A School Reform Landmark: California’s teacher tenure laws are unconstitutional




WSJ, Editorial

A judge says California’s teacher tenure laws are unconstitutional.

BN-DE378_3verga_G_20140610185943President Obama has called education the civil-rights issue of our time. On Tuesday a California court appeared to concur in a ground-breaking ruling that strikes down the state’s teacher tenure, dismissal and seniority laws on grounds that they violate the equal protection clause of the state Constitution.

Vergara v. State of California was brought in May 2012 by nine public school students who contended that iron-clad teacher job protections and “last-in-first-out” policies undermine the quality of education. Supporting their argument was testimony that Los Angeles County Superior Court Judge Rolf Treu wrote “shocks the conscience.” To wit: In the past 10 years, only 91 teachers in California have been fired, and only 19 for unsatisfactory performance. Yet according to one state witness, between 2,750 to 8,250 California teachers rank as grossly ineffective.

Incompetent teachers are protected by tenure, which vests after two years. However, as the judge noted in his ruling, schools must determine whether to grant tenure well before March 15 of a teacher’s second year at which time many aren’t even credentialed. The upshot is that the vast majority of probationary teachers—including 98% in Los Angeles Unified School District—receive tenure.

Unwieldy dismissal procedures, which Judge Treu describes as “uber due process,” then make it nearly impossible to fire teachers even for egregious misconduct. Fewer than 0.002% of California teachers are dismissed for unprofessional conduct or poor performance in any given year compared to 1% of other California public employees and 8% of workers in the private economy.

L.A. spent $3.5 million between 2000 and 2010 to fire seven teachers for poor performance. Yet only four of the seven were ultimately dismissed. Two received large settlement payouts, and one was retained. Chief of Human Resources Vivian Ekchian testified that the district employs 350 grossly ineffective teachers it hasn’t even sought to dismiss.

When budget cuts force layoffs, state law mandates that the newest hires be let go first, irrespective of job performance. As Judge Treu wrote, last-in-first-out policies require the state to “defend the proposition that the state has a compelling interest in the de facto separation of students from competent teachers, and a like interest in the de facto retention of incompetent ones.”

These incompetent teachers have “a direct, real, appreciable, and negative impact on a significant number of California students,” as the judge noted. A single year with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom. L.A. students taught by the bottom 5% of teachers lose 9.54 months of learning in a year compared to those with an average teacher. Shocking the conscience is right.

Judge Treu said he examined the case under strict scrutiny constitutional standards since “substantial evidence” including a report by the state’s Department of Education indicate that the challenged policies “disproportionately affect poor and/or minority students.” Strikingly but appropriately, he invoked the U.S. Supreme Court’s 1954 Brown v. Board of Education decision that the opportunity of an education “is a right which must be made available to all on equal terms” (his emphasis).

The state and California Teachers Association are sure to appeal, not least because Vergara could become a template for lawsuits nationwide that could topple the scandal that is the public-school status quo. Notably, Education Secretary Arne Duncan praised the decision as “a mandate to fix” educational inequities and opportunity to “build a new framework for the teaching profession.”

If state governments don’t act, disadvantaged students now have a claim to petition the judiciary to protect their rights as much as in the days of Jim Crow.

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