The California 'Teacher Tenure' Decision - was it Judicial Activism?
This week, in Vergara v. California, California Superior Court Judge Rolf Treu struck down five state laws governing teacher tenure, layoffs and dismissals as unconstitutional under the California constitution. The result of this ruling is certainly good for children in California, too many of whom are stuck in classrooms with “grossly ineffective” teachers. But was it a correct decision from the standpoint of respecting the rule of law and the proper role of judges?
Judges are not supposed to be politicians by another name. They have the distinct task of interpreting and applying the law, regardless of the result. In a perfect world, all judges would be impartial arbiters who check their personal policy preferences at the courthouse door. But that is not always the case. As this Heritage report shows, some judges are eager to discover new “rights” or bend the text of laws to comport with their preferences.
So then, did the judge get it right in Vergara v. California? The short answer is, “probably,” but only in a narrow sense. There’s a decent chance the decision could be reversed on appeal.
Some who like the outcome of this case suggest the judge got it wrong or got it right for the wrong reasons. The decision has been called a “great result achieved in the worst way,” and “second-guessing the legislature’s policy judgments.” Indeed, education policy and spending levels are matters best left to the judgment of legislators, not judges, even if the majority of that legislature seems to care more about the interests of teachers unions than the well-being of students.
Judges are not supposed to be politicians by another name.
Nonetheless, lower court judges are duty bound to follow binding precedents—even bad ones—from higher courts, and that is what the judge appears to have done here. Decades ago, activist judges on the California Supreme Court, under the guise of interpreting the state’s constitution, usurped the role of the peoples’ elected representatives when it came to setting education policy.
In the 1970s, in Serrano v. Priest (here and here), the court held that a disparity in funding for different school districts violated a fundamental right to equality in education. This newly recognized right, the court held, stems from the state constitution’s equal protection clause. Since the funding system implicated a fundamental right and distinguished between students based on a suspect classification (wealth by district in which they live), the court held that it was subject to strict scrutiny—the highest standard of judicial review. Likewise, in 1992 in Butt v. California, the court determined that a disparity in the length of the school year—a school district closed six weeks early because of a budget shortfall—also violated this fundamental right to equality in education.
Following these precedents, the judge in Vergara held that a disparity in the quality of education violates students’ right to equality because “grossly ineffective teachers” have a “real and appreciable” impact on the students. Further, the tenure laws disproportionately burden low-income and minority students. Thus the judge analyzed the laws under strict scrutiny review and determined that the state had not shown that the disparity created by the tenure laws was necessary to advance a compelling interest. This ruling appears to faithfully follow the precedents of the California Supreme Court, though it may be pushing the envelope slightly. But the bottom line is this: the Vergara decision is the product of the California Supreme Court’s past decisions—you reap what you sow.
Elizabeth H. Slattery focuses her research on issues such as the scope of the Constitution’s commerce clause, equal protection, federal preemption and election laws as senior legal policy analyst in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Portrait of John G. Malcolm
John G. Malcolm
John G. Malcolm oversees The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law as director of the think tank’s Edwin Meese III Center for Legal and Judicial Studies.