Brown v Board of Education No.(2)? Maybe.

June 15th, 2014 by Tom Ogg

On 10 June 2014, Judge Treu of the Superior Court of California struck down three laws relating to teacher retention as unconstitutional.  Such is the significance of the case, he began his judgment with a quotation from Brown v Board of Education (1954) 347 US 483.  The case of the plaintiffs (as there they are still called) was summarised by Judge Treu as follows:

“Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.  Plaintiffs’ equal protection claims assert that the Challenged Statutes violate their fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state“.

The laws that were struck down were:

  • A “Permanent Employment Statute” whereby tenure is granted to teachers after approximately two years;
  • A set of “Dismissal Statutes” which are apparently “too time consuming and too expensive” for officials to contemplate using to dismiss ineffective teachers.  The evidence before the court was that dismissing a teacher costs $50,000 to $450,000 and takes between two and ten years.
  • A “Last-In-First-Out Statute”, which requires that when redundancies are to be made, the most junior staff must be dismissed before more senior staff.

The case, Vergara v State of California, was brought in the name of nine California public school students (i.e. state school students), and was funded by telecoms millionaire David Welch by means of an advocacy group called Students Matter.

The case is interesting because (as the Judge notes), it is ostensibly not about educational equality, but about the quality of education.  The evidence relating to the impact of those teachers on their students, Judge Treu held, “is compelling.  Indeed, it shocks the conscience“.  The evidence he refers to states that the 1-3% of teachers in California who are “grossly ineffective” cost the students in their respective classrooms $1.4 million in lifetime earnings per teacher (when lost earnings of all students in that class are summed).   The Economist claims that teacher quality is more important than class size, income level, or access to high-tech equipment in influencing educational outcomes.

Whatever you think of the politics of the case, it is illustration of the global trend of activist groups turning to the courts to achieve their aims.  In the UK, most of the big education cases have been reactions to changes to policy – see for example the Building Schools for the Future and English GCSE judicial reviews, and the mooted JR of the new rules on taking holidays during school terms.  The Vergara case, however, is different because it is a direct challenge to an established orthodoxy.  An equivalent legal challenge in the UK might, for example, be to the grammar school system (though I doubt the evidence in such a case would be nearly as striking as in Vergana).

Vergana is also interesting because it reflects a longer-term focus in academia on how ‘teacher quality’ is important to educational outcomes: see the world leading research produced by the Centre for Educational Policy Analysis at Stanford University.  As UK judicial reviews have tended to be reactive in nature, the evidence relating to the issue of concern has usually been scanty.  See for example the tuition fees judicial review (in which, as with the above JRs, 11KBW members were prominent).  There, Elias LJ noted: “The debate before us has consisted of each side marshalling arguments directed largely to predicting what the cumulative outcome of the various measures will be… In my judgment, at this stage it is all too uncertain and it would be wrong for the court to find disparate impact where that is neither an obvious nor even a strong inference from the facts.

Putting aside the other grounds on which Elias LJ found that claim to be unfounded, perhaps what Vergana illustrates is the value of pursuing a case once the academics have done their research, and not before (putting aside problems of delay, which are often surmountable).  The employment tribunal fees judicial review, in the which the court in effect told the claimants to come back when (or if) there is enough evidence to determine the substantive issue, is perhaps another illustration of this idea.  The extent to which concrete evidence, rather than speculative evidence, might affect the merits of a case heard by an English court on a matter of social policy would be interesting to see.

The ruling made in Vergana is stayed pending appeal, and has caused a considerable political storm in the USA.  I wonder, though, whether in the meantime it will inspire solicitors working in education law to spend more time with education academics, or to try to persuade groups like the Sutton Trust to take the legal route?

Thomas Ogg

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