Why The California Tenure Decision Is Wrong and Will Hurt Disadvantaged Students


AP Photo/Damian Dovarganes

Silicon Valley entrepreneur and founder of Students Matter David Welch makes comments on the Vergara v. California lawsuit verdict in Los Angeles, Tuesday, June 10, 2014. A judge struck down tenure and other job protections for California's public school teachers as unconstitutional Tuesday, saying such laws harm students, especially poor and minority ones, by saddling them with bad teachers. In a landmark decision that could influence the gathering debate over tenure across the country, Los Angeles County Superior Court Judge Rolf Treu cited the historic case of Brown v. Board of Education in ruling that students have a fundamental right to equal education. 

Earlier this week, California Superior Court Judge Rolf Michael Treu held that California's teacher tenure system violated the state constitution. Treu's June 10 decision in Vergara v. California has been widely praised by education "reformers," up to and including President Barack Obama's worst cabinet appointment, Education Secretary Arne Duncan. But the decision is a disaster, a caricature of "legislation from the bench" by an inept judge.

The line of precedents cited by Treu to justify his extraordinary intervention are, in themselves, unexceptionable. The California courts have long held that under both the 14th Amendment of the U.S. Constitution and the state constitution education is a fundamental right that must be provided on equal terms. This doctrine is salutary; indeed, like Justice Thurgood Marshall, I think the Supreme Court erred by not reading the 14th Amendment the same way. 

The question, however, is whether this doctrine is applicable to these cases. There is one huge difference between this week's case and the previous holdings. Previous precedents involved cases where poor school districts were being treated differently under state law. In Serrano v. Priest I and II, the issue was one of poorer school districts receiving fewer resources, and Butt v. California concerned a school district closing six weeks early because of a lack of resources. These were clear cases of equal protection violations: Poor districts were treated differently than affluent ones in ways that almost certainly had deleterious consequences for the education of students in the former. 

In this case, however, there's no formally unequal treatment; the tenure system created by statute in California statute applies to all school districts. For most of the conservatives cynically praising Treu's decision, this should be the end of the discussion; to their thinking, as long as districts are treated the same there's no equal protection violation. But conservatives are wrong about this. A statute that formally treats people or groups the same can violate equal protection if the effect of the law is discriminatory. Education policy provides a particularly vivid example of the vacuity of the conservative premise that formally equal treatment is sufficient. Reading Brown v. Board to require nothing but the elimination of de jure discrimination in pupil assignment has allowed far too many local educational systems to be both separate and unequal in practice. 

So there's nothing wrong with a disparate impact analysis per se. But if Treu's opinion were to fulfill its premise, he needed to make the case that California's tenure system disproportionately burdens the educational opportunites of the poor. And it's here that his amateurish policy analysis manifestly fails to deliver the goods. 

The logic of Treu's holding runs like this:

  1. California's tenure system makes it very difficult to fire poor teachers;
  2. Poor teachers tend to be concentrated in districts with less affluent students; and therefore
  3. California's tenure system unconstitutionally discriminates against poor students. 

Treu's opinion provides relatively strong evidence for the first two points, but his logical train derails completely on point #3.


My strong objections to Treu's analysis here should not be construed as a full-throated defense of California's tenure practices. For reasons explained by the Atlantic's Dana Goldstein, California's tenure system is not one I would design if it were my job to craft educational policy for the state of California. But the 14th Amendment does not require optimal policy; it requires nondiscriminatory policy. And Treu's assertion that the tenure system discriminates against poor districts fails to address crucial "compared to what" questions. Treu considers the downside of tenure: making it more difficult to fire incompetent teachers. But there are also upsides: most importantly, job security makes teaching a more attractive profession to talented potential teachers. As Goldtsein observes, "For high-poverty schools, hiring is at least as big of a challenge as firing, and the Vergara decision does nothing to make it easier for the most struggling schools to attract or retain the best teacher candidates." Treu simply assumes, not only without evidence but in the face of logic and reason, that there is a group of highly skilled teachers waiting to fill the least desirable teaching jobs in the California school system, despite the fact that these jobs aren't particularly remunerative and, thanks to Treu, now must also be insecure. 

The imaginary group of skilled educators chomping at the bit to take the most challenging teaching jobs—even though Treu has made the jobs even less attractive—isn't the only can opener his poorly reasoned opinion assumes. He also seems to think that the identification of incompetent teachers is a straightforward process, and in the absence of tenure protections school systems would be run as pure meritocracies. In practice, however, evaluating teachers is a difficult, labor-intensive job, and giving administrators unfettered discretion is likely to lead to cronyism, discrimination, and people rewarded based on their willingness to suck up to superiors rather than their talent and initiative in teaching.

These questions aren't purely hypothetical; Treu's shaky causal logic could be tested in a number of ways. As Treu points out, many states provide less or no tenure protection to teachers. A serious opinion would then consider the question of whether these states are less likely to concentrate poor teachers in poor school districts. He might also consider whether teacher tenure has led to poor educational outcomes in other national contexts. But Treu's opinion is the opposite of serious; it just uncritically takes the shoddy arguments made by reflexive opponents of teacher's unions at face value and, even worse, reads them into the state constitution.

Educational opportunities in the United States remain tragically unequal. But clumsy, unjustified judicial policy-making will make these problems worse before it makes them better. And the California state constitution does not require the California legislature to agree with Michelle Rhee


The motivated reasoning on display here is ugly and sad. We know Scott loves all things union. And Michelle Rhee is a favorite target when the punched hippies punch back. But really, Scott, you are a shame to lawyers everywhere.

Why on Earth would the hiring and firing of teachers be any more prone to your parade of horribles than any other position? If tenure is necessary for teachers, it's necessary for every position in local government that is hard to evaluate, which is all of them.

The defenders of teachers want them to be treated and paid like professionals in every way except evaluation and termination. In those areas they declare teaching to be a sort of ineffable magic that defies rational analysis.

High stakes testing may not be the answer, but tenure is an obvious part of the structure that ensures that poor kids get left behind. Teachers will never get paid what they deserve while arguing that it is impossible for anyone else to understand why they deserve it.

What an interesting precedent.... Would this work the same way?

1. California's charter school law makes it very difficult to close substandard charter schools;

2. Substandard charter schools tend to be concentrated in districts with less affluent students; and therefore

3. California's charter school law unconstitutionally discriminates against poor students.

The good assistant professor is terribly wrong in his argument. He states:

"In practice, however, evaluating teachers is a difficult, labor-intensive job, and giving administrators unfettered discretion is likely to lead to cronyism, discrimination, and people rewarded based on their willingness to suck up to superiors rather than their talent and initiative in teaching."

This invalidates his entire piece and demonstartes he knows nothing of what he would choose to comment on.

Evaluating teachers is not difficult at all. One can sit in a classroom for less than a half hour and know if this is a person who is doing well or not. Do they use proper English? Do they ask interesting, thought provoking questions? Do they know their topic well, and if so, how well? Can they engage the students?

If you can answer those four questions you have it figured out. If the answer to any one of them is 'no' you have a teacher you need to be rid of. That is just how difficult and labor intensive and time-consuming it is.

Where some challenges may lie is how to develop teachers who do know their subject but just need some help in engaging their students. In order to do so you have to have teachers who are interested in improving. If not, there is another sign someone needs to go.

That is one of the problems with the tenure system in most public schools districts. Someone gets locked in and they are set, no need to improve or make much attempt to do anything to engage and educate children. "Just give me my classroom, leave me alone and give me my check. Students, well, I am a great teacher and if they want to learn they will. Besides, none of them care anyway, they just want to stare at their cell phone screens. I can't do anything about that." I cannot tell you how many times I have heard this type of response from someone who has been stealing from the system - and ultimately the children - for years.

If they cannot engage the children, send them away. How does one do so? By constantly improving and increasing their subject specific and professional knowledge base. Just as knowledge is not a fixed quantity, neither are students, or their needs. Each student is an individual with different wants, viewpoints, thoughts and needs. An effective teacher can bring them all together in a classroom setting, find interesting ways to bring the necessary knowledge to them and creative ways for them to express their learning of it.

Inner city and high poverty areas are even more in need of such folks. Why? Because the home those students come from is likely of low education background and in order to break that cycle one has to offer a reason to come to class and be interested in what is going on. Many of these students cannot think beyond the end of the week because of the poverty and despair and so this teacher must be a special one to let them know 'there is life beyond this moment and this neighborhood and you can have some of it if you want.' If you can't do that, stay out of that classroom.

Will you reach 100% all the time? Nope. But you can get 85-90% of them on board and that is what is needed. If you have a low income or inner city school filled with these types of teachers you start to make a change.

Of course, this also means that you need an administrator who is endowed with the same characteristics of love, intelligence, self motivation and service. My experience shows me that usually the lowest performing schools in the least desirable areas have an administrator who is not, who tries to run the school like a dictator and not a serious minded, fair but firm, educational leader who also understands what the idea of forgiveness is. Remember, these are children we are dealing with. Finally, the problem does not start in high school. Students do not come through a K-5 situation with great teachers and administrators, go to a stellar middle school and then get dumped in a terribly managed high school. This is a systemic problem where most of these neighborhoods have bad school staffing K-12, all protected by tenure.

There are people willing to go there and do the job needed, with love, concern, compassion and talent. They often get driven away shortly after placement by the rest of a terrible staff around them. The current system leads to the exact type of "cronyism, discrimination, and people rewarded based on their willingness to suck up to superiors rather than their talent and initiative in teaching" the author so frightfully predicts. As long as terrible teachers are protected simply by their union dues, the problem will never get fixed and students will continue to have their present and futures stolen.

Dr. Lemiuex, Randi Randi Weingarten (American Federation of Teachers),
Joshua Pechthalt (California Federation of Teachers) and anyone else whining about this - shut up and go do something about it. There are millions of kids who want to learn and need to learn. Join me in working in the trenches every day because every student you reach is another better able to help others. I know from first hand experience and I am so proud to see my own former students who have gotten into education and help their students every day. Kudos to them and all of the other teachers who really do work hard. Nuts to the rest and please get out of everyone else's way.

DUD 44DUB, you obviously don't know about all the ways AFT does work to help member teachers find positive ways to improve education through on-line lesson and class management resources and workshops. What do these millionaire "reformers" do? They try to get tax dollars to buy their products--charter schools and educational technology ( toys.) One takes money out of the school system the other adds support for over burdened teachers. I work in a low income school so I can say you have a fair assessment of the poverty problems. But my administration and faculty works like a family because our students DO matter to us. Tenure gives these kids stability they miss at home. The really important stuff we do can't be reduced to scores on teacher evaluations or tests scores. The real problem is teacher turn over from burn out of all the latest educational reformers' unfunded mandates and paperwork.


I don't know you or the folks at your school but there are a couple of points to make:

1 - It is good that your school staff works together as a family to try to help the students who enter your doors each day. You are exactly right that stability at school may be the only positive constant they have. But the flaw is when you have one, two or a handful of folks who don't play as part of that team. That is what so many students, including those in the lawsuit, are concerned about. Those tend to filter down to the lowest performing schools because they are tenured, they get surplussed at the end of a year and then no one is willing to pick them up so they get placed at an often times, low income, high difficulty school that has trouble recruiting staff to come there a few days before the start of a new year. They just sort of settle at the bottom and are fully protected with their job while stealing from the future and a year of education from students and their salaries from taxpayers. Of course this does not apply to every teacher at every low income school, but after having spent my first year out of the classroom and in a district supervisory spot for one of the poorest and lowest performing districts in our country I can say that regularly happens with some surety and evidence to back the claim up. It becomes an ugly game of non-performance. Students know teachers (once again, some not all) don't care and aren't teaching their subject, and so if students stay somewhat behaved they get to hang out and get passed without doing anything and the teacher does the same. In all honesty, how many students will back out of that deal? Some, but others may just stay silent, try to get what they can out of the class and not speak up due to peer pressure. This is a win-lose situation where the teacher wins because they get paid but the students and society lose because the students come away with nothing. Having worked under similar conditions for too many years to mention, it was frustrating, but I always knew what my job was and that I could look myself in the eye in the mirror and know I was earning my salary as a non-union employee. Admin gets in on the action as well and that is why the states must have tests, to try to hold adults accountable. When one has good school based leaders, something many impoverished areas also lack for the same reasons as stated above regarding teachers, then nothing changes. Those schools need the best leaders. Seasoned, but with a streak of independence, to get the job done by any means necessary. When someone good does get placed in that situation and is burdened with those who would choose not to improve and are protected by tenure, you have a no win situation.

2 - It doesn't matter what the 'nouveau programme du moment' is, they all have the same foundations and one needs to learn to tailor the program to their plan of daily action. You know what your students need so do it and figure out how to term it with the new jargon. The paperwork can be overwhelming, but work together as a team if it is too much. "Let's do your paperwork today and we'll get mine tomorrow." You'll develop a system to get things accomplished. And no, I was never a saint in the eyes of my administration, in fact I was usually a thorn in their side calling them out on every misstep. Whenever a new program came around my peers always looked to me to be the first to question it, and question and criticize it I did. And of course I would joke with my peers, "Hey, they can't fire me - they were dumb enough to give me tenure."

3 - It's nice that AFT does some thing to try to help teachers improve, but that should be an innate desire whether the union is there or not. Further, it should be the responsibility of every school leader - building and district - to help teachers improve. That is their job. But in order to do so, they must be a good teacher themselves - which many are not. If they see a teacher who is struggling they need to sit down and work with that teacher, as a professional, to improve upholding the administrator's role and responsibility as a professional. They need to be able to go in a model a lesson for that teacher demonstrating how to better reach students. When that happens teachers see that it can be done with their students and in their classroom. If an administrator can't do that they need to be excused. When a district sees a failing school they need to look at the administration first and see why they are failing and then start to look at the teaching staff.

I don't know of a great teacher who has ever been dismissed for poor performance due to lack of tenure issues. There are millions of teachers in America, so I am not saying it has never happened, but I don't know of any cases of it. I do know of many who have been told they will not be allowed to return because they were the low person in service or did not have tenure while someone who was very low performing was kept instead. There is that innate fear of being able to be fired by the lunatic principal who you just don't see eye to eye with. The question would be, if that person is such a nut, why would you want to stay at that school and be in that environment? There is the idea of running out on the kids, the possibility of having one's reputation tarnished by such a unseemly person, but I do think that those cases are/would be few and far between. I feel that most principals want to keep high performing teachers because even if they don't care for the teacher, they tend to reflect well on the school at test time. I think teachers make too big of a deal out of tenure and too many take advantage of it to do a less than acceptable job.

Education is not that hard but many people, even if they think they have the best of intentions, do a terrible disservice to all when they stick their noses in. In the public sector there does have to be oversight and accountability, but if I am hired as a professional (something many teachers are clamoring to be termed as) then treat me as one and let me do my job. Do away with tenure and if I fail, kick me to the curb, but if my students succeed, then I stay. The higher one moves in grades K-12, the more latitude there needs to be and consideration for what level the students came in on. If I am supposed to teach Algebra II and my students have been passed along for all these many years without really knowing how to do any math, then I should not be held accountable for the failings of others but should be judged on how much growth my students had in their year with me. Even if my students score low but show good growth, I am not sure you could find a principal who would show that person the door. But perhaps it would really demonstrate why others need to be.

We lose in the current situation because we have wasted a year in several children's lives and they cannot get it back, but we can do better than to let someone who is tenured continue that malaise year after year. You don't sound as though you are the type of teacher who needs tenure to keep a job but consider all of the students who do have teachers who are only allowed to return because of it.

In a perfect country we wouldn’t need tenure, but we need it more than ever right now. Never mind the ineffective teachers and principals, thoughtful and effective teachers and administrators mean nothing to the venture capitalists who want to privatize education in the U.S. today. This relatively small group of people is extremely wealthy and powerful, with Bill Gates leading the way. Their bottom line is more concerned with shareholder profits, and teacher salaries eat away at net profit. They would ideally like to see a very small teacher work force that uses automated technology as the primary means of instruction. They target the relatively small number of bad teachers as a way to rally the public to dismantle tenure. They are deluded by their own monetary success, and believe that a market-driven educational system that champions a neo liberal worldview is what’s best for everyone. We are living in an oligarchy, and it’s time to wake up!

There is no doubt a small minority of really poor teachers who should not be in a classroom, regardless of what type of professional development they receive, but abolishing tenure is a fool-hearty way to get rid of these teachers. Keep in mind that context matters. An effective teacher in an affluent suburban community may not perform well in an impoverished urban setting and vice-a-versa. The small minority of truly bad teachers is a relatively minor problem that needs to be addressed, but the real crisis in education today is that public education is being manipulated by an oligarchy to serve their own private interests. Students will be college and career ready to serve shareholder profits at the expense of our collective well being. We need tenure in public education to protect our rapidly diminishing democratic interests. While public education in the U.S. is far from equitable and perfect, it is the most essential public institution to help ensure a thriving democracy, and tenure provides K-20 faculty with the protection they need to innovate and speak out against injustice. Unfortunately, teachers may no longer be the only educators who need the protection that tenure affords. A recent survey of principals in Hawaii found that the majority was too scared to speak out against the DOE’s implementation of Race to the Top and other mandates (http://www.hsta.org/news/address-principals-concerns).

You are so far off the mark it is hard to comprehend. Do you even know what the Vergara case is about? It is about the worst teachers being at the schools with the fewest advantages. Please understand what you are talking about before you comment.

Think about it! You are saying that we need to subsidize terrible teachers in order to protect good ones. This is not about the wants/needs of teachers, it is about the genuine and immediate needs of students. If you don't get that then you will never understand. Think about the scale you are trying to balance - we need to protect the income of a college graduated professional in order to have the ability to steal from a child in poverty. Do you understand that this is what you are really saying?

Please, make a trip into a high poverty area, like I do each day, and look a classroom of 7 year olds in the eye and tell them you are going to have to allow them to have a terrible teacher for that year because it is worth more to you for good teachers to have an unneeded protection than for the kids to get an education. Tell them how that works best for them. Also, let them know that even though their high poverty school is laden with teachers of this ilk they should not worry because you are championing the rights of the college educated, currently employed teachers at the more affluent schools who have better track records and parents who are more likely to sue so they need better qualified and performing teachers to make sure the more affluent kids get to college and can get good jobs and careers while sacrificing the future of those innocent children you are speaking to. Really? Are you kidding me? And I hope you know, we are not talking about one single classroom of students here, we are talking about millions of children across this country who face that same challenge every day.

How can you find it anywhere near acceptable to steal from them? Why not take it a step further? Why don't we make each neighborhood fully fund its own school? Then we can let the market decide. The poor and uneducated will stay that way and the more affluent and college educated can stay that way and never the twain shall meet! Of course, unless someone from the latter group hires someone form the former group to come clean their house or maintain their yard because that is all they are good for, right? Ready to go back into that past, are you? Which century or less developed nation shall we visit?

Oh, for a time machine and giving you the opportunity to go back to being a 5 year old and entering kindergarten from a home of poverty, with a school full of terrible teachers and having your future already set before you hit 6! If you are a teacher your license and credentials should be stripped as of this moment until you learn something and earn the right to stand in front of children again by taking a trip into an impoverished neighborhood for a few years. Shame on you for even suggesting that children have their futures stolen so bad teachers can be taken care of. It is criminal!

You wrote: "Never mind the ineffective teachers and principals ,.." Please explain how you tell the children who have these personnel in their school 'never mind'? Never minding them is what has allowed this small sore fester into a gaping wound that is destroying sections of our society and robbing us all. How much do you pay for the upkeep of the millions who have to endure such schools and never get a decent shot at life? How many ended up in the court system at one time or another from such situations over the years? How many other children have similar settings generated that maintain this cycle? 'Never mind' - go ahead and switch places with all those you never mind.

You mention a small minority of 'bad teachers'. Here is a real small minority for you - cite how many 'good teachers' have ever been fired for doing an excellent job in the classroom while also maintaining all laws and policies of their district and standards of decency expected by our society. There is your small minority! The number of under performing teachers in urban districts is shockingly high. Think about the setting - every one you want to protect steals their salary from the public and steals a year of quality education from at least 25-20 K-5 or 100+ 6-12 students each year. Take those numbers and multiply by the number of 'bad teachers' and then the number of years they are allowed to under perform and you get a scary big number.

This is what the Vergara case is about. We could also solve this by taking all of the really bad teachers and putting them in the really affluent neighborhoods. What would happen? The public schools would empty and the private schools would fill. The wealthier set would never stand for it. Why should we make those on the other end of the economic scale? Or, what if we put your children in a school filled with all of the 'small minority' of bad teachers and administrators? Would you be okay with that? If it is not good enough for your children, why is it good enough for someone else's?

You wrote: "An effective teacher in an affluent suburban community may not perform well in an impoverished urban setting and vice-a-versa." Bunk! An effective teacher is an effective teacher - end of story. They are effective because of subject knowledge coupled with a love of those they are assigned to instruct. It does not matter the setting or audience - an effective teacher will get the job done.

Your next statement is even further off the mark. You wrote: "The small minority of truly bad teachers is a relatively minor problem..." Once again, tell that to the children who have that teacher. It is not a small problem for them, it is their future. You really need some perspective.

Your lack of education regarding education is appalling. You wrote: "A recent survey of principals in Hawaii found that the majority was too scared to speak out against the DOE’s implementation of Race to the Top and other mandates" Anyone in education knows that principals serve at the pleasure of their local LEA or its head. Why would anyone ever think about offering a principal tenure? The moment they fail to perform they negatively affect every child in an entire school, not just a class!

And you so obviously contradict yourself with this: "While public education in the U.S. is far from equitable and perfect, it is the most essential public institution to help ensure a thriving democracy, and tenure provides K-20 faculty with the protection they need to innovate and speak out against injustice." Speak out against injustice? How is it justice for any child to have an ineffective teacher? If the K-20 faculty really cares they will applaud getting rid of tenure to rid their ranks of poor peers. If not, they are part of the injustice and just as liable for it.

Your username is 'realitycheck'. Please walk away from the computer, visit a struggling school for a year and get a genuine reality check! Then come back and say something worthwhile.

dub44dub: You must be an adolescent lawyer for Teach for America or Michelle Rhee, etc. You suggest sacrificing the entire tenure system and public education as we know it as a means to remove the poorest performing teachers and privatize education. Having children subjected to the poorest teachers is dreadful, but you are playing on people's emotions by making it sound like we have a terrible teacher epidemic. Your energy would be better spent trying to prosecute the much larger relative percentage of abusive parents. Your reasoning would suggest that we go ahead and get rid of automobiles (especially the cheaper ones) since they are the number one cause of death for children in the United States today. Your messianic tone is scary. I hope you are just a paid thug and don't really believe what you're saying. Just keep your script away from Hollywood. The public has had enough of your psycho babble teacher bashing garbage.

dub44dub: If indeed you are a classroom teacher (seems unlikely given your holier-than-thou rage) you may need to consider a career change. Teaching is a collaborative profession. If you're in it for the long haul you will need to learn to work together and learn from other teachers. Humble yourself just a little. Know that you're not the only one out there trying to make a difference in children's lives. Know that it's not a simple task with easy answers. Getting rid of tenure to get rid of the poorest performing teachers is not the quick fix you argue for (again, I suspect it's a disingenuous argument to begin with given your predictable rant -- blah, blah, blah, I'm so angry, standing up for the voiceless disadvantaged, visit a struggling school, etc., etc.). This once clever union bashing ploy is losing ground quickly as the public begins to realize that tenure is not the problem in K-20 education. Poverty and economic inequality is hurting our most disadvantaged schools/students -- tenure is not the problem. Ever hear of Diane Ravitch? Go read her blog, get informed about what's really going on -- as if you really don't already know. You're being unmasked. Go start your own private school(s) but leave the public schools to the public -- for the public good.

dub44dub: And next time you respond, don't quote people out of context. Here's my entire quote: "Never mind the ineffective teachers and principals, thoughtful and effective teachers and administrators mean nothing to the venture capitalists who want to privatize education in the U.S. today." Venture capitalists generally want to get rid of all teachers because teachers eat away at net profit. And if you're still in the dark here your blog posts read like classic venture capitalist propaganda. At least be honest. Just say that you believe in privatizing education and be done with it.

Here are some decent articles/videos on the rise of venture philanthropy and the movement to privatize education: http://www.academia.edu/5100201/The_Rise_of_Venture_Philanthropy_and_the_Ongoing_Neoliberal_Assault_on_Public_Education_The_Eli_and_Edythe_Broad_Foundation.

You need to be logged in to comment.
(If there's one thing we know about comment trolls, it's that they're lazy)

, after login or registration your account will be connected.