lawsuit, the California Teachers Association suddenly discovered the virtues of judicial restraint. The CTA denounced Vergara as a case of the courts overstepping their bounds. However, while I have sympathy for the point, I have trouble taking the claim too seriously. After all, teachers unions have unabashedly used the courts for years as a tool of education policy. They’ve used the courts to protect generous benefits, challenge layoffs, attack school choice, and force states to spend more on K-12. I’m okay with them getting a taste of their own medicine.

But, third, sixty years of decisions since the U.S. Supreme Court’s ruling in Brown v. Topeka have shown that courts can ensure access to education, but do a poor job of promoting quality. Vergara may be a happy exception, but courts have a long history of failing to weigh costs and benefits and imposing requirements that prove bureaucratic and unworkable. Indeed, if courts can order legislatures to abolish tenure, what else might they require? If plaintiffs pick the right judge and present the right experts, can they get judges to require that pre-K teachers need to have an education school teaching credential? Can judges order schools to adopt the Common Core, if they think that will help ensure that all students are held to an equal standard? Can judges order legislators to double teacher pay, if that’s what they think it’ll take to ensure that all students have a chance to learn?

That’s why, while I think the Vergara verdict was decided correctly on the merits, and is a good decision for California’s kids, I find myself ambivalent about where this leads and the precedent it sets.

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