19 June 2014

Equal protection and equal education

      On June 10 a California Superior Court judge held, in Vergara v. California, that five statutes that made it easy to hire but hard to fire bad public school teachers violated California’s Constitution. The court argued that the California Constitution gives students “a fundamental right to equality of education.” The challenged laws gave teachers life tenure after two years, made dismissal for cause almost impossible, and provided for “last in, first out” dismissals regardless of a teacher’s competence. The result was that “grossly ineffective” teachers were hired and then retained. Bad teachers severely damage their pupils’ education, so education isn’t equal if some students get bad teachers. Accordingly, the laws were unconstitutional. (There was some legal gymnastics here, under the rubric “strict scrutiny,” that handed the State the nearly impossible burden of proving that the laws served a “compelling interest” and that “the distinctions drawn by the laws are necessary to further their purpose.”)
      That students must receive an equal education is supposed to follow from the California Constitution’s “equal protection” clause: “A person may not be … denied equal protection of the laws.” This tracks the U.S. Constitution’s 14th Amendment, which states that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” The identical references to the “equal protection of the laws” suggest that the California legislature intended its version to be the same as the federal version; if that wasn’t the intention, the legislature would have worded the clause differently.
      The 14th Amendment was one of three Amendments, adopted in the immediate aftermath of the Civil War, to outlaw slavery and protect the rights of the freedmen. In saying that no person should be denied the equal protection of the laws, Congress and the ratifying States did not intend to make everybody equal, whatever that might mean; they were trying to outlaw discrimination in the operation of the law based on racial and ethnic factors, as when the 15th Amendment states that the right to vote can’t be denied because of “race, color, or previous condition of servitude.” However, other kinds of discrimination are OK under the 14th Amendment; for example, courts may discriminate between guilty and innocent people by sending the former, but not the latter, to jail, a State may discriminate against blind people by denying them driving licenses, and the government may draft men but not women into the armed services.
      Whatever the original motivation for California’s version of the equal protection clause, subsequent court decisions have interpreted it more broadly than the 14th Amendment. Most relevant for the Vergara decision, in 1992 the California Supreme Court (in Butt v. California) held that a six-week-shorter school-year in one district, caused by the district’s financial difficulties, denied students equality of education: “The California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts.” Furthermore, California’s equal protection clause requires “…State assistance to correct basic ‘interdistrict’ disparities in the system of common schools, even when the discriminatory effect was not produced by the purposeful conduct of the State or its agents.” No racial, ethnic, or wealth discrimination is required. Vergara extends this principle from interdistrict inequality to inequalities between classrooms in the same school.
      The theory that California’s Constitution requires “equality of education” is, however, quite daft. Vergara holds that students would receive a more equal education if California could fire the worst 2-5% of teachers. But wouldn’t education be even more equal if we also fired the best 2-5% of teachers? After all, why should some students be taught by the cream of the crop while the rest just get the average?
      Our rejection of this argument—and we ought to reject it—just shows that the real issue isn’t equality of education but adequacy; the kids with the bad teachers, like the students with the shortened school year, are getting a raw deal. But educational adequacy isn’t a problem addressed by the equal protection clause.
      Two other provisions of the California Constitution, cited by the Vergara court, may bear on the question of adequacy: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement,” and “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district ….” These provisions may guarantee an adequate education, but they don’t say what an adequate education is or how it is to be accomplished. As in any constitution, the details must be left to the legislature.
      The court notes that the five challenged laws are outliers among state education laws. The opinion doesn’t say, however, whether California has a higher percentage of bad teachers than others States (a conclusion some deny).
      While all sides in Vergara agreed that bad teachers “substantially undermine” a child’s ability to succeed in school, the court also cites empirical studies that bad teachers severely damage their students’ life prospects. I haven’t read these studies, but a long life has taught me that social science is tricky, so I suspect there are other studies that come to the opposite conclusion.
      Late in the opinion the court cites a California Department of Education report that “vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators.” But no argument is made that this disproportion results from the challenged laws. If the worst teachers are deliberately funneled to predominantly black and Hispanic schools, that would be unconstitutional but could be handled without throwing out the five laws in question, none of which deals with teacher assignment.
      The challenged laws may be bad, but they were adopted by democratically elected legislatures, and are implemented by persons with experience in the field. They presumably reflect a resolution of the conflicting demands of various factions of the electorate. I’m no expert on what does and doesn’t work in education, but neither is the court. Legislatures and bureaucracies often get things wrong, but so do lawyers and judges. I’m a retired lawyer myself, but I don’t regard it as the mission of the judiciary to rescue us from the missteps of politicians and bureaucrats. It’s enough of a challenge to enforce the Constitution as written and intended without trying to remake it into a policy battering ram.

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