Friday, September 26, 2014

The Rhetoric vs. the Reality of the California Teacher Tenure Decision

-- Posted by Neil H. Buchanan

Last month, I wrote a series of posts (here, here, and here) in which I discussed the new tendency among "centrist" liberals to join with conservatives in attacking teachers' unions, and in particular to claim that tenure for teachers is harming schoolchildren.  In my Verdict column today, I return to those issues, describing why uniquely strong job protections are necessary for school teachers.

As I note, the at-will employment model is bad for everyone, and all workers should have due process protections that they currently lack.  However, if only some people will have access to tenure protections, teachers should be at the top of the list.  That conclusion is based not just on what the teachers deserve, but on the positive effects of tenure on the schools overall.  I describe how the empirical evidence fails to show any harm from tenure, and relatedly that there is no evidence that educational outcomes have been improved in jurisdictions that have attacked teachers and their unions.

At the end of the column, I discuss the infamous Vergara v. California decision, rendered in June of this year, in which a California trial court judge declared that three state laws related to teaching -- the law granting tenure, the law making it more difficult to fire tenured teachers, and a "last in, first out" (LIFO) rule for dealing with layoffs -- are in their entirety a violation of equal protection and are thus unconstitutional.  Here, I want to add a few more thoughts about Vergara, which is a truly odd decision, both in its reasoning, and in the way that it has been portrayed in the press.

The Vergara case was much more than simply an attack on the idea of tenure.  Because he was agreeing with an equal protection claim, it would not be enough for the judge merely to conclude that teachers' job protections might allow some less effective teachers to remain employed.  After all, even the fiercest defenders of tenure admit that the whole point of due process is to make firing more difficult, which necessarily means that even people who will ultimately be let go will be employed longer than they would have been in a fire-at-will world.  The point is that, like all forms of due process, the "red tape" is ultimately worth it for everyone, including good teachers and students.  Proving that some ineffective teachers would have been fired sooner is hardly enough to make a claim.

Even if the legal issue had merely been whether tenure is a net positive or net negative, however, the judge in Vergara fell short.  His analysis simply says that "grossly ineffective" teachers are difficult to fire in California, and that they probably were tenured too quickly, because California has a two-years-to-tenure-review model, rather than the more common three years in most states (and up to five years in the remaining states that have tenure).  He then says that LIFO keeps some of the bad teachers on staff, while younger and better teachers are often released.  He says, in other words, that California's laws have negative effects, but he says nothing about the net effect of tenure.  One could thus describe his ruling as "cost analysis," not "cost-benefit analysis."

But the legal standard in an equal protection case is not even "net positive versus net negative."  It was necessary for the judge to further claim that the statutes in question caused some children systematically to receive worse educations than everyone else receives.  Accordingly, the judge needed to show that minority children were being uniquely burdened with bad teachers -- and that that burden was caused by the three statutes.

In my Verdict column, I probably give the judge too much credit, because I allow that at least the LIFO law might be blameworthy when it comes to concentrating the least experienced and least effective teachers in schools in poorer neighborhoods.  (I also fault the judge for treating the three laws as an inseverable whole, which is just strange.)  But even that is highly contestable, because one could easily imagine a system in which (a) people are tenured (or not) after two years, (b) tenured teachers become more difficult to lay off, and (c) the youngest people bear the brunt of layoffs, yet (d) any resulting group of "bad teachers" is spread evenly throughout the state.  Again, the most that can be said (and the evidence that the judge relies upon does not even prove this conclusion) is that California's three statutes keep some people on the job who should be let go.

Appellate review of this case should thus be rather easy, at least as a matter of legal argument.  What is equally interesting is that the press reports and commentary about the case describe the outcome as a matter of finding tenure itself to be unconstitutional.  Strictly speaking, the judge did invalidate all three laws, but his reasoning (such as it is) would easily allow California to tinker with its tenure system in order to comply with the judge's ruling.  There is nothing at all that says that tenure for teachers cannot be adjusted in a way that cures the constitutional defects that supposedly currently exist.  In fact, to follow the judge's line of thought, even something as simple as moving to a three-years-to-tenure standard, with no other changes, could do the trick.  Or not.  The decision is truly opaque about what really bothers the judge.

This confusion about what was really at stake showed up in the general media descriptions of the ruling as "invalidating tenure," with most reports seizing on one phrase in the ruling, where the judge says that the system "shocks the conscience."  For example, a NYT reporter last month wrote that the judge "found that tenure protections for teachers deprived students of a constitutional right to an education, and disproportionately hurt poor and minority students," and then quotes the judge as saying that the system shocks the conscience.

The judge does, indeed, import the rhetoric of unconscionability into his ruling.  Interestingly, however, he does not say that California's tenure system shocks the conscience, at least not directly.  He says this: "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."  He then describes a "massive study" that tried to measure the costs (in lost future income) when a student is taught by a grossly ineffective teacher.  The number is high, but the judge shows no understanding of that study's limitations.

The point, however, is that the judge said that it is unconscionable for a student to be taught by a grossly ineffective teacher.  That is not at all the same thing as saying that California's tenure system inevitably results in minority students being taught by such teachers.  Indeed, it does not even say that it is impossible to reform the system so that robust tenure protections are still available, but no students are taught by grossly ineffective teachers.  Whatever else one might say about the so-called rubber rooms in NYC, a system (that has since been abandoned) in which teachers who were thought to be ineffective were taken out of the classroom while they went through due process, it at least showed a way for students to be shielded from people who might be on their way out.

More positively, it is certainly possible to build systems in which grossly ineffective teachers are weeded out, and students are left to be taught by the many good teachers who continue to be underpaid and under-appreciated in the schools.  In fact, it is teachers' unions that have been at the forefront of just such reforms.

Notwithstanding all of this, the people who brought the Vergara case (and, as I note in my Verdict column, are taking this to NYS and nationwide), are not interested in reforming tenure or working with unions.  They are, as I noted in my Dorf on Law posts last month, anti-union ideologues who have duped a fair number of liberals to go along for the ride.  (Heck, reports indicate that even "The View"'s liberals are now anti-tenure.)

At this point, a person would have to be either completely uninformed, or deliberately obtuse, to think that the Vergara case was really about "the children."  Tenure for teachers is a necessary component of a good educational educational system.  Not a sufficient one, but a necessary one.  These lawsuits are just another way to use supposed "bad teachers" as a wedge to remove job protections for everyone.