Sixty years after Brown v. Board of Education enshrined the promise of educational equality as a constitutional right, the question of “separate but equal” in public schools has resurfaced, in a lawsuit that attempts to pit teachers’ labor rights against children’s rights to fair educational access.
When education reformers go after teachers’ labor protections, their seemingly morally unassailable line of attack is, “But what about the children?” It’s an alluring idea—don’t all children deserve a good education?—wrapped around a pernicious attack on labor rights: less union protection, ergo more “meritocracy” allowed to flourish in the education workforce. Labor advocates, however, challenge the reformers’ seemingly pro-student rationale with a more expansive definition of civil rights in schools: making a school community equitable and inclusive is a democratic project, not a mere matter of supply and demand.
A California Appeals Court recently struck down the central argument advanced by reform advocates backing the suit, called Vergara v. California: that California’s tenure policies—which afford a high level of job protection for teachers with seniority status—are unfair and discriminatory, because they protect “grossly ineffective” teachers and promote the clustering of “bad” teachers in poorer schools, with disproportionate impacts on poor students and students of color.“The challenged statutes do not inevitably lead to the assignment of more inexperienced teachers to schools serving poor and minority children,” the Court ruled. While “ineffective teachers” (according to the controversial statistical modeling Students Matter applies) were a problem, the judges acknowledged, this was not solely, or even primarily, the product of tenure policies.
The California Teachers Association argues that tenure protects due process, designed not to protect “bad” teachers, but to ensure “stability” and integrity in hiring and firing decisions. Their defense challenges a neoliberal reformist mentality that champions charter schools and other private-sector “solutions” to problems ascribed to publicly controlled institutions. This framework is driving a nationwide legal attack on collective bargaining rights, giving rise to Vergara-esque litigation attacking tenure policies in Minnesota and New York, featuring mediagenic young plaintiffs backed by well-heeled reform outfits.