Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused almost exclusively on funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not changed what matters most: access to quality teachers.
This Article proposes a break from the traditional approach to litigating the constitutional right to education. Rather than constitutionalizing adequate or equal funding, courts should constitutionalize quality teaching. The recent success of the constitutional challenge to tenure offers the first step in this direction. But the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy. When evaluating claims that students have been deprived of their constitutional right to education, courts should first ensure that states equally distribute existing quality teachers, regardless of the supply. Courts should then address state policies that affect the supply of teachers, which include far more than just salaries. When those remedies still prove insufficient to ensure access to quality teachers, courts must ensure that the removal of ineffective teachers is possible.
TABLE OF CONTENTS INTRODUCTION I. THE FAILURE OF PUBLIC POLICY TO DELIVER TEACHING QUALITY A. The Impact of Quality Teaching. B. Shrinking Class Size C. Certifying and Credentialing Teachers D. Raising Teacher Salaries E. Paying Teachers for High Performance F. Identifying Teacher Effectiveness Through Student Test Scores G. Reasons for Policy Failure II. SCHOOL FINANCE LITIGATION: IGNORING AND OVERSIMPLIFYING THE CHALLENGES OF ACCESS TO QUALITY TEACHERS A. Courts that Ignore Teachers or Treat Them as Just One of Many Factors B. Courts that Analyze Teachers but Misunderstand Them 1. Ignoring the Teacher Pipeline 2. Oversimplifying the Teaching Labor Market C. The Outliers: Courts that Focus on Teachers D. Assessing the Effect of School Finance Remedies on Teachers E. Why Courts Must Deepen Their Analysis of Teachers 1. Market Forces Are Too Complex and Powerful for Individual Districts to Counteract 2. Race and Segregation Matter 3. States Cannot Be Trusted to Improve Teaching for Disadvantaged Districts 4. The Teaching Environment Matters as Much as Salary F. Navigating the Risks of Intervention III. REFORMING SCHOOL FINANCE LITIGATION'S APPROACH TO TEACHING A. Learning from the Constitutional Challenge to Tenure B. An Expanded and Nuanced Approach to Teaching Quality 1. Understanding the Problem Is Not Money, Tenure, or Any Other Single Factor 2. The Unequal Distribution of Quality Teachers Is Distinct from a Shortage 3. Improving Teacher Quality Through Recruitment, Retention, and Removal a. Ensuring Competitive Salaries b. Leveraging Teacher Pipelines c. Improving the Teaching Environment d. Managing Teacher Quality: Evaluations, Remediation, and Tenure CONCLUSION INTRODUCTION
Although social science studies and policy analyses uniformly recognize teacher quality as the primary factor affecting student achievement, (1) past litigation to enforce the constitutional right to education has primarily focused on money, largely ignoring teachers. (2) A surprising number of opinions do not even include the word "teacher." (3) The rest tend to relegate teacher quality to one line on the list of challenges that districts face, assuming that additional money will cure teaching inadequacies as easily as any other problem. (4) This monetary approach to the constitutional right to education has resulted in the popular moniker school finance litigation. (5)
Last year, however, a California trial court used that precedent to declare teacher tenure unconstitutional, reasoning that tenure was the reason why some schools have so many grossly ineffective teachers. (6) As recent scholarship demonstrates, numerous flaws plague the assumption that tenure causes bad teaching, (7) but the litigation offers important lessons for school finance litigation to follow. First, tenure challenges are attempting to systematically move the constitutional doctrines established in school finance litigation beyond just money. (8) Relying on broadly worded language from school finance precedent that guarantees students the right to an equal or quality education, tenure challenges substantiate the premise that any state policy that systematically and substantially impedes educational opportunity--whether financially or otherwise--is unconstitutional. (9) In this respect, the doctrinal theory embedded in the constitutional challenge to tenure expands the boundaries of the constitutional right to education. Second, the constitutional challenge to tenure focuses exclusively on the most important factor in educational outcomes: teacher quality. (10) This focus makes perfect sense. What good is a constitutional right to education if it cannot ensure students have good teachers? Moreover, this focus prevents other educational issues from obfuscating the most important issue of teacher quality.
These theoretical advances demand continued attention. This Article draws on these advances to propose a reinvigorated and refocused approach to litigating the constitutional right to education. While four decades of school finance litigation have closed or narrowed various funding gaps, many would argue it has done little to improve the substantive education students receive. (11) Its goals and effects have been too diffuse. If the movement is to remain relevant, it must mature and deepen its analysis of what matters most: teacher quality.
The fact that courts have not already shifted their focus to teachers, however, raises the question of why. One explanation is that courts have assumed that changes in funding structures would eventually trickle down to improve teacher quality. Experience has proven this assumption false. The other explanation is that courts recognize the challenge of improving teacher quality but believe it is too complex and politically charged for courts to engage. This concern has merit. Although everyone agrees that teacher quality is key to improving educational outcomes, states' strategies for improving teaching quality have been all over the board and achieved relatively little. (12) On average, poor and minority students are still exposed to inexperienced, uncredentialed, and unqualified teachers at twice the rate of other students. (13) Courts naturally would be reluctant to wade into a policy morass regarding teachers that others have struggled to resolve. Yet the difficulty and contentiousness of the issues surrounding the constitutional right to education are not new, nor have they stopped most courts from acting to enforce the right.
When students' constitutional right to education is in question, courts--more than any other government actor--must engage and protect the right, notwithstanding the challenges that doing so involves. (14) For instance, the extent to which money affected educational outcomes was far from clear when courts first began demanding adequate and equitable school finance systems in the 1970s. (15) Four decades later, aspects of the debate still finger, but courts have been able to consistently intervene on the principle that states must still take reasonable steps to act on what they do know about money and unequal access to educational opportunities. (16) In the absence of such judicial intervention, the complexity of educational problems too often serves as a convenient excuse for legislative inaction that, in effect, condones inequality and inadequacy. (17)
Today's challenges regarding teacher quality are no different. While the debate may continue over how to improve teacher quality, it is clear that quality teachers are central to educational outcomes and that states have failed to address the issue seriously. Judicial engagement on teacher quality can break this stalemate or recalcitrance where it exists. (18) To be clear, however, this does not mean that courts should devise their own education polices or settle social science disputes. Their role is to create a framework in which states will focus on evidence and problems that states might otherwise ignore, and take steps that states might otherwise refuse. (19) On this score, courts are particularly competent. (20) They have the ability to force parties to account for relevant evidence, to determine what the key issues are, to set standards for dealing with those issues, and to hold the parties accountable for failing to do so. (21) This does not entail setting policy. It entails forcing states to carry out their constitutional duties.
Toward that end, this Article proposes four careful steps. First, courts and states should take holistic approaches to improving teacher quality. Experience and social science teach that there are no silver bullets to improving education or teacher quality. Neither narrow attacks on tenure, nor any other singular aspect of teacher policy, are sufficient. As suggested above, teacher quality is affected by a multitude of factors other than just salary. Realistic remedies must, for instance, account for geography, labor market dynamics, the attractiveness of the teaching profession, segregation, the teaching environment, and structural inequalities between districts.
Second, courts and states should recognize that the unequal distribution of quality teachers is different than a shortage of quality teachers. Even if states cannot increase the supply of quality teachers, the analytical principles developed in school finance litigation should dictate that states fairly distribute the ones they have. (22) In many ways, this is...