Vergara, Cloward and Piven
Judicial activism bites the left.
BEST OF THE WEB TODAY
By JAMES TARANTO
online.wsj.com
June 12, 2014
A judge handed "a groundbreaking win" Tuesday to "attorneys who argued that state laws governing teacher layoffs, tenure and dismissals harm students by making them more likely to suffer from grossly ineffective instruction," the Los Angeles Times reported. Judge Rolf Treu stayed his ruling in Vergara v. California pending appeal, but if it stands, the Times avers, "the effect will be sweeping across California and possibly the nation."
The teachers union response was priceless:
"This decision today is an attack on teachers, which is a socially acceptable way to attack children," said Alex Caputo-Pearl, the president-elect of the Los Angeles teachers union. Instead of providing for smaller classes or more counselors, "you attack teacher and student rights."
It's reminiscent of Otter's oration in "Animal House": "Isn't this an indictment of our educational institutions in general? . . . Isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America."
Of course the plaintiffs in the case are not attacking "teacher and student rights"; they argue that students' constitutional rights trump teachers' rights under the employment statutes at issue, which Judge Treu termed "uber due process" ("overdue," the English equivalent, not quite capturing the meaning).
The ruling occasioned some cognitive dissonance for Kevin Welner, director of the National Education Policy Center. His sympathies are with the unions: "I can't help but feel troubled by the attack on teachers and their hard-won rights," he writes. But he sees a "silver lining":
The decision gives real teeth to the state's Constitution, and that could be a very good thing. It's those teeth that I find fascinating, since an approach like that used by the Vergara judge could put California courts in a very different role--as a guarantor of educational equality--than we have thus far seen in the United States.
It seems to us Welner has it backward. It's settled law, dating to 1971, that the California Constitution establishes a right to an education; and, dating to 1954, that under the U.S. Constitution, an opportunity for an education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." (That's Chief Justice Earl Warren in Brown v. Board of Education.)
The argument in Vergara is clear enough: By forcing schools to favor incompetent senior teachers over capable junior ones, the statutes deprive the incompetent teachers' students of their right to an education. And because districts with large proportions of poor or minority families have a higher proportion of incompetent teachers, the state fails in its obligation to provide education on equal terms.
The California Supreme Court had applied the same legal premises to hold unconstitutional funding disparities among districts and one district's decision to end the school year six weeks early owing to a budgetary shortfall. Vergara doesn't break new legal ground so much as apply precedent in a way that threatens the education establishment. It's a case of judicial activism coming back to bite the left.
One way of thinking about the lawsuit is as a successful application of a variant of the Cloward-Piven strategy, put forward by leftist theorists Richard Cloward and Frances Fox Piven in a 1966 article for The Nation. Their focus was on welfare, not education. "The strategy is based on the fact that a vast discrepancy exists between the benefits to which people are entitled under public welfare programs and the sums which they actually receive," they explained.
Their solution: "a massive drive to recruit the poor onto the welfare rolls." They thought that would place an intolerable strain on state and local governments, creating a crisis that would force the federal government to act by establishing "national programs to eliminate poverty by the outright redistribution of income":
In order to generate a crisis, the poor must obtain benefits which they have forfeited. Until now, they have been inhibited from asserting claims by self-protective devices within the welfare system: its capacity to limit information, to intimidate applicants, to demoralize recipients, and arbitrarily to deny lawful claims. . . . Organizers will have to become advocates in order to deal effectively with improper rejections and terminations. The advocate's task is to appraise the circumstances of each case, to argue its merits before welfare, to threaten legal action if satisfaction is not given. . . . Hearings and court actions will require lawyers. . . . However, most cases will not require an expert knowledge of law, but only of welfare regulations; the rules can be learned by laymen, including welfare recipients themselves (who can help to man "information and advocacy" centers). . . . Advocacy must be supplemented by organized demonstrations to create a climate of militancy that will overcome the invidious and immobilizing attitudes which many potential recipients hold toward being "on welfare." In such a climate, many more poor people are likely to become their own advocates and will not need to rely on aid from organizers. This was supposed to hold together the fraying Democratic urban coalition of the day by uniting "poor whites and poor Negroes . . . in an expressly lower-class movement." In response, "a national Democratic administration would be constrained to advance a federal solution to poverty that would override local welfare failures, local class and racial conflicts and local revenue dilemmas."
The flaw in the plan seems obvious, at least in retrospect: To succeed, it would require spurring to action huge numbers of people who theretofore were not even enterprising enough to get themselves on the welfare rolls. Accomplishing this daunting task would require arduous work by armies of "organizers" and "advocates" who were evidently to be motivated only by ideology or good intentions.
Importantly, Cloward and Piven's attitude toward the welfare bureaucracy was an antagonistic one: "Because benefits are conditional under the present public welfare system, submission to arbitrary governmental power is regularly made the price of sustenance. People have been coerced into attending literacy classes or participating in medical or vocational rehabilitation regimes, on pain of having their benefits terminated." This they described as "the oppression of the working poor."
Later in the article, they advised undertaking "a massive educational campaign" to overcome "ignorance of welfare rights." It would include brochures and newspaper ads "describing benefits in simple, clear language, and urging people to seek their full entitlements." They do not seem to have noticed the disconnect in appealing to people by way of brochures and newspaper ads while seeking to liberate them from "literacy classes."
The bureaucratic antagonists in the Vergara case, the teachers unions, are a central part of today's Democratic coalition. But the national Democratic administration was constrained at least to pay lip service to the plaintiffs. Said Education Secretary Arne Duncan in a statement:
"This decision presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students' rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve."
The Vergara case uses more effective means in the pursuit of analogous ends. The plaintiffs are nine California public-school students who seek to vindicate their legal rights, of which they argue a self-interested bureaucracy is depriving them. By employing the courts rather than trying to start a political movement, they overcame the need to motivate massive numbers of apathetic citizens. Their own (and their parents') determination, coupled with capable legal representation, is sufficient to give them a chance at victory.
Well, only if it's upheld on appeal. Cloward and Piven were wrong about many things, but they were right that the interests of bureaucrats do not always align with those of their purported beneficiaries. |
