More on the California teachers case

Judge Treu argues that job security rules in California violate the right to education because “über due process” for teachers threatened with dismissal makes it impossible to fire incompetent teachers. He might reflect on this problem. If a strict scrutiny test is now used to evaluate job security provisions, then henceforth students (and interest groups that use them as vehicles) can challenge every change in the rules–and, I suppose, not only changes to job security rules, but also to the curriculum and all other features of schooling. If a school district decides to reduce the number of music courses to make room for computer science, or vice versa, it will now have to show that the change is tailored to a compelling government interest. Raj Chetty will be dragged out again to show the effect of music or computer science on future income.

Or consider again job security. One of the reasons that employers–and not just public schools, but regular commercial firms, as well as universities and many private schools–offer job security is that employees value it so much. They’re willing to accept a lower salary in return for job security. The employer faces a tradeoff: it loses some ability to control employees, but it saves a lot of money, which it can use for other things. And so with the schools. If California is no longer allowed to offer job security, it will either need to pay teachers more (leaving less money to spend on students) or hire fewer teachers. Is that going to advance education? The court has no idea, indeed doesn’t seem to have given any thought to these issues.

The long and the short of it is that a judge is in no position to make these tradeoffs. If courts demand that schools justify reforms (to say nothing of existing rules) using a strict scrutiny test, seriously applied, schools will be frozen–afraid to make any changes lest they are sued by thousands of disappointed students (no doubt financed by interest groups) who claim that their right to education has been violated.