A couple of people have asked me what I thought of the ruling this week out of California, where a judge has decided that public school teacher tenure is unconstitutional. The argument is that K-12 tenure results in the retention of incompetent teachers, who then get disproportionately inflicted on poor and minority students in the lowest-performing schools. The disparate impact makes it an equal-protection violation.

There’s been a lot written on the policy merits — how many underperforming teachers are there, really? And what good will it do to help principals fire them when scores of qualified teachers aren’t exactly lining up to replace them? I won’t rehash those arguments, because they’re beside the point. Unless you would personally be willing to give someone a lifetime contract to mow your lawn or repair your furnace, I can’t imagine why you’d think this was a good idea in the schools. So I oppose tenure for K-12 teachers, a practice that lacks even the university system’s unconvincing rationale that it is necessary to protect cutting-edge thought.

That said, with the caveat that I Am Not a Lawyer, this does not seem like a very good ruling to me. Political partisans on both sides tend to treat “unconstitutional” as a synonym for “things I think oughtn’t to be allowed.” This is not correct, and moreover, it is profoundly destructive. The courts don’t owe reverent deference to the legislature, but I do think that we should restrict the meaning of the word “unconstitutional” to, well, things the constitution doesn’t allow, rather than expanding it to things the constitution shouldn’t allow. Every time we use the latter definition, we travel further down the road toward rule by unelected boards of elderly lawyers.

The state legislature of California should get rid of teacher tenure. But it hasn’t. I can see the temptation to airdrop in a judge to kill the thing off with some lightning-fast verbal jujitsu. On the other hand, a lot of good laws could easily be killed the same way. That danger is why our founders wisely chose to have the legislators do the legislating and restricted the judges to interpreting the words that other people wrote.

[Cross-posted at Bloomberg View]

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