Teacher Tenure Under Assault

Teacher tenure went down in California—and that could just be the start.

The group that emerged victorious Tuesday in its legal challenge to public school teacher tenure rules in California quickly said it was eyeing similar lawsuits in other states.

“I think there will be a reverberation across the country,” said Theodore J. Boutrous, one of the lawyers who filed the Vergara vs. California lawsuit in cooperation with the education reform group Students Matter. “There are a number of jurisdictions that are prime candidates because they have the same sort of seniority-based layoff system or quick tenure and tough dismissal. New York is one, but there are other states, too.”

A California judge ruled Tuesday that the state’s teacher tenure policies, which include seniority rules that make it very difficult to fire ineffective teachers, amounted to a violation of the students’ constitutional right to an equal education. Judge Rolf M. Treu wrote that the evidence presented by Students Matter “shocks the conscience,” and that “the challenged statutes impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.”

Boutrous said his group will focus first on defending a ruling that will almost certainly be appealed to the state Supreme Court. But he also said Students Matter is hoping to “engage with policymakers in New York and nationally to get this system fixed as soon as possible,” and the group is eyeing lawsuits in other states with similar teacher tenure laws, including New Jersey, Connecticut, Maryland, Minnesota, New Mexico, and Oregon.

If it holds up on appeal, the California ruling could be a watershed moment in education reform that could weaken tenure statues across the country. “This is gay marriage,” said Terry Mazany, who served as interim CEO of the Chicago Public Schools from 2010-2011. “Without a doubt, this could happen in other states.”

The National Education Association condemned the ruling, calling the lawsuit “yet another attempt by millionaires and corporate special interests to undermine the teaching profession.” In a statement Tuesday, NEA President Dennis Van Roekel said that the ruling “would make it harder to attract and retain quality teachers in our classrooms and ignores all research that shows experience is a key factor in effective teaching.”

Immediately after the ruling, teachers’ unions signaled they would appeal. “This will not be the last word,” American Federation of Teachers president Randi Weingarten said in a statement. “As this case makes it through an appeal, we will continue to do what we’ve done in state after state…No wealthy benefactor with an extreme agenda will detour us from our path to reclaim the promise of public education.”

California is rare in that it is one the five states with the shortest probation periods before teachers get tenure, and one of only 10 states that require school districts to consider seniority when laying off teachers (other states merely suggest it.) According to the National Council for Teacher Quality, a Washington-based organization that advocates for the reform of teacher evaluations, only California, Mississippi, North Dakota, South Carolina and Vermont have probationary periods of two years or less before a teacher gets tenure. Most states make teachers wait three years, but there are 10 states with four-to-five year waiting periods. And only California, Hawaii, Minnesota, New York, Pennsylvania, West Virginia, Kentucky, New Jersey, Oregon, and Wisconsin have rules that require districts to consider seniority when laying off teachers.

California teachers, in other words, get tenure more quickly and are harder to fire than teachers in other states.

Tenure itself is at the heart of the education reform debate roiling the country. Tenure originated in higher education, to protect professors from professional blowback for unpopular research, but tenure for K-12 teachers only took root in the 1960s as a way to protect educators from unjustified firings during an administration turnover. “It used to be you could be fired for arbitrary reasons, like if you got pregnant,” said Dr. William Koski, a professor at Stanford Law School who specializes in educational policy. “There was a belief that teachers needed to band together and protect themselves from these arbitrary and capricious firings, and so one of the primary early efforts of teacher’s unions was to protect teacher employment.” Teacher tenure soon became a key element of the union agenda, and most states have some form of public school tenure. Only Florida and North Carolina have no tenure at all, and Rhode Island has a modified form that allows teachers to be dismissed for bad performance.

Mazany said getting rid of teacher tenure could have unintended consequences, both positive and negative. It could cause collateral damage, he said, because “we really don’t have a set of tools and metrics to finely discern quality, and because abuse, favoritism and cronyism do exist.” And without tenure, teachers who disagree with principals and administrators are especially vulnerable, and higher-paid veteran teachers may have a “target on their backs.”

But Mazany also said eliminating teacher tenure could get rid of a “convenient scapegoat” for the problems in education. “The least effective teachers are disproportionately assigned to low income and minority students,” he said. “The teachers don’t make that assignment, the union doesn’t make that assignment, the district administration makes that assignment. You take away the bogey of tenure, so you no longer have that to blame.”

Some experts say the best analogy for understanding the current fight is the battle over school finance reform, which has been litigated in different states since the 1960s. “Those cases were basically saying you need to have equal resources in order to have equal educational opportunity,” said Jim Ryan, Dean of the Harvard Graduate School of Education. “This case is saying you have to have equally good teachers to have equally good opportunity. And like the finance litigation in other states, some lawsuits will be successful and some won’t.”

Regardless of their consequences, most agree that there’s nothing inherently malicious about teacher tenure it itself, despite what may be its negative consequences. “These types of provisions have a logic, and were well-meaning,” Mazany said. “Nobody said ‘lets set up teacher tenure to screw children.'”