Education Victory in California: Teacher Tenure Ruled Unconstitutional

kid_raising_hand_in_classroom_page-bg_15285In a ruling with major implications for the rest of the nation, a Los Angeles Superior Court judge has declared that tenure, teacher disciplinary policies and seniority-based job protection as they currently exist in California public schools are unconstitutional. “Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students,” Judge Rolf M. Treu wrote in his ruling. “The evidence is compelling. Indeed, it shocks the conscience.”

Part of the compelling evidence in Vergara v. California was a “massive study” conducted in 2013 by Dr. Raj  Chetty, a William Henry Bloomberg Professor of Economics at Harvard. Treu noted that according to Chetty’s testimony, “a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” Harvard Professor Dr. Thomas Kane, who based a study of his own on Chetty’s groundbreaking work, came to equally damning conclusions. He testified that students in the Los Angeles Unified School District (LAUSD) taught by a teacher whose competency level is in bottom 5 percent “lose 9.54 months of learning in a single year compared to students with average teachers.”

Tenure and disciplinary policy work hand in glove in that regard. Attorneys for the advocacy group Students Matter, who filed the lawsuit on behalf of nine public school students in 2012, successfully argued that teachers protected by tenure laws are virtually impossible to fire, no matter how bad they are. LAUSD Superintendent John Deasy reinforced that reality when he testified that it takes more than two years on average to fire a bad tenured teacher, with some cases taking as long as a decade to resolve. He further noted the costs for doing so can run between $250,000 and $400,000 per teacher.

Plaintiffs also insisted that the state’s tenure system, which grants teachers permanent employment after approximately 18 months on the job, is an inadequate amount of time to determine a teacher’s effectiveness. Dr. David Berliner, Professor of Education at Arizona State University, reinforced that notion testifying that a probationary period of “three or even five years” would be far more effective. In his ruling, Treu noted that Berliner estimated as many as 1-3 percent of California teachers are “grossly ineffective.” Since there are approximately 275,000 teachers statewide, 2,750 to 8,250 of them fall into that category. Treu ruled that such a reality 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.”

Kane’s study revealed that most of those students affected by bad teachers are black and Hispanic. Black students are 43 percent more likely than white students to have a teacher in the bottom 5 percent of competency inflicted upon them, while Hispanic students are 68 percent more likely than whites to endure the same fate. The educational “deficits” arising from such “disparate impact” amount to 1.08 months of schooling lost every year for black students, and 1.55 months of schooling lost every year for Hispanic students, relative to their white counterparts. Kane noted that these disparities occur even when schools do not have predominantly minority student populations.

Kane further testified that the so-called “achievement gap” is exacerbated by this ongoing reality. “Rather than assign them more effective teachers to help close the gap with white students they’re assigned less effective teachers, which results in the gap being slightly wider in the following year,” he explained.

Seniority-based job protection, more familiarly known as “first in, last out,” contributes to the overall problem as well. It is the policy whereby any teacher layoffs are based on seniority rather than the competency of the teachers involved. Superintendent Deasy and former mayor Antonio Villaraigosa spoke out against the practice. So did Treu, who cited the iconic case of Brown v. Board of Education while tying seniority to tenure and discipline policies to reach his decision. “Substantial evidence makes it clear to this Court that the Challenged Statutes disproportionately affect poor and/or minority students,” Treu wrote.

After ruling the statutes unconstitutional, he stayed all injunctive issues until they could be reviewed by an appellate court. He further noted it was the job of the state legislature, not the courts, to replace the current laws with new ones that “pass constitutional muster, thus providing each child in this state with a basically equal opportunity to achieve a quality education.”

Unsurprisingly, the two teachers unions involved in the case plan to appeal the decision. “We don’t believe the court is the place to be making these kinds of policy decisions,” said Frank Wells, a spokesman for the California Teachers Association who added that the ruling “is not going to help kids in badly managed school districts; it’s only going to make things worse. We are confident that we will prevail on appeal,” he added. Joshua Peshtal, President of the California Federation of Teachers, was also upset. “We believe the judge fell victim to the anti-union, anti-teacher rhetoric of one of America’s finest corporate law firms,” he declared. Alex Caputo-Pearl, the president-elect of the Los Angeles teachers union, called the decision “an attack on teachers, which is a socially acceptable way to attack children,” adding that instead of providing for smaller classes or more counselors, “you attack teacher and student rights.”

Attorneys from both sides also voiced their opinions. “This is a monumental day for California’s public education system,” said plaintiff’s attorney Theodore Boutrous. “By striking down these irrational laws, the court has recognized that all students deserve a quality education. Today’s ruling is a victory not only for our nine plaintiffs; it is a victory for students, parents, and teachers across California.” Union lawyer James Finberg insisted the statutes prevent favoritism and politics from determining who is hired and retained, further claiming that three months is all that is necessary for administrator to make a “well-informed decision” regarding whether a probationary teacher should be kept on the job. Other lawyers representing teachers echoed the former sentiment, adding that socio-economic inequalities and school funding are far more important factors in determining the quality of an education.

Parties have 15 days to file objections. The California Attorney General’s office was non-committal. “We are reviewing the tentative ruling and consulting with our clients,” said Nick Pacilio, spokesman for Attorney General Kamala Harris. A spokesman for Democratic Gov. Jerry Brown declined to comment on the ruling.

Beatriz Vergara, for whom the suit was named, was one of nine students who said they filed the litigation because they were given teachers who lost control of their classrooms, and came to those classrooms unprepared to teach. The students also insisted that on occasion, some teachers told them they’d never amount to anything.

Both sides in this case do agree on one thing: this ruling will reverberate far beyond California. David Welch, a Silicon Valley technology entrepreneur and founder of Students Matter, has indicated his willingness to take on teachers unions in other states, especially states where teachers unions have been powerful enough to thwart legislative efforts to change the status quo. It is a status quo long defined by the symbiotic alliance between the Democratic Party and the teachers unions whose campaign contributions to the party elicit what is arguably the most transparent and despicable jobs-protection racket in the nation. A jobs-protection racket that has consigned millions of students, an increasing percentage of which are inner-city minorities, to decade after decade of sub-par education. It is a sub-par education that unequivocally “shocks the conscience.”

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  • David

    Judicial Activism: not just for liberals anymore.

  • swemson

    How long a probationary period a teacher needs for tenure isn’t the issue. It’s the concept of tenure itself that’s the problem. What about teachers who do a good job for the first 5 to 10 years of their careers, & then get lazy and do a poor job because they know they can’t get fired?

    And guess where the highest teacher’s salaries are in this country… Illinois of course…. If you think that means Illinois has better teachers, you’d be wrong. Illinois also has the highest high school dropout rates as well.

    Teacher’s salaries are only part of the problem. The average American worker goes to work roughly 270 days per year. The average public school teacher works only 154 days per year. That’s only thirty one 5 day work weeks per year. And then you must also consider what in many states are simply outrageous retirement benefits, before you can appreciate how corrupt the entire system is.

    The government CAN’T DO ANYTHING WELL ! And the reason for that is simple and obvious. The money they spend isn’t their own…. That’s the reason why the private sector does everything better… ALWAYS!


    • Up Huff

      Actually, tenure IS necessary, and with a “probationary period” of 5 years will give Administrators a clear view of the skills (or lack of) that are required to be successful in a classroom. Tenure serves as protection against unwarranted attacks against people whose views are not in favor with those who can ruin a competent person’s career.
      What is wrong is the time necessary to remove a person who IS incompetent- tenured or not. THAT is the primary problem that is truly at issue. (That and having people in Administration that recognize problem teachers and are willing to take the steps necessary to remove them. A consequence of having Administrators and Superintendents who were vetted by the very people who they’re supposed to be removing if found incompetent or malfeasant. Remove teachers from being a party to Administrative approval and you’ve made a great step forward.)
      Another problem is Contractual language written BY teacher’s unions which gives extraordinary protection to people who want it to protect their incompetents- those who pay their dues and make all the rest possible.
      Teacher contracts across the country should be contested at every negotiating session, and one’s that give the power to the unions should be refused and voted down.
      Anyone who wants a REAL eye-opener should go to their school district office and request a copy of the contract in effect (or the one currently under negotiation) for a view into the real problems- both monetarily and professionally.

      • BillG4

        The same problem exists in the private sector. Tenure is not the answer. The answer is: make yourself valuable to your employers – the parents.

      • Scott Doty

        Great post!

  • Chiron_Venizelos

    Even the “Father of Socialism in America” – Franklin Delano Roosevelt – opined that public sector unions should not be permitted.
    That tenure has been revoked in California is a testament to the notion that incompetent employees – regardless of seniority – can and should be let go.

  • Sheik Yerbouti

    Been waiting since the 60s for this. The real shame are the teachers who allowed this to go on for so many decades. They turned their back on their charges to keep useless teachers in their seat for the sake of the “team”. They have shamed the occupation entirely.

  • Atikva

    This ruling is a ray of hope, sure, but it affects only the tip of the iceberg.

    For the past 50 years or so, the government has substituted indoctrination to teaching in our schools, using teachers to spread the socialist doctrines to the young generations and using unions to control the teachers. The aim is not to open the minds of our children, but to close them to anything alien to the socialist pale, it is not to teach them HOW to think for themselves, but WHAT to think that will benefit the party. As for the teachers, the unions and government are more concerned with their compliance than with their performance.

    Since practically all facets of the socialist creed are fallacies, the left has successfully created a crowd of ignoramuses convinced that they know better than anyone else. Confronted to reality, many of them will become misfits.

  • Wolfthatknowsall

    Perhaps I missed it, but does this decision apply to colleges and universities, also?

    The best way to break the stranglehold of the Left over the educational system is to end tenure. But I benefited from tenure because … when I “came out of the closet” as a conservative, after gaining tenure … the department and the university couldn’t just fire me. My sections filled up, and there was a waiting list for them.

    There could also be an end-run around this decision … an understanding between school districts and schools that only applicants with Left-wing bonafides would be hired. It would be quite difficult to prove that an applicant was rejected because of their ideology, rather than other factors.

    More court cases to come, I predict …

  • pupsncats

    The more important issue is that unions are allowed into the public schools, a taxpayer-funded institution and that makes it inevitable that there will always be a conflict between teachers and the education of children. Unions work for the teachers, not the students. Their interest is getting the best deals for teachers rather than a good education for children. With unions entrenched in public education there will never be a time where children receive a worthy education. Unions should be banned from all government employment, period.


    For a variety of reasons, Conservatives shouldn’t cheer this decision too loudly:

    1. It’s hard to see how bad schools are unconstitutional, thus this court’s ruling will likely be overturned on appeal.

    2. Tenure is probably the least of our problems with the public school system – the biggest problem is the “public” (i.e. government-run) nature of K-12 education. It’s true that tenure is more appropriate at the college level, but the public schools will continue to fail even if tenure is removed. What we need is a few courageous states to begin privatizing education (with vouchers for the few very poor students who couldn’t afford private school tuition on their own).

    3. At the college level, tenure benefits Conservatives, who otherwise would probably be dismissed from all teaching positions.

  • 11bravo

    Maybe this ruling will get more teachers to see just how “noble” their profession is – and not act like union iron workers or laborers trying to get as much out of tax payers as possible.
    I think teachers deserve to be paid very well indeed, they have the future of our country sitting right in front of them. You would think virtue, morality, ethics, and character should be embraced by them over anything else.
    No unions, no tenure for the entire system K-PhD, if you receive federal funds, or student loans.

  • Rob Hobart

    With any luck, this will ramify throughout the country.

  • Up Huff

    Hallelujah! A judge that sees through all the smoke and mirror crap that the Teacher’s Unions have been snow-jobbing the public with for so long. As well, they understand now how teacher’s cover their own arses by making sure that they work to elect those who can be bought and will protect their teacher constitutencies whatever the cost.

    Take special note that, once again they (the teachers and those that they’ve selected to cover and protect them), are going back and blaming all their failures on issues of “society”.. and for which they’re not responsible and have no control.
    One might want to look at the “professional journals” put out about same, because they’ve had almost 50 years of claiming those to be THE problems they faced. In that same time money has been thrown away in going from classes of 30 or more to one’s having 20 or less and having one or more “teacher’s assistants” to lighten their “load”- and it has all been an abysmal failure. “Graduates” today are, on average, less capable than a typical 6th grader of 50 years ago, and are certainly less knowlegeable about what matters in the real world.
    You can bet they will be screaming for their political protectors, those they’ve chosen to protect them, to pull out all the stops and legislate against this decision.
    You can also be they’ll try to steer this case into a Liberal, Judicial Activist filled Court of Appeals so they can get the result they MUST have to continue their failing ways.

  • AKEK

    If the seniority system hurts schools, how much more does it hurt the U.S. Senate where all members are supposed to be equals? We might save the country by taking away the privilege of incumbency, in which voters are persuaded over and over, with bribes from their own tax dollars, that they have no choice but to re-elect the inferior because of the “clout” that comes through the corrupt practice of seniority feather-bedding.

  • nimbii


  • Dean Striker

    While the article is well enough done, so far as it goes, it is nothing but a distraction from the Real Issue, which is turning education control over to the governments (at several levels), and so resisting getting governments totally removed from education. There is no such “mandate”.

    I know of nothing in the US Constitution designating FedGov to have any involvement whatsoever in education. As to the many State Constitutions I wouldn’t know, and beyond that are County and City.

    By turning education over to the free market we get competing Private schools, each with their own curriculum based entirely upon the wishes of the parents who are paying for the education of the own children (an no others)

  • USARetired

    This is long over due, as the ‘Tenure’ thing is eons outdated, and it is hurting the quality of our school systems! Hope it goes Nation Wide!!

  • Ellman48

    “Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students,” Judge Rolf M. Treu wrote in his ruling. “The evidence is compelling. Indeed, it shocks the conscience.”
    The Left thrives on identifying victims and victimizers. In the statement above it is the students who are the victims and the teachers who are the persecutors. This doesn’t quite synchronize with the Left’s definition, does it?

  • USARetired

    Tenure never contributes to quality, regardless of were or how it is applied!

  • Scott Doty

    What an idiotic article. Teachers need tenure to perform well and to advocate for their students, without it the teacher is at the whim of the latest idiotic admin that mandates a new education destroying policy. It does not matter it will be overturned on appeal (unless the Koch brothers pay lots of cash to that judge too)!

  • Scott Doty

    Most of you on this board are abject idiots regarding education!

  • Liberty_First

    Getting rid of tenure means all the coaches, board members and principals will be deciding who passes classes and who doesn’t. It is possible to fire tenured teachers but administrators must document performance problems. What we have is a problem with administrators not teachers.

    People who have not taught don’t realize teacher retention is a major problem. And for those of you who whine about hours, most teachers spend a great deal of non-class time grading assignments especially when grades are due.

    Time to stop scape goating teachers when the problems with students are more related to social and cultural issues.

  • P_Ang

    Now if only they can apply this to Universities that receive federal funds (most). It would be nice to get real professors that actually teach for some of the tens of thousands students are wasting on the lazy Tenured liberals.