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.