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Wednesday, June 11, 2014

What does it mean to "enjoin" teacher tenure? A plea for coherent remedies in school reform litigation

I have just finished reading Judge Treu's decision holding unconstitutional five California statutes protecting teachers from dismissal -- so-called "teacher tenure" statutes. It was not difficult to read: The opinion is only sixteen pages long. And yet, after reading the opinion, I am left completely confused about what the opinion means for California schools. The problem is that Judge Treu has identified a state of affairs that deprives kids -- especially low-income kids -- of educational quality, but he has not specified how this state of affairs should be remedied. The result is judicial incoherence.

Take, for example, the part of the opinion "enjoining" the various statutes defining the process for firing tenured teachers (pages 11-13). Judge Treu concludes that these statutes provide "über due process" for teachers that is "so complex, time-consuming, and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory" (page 13). Two to ten years to fire an incompetent teacher is just too long, according to Judge Treu. Judge Treu, therefore, "finds the Dismissal Statutes unconstitutional under the equal protection clause of the Constitution of California" and "enjoins their enforcement." (id.)

But what does it mean to "enjoin" the "enforce[ment]" of some unspecified set of dismissal procedures? Is Judge Treu holding that California schools may not dismiss any teachers under the current rules until the California Legislature alters these procedures in a constitutionally acceptable way? Of course not: Such an interpretation transforms Judge Treu's decision into über tenure for teachers. But then what exactly does he mean when he says that certain procedures are "enjoined"? Which ones? And what process should replace them while the legislature mulls over a fix? A judge-made code of due process (presumably not of the "über" variety)? Or will Judge Treu just stay his opinion indefinitely while the legislature pretends to fix it? And, assuming the unlikely event that the legislature acts, what would constitute an acceptable legislative fix of these rules? Suppose that, after a legislative overhaul of the rules, it still takes, say, two to four years to fire incompetent teachers: Would the new procedures pass constitutional muster because the process had sped up a bit, even though they were still slow?

I share Judge Treu's sense that job security for public employees can injure recipients of public services. But I am also inclined to think that this remedy-less sort of constitutional ruling, familiar from the New Jersey Supreme Court's opinion in Mount Laurel I, is a hopeless way to deal with the problem of public law reform.

Using Mount Laurel as a model, one could call this judicial strategy the three-step solution. Here's how the three-step dance works: The Court (1) declares that some state of affairs (e.g., slow dismissal of incompetent teachers, lack of affordable housing) is unacceptable, (2) enjoins a bunch of laws that somehow contribute to that state of affairs in an unspecified way, and (3) stays the injunction in hopes that the legislature will tweak the laws enough to fix the problem.

The problem with this strategy is that, where the constituencies that benefit from the enjoined laws are politically powerful (such as teachers or homeowners), then the legislature will simply stall, making small cosmetic changes that gore few oxes and make no substantial difference in the state of affairs deemed to be unacceptable. This is what the Township of Mount Laurel did in response to Justice Hall's original decision in Mount Laurel I, and this is what, I predict, the California Legislature will do if Judge Treu's decision is sustained on appeal.

The Court then has to decide whether or not to double-down with a second ruling defining precisely those aspects of the laws that need to be changed to comply with the Constitution. Mount Laurel II did so in 1983 with its "fair share" formulae, a decision that led to a protracted struggle with New Jersey's local governments and governor that continues to this day.

Is Judge Treu prepared to double-down with some specifics, when the California legislature dithers, as it inevitably will? If not, then maybe he should not go down this road at all: Declare the controversy to be non-justiciable at the outset. If he is willing to follow through, however, then I am inclined to believe that Judge Treu would have been well-advised to do a bit more of the hard work up front in identifying the specific laws that need to be changed and the changes that would be deemed constitutionally sufficient.

Posted by Rick Hills on June 11, 2014 at 05:39 PM | Permalink


Thanks for the thoughtful comments, Brian and David. Brian, you are absolutely right that literature on social rights applauds the idea of an initial mushy opinion with a pass-back to the legislature, some sort of legislative response, and further iterations of judicial response. Bill Simon and Chuck Sabel, for instance, applaud this model for public rights litigation in "Destablization Rights," 117 Harv. L. Rev. 1015 (2004). I call this the "Roman Numeral Model" of judicial-legislative interaction -- as in Robinson v. Cahill I, II, III, IV, etc.

The chief benefit of this model is that it gives legislators political cover to take on groups that they'd just as soon placate. But that benefit is lost unless the courts include something reasonably crisp in their opinion that gives legislators either a well-defined path forward (e.g., the "fair share" formulae worked out by Justice Wilentz's three Mount Laurel judges or Serrano v. Priest's district power equalization) or some painful shock to constituents (e.g., the New Jersey Supreme Court's shutting down schools in September, or Wilebtz's so-called 'builder's remedy' of mandamus, allowing developers to build precisely what they proposed in the suburbs).

Maybe Judge Treu or an appellate court will provide that necessary "crisp" element -- some specific definition of what constitutes too much due process, for instance. Until then, I guess I dispute the idea that this sort of opinion, defining neither precise wrong nor precise remedy, is a step in the right direction.

Posted by: Rick Hills | Jun 13, 2014 1:36:30 PM

Rick - while I agree the short opinion is incoherent for several reasons, I don't think the judge's failure to dictate the specific changes to the laws he struck down is one of them. To start, as David Levine points out, he stayed the order and so, at least for now, no temporary fix is required; the statutes continue in force.

More broadly, your argument that the political dynamics in California mean that the legislature will merely "dither" and "pretend" to fix the system assumes that there's some objectively identifiable standard that the judge should have applied (and that the legislature will be either unable or unwilling to apply itself). The comparative literature on social rights has long recognized the practical benefits and democratic-legitimacy payoff in remedies like this one. A court deliberately weakens either its interpretation of a constitutional right or, as here, the remedy to return some measure of control to the political branches that are arguably better situated to work out the details of how to comply.

It's always possible that the political response will be inadequate as you predict but, especially in a case like this where the court's decision rests on complicated and disputed empirical judgments, assessments of adequacy will inevitably diverge, likely along political lines. The signature benefit of a weak remedy like this is that the legislature, rather than the court, will ultimately make that call and its response can be subject to political debate.

Posted by: Brian Ray | Jun 13, 2014 12:02:10 AM

Rick --

This type of remedy seems pretty common in the school finance cases (surely a result of efficiency clauses being pretty unique in american constitutional law). Anyway, we almost never see anything approaching Mt. Laurel II. (The Rose case out of Kentucky might be the most aggressive, but some real expert can correct me if I'm wrong.) Instead, what we see is long periods where state financing schemes are unconstitutional with no remedy (Texas's school financing system has been unconstitutional for one reason or another for most of the last 25 years). Which I suppose makes your point.

Posted by: D.Schleicher | Jun 12, 2014 1:31:50 PM

Note that the judge's opinion is a tentative decision. On p 15, all injunctions are stayed pending appeal and the plaintiffs are directed to draft proposed findings and a proposed judgment under the California Rules of Court. Perhaps some of the detail will emerge from that process, putting everyone in a better position to assess what is likely to happen on the judicial and legislative fronts.

Posted by: David Levine | Jun 12, 2014 12:04:08 PM

Rick, perhaps I should clarify. We have a number of states without teacher tenure. The pattern of lower-income districts having worse outcomes remains. IIRC, once average district family outcome is taken into account, most other variables have a very small association.

BTW, 'One would need a carefully controlled experiment to tease apart the various variables that affect student outcomes. ' is not a factually correct statement. The entanglement would make things more difficult to ascertain.

Posted by: Barry | Jun 12, 2014 9:52:13 AM

I am not sure that such a comparison would refute Judge Treu's reasoning, Barry: Teacher tenure of a particularly strong variety might be sufficient, but not necessary, to deprive kids of a good education. Schools lacking strong teacher tenure might be lousy for different reasons, some of which might be collinear with the absence of tenure.

One would need a carefully controlled experiment to tease apart the various variables that affect student outcomes. Judge Treu did not do any of this hard work in his opinion, just as he did not do the hard work of defining a precise remedy. Perhaps these two omissions are related to each other.

Posted by: Rick Hills | Jun 11, 2014 10:36:27 PM

"The problem is that Judge Treu has identified a state of affairs that deprives kids -- especially low-income kids -- of educational quality, but he has not specified how this state of affairs should be remedied. The result is judicial incoherence."

That idea (tenure = depriving low-income kids of education)
can be refuted by a quick review of how things work in states without teacher tenure.

Posted by: Barry | Jun 11, 2014 9:28:43 PM

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