The Constitutionality Of Teacher Tenure

Last week in California a state-court judge declared that the state statute establishing teacher tenure violated the state constitutional right to an education.  The court held that the tenure statutes disproportionately adversely affected poor and minority students, because the worst teachers protected by the statute are assigned to their schools.  The evidence of the negative impact, the court found, “shocks the conscience.”

Much of the news coverage of the decision has focused on the impact on teachers’ unions — a powerful voice in the powerful field of public employee unions.  The head of one of the unions affected by the California ruling said that the judge fell prey to anti-union sentiment and rhetoric and that teachers were being unfairly scapegoated for the problems that exist in public education.  Those arguments will be tested:  the court’s decision is just the first step in what will likely be a long litigation and appeal process.

As I read the reports on the California decision, I had two reactions.  First, we’ve become an increasingly judge-driven society, in which courts and litigants are using constitutional provisions to overturn statutes and popular referendums.  We applaud court rulings when we agree with their effect, but a heightened judicial role is a two-way street.  I’m sure California teachers never dreamed that a constitutional right to education could be used to overturn a hard-won legislative victory on teacher tenure.  And judicial involvement in policy-making can be complicated:  if the existing California system of hiring and firing teachers is struck down, what will replace it?  Legislative enactments are detailed and specific and supplemented by regulation; judicial rulings are much more high level.

Second, the concept of tenure — which was a means of ensuring academic freedom at the college and post-graduate level — does not fit well at the elementary and secondary school level.  The idea was that professors who had proven their merit after years of work should be free to explore research or prepare writings that addressed controversial topics without worrying about being fired by those who disagreed with their conclusions.  How does that translate to the public school setting, where curriculums are increasingly dictated by federal and state laws and regulations?  In California, the state law overturned by the court seemed motivated less by notions of academic freedom and more by simple job preservation:  teachers became tenured after only two years, strict seniority rules required that the newest teachers would be laid off first, and a welter of rules and procedures made it practically impossible to discharge incompetent tenured teachers.

We can expect to see more efforts to use broadly phrased state constitutional provisions to modify existing public policy, and more wrangling about teachers.  They are on the front lines of public education and inevitably will be targets as people grow increasingly concerned about the state of our public schools and what to do about them.

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Sequestration And The Federal Courts

How foolish is managing the federal budget through the across-the-board “sequestration” process?  The federal judicial system provides a good illustration of the chaotic lunacy that prevails when the President and Members of Congress fail to do their jobs and enact thoughtful, considered budgets.

From a budgeting standpoint, the judiciary is unique.  Unlike other agencies and entities, it doesn’t operate grant programs or distribute benefit checks or buy advertising to discourage drunk driving or promulgate regulations.  Instead, it exists solely to resolve disputes and try those accused of federal crimes.  Its budget is spent largely on people — on judges and their law clerks, bailiffs and court reporters, docket clerks and security personnel — who make the system function smoothly.

Sequestration will require $350 million in cuts to the federal judicial system.  Because federal judges are appointed for life and will be paid regardless of how fiscally irresponsible the President and Congress may be, the cuts that sequestration brings will fall disproportionately on the other people who are part of the process.  As a result, court security operations will be impaired, federal oversight of those free on bond prior to trial and those paroled from federal prisons will be reduced, and jury trials and bankruptcy proceedings will be delayed due to lack of funds — among other consequences.

A capable court system is one of the bedrock requirements of a free, well-ordered society.  The role of federal courts has become increasingly important as new regulations are produced and challenged, as new federal crimes are created, and as courts are increasingly viewed as the ultimate arbiter of all manner of disputes.  Why, then, should federal courts be subject to the same across-the-board budgeting treatment as federal agencies and programs whose purpose is much less fundamental to the proper functioning of government and society?

The President and Congress need to start doing their jobs.

Big Gulps, Overreaching Government Regulations, Court Orders, And The New American Way

In New York City, a judge has blocked an effort by Mayor Michael Bloomberg to ban the sale of more than 16-ounce soft drinks in food service establishments.  The judge ruled that the ban was “arbitrary and capricious.”  Mayor Bloomberg vowed to appeal the court ruling.  This, in a nutshell, is how America works — or, more appropriately, doesn’t work — these days.

It goes like this:  The government imposes a silly, overly intrusive edict and claims it needs to do so to “promote health and safety” or hold down government spending.  The stated purpose of the New York City Big Gulp ban was to prevent obesity, a condition that affects many Gothamites, and thus reduce city health costs.  Never mind that obese people become obese for many reasons; Mayor Bloomberg decided to target big soda drinks.  Then an industry group challenges the regulation in court, taxpayer-funded government lawyers and the industry-funded lawyers fight about the issue, and eventually a judge makes a ruling.  Restraining orders get issued and appealed and the wheels of government grind to a halt while sideshow lawsuits addressing overreaching regulations command the public eye.

Does anyone think the framers of the Constitution would recognize our current government?  Who among them would believe that government would some day outlaw certain foods on the ground that citizens can’t be trusted to consume them in moderation?  Who among them would believe that one day judges would scrutinize and pass judgment on seemingly every government action?

We’ve strayed far from the initial concept of our Republic, where Americans were willing to fight and die for individual liberty and the right to representative government.  We’re not heading in the right direction.