Tenure Elimination Not Key to Public School Improvement

teacherby Erwin Chemerinsky and Catherine Fisk

Eliminating job security for teachers is not going to attract better teachers or do much to improve the quality of public education. If you’ve shopped at a retail store or flown on any major airline, you know that some employees are excellent and some are not, but the difference between the good employees and the bad ones is not in who has job security. Retail and restaurant employees can typically be fired for no reason; airline employees, who are unionized, typically cannot. So why do so many critics of public education assume that eliminating job security for teachers would improve the quality of education?

A California trial judge decided this month that the poor quality of some California schools was the result of job security for teachers and therefore invalidated several provisions of the California Education Code. In a brief 15-page opinion in Vergara v. California, Judge Rolf Treu held unconstitutional a state law that requires schools to evaluate teachers for job security in the second year of employment, a provision that gives more senior teachers preference over junior teachers in layoffs, and the process schools must follow to fire a teacher.

Vergara was a test case initiated and funded by a Silicon Valley millionaire, and was litigated by large firm corporate lawyers with no particular expertise in education law and policy. They sued the state education officials and agencies along with three school districts in Oakland, Los Angeles and San Jose, challenging a wide array of state laws protecting teachers against arbitrary decisions in retention and job assignment.

Treu’s opinion found that between 1 and 3 percent of teachers in California are grossly ineffective. Based on that, he concluded that job security for teachers violates the California Constitution.

The reasoning of the opinion is as flawed as the result is troubling. If job security is the cause of poor quality teachers, what accounts for the overwhelming majority of California public school teachers who are good or excellent? As Treu’s opinion notes, several states have no statutory job security for teachers, yet he never compares the percentage of grossly ineffective teachers in those states to California and never considers whether or why poor quality teachers exist in those schools.

Quite crucially, the judge assumes that it is tenure that leads to higher numbers of poor quality teachers in the poorest schools rather than the preferences of teachers who seek to work in schools with more resources, more involved parents and children who are not so overwhelmed by poverty that they come to school unable to learn.

Treu finds California’s two-year period for evaluating a new teacher to be unconstitutionally brief and notes that only five states have such a short period, but he also notes that 34 states use a three-year period. He does not explain whether or why he believes that three years is a constitutionally sufficient period in which to evaluate a new teacher for job security and, if so, why it is preferable to two years. He finds unspecified aspects of the existing process for terminating teachers to be unconstitutional because it is too burdensome on schools. Yet he acknowledges that teachers must be “afforded reasonable due process when their dismissals are sought” and does not explain what kinds of procedural protection are constitutionally permissible and why the existing system is not.

Statutory and contractual job security for teachers were reforms adopted by almost every state nearly half a century ago as a way of making teaching a profession attractive to educated men rather than a short-term job for young women to do before marrying and staying home to raise children. Tenure was also considered desirable to encourage teachers to take intellectual and pedagogical risks with students – to allow them to teach evolution in biology classes or controversial books in literature classes without fear of retaliation from hostile parents or school boards.

Some aspects of teacher tenure should be reformed. Perhaps the tenure decision should be made in the fifth year of teaching rather than the second. And it should not be a herculean task to fire an incompetent teacher. But those are the kinds of reforms that school officials, teachers’ unions, education policy experts and legislatures should design through discussion. It is judicial activism of the worst sort for a trial judge to do so alone.

California schools desperately need to be improved. But eliminating job security for teachers will not do much, if anything, to improve them and may make it harder to attract and keep talented teachers.

Erwin Chemersky is Dean of the UC Irvine School of Law; Catherine Fisk is a law professor at the UC Irvine School of Law

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13 Comments

  1. Davis Progressive

    “The reasoning of the opinion is as flawed as the result is troubling. If job security is the cause of poor quality teachers, what accounts for the overwhelming majority of California public school teachers who are good or excellent? ”

    a lot of good points here.

    1. Frankly

      Here is the problem with this line of thinking… and it is telling in that it has a school employee focus instead of a school customer focus.

      There should be zero bad teachers. One bad teacher risks causing irreparable harm to many students.

      This concept seems lost on many. And my guess is that most of that many are also public sector employees that don’t have experience with organizational best practices for achieving excellence.

      In the private sector we look at needing 100% customer satisfaction. That is what we strive for. This mindset that “most of the teacher are good or excellent”, again, is telling. That is not even an argument that should be made.

      Tenure allows bad teachers to keep their job at the expense of the students. It is absolutely wrong.

      And I don’t believe that there are many bad people that select teaching as a profession. In fact, I would think that the average of good people in teaching is higher than for many professions… because it takes a certain interest that filters out people with weaker morals and ethics. The issue is not good or bad… the issue is “good fit” or “bad fit”. Each new teacher is a development project. Like all professions it takes time on the job to get to master level. After a certain amount of time every employee can be evaluated as to their success or failure of reaching that master level. Assuming they have been given enough performance direction, training and feedback, if they still have not demonstrated consistently that they are at the top level of performance in their chosen field, then the assessment needs to be that they are not a good fit for their chosen field.

      We not only do the children a disservice by keeping teachers that are not a good fit, but we do the teachers a disservice.

      1. Davis Progressive

        so here’s what’s wrong with your line of thinking: “There should be zero bad teachers.” there’s never going to be zero bad teachers. i’m not even sure you’ll ever have a system that would agree on who the bad teachers are.

        “In the private sector we look at needing 100% customer satisfaction. ”

        this is what scares the crap out of me. you talk about customer satisfaction as though it could be applied to a school. for some satisfaction is grade based. for others it might be learning based. but if you start looking for customer satisfaction in a school setting, you may start conflating the want with the need.

        “Tenure allows bad teachers to keep their job at the expense of the students. It is absolutely wrong.”

        so the real question is how do you deal with the bad teachers in a way that doesn’t turn education into a market for grade shopping.

        1. Mark West

          “i’m not even sure you’ll ever have a system that would agree on who the bad teachers are”

          This is a curious comment. If we are unable to figure out who the bad teacher are, how exactly do the teacher education and credential programs function? How can you claim to be training and certifying qualified teachers if there is no way to distinguish between the good student teachers and the bad ones?

      2. tj

        Well said, Frankly.

        And there’s no idea of getting rid of ALL job security, that’s a big exaggeration.

        Teachers have been lacking oversight for decades now, so leaving improvements to the schools/teachers and legislators has not worked.

        Generally, teachers put out information all day, i.e., lecturing all day, but are weak at taking in information. That may account for the inability to come up with better practices in meeting student needs, and better management practices by those in charge, who used to be teachers themselves.

      3. wdf1

        Frankly: Here is the problem with this line of thinking… and it is telling in that it has a school employee focus instead of a school customer focus.

        There should be zero bad teachers. One bad teacher risks causing irreparable harm to many students.

        And how do you guarantee that there are enough built-in incentives to attract enough good teachers? I don’t think it’s a guarantee that they’re out there and will flock to your imagined ideal school. There’s a reason why tenure was instituted in the first place, but that was so long ago that we’ve forgotten why. Now we have to reinvent the wheel because of it.

        Education can involve a of lot legitimate “outside-the-box” thinking and approaches that may not conform with the views of parents or administrators. I have politely listened to other parents trash teachers that I thought were pretty good for my kids, and often for the very same reason.

        In the private sector we look at needing 100% customer satisfaction. That is what we strive for. This mindset that “most of the teacher are good or excellent”, again, is telling. That is not even an argument that should be made.

        I have seen enough difference of opinion about what customer satisfaction means in education that I don’t trust that there is an absolute definition of what a good or excellent teacher is. With experience, I think teachers become a little better at figuring out how to make most parents happy and working with most kids, but not 100%. I disagree with my parents over which teachers I had that were good when I was growing up.

        I still haven’t heard anything very clear about whether Julie Crawford was competent or not as a coach. There were at least two camps of parents on the issue. I hear the argument that Julie Crawford’s situation was an unusual aberration and shouldn’t be dragged out as an example of tenure issues. I think her example becomes the rule in a Davis without tenure/due process.

        1. Mark West

          “I still haven’t heard anything very clear about whether Julie Crawford was competent or not as a coach”

          Her ‘Coach of the Year’ awards were not clear enough statements for you?

          Teacher tenure is not necessary to address the problem of an incompetent School Board. That is what elections are for.

          1. wdf1

            Mark West: So will school board elections then become arguments over which teachers to keep and fire? Or which teachers should have been kept or should have been fired?

            One example of subjectivity of whether a teacher should stay or go crept up in the Vergara et al. v. California trial. The case of Christine McLaughlin. McLaughlin was initially identified by one of the plaintiff students, Raylene Monterroza, as a not-so-good teacher, meant to be an example of inferior education. The problem is that Christine McLaughlin received at least two awards recognizing her teaching ability, one of them being a “Teacher of the Year Award.”

            The plaintiffs’ attorneys then attempted a recovery by arguing that McLaughlin had received dismissal notices (pink slips) in spite of her being “Teacher of the Year.” McLaughlin was a defense witness in this case.

            Anyway, which is it? McLaughlin’s name came up in the case because allegations of being not so good. It certainly reminds me of the Crawford case here in Davis. She was name “Coach of the Year,” but still deemed not worthy of employment as volleyball coach by some people with power in the district. And how do we identify an inferior teacher?

            Historically we’ve been through these issues before that brought us to the point of having a tenure (due process) policy. For example, the Scopes trial, and community arguments over what curricula should be taught (including English reading selections) in the schools without giving professional deference to teachers on the issue.

            Here’s a link to the trial transcript with McLaughlin’s court testimony. You will have to do key word searches (I recommend “McLaughlin” & “Monterroza”).

      4. wdf1

        Frankly: There should be zero bad teachers. One bad teacher risks causing irreparable harm to many students.

        And what is a “bad” teacher? Raylene Monterroza (above) had her definition of a “bad” teacher that is hard to reconcile with the fact that the teacher had received awards for her work.

  2. MrsW

    wdfn”I still haven’t heard anything very clear about whether Julie Crawford was competent or not as a coach. There were at least two camps of parents on the issue. I hear the argument that Julie Crawford’s situation was an unusual aberration and shouldn’t be dragged out as an example of tenure issues. I think her example becomes the rule in a Davis without tenure/due process.”

    When I look back on the Julie Crawford situation, I see conflict, drama, and a coach–in a role not protected by tenure–who got her job back. Ms. Crawford’s tenure teaching position was never at risk. The haphazard poor non-process process, without tenure, brought her back as a year coach.

  3. TrueBlueDevil

    Status quo, status quo, wrapped around a few straw men. Here are a few:

    “Eliminating job security for teachers is not going to attract better teachers or do much to improve the quality of public education.”

    Removing “grossly negligent” teachers sure as heck will!

    “So why do so many critics of public education assume that eliminating job security for teachers would improve the quality of education?”

    Did you read the ruling? This applies to grossly negligent teachers, whom you defend. Why defend them?

    I don’t think wanting to fire a teacher for sexually inappropriate behavior or grossly negligent behavior is random or willy nilly.

    “Statutory and contractual job security for teachers were reforms adopted by almost every state nearly half a century ago as a way of making teaching a profession attractive to educated men rather than a short-term job for young women to do before marrying and staying home to raise children.”

    Well, it seems like they have failed because most of the schools I have been in are predominantly female.

    “Some aspects of teacher tenure should be reformed. Perhaps the tenure decision should be made in the fifth year of teaching rather than the second. And it should not be a herculean task to fire an incompetent teacher. But those are the kinds of reforms that school officials, teachers’ unions, education policy experts and legislatures should design through discussion. It is judicial activism of the worst sort for a trial judge to do so alone.”

    What? These reforms have been desired for two decades!! What took so long?

    Let me guess, do you have ties to the CTA?

    1. wdf1

      TBD: Did you read the ruling? This applies to grossly negligent teachers, whom you defend. Why defend them?

      I don’t think wanting to fire a teacher for sexually inappropriate behavior or grossly negligent behavior is random or willy nilly.

      TBD, did you read the ruling? It referred to “grossly ineffective teachers”, and it didn’t define those teachers as those being sexually inappropriate. It defined those teachers as those whose students score terribly on standardized tests. It relied on testimony of Raj Chetty, a Harvard economist, who argues for VAM (value-added modelling) to rate teacher effectiveness. There is plenty of reason to find Chetty’s position suspect.

      Is it for high standardized test scores that you got that you remember great teachers that you had while growing up? And shall we judge if my great teachers were greater than your great teachers by comparing standardized test scores?

      I have a problem with this logic, and it’s where this case will fall apart.

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