If the long-range outcome of Vergara were merely the death of tenure and LIFO, the servile posture of the lower-income family would be unaltered.

The recent opinion in Vergara v. California deserves the attention it has attracted – and more. It has implications – some good – beyond the weakening of public sector unions. The plaintiff child has successfully attacked both the state's system for tenuring and de-tenuring teachers and also the LIFO (last in, first out) statute that, in case of layoffs, protects teachers by time of service. If upheld on appeal, that would be a heap of change in the structure.

The court says the tenuring process is too short to allow good administrative judgment – effectively one year and a half. Thereafter, the de-tenuring process is torturous, very long, unpredictable – and expensive – to the district (the union covers teachers’ defense costs). Both practices are held to impair the quality of instruction and to do so in a manner uneven from child to child, thus violating their "fundamental right to equality of the educational experience.” These systemic wrongs are aggravated in districts serving low-income populations, intensifying the violation of equal protection. The seniority system (LIFO) has similar effects with the same conclusion. The case involves state law only. In striking down the tenure part of the system, Judge Rolf Treu emphasized these two sections of the state constitution:

Article I, Section 7(a): "A person may not be ... denied equal protection of the law."

Article IX, section (5): 'The legislature shall provide for a system of common schools ... supported in each district.”

He used both sources again in condemning LIFO. Favoring seniority, it is said, offends rationality and, like tenure, injures children without justification – especially the poor. Taken altogether, this is not equal protection.

I will address the two holdings in order, concentrating upon the tenure problem. As for the flaws in these statutes, Judge Treu relies on precedent construing the educational right of the child and the corresponding duties of the state. The (state) constitution "is the ultimate guarantee of a meaningful educational opportunity ... to the student" who also enjoys a "fundamental right to basic equality in public education.” The court thus perceives the right, first, as one of peculiar weight and significance; hence, second, one that must be satisfied by education of basically similar and proper quality for children in similar circumstances.

The history of judicial response to this two-fold claim in the courts of California is instructive. (more…)

Editor's note: This is the second of four guest posts on the future of teachers unions.

by Joe Williams

Joe Williams

When I was a cub reporter in my 20’s at a unionized (but open shop) newspaper in the Midwest, I waited about five years before I signed my union card and started paying dues to the Communications Workers of America. The delay wasn’t because I was cheap (though I was). It was out of principle: I had trouble supporting a union and a collective bargaining agreement which was at complete cross-purposes with my interests. I actually liked my job and wanted to keep it.

I was the youngest, least-senior reporter at a time in the early 1990’s when newspapers nationwide were just starting their cost-slashing death spirals, which meant I was watching colleagues take buyout after buyout, while position after position would subsequently go unfilled. The contract held that if there were layoffs, it was “Last In, First Out.” And rumors of layoffs were almost always in the air.

I understood the union had a job to do by representing the older folks who were worried that a cheaper (and perhaps more handsome) young worker might inch them out of a higher-paying job. But it just seemed stupid for me to pay dues to a union that was fighting hard to make sure I was going to be the chump who was teed-up to get tossed out onto the street. (After a few years, some new chumps came on board and I gave in to the argument that I had been a free-loader on the union contract for a long time.)

I mention this at the start of this post on the future of teacher unionism not because I want to hammer away at LIFO or the newspaper industry, but because I believe it is important to remember that self-interest is a pretty important factor in this discussion. Two considerations, in particular, are worth noting:

1. Teachers will continue to seek protection from teacher unions if they believe it is in their interest.

2. Unions will continue to operate using business models which are in the union’s interest. (more…)