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  • Monica Almeida / The New York Times

    Julia Macias, one of nine student plaintiffs in a case where a judge ruled California’s teacher tenure laws are unconstitutional, speaks outside Los Angeles Superior Court last month.

  • HANDOUT / MCT

    Ben Boychuk

Ben Boychuk: Democrats stay silent on tenure ruling opposed by teachers’ union

Published: Saturday, Jul. 26, 2014 - 12:00 am

When recently has there been a more radioactive lawsuit than Vergara v. California? Think about it. Every elected fool and knave had an opinion – informed or not – about Hollingsworth v. Perry, the case surrounding California’s Proposition 8, the constitutional definition of marriage and the transformation of a fundamental social institution.

But a case that could reshape the way California hires, retains and fires its public school teachers? A civil rights lawsuit pitting low-income kids against perhaps the most powerful political interest group in the state? A case about – ahem – equal rights?

Mum’s the word from the pols. Strange.

Some intrepid reporter asked Gov. Jerry Brown the other day why people haven’t heard from him about the landmark decision to void the state’s teacher tenure, seniority and dismissal statutes. “You haven’t heard from me,” Brown replied, “because I haven’t said anything.”

Oh. Well, in that case, carry on, sir. Sorry to trouble you. Perhaps you could get back to us when it’s more convenient. How does your calendar look on Nov. 5?

The Vergara case really should be a bigger election issue than it appears right now. Yet it’s not as though the governor absolutely must have an opinion about the decision, which Los Angeles Superior Court Judge Rolf M. Treu handed down on June 10 after nearly two months of deliberation. It’s just that, unlike the gay marriage case, it’s much harder to demonize the plaintiffs when they’re poor children trying to get a halfway decent education.

Hmm. Does anyone know what Beatriz Vergara thinks about gay marriage?

Meantime, Attorney General Kamala Harris this week filed a 22-page request with Treu asking him to clarify his 16-page ruling. Is the state planning an appeal? Hey, now, let’s not get ahead of ourselves. Harris’ filing, The Bee reported, simply asks the judge to “explain the factual and legal justification for his decision in the final ruling.”

So maybe the state won’t appeal. Right. And maybe Sacramento taxpayers will come out ahead on the Kings arena deal.

The California Teachers Association is itching to fight Treu’s decision. The CTA, which City Journal named “the Worst Union in America” two years ago, called the lawsuit “meritless” from the beginning – as if that makes it so. The union professes to be baffled at Treu’s reasoning. It wants answers, too.

“The decision didn’t go into a lot of detail about why,” said Jonathan Goldman, a CTA spokesman. “For anybody to move forward with an appeal, or anything else, all parties need to know why.”

Why are California’s laws protecting incompetent teachers a “shock to the conscience,” as Treu put it? Or why does a “due process” system that discourages schools from firing the worst of the worst violate students’ rights? Or why “the logic” of school districts’ “last in, first out” layoff policy is “unfathomable”?

None of these is a great mystery.

“Given that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250,” Treu wrote. How many students have those teachers failed? Tens of thousands? A million?

If Treu’s ruling stands, a host of awful policies would be wiped off the books. Gone would be the preposterous rule that teachers who can endure 18 months on the job have a post virtually guaranteed for life.

Gone would be union-rigged “due process” requirements that cost the Los Angeles Unified School District $3.5 million between 2000 and 2010 to terminate seven incompetent teachers – only four of whom were dismissed successfully.

And gone would be “last in, first out,” which compels the district to give pink slips to highly qualified but untenured teachers while leaving older but less effective teachers untouched.

Those policies would be replaced by … what, exactly?

After Treu’s ruling, UC Irvine Law School’s Erwin Chemerinsky and Catherine Fisk criticized the judge in a Viewpoints piece in The Bee because he did not, among other things, “explain what kinds of procedural protection are constitutionally permissible and why the existing system is not.”

One needn’t possess a law degree – and I don’t – to know that the role of the courts is to say what the law is, not what it ought to be. That’s for the Legislature to decide and the state Department of Education to implement.

These are political questions, not legal ones. It’s an election year. Democrats own this state. Republicans and reform-oriented Democrats might ask whether their opponents favor protecting incompetent teachers – or excellence. Do they see more money as the answer? Does job security trump all?

In short, do they stand with the CTA, or with Beatriz Vergara? Speak up or get out.


Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Contact him at bboychuk@city-journal.org.

Read more articles by Ben Boychuk



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