Additional Thoughts on Vergara Decision

I don’t want to throw cold water on the excitement many folks have expressed abut the ruling in Vergara v. California ending teacher tenure protections, but I do think it is important to cool some of the heated enthusiasm.  Matt was appropriately cautious, noting that the decision will certainly be appealed and will take years to play out, but not everyone has been so measured.

I see the decision as more important as a symbol of the political challenges facing unions than as a change in policy that will significantly advance student achievement.  I’m skeptical of the educational impact of the ruling because:

1) It may well be reversed on appeal.  I’m also no lawyer, but I’m enough of a political analyst to see that the Courts are reluctant to make major policy changes without broad support from elites.  As Matt notes, the Courts tend to be lagging indicators of elite opinion, not cutting edge agents of change.  And this is as it should be.  We shouldn’t want unelected judges making too many big policy decisions without enough support from the democratically elected branches to ensure that the decisions can stand and be implemented.  It is an impressive sign of the fading political influence of teacher unions and the intellectual incoherence of some of their central policy positions that a judge was willing to strike down teacher tenure.  But I don’t think there is broad enough support for higher courts to stick with this policy stand.  They’ll find a way to walk back from the ledge.

2) Even if laws protecting tenure are struck down, it is unclear how broadly it will really be used to remove ineffective teachers.  There is a good amount of evidence that principals can distinguish between effective and ineffective teachers, but there isn’t a lot of evidence that principals will exercise that judgment very often even when they are empowered to do so.  Brian Jacob examined a program in Chicago that made it very easy for principals to dismiss teachers.  The good news is that when they dismissed teachers those teachers tended to be much less effective (as measured by VAM).  The bad news is that they rarely used their power to get rid of teachers.  Jacob wrote:

this analysis reveals that many principals – including those in some of the worst performing schools in the district – did not dismiss any teachers despite how easy it was under the new policy. This result is consistent with the fact that existing teacher contracts in many large urban school districts actually provide considerably more flexibility than is commonly believed and yet administrators rarely take advantage of such flexibility (Ballou 2000, Hess and Loup 2008, Price 2009). The apparent reluctance of many Chicago principals to utilize the additional flexibility granted under the new contract may indicate that issues such as teacher supply and/or social norms governing employment relations are more important factors than policymakers have realized.

To change those norms we need to address the motivation of principals to dismiss ineffective teachers even when they are empowered to do that.  Of course, when schools have to attract students and revenue in competitive systems, principals are more active in replacing teachers they deem ineffective.  Choice really does matter for other reforms to work well.


My former student and soon to be a professor of education, James Shuls, sent me his thoughts on Vergara.  Here is what he sent:


Back in April, I posted a series of quotes from Marcellus McRae’s closing argument in Vergara v. California to Jay Blog. Yesterday, the court handed down its decision and it appears that McRae was right, “You can’t make sense out of nonsense.”

Today, I have a piece on the Daily Caller summarizing the ruling and highlighting my take-a-way from the case.

On its face, this was a legal case that considered whether teacher tenure and other job protections violated California’s state constitution. At a more fundamental level, however, this was an evaluation of policies lauded by teachers unions throughout the country – teacher tenure, due process, and last-in, first-out provisions. For these policies to be found unconstitutional they first had to be proven to have an adverse effect on disadvantaged students; and indeed, they were.

I go on to say:

Legally, there are still many questions to be resolved. In the court of public opinion, however, the ruling could not be clearer: Teacher tenure has been tried and it has been found wanting. You simply cannot make sense out of nonsense.

I invite you to check out the full piece here.


James Shuls is the Director of Education Policy at the Show-Me Institute. Follow on Twitter @shulsie

6 Responses to Additional Thoughts on Vergara Decision

  1. matthewladner says:

    Good post Jay. I’m not sure I agree with your first point in the sense that I would guess that a battery of neutrally worded poll questions would find broad public antipathy towards unconditional tenure etc. In other words, the unions are looking more isolated than ever.

    Although it is easy to imagine this case being overturned, or going through a decade long process of 20 guesses between the courts and the legislature similar to school finance cases, the unions are in big trouble in the sense that their positions on these issues are broadly held to be disgusting. Check out the NYT editorial today, which basically concludes that unions either need to change their policy stances or have change imposed upon them.

    • Greg Forster says:

      But the judges are not highly responsive to what people would say if they were asked a battery of neutrally worded poll questions. They respond much, much more to elite opinion and the signals given off by major cultural institutions. While we have made huge inroads there, as that NYT editorial demonstrates – thank God for the cool kids! – there are still plenty of your rent-a-reactionaries and Sith apprentices out there.

      • matthewladner says:

        They exist but they are mostly preaching to the choir.

      • Greg Forster says:

        Sure, but there are a lot of judges in that choir! Why do you think they wear robes?

      • matthewladner says:

        I have been told that this judge leans to the left, and he used evidence presented by the defendants to make his ruling. The blob had their near limitless resources and the state of California’s behind them and wound up making a case for the plaintiffs.

        That’s what I call intellectual and moral bankruptcy.

  2. This ruling won’t stand. It’s a good argument against a tax-subsidized, government-operated school system that assembles its clients through compulsory attendance statutes. I cannot see courts taking the logic of “disparate impact” that far. What government program does NOT have some disparate impact on some group? How many NASA engineers are women? How many refuse collectors are Jews? Is Government illegal?

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