County Judge Obliterates California Tenure Law and Other Protections for Teachers

Wednesday, June 11, 2014

Because 1%-3% of California teachers are “grossly ineffective” and hard to get rid of, all teachers in the state must lose their current tenure and employment rights, a Los Angeles County Superior Court judge ruled on Tuesday.

The ruling (pdf), if it stands, is a blow to teacher unions and a victory for administrators, union opponents, charter school enthusiasts, public school critics and anyone who blames teachers for the sorry state of education. Whether it is a victory for students, as the judge and supporters of the decision claim (and like many of the education reforms championed the past decade) remains to be seen.

Tenure grants teachers the security of working without fear of being fired without cause and is fundamental to academic freedom. It helps create an atmosphere that nurtures a free exchange of ideas, while elevating First Amendment values of expression into the culture of education.     

That is not exactly how Judge Rolf M. Treu saw it. He found tenure was directly responsible for the crummiest teachers being assigned to the poorest schools, where low-income and minority students were the majority, “in violation of the equal protection clause of the California Constitution.” He evoked the landmark education rights cases Brown v. Board of Education and Serrano v. Priest.

Treu found the evidence compelling—“it shocked the consciousness”—that bad teachers result in bad education. He cited a calculation that one year of education with a bad teacher will cost a student $1.4 million over a lifetime of earnings. Both sides pretty much agreed that no one wanted bad teachers.

But they disagreed over whether a small percentage of bad teachers was to blame for underperforming schools, rather than insufficient funding, suspect curriculum, No Child Left Behind, a bloated education bureaucracy, societal ills, corporate meddling or myriad other influences.  

The lawsuit, brought on behalf of nine students, challenged five statutes of the California Education Code, which the judge bunched into three groups: permanent employment, dismissal and last-in-first-out (LIFO).

Treu said California granted tenure too quickly (after two years, compared to 3-5 years in most other states and not all in four), had too lengthy a process for revocation (2-10 years) and gave too much weight to seniority in employment matters, including hiring and firing (10 states make it preeminent in LIFO situations).

The result of these employment practices, the judge said, was a “Dance of the Lemons,” as incompetent teachers “churned” through the poorest schools. Treu found all five challenged statutes unconstitutional.

State lawmakers unsuccessfully wrestled with legislation to streamline the process of teacher termination after the Los Angeles Unified School District (LAUSD) avoided a lengthy battle two years ago by paying more than $40,000 to a teacher, accused of doing disgusting sexual things with students, to leave. The teacher, Mark Berndt, later pleaded no contest to 23 counts of lewd behavior and was sentenced to 25 years in prison.

Citing a separation of powers, Treu made no suggestion to the Legislature or governor what processes should replace the ones he struck down.

The decision was hailed by the U.S. Secretary of Education Arne Duncan, who said he expected it to inspire similar actions in other states. Republicans finally found a rights issue that didn’t involve guns, abortion or corporate free speech that they could rally around. “Today's ruling is perhaps the biggest civil rights victory in recent memory,” said Assembly GOP Leader Connie Conway of Tulare.

The California Teachers Association said, “This lawsuit has nothing to do with what's best for kids, but was manufactured by a Silicon Valley millionaire and a corporate PR firm to undermine the teaching profession and push their agenda on our schools.”

The case will be appealed. “I am confident that the Court of Appeal will reverse this decision,” James Finberg, lead attorney for both the California Teachers Association and the California Federation of Teachers, told the San Francisco Chronicle.

–Ken Broder


To Learn More:

Judge Throws Out California Teacher Tenure Laws (by Nanette Asimov and Bob Egelko, San Francisco Chronicle)

L.A. Judge Strikes Down California's Laws on Teacher Tenure, Layoffs and Dismissal (by Sharon Noguchi, San Jose Mercury News)

California Judge Declares Teacher Employment Rules Unconstitutional (by Jeremy White, Sacramento Bee)

California Teacher Tenure and Seniority System Is Struck Down (by Howard Blume and Stephen Ceasar, Los Angeles Times)

California Teacher Tenure Laws Ruled Unconstitutional (by Jennifer Medina, New York Times)

California Teacher Tenure Law Unconstitutional (by Linda Deutsch, Associated Press)

Beatriz Vergara v. State of California et al (Los Angeles County Superior Court) (pdf)

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