In California, a public school teacher can be fired at any time without cause during the first two years of employment. After that, however, about 98 percent of teachers manage to attain tenure—or, more accurately, “permanence.” Principals make tenure decisions in March of a teacher’s second year, which means they have to decide whether to offer such job security to employees with just 16 months on the job. A good case could be made that college and university professors need job protections—the academic freedom to conduct possibly controversial research and to teach without administrative meddling is vital. But can the same be said for elementary and high school teachers?

That question is at the heart of a lawsuit underway in Los Angeles, where a group of nine students is challenging the legality of California’s permanence, seniority, and dismissal statutes. The trial in Vergara v. California concluded late last month; Superior Court judge Rolf Treu will issue a ruling by July 10. If the students prevail, several union-backed statutes will be eliminated from the education code and declared unconstitutional. It would then be up to each school district to come up with its own policies on tenure and seniority.

Protecting teachers from being fired because of race, political views, pregnancy, or personal appearance is justifiable. But after those basic protections were enshrined in law decades ago, labor leaders pushed legislators to expand rights and entitlements for public school teachers—at the expense of educating kids. In the last ten years, only 91 teachers out of about 300,000 (.003 percent) who have attained permanence lost their jobs in California. Of those, only 19 (.0007 percent) have been dismissed for poor performance. Is it possible that Golden State teachers are that good? Such an astronomical permanence rate doesn’t square with the performance of California’s fourth- and eighth-graders, whose scores on National Assessment of Educational Progress tests persistently rank near the bottom.

That so many unworthy teachers remain on the job is a disgrace, and most teachers know it. In fact, in the National Council on Teacher Quality’s recent survey of teachers working in Los Angeles, 68 percent reported that “there were tenured teachers currently working in their schools who should be dismissed for poor performance.” Yet the teachers’ unions, defendants in the Vergara case, remain steadfast in defense of the status quo. The California Teachers Association website posted continuously about the case as the trial progressed, and desperation appears to have set in. The union’s fumbling defense of tenure includes a claim that “research . . . shows teaching experience contributes to student learning. Studies show that teacher experience enhances teacher effectiveness and increases productivity at all grade levels in reading and in math.” Actually, most studies show that teacher effectiveness peaks in the first three to five years on the job, and that the majority of teachers don’t improve over time. Some become less effective toward the end of their careers.

But if tenure goes, California Federation of Teachers president Joshua Pechthalt claims, “teachers will be conditioned into meek compliance for fear of losing their jobs. Academic freedom, the central reason for tenure, would be moot.” Academic freedom? If a K-12 teacher is teaching according to the prescribed state standards—soon to be national standards—what protections does she need?

By contrast, school administrators dislike tenure, because it robs them of the flexibility necessary to run a successful and efficient workplace. The California Legislative Analyst’s Office and the California Office of Administrative Hearings detail ten laborious steps for dismissing one incompetent teacher. District officials must first document “specific examples of ineffective performance, based on standards set by the district and the local teachers union.” Once an administrator cites a teacher in writing for “unsatisfactory performance worthy of dismissal,” the district must provide 90 days for her to improve. If, after 90 days, the teacher hasn’t shaped up, the district may file dismissal charges. The local school board must adopt an official “resolution of intent to dismiss” the teacher—but not between May 15 and September 15, which includes the end of the school year and summer vacation. The teacher gets a month’s notice. She can request a hearing before the school board within 30 days; the board then reconvenes to decide how to proceed. If the board decides to push the dismissal along, the process then winds through multiple additional, time-consuming steps, culminating—potentially—in the case going before a state superior court judge and even as far as a state court of appeal.

No wonder principals are overwhelmed by the arduous and expensive task of getting rid of lousy—or worse—teachers. A former colleague of mine reportedly touched one of his middle school students inappropriately. There were witnesses, but the female pupil involved didn’t want to press charges. So administrators let the teacher cool his heels at the district office—the so-called rubber room—before sending him to another school, where he was accused of doing the same thing. Back in the rubber room, earning full pay, he was caught looking at pornography. Again, he was returned to the classroom and in short order was caught showing pornographic materials to female students. Last I heard, he was back in the rubber room, collecting full pay and benefits. He should be kept far away from young people, but thanks to California’s permanence and dismissal statutes, he’s been given multiple opportunities to abuse them. An untold number of school kids across California and much of the United States are victimized by permanence each year. It’s time to make tenure a thing of the past.


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