K-12 Tenure Declared Unconstitutional in California: Could Higher Ed be Next?

A Los Angeles judge ruled against the current system of granting tenure to K-12 teachers because he found that low-income students are adversely affected by the inability to remove ineffective teachers in a timely manner.  On one level, this seems like a progressive ruling protecting the educational rights of the poorest among us; however, on closer inspection, we discover that the decision is based on several myths regarding education. 

One of these myths is the idea that students from low-income areas perform poorly because they don’t have the best teachers.  What this view rejects is any understanding of the different economic, psychological, and social forces affecting young people.  Not only does this myth repress the role that poverty plays in shaping every aspect of these students’ lives, but it also neglects the advantages given to the wealthier students.  Instead of looking at school funding or how the lack of good healthcare prevents students from going to school, the judge is highly invested in the current idea that a great teacher can overcome all social and personal obstacles facing a low-income student.    

The ruling begins by citing Brown v Board of Education to point to the important value of providing equal education to all races.  In two other cited cases, the theme is once again the equality of educational opportunity.  Although it would be hard to argue against this egalitarian ideal, it is clear that self-segregation and white flight have made schools very unequal.  Moreover, while the Governor has pushed through a new plan to redistribute funds to low-income schools, this plan has yet to come into full effect. 

The Judge ruled that tenure keeps “bad” teachers in low-income schools, and it makes it hard to remove ineffective instructors in a quick and cost-free manner.  Of course, he did not suggest how to recruit and keep teachers in schools with high levels of poverty and stress.  What the judge did do is buy into research showing that a single ineffective teacher can reduce a student’s earning power over a lifetime.  This reductive analysis, which confuses causation with correlation, is based on the idea that we can determine the value of someone’s education by looking at how much money he or she earns later on life.  Once again, a wide-range of variables is excluded in order to establish a simple causal link between the quality of a teacher and the financial success of a student.

The judge was also impressed by a study that said that between 1% and 3% of all teachers are grossly ineffective.  Since there are about 250,00 teachers in the state, the judge accepted the notion that there must be between 2,750 and 8,250 horrible teachers.  Here a questionable statistic is translated into a scientific fact and applied to a supposedly impartial ruling.  Moreover, if there is an even distribution of bad teachers, then it would seem that all schools should be equally effected.  However, we are never told what defines a grossly ineffective teacher; all we know is that it is hard to get rid of them because of tenure. 

At the heart of the decision is the question of whether two years is enough time to decide on tenure for a teacher.  This question actually has some validity, but it is unclear how a two-year path to tenure causes discrimination against low-income schools; in fact, the judge adds that the quickness of this high stakes decision may unfairly harm new, good teachers who are not given enough time to prove themselves.  Yet, this rational argument is undermined by the judge when he claims that since many states have a longer pre-tenure period and some states do not allow for tenure at all, then, California is an outlier, and its system should be changed.  Just because some states have terrible rules, it does not mean that everyone should race to the bottom.         

The judge also ruled against using seniority in layoffs, but did not suggest an alternative and did not say how this process causes discrimination.  What is so concerning is that Arne Duncan, the Secretary of education endorses theruling: "The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices, and systems that fail to identify and support our best teachers and match them with our neediest students. Today's court decision is a mandate to fix these problems. Together, we must work to increase public confidence in public education. This decision presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students' rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve. My hope is that today's decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift." Like so many others, Duncan focuses on just the individual student and the teacher, but not the multiple other factors that influence education.

Although this ruling only dealt with K-12 teachers, its logic could be expanded to include all levels of education, including higher education.  In fact, the promotion of star teachers and the critique of failing community colleges is gaining much media attention these days, and so it wouldn’t be surprising if another millionaire funds a lawsuit against tenure in higher education.