The Supreme Court’s Union Decision Can Dramatically Improve California’s Education System

Tuesday, August 28, 2018
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The recent Supreme Court decision on Janus vs. ASFCME ruled that collecting public-sector union fees from employees who are not union members violates their First Amendment rights. The majority opinion interprets public-sector unions as political organizations in which effectively all union activity has significant political implications. Observers of the Janus decision agree that this ruling will depress public sector union membership and the dues that they collect.

Janus will have a potentially huge impact in California. Roughly one out of every four of the country’s unionized state and local government workers are in California. This reflects not just the size of the state, but the fact that the unionization rate for government workers in California is around 60 percent, roughly double the national average.

Janus presents a great opportunity to change the cozy quid pro quo relationships between unions and state and local politicians that have existed for decades. With less union money available for political contributions, there is hope that unions and state politicians will negotiate agreements that are less aligned with their individual interests, and more aligned with the interests of all Californians. If this happens, then California economic and social outcomes will improve considerably.

Many unionized state and local employees work in education, and common-sense reforms in teacher tenure, layoff, and dismissal rules can make a huge difference for K–12 school achievement. Teacher unions are among the most powerful political forces in the state. The 325,000 member California Teachers Association (CTA) typically spends more on political contributions than any other organization or individual. Former State Senate leader Don Perata has called the CTA “the co-equal fourth branch of state government.” 

Research shows that reforms regarding teacher tenure and other job protection rules would substantially improve educational outcomes. This is incredibly important, as California, which once had one of the best K–12 educational systems anywhere, is now ranked 42nd in the country.

The remarkably high costs of teacher tenure, layoff, and dismissal rules were highlighted in a 2012 California lawsuit, Vergara vs. California, which was brought by nine California schoolchildren. The lawsuit argued that these rules promote the continued employment of “grossly ineffective” teachers, which in turn violates the Constitution’s equal protection clause. In some cases, teacher tenure is awarded as soon as sixteen months on the job, layoffs are often based purely on seniority, and dismissal of a tenured teacher for cause can take up to a decade and can cost schools $450,00 per case. Not surprisingly, the State’s teacher dismissal rate is just .0007 percent. 

The expert witnesses for the plaintiffs provided substantial evidence that these rules have an enormous negative and persistent impact on student achievement and future economic outcomes, particularly for students from low-income families. Trial judge Rolf Treu, who ruled in favor of the plaintiffs (the nine schoolchildren) on all counts, wrote in his decision that “the evidence (about the impact of tenure and dismissal rules on education quality) is compelling, indeed it shocks the conscience.”

Harvard professor Thomas Kane presented an analysis that showed that a student who is taught by an ineffective teacher (one in the lowest five percent of the distribution) loses about nine and a half months of education, compared to an average teacher. Think about that for a moment: a school year is nine-months long, so Kane’s calculation suggests that students would actually be ahead of the game if they received no educational instruction whatsoever rather than spending a year in classroom with an ineffective teacher.

This matters enormously for future achievement. Harvard Professor Raj Chetty, another of the plaintiff’s experts, presented research that indicated that students who are taught by ineffective teachers earn less over their working career, they live in lower quality neighborhoods, they have more children while they are teenagers, and they save less. Hoover Institution Fellow Eric Hanushek estimated that lifetime income for a class of twenty students would rise by $625,000 if an ineffective teacher was replaced by an average teacher. One of the State’s expert witnesses— keep in mind that this was a person hired by the State to rebut the defendant’s experts—estimated that there may be more than 8,000 such teachers currently employed. Experts for both the defendants and the plaintiffs largely agreed that ineffective teachers were costly and that at least some of the rules needed reform.

The Vergara ruling was a great opportunity for the State and teacher unions to work together to reform these problematic rules. But reform didn’t happen. Instead, the state’s political machine shifted into high gear to fight the Vergara decision and back politically important teacher unions. Governor Jerry Brown and then Attorney General Kamala Harris filed an appeal almost immediately. The Los Angeles Times wrote that “Brown was under pressure to appeal (the decision) from teacher unions, who are among his biggest political backers.” The Times article also reported that Brown’s appeal faulted the trial judge, saying that he had "declined to provide a detailed statement of the factual and legal bases for [his] ruling." 

You can judge for yourself if Judge Treu’s decision lacks factual and legal bases for his ruling. Treu’s legal arguments drew on the landmark case of Brown vs. Board of Education, which ruled that segregated education violated the Constitution’s equal protection clause, while the factual basis of the case was at least partially agreed upon by experts for both the plaintiffs and the defendant.

Sadly, the State’s Appellate Court reversed the trial decision. The Appellate Court did not take issue with the estimate that there are thousands of grossly ineffective teachers in the state; they did not take take issue with the very negative impact of ineffective teachers on learning outcomes; nor did they take issue with the argument that poor students were most severely affected by ineffective teachers.

So why did the Appellate Court reverse the decision? They argued that the plaintiffs did not show that tenure and other rules do not “inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers . . .the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach.” 

If you are confused by this reasoning, then you are not alone. Poorly performing teachers will tend to be concentrated in districts with less generous funding and larger class sizes— exactly those districts that are composed primarily of low-income families. This means that children from low-income families will disproportionately suffer from poorly performing teachers, no matter how district administrators assign teachers within the district.

 With a 4–3 vote, the State’s Supreme Court declined to review the Appellate Court ruling. None of the four justices voting to decline to review the case wrote an opinion. But two of the three justices who voted to hear the case did write—including Justice Goodwin Liu who argued “we owe the . . . schoolchildren throughout California our transparent and reasoned judgment on whether the challenged statutes deprive a significant subset of students of their fundamental right to education and violate the constitutional guarantee of equal protection of the laws.”

Millions of dollars of political support have thus far proved to be a bridge too far to cross for California education reforms. Janus presents a new opportunity for California politicians and teacher unions to reform rules that exact enormous costs on tens of thousands of schoolchildren each year. By proactively creating a better K–12 educational system, teacher unions and politicians would finally make substantial new progress on the most important investments that the State makes.