A California Court Finds Teacher Tenure ‘Constitutionally Unsupportable’

When Marcelus McRae, lead co-counsel for the plaintiffs in Vergara v. California, offered his closing remarks he repeated a consistent theme: “You can’t make sense out of nonsense.” It seems the Superior Court of the State of California agrees with McRae.

On its face, this was a legal case that considered whether teacher tenure and other job protections violated California’s state constitution. At a more fundamental level, however, this was an evaluation of policies lauded by teachers unions throughout the country – teacher tenure, due process, and last-in, first-out provisions. For these policies to be found unconstitutional they first had to be proven to have an adverse effect on disadvantaged students; and indeed, they were.

Using unequivocal language, Judge Rolf Treu struck down each of the provisions challenged by nine California students.

Permanent Employment Statute (i.e., teacher tenure): Citing the work of economists Raj Chetty and Thomas Kane, the court recognized the critical role a teacher can play in the life of a child – for good or for ill. This evidence combined with testimony from many other witnesses proved that the state’s teacher tenure statutes resulted in “grossly ineffective teachers” obtaining jobs for life. The students most affected were those in high-poverty schools.

“Considering the effect of grossly ineffective teachers on students,” Judge Treu concluded. “It therefore cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said teachers hold their positions.”

Dismissal Statutes: Over the years, teachers unions have worked to codify into law cumbersome rules for the dismissal of teachers. This led to the creation of the now famous ‘rubber rooms’ in New York City, where teachers collect checks for years on end while they wait for ‘due process’ to run its course.

Judge Treu noted that classified employees of California school districts have due process, but that system looks nothing like the burdensome procedures in place for teachers. He asked, “Why, then, the need for the current tortuous process required by the dismissal statutes for teacher dismissals, which has been decried by both plaintiff and defense witnesses?” He went on to say that the laws governing teacher dismissal were not simply due process, they were “uber due process.”

The end result is a system that is “so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”