by Ann C. Hodges, Professor of Law, University of Richmond School of Law
Reading the opinion of Judge Treu in Vergara v. California, one gets the sense that the state did not fight very hard to defend its teacher tenure protections from constitutional challenge. From the judge’s recitation of the evidence, it appears that the state “defendant” conceded or provided evidence that there were thousands of grossly ineffective teachers in the California system, that school administrators didn’t bother to try to fire them because they thought it was too hard, that poor teachers adversely affect students’ education and that poor teachers are disproportionately found in schools with large populations of minority and low income students.
Based on this evidence, much of it generously submitted by the state defendant, Judge Treu found that the laws that provide teachers with tenure, due process prior to termination and seniority protection from layoff deprive minority and low income students of their fundamental interest in an education of equal quality. Further, and not surprisingly given the recitation of the evidence, the judge found that the defendants did not show a compelling interest to meet the high burden required by the application of strict scrutiny to these laws.
The California statutes at issue included the following: 1) the statute that provides for teacher tenure after a two year probationary period; 2) the statutes that provide due process for tenured teachers that school districts intend to terminate; and 3) the statute that provides for layoffs on the basis of seniority, with limited exceptions. The judge held that each of these statutes denied students a quality education by allowing poor teachers to remain in the classroom. While the opinion mentions that two unions representing teachers were permitted to intervene, there is little mention of any evidence supportive of the statutes at issue, which might have provided the justification required to establish their constitutionality.
Tenure and seniority protections were instituted many years ago, long before the widespread unionization of education, in response the practice of terminating teachers regardless of their ability. “To the victor belong the spoils”, the rallying cry of Andrew Jackson’s supporters, was not a phenomenon limited to federal employment. Prior to tenure, teachers also were terminated for political, partisan and arbitrary reasons, threatening the education of students by undermining the professionalism of teaching. Experience and quality gave way to political partisanship and power, discouraging talented teachers from entering and remaining in the profession. Tenure statutes require employers to show cause to terminate a teacher, once the teacher earns tenure during a probationary period by demonstrating effectiveness.
Today, in the absence of tenure, we can imagine a termination for failing the star athlete or the powerful politician’s child or disagreeing with the principal or school superintendent. While academic freedom was not a primary rationale for the institution of tenure at the elementary and secondary level, given today’s disputes about curriculum we can also imagine terminations for encouraging students to read books a parent objects to or even for teaching evolution. Accordingly, although tenure may make it more difficult to terminate a poor teacher than a regime where teachers can be fired for any reason or no reason at all, the absence of tenure allows termination of excellent teachers for any arbitrary or political reason. History demonstrates that this will occur in the absence of tenure. Yet Judge Treu’s opinion makes no mention of this benefit of tenure.
Additionally, the job security that comes with tenure and seniority protections against layoff encourages quality teachers to remain in a profession with relatively low pay. Historically, government employment has provided lower pay than the private sector, but better benefits. While seniority may require an employer to retain a less talented senior teacher and lay off a more talented junior teacher, its absence allows a cash-strapped government to reduce expenses by terminating experienced and talented senior teachers while retaining new and inexperienced junior teachers, not because they will provide a better education but to save money that can be used for purposes deemed more politically desirable at the moment. It is doubtful that low income and minority students would be the winners in such a regime. And many studies show a strong relationship between experience and quality teaching. The ineffective senior teacher is the exception rather than the norm. Again, this benefit of job protection is not mentioned in the decision.
There may be some legitimate concerns about the California tenure statutes. For example, the two-year probationary period, which requires notice mid-spring of nonrenewal to preclude attachment of tenure, may be shorter than needed to assess teacher quality. But throwing the baby out with the bath water seems unlikely to improve education for low income and minority students.
This litigation was funded by a Silicon Valley entrepreneur. One wonders why he chose this method of attempting to remedy the educational deficits that plague many schools, particularly schools with significant populations of minority and low income students. Of course, there is no dispute that these students deserve a quality education and that poor teachers who do not improve should leave the profession. Yet the attack on teacher tenure and seniority seems of a piece with similar attacks by conservative politicians, which ignore the reasons for these laws. In many situations, these attacks also seem motivated by a desire to limit the political clout of the teachers unions, which is typically, though not exclusively, supportive of Democrats.
The problem of educational quality is complex and the solutions not simplistic. Absent political will, creative thinking, and substantial and broad-based investment of resources, no comprehensive fix will be forthcoming. Depriving teachers of job protection and returning to the days of political decisions regarding teacher employment will not serve students who have no political power, and will harm the profession and public education in general. It is sad that the parents of low income students were convinced that participation in this lawsuit would improve their schools.