Vergara v. State of California. I do not believe that this case will be affirmed on appeal; or if it is, I believe that it will be distinguished away to oblivion. Courts have had nothing but trouble trying to enforce “social rights” like the right to an education where those rights exist (in states like California, and in many foreign countries), and generally give up. To see why, consider Judge Treu’s holding that the two year probation period for new teachers results in discrimination against low-income and minority students who end up being stuck with grossly incompetent teachers whose incompetence could not be detected in such a short period. Yet he says that a 3-5 year period–which exists in most other states–would be adequate. Yet is there any evidence that a three to five year period rather than a two year period will enable authorities to screen out grossly incompetent teachers? None that the court cites. Nor does the court consider the benefits of a short period–that it might attract teachers who may otherwise go elsewhere (such as private schools).
Or consider his argument that the last-in-first-out rule (junior teachers are fired before senior teachers if layoffs are necessary) discriminates against low-income and minority students. LIFO systems are common in private industry, probably because, despite its defects, it rewards people who invest in the firm. Moreover, people value job security; if you don’t give it to them, you need to pay them more. The court does not provide any serious analysis of the benefits and cost of this system compared to realistic alternatives.
Finally, if, as the court says, these rules discriminate against low-income and minority students because school authorities funnel the grossly incompetent teachers whom they can’t fire to the weakest schools, isn’t the proper remedy to forbid this behavior directly? The court is never very clear whether it is enforcing a right to education (meaning a right not to be taught by a grossly incompetent teacher) or a right not to be discriminated against (a right not to be taught by a grossly incompetent teacher because you are a minority or are poor).
I don’t think that the California courts want to get into the business of running the public schools.