A California Court Finds Teacher Tenure ‘Constitutionally Unsupportable’

James V. Shuls Director of Education Policy, Show-Me Institute
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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.”

Last-in, First-out Statutes: When California school districts decide to lay teachers off, state statutes require them to use a last-in, first-out (LIFO) policy. LIFO is designed to protect senior teachers at the expense of new teachers. It is a quality blind system that does not take into account the quality of the teacher. As Judge Treu pointed out, supporters of a LIFO system have to explain the positive impact of separating students from great teachers, while retaining incompetent ones. He states, “The logic of this position is unfathomable and therefore constitutionally unsupportable.”

Legally, the ruling in Vergara v. California carries no precedent for other states. In fact, only time will tell if this ruling stands in the California judicial system. Regardless of the outcome, this case will undoubtedly have a ripple effect for decades to come. We are still assessing the impact of California’s 1971 school finance case, Serrano v. Priest, which helped launch a string of school finance litigation around the country. In a similar way, Vergara v. California could lead to an avalanche of cases around the country where students from disadvantaged schools sue over the quality of education they are receiving.

Legally, there are still many questions to be resolved. In the court of public opinion, however, the ruling could not be clearer: Teacher tenure has been tried and it has been found wanting. You simply cannot make sense out of nonsense.

James V. Shuls, Ph.D., is the director of education policy at the Show-Me Institute, which promotes market solutions for Missouri public policy. Follow on Twitter @Shulsie