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Summer 2014
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California

Ben Boychuk
Tenure Denied
A California judge rules the state’s seniority statutes are unconstitutional.
11 June 2014

Nine students on Tuesday beat the California Teachers Association, the California Federation of Teachers, and the state education establishment in a Los Angeles County Superior Court. In a decision sure to inflame progressive allies of the teachers’ unions, Judge Rolf M. Treu ruled in Vergara v. California that the state’s byzantine tenure, seniority, and dismissal statutes create “unequal conditions,” thereby violating the students’ civil rights. “[S]tudents and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current” law, he wrote.

Treu stayed his ruling, leaving laws intact pending an inevitable appeal. But if the decision stands—it may be years before the California Supreme Court takes up the case—a host of bad public policies will be wiped off the books. Gone will be the absurd rule that teachers with 18 months on the job are eligible for lifetime tenure. Gone will be the “due process” requirements that cost the Los Angeles Unified School District $3.5 million to terminate seven incompetent teachers—only four of whom were dismissed successfully. And gone will be the “last in, first out” provision compelling the district to lay off highly qualified but untenured teachers ahead of their older but less effective colleagues.

The 2012 lawsuit filed by Students Matter, a Silicon Valley-based advocacy group, claimed that California’s laws protecting the longest-serving instructors “impose a disproportionate burden on poor and minority students.” Treu agreed, on largely egalitarian grounds. In a 16-page decision that cites the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education, the judge found that California’s laws “impose a real and appreciable impact on the students’ fundamental right to equality of education.” He concluded: “evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.”

The unions and their allies bitterly denounced Treu’s decision, and vowed to fight on. “We know that this is not the last word on the case,” California Federation of Teachers president Josh Pechthalt said. “We know what’s in the record of evidence, and we have a high degree of confidence that we will prevail on appeal.” American Federation of Teachers president Randi Weingarten criticized Treu’s “rhetoric” and “lack of a thorough, reasoned opinion.” Meantime, State Superintendent of Public Instruction Tom Torlakson, who is running for reelection this year and who benefited from at least $2 million in independent CTA expenditures during his primary campaign, said Treu’s ruling could make “attracting, training, and nurturing talented and dedicated educators . . . even more challenging than it already is.”

“Teachers are not the problem in our schools, they are the solution,” Torlakson said. But as Treu’s decision shows, at least some teachers are part of the problem. “There is . . . no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,” Treu wrote, citing testimony on behalf of the defendants from David Berliner, a professor emeritus of education at Arizona State University. Berliner said that between 1 and 3 percent of California’s teachers are grossly ineffective. “Given that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250,” Treu wrote. “Considering the effect of grossly ineffective teachers on students . . . it therefore cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said teachers hold their positions.”

Yet unions claim that teachers need tenure and seniority rules to protect them from arbitrary firings. They brush off compelling evidence that “due process” rules make firing incompetent or even criminal teachers too costly and time-consuming for local school districts. And union officials insist that no less than the survival of academic freedom is at stake with Treu’s decision. But as City Journal contributor Larry Sand argued last month, “Seniority as staffing policy has long since outlived its usefulness, if it ever had any.” Anticipating Treu’s finding that seniority-based layoffs disproportionately harm poor and minority schools, Sand pointed out that novice teachers tend to be dumped into low-performing schools, where they are the first to receive pink slips under the policy of “last hired, first fired.”

California’s legislature could preempt a state Supreme Court decision by amending current law to align with Treu’s decision. The Students Matter attorneys said Tuesday that they hoped the judge’s unequivocal ruling would point lawmakers in the direction of student-oriented reforms. “The legislature could see the handwriting on the wall, that student needs are not being met,” said Josh Lipshutz, an attorney at Gibson, Dunn & Crutcher who represented the students pro bono. “But what they can’t do is tinker with the laws, making cosmetic changes to avoid Judge Treu’s decision.”

“The evidence at this trial was overwhelming,” Marcellus McRae, another of the students’ lawyers, said in a press call following Treu’s ruling. “We need to move forward on a system that no longer places the burden of apathy on the backs of our most vulnerable students. We have a defining moment today in California.”

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