Is teacher tenure across the country at risk because of the June 10 California decision? Not yet — and not really. Here are five things you need to know about teachers, tenure and Vergara v. California.
1) Nothing is happening yet.
Vergara v. California is a single decision at a state trial court level. The Los Angeles County Superior Court case will be appealed, and the judge has stayed the decision pending appeal, so it will not even have an immediate effect in Los Angeles.
2) Tenure, seniority and dismissal procedures were all challenged.
The plaintiffs — a non-profit group called Students Matter, with the lawsuit financed by Silicon Valley millionaire David Welch — said specific California laws about hiring and firing teachers make it almost impossible to fire bad teachers, and disproportionately inflict bad teachers on poor and minority children. The specific laws fall into three categories: tenure, seniority, and dismissal processes.
The challenge is based on unequal education. Politico summarizes the issue well:
“The plaintiffs went after five laws that require administrators to decide whether a rookie teacher deserves tenure after just 16 months in the classroom; require a lengthy and often costly process before a teacher can be fired; and protect veteran teachers from layoffs, even if they are less effective than their younger colleagues. They put on evidence that firing a teacher can take so long and cost so much, some districts decide instead to shuffle the worst or least experienced educators to low-income schools, in what’s known as ‘the dance of the lemons.’”
3) Tenure protects teachers from political and arbitrary firing.
Tenure laws say that a teacher who has been awarded tenure can only be dismissed for cause. Without tenure, a teacher can be dismissed for any reason or for no reason at all.
In theory, beginning teachers are mentored and evaluated frequently. Those who do not prove to be good teachers within the first years of teaching are not awarded tenure. In California, tenure is granted after only 16 months. In other states, the time period is longer. The court’s opinion said that “32 states have a three year period, and nine states have four or five. California is one of only five outlier states with a period of two years or less. Four states have no tenure system at all.”
Tenure protects teachers from arbitrary firing. Absent this protection, a teacher could be fired for political reasons, or for assigning a book that parents object to, or because the principal wants to hire her brother-in-law. The Washington Post notes that tenure “was first adopted by New Jersey in 1909 to protect teachers from firings on the basis of race, pregnancy, politics or other arbitrary factors.”
The tenure system breaks down when evaluation and mentoring fail, which is often the case. Tenure doesn’t work if there’s no realistic and careful evaluation before granting tenure. Teacher after teacher can tell about principals who observed them twice a year for five minutes and based an evaluation on that skimpy evidence.
4) Bad teachers can be fired.
Of course they can. Even with tenure, a teacher can still be fired for cause.
Different laws for firing apply in different states and districts, and under different contracts. New York was long known for rules that made it extremely difficult to fire bad teachers.
Bad teachers can be fired, but that may be difficult and time-consuming, and principals and school districts often avoid the issue. Evidence presented in the case said that Los Angeles had 350 “grossly ineffective” teachers that it wanted to fire — but it had not started dismissal proceedings against any of them.
5) Good teachers vastly outnumber bad teachers.
The court’s preliminary ruling can be summarized as “teachers deserve due process before losing their jobs, but the current statute gives them too much protection, so we are taking it all away.”
In the judge’s ruling, he cited an estimate that one to three percent of California’s teachers are “bad teachers.”
The effect of abolishing tenure is to abolish protection for 100 percent of teachers in order to make it easier to fire 1-3 percent. In effect, the ruling strips protection from all of the good teachers, rather than penalizing the principals and school districts that fail to adequately evaluate before granting tenure and then fail again by not proceeding with dismissal when it is warranted.
Outside of school
Teachers may be the most important in-school factor in student achievement. All in-school factors are trumped by the massive effects of out-of-school factors. The California ruling, of course, does nothing about the out-of-school factors and very little about the rest of the in-school environment. American Federation of Teachers president Randi Weingarten told the Washington Post :
“It’s surprising that the court, which used its bully pulpit when it came to criticizing teacher protections, did not spend one second discussing funding inequities, school segregation, high poverty or any other out-of-school or in-school factors that are proven to affect student achievement and our children.”
There’s an old saying: When all you have is a hammer, every problem looks like a nail.
The judge doesn’t have the authority to rewrite the tenure law to make it more effective. That’s up to the California legislature, which has not acted. The judge also doesn’t have the authority to rewrite firing procedures, also the province of the legislature. Nor does he have the power to give backbones to principals and superintendents or require them to carefully and diligently supervise and evaluate teachers before granting tenure and to promptly and fearlessly seek dismissals when warranted.
The judge doesn’t have the money to give to cash-strapped school districts to end technological disparities between students and schools, or to put counselors and school nurses in all schools, or to do any of the hundred other things that would actually make learning easier for kids in poverty.
All he has is the hammer of declaring a law unconstitutional, and he brought that hammer down.