This week, in a matter titled Vergara et al v State of California, a trial court judge in California made headlines when he held that the statutes pertaining to teacher tenure, dismissal and seniority were unconstitutional because they violated the “Equal Protection” clauses of both the state and federal constitutions. He based his decision on evidence which he said showed that a “disproportionate” number of “grossly ineffective” teachers were employed in schools serving “predominantly low-income and minority students.” The judge wrote that this was a result of laws which force decisions on tenure too early, make it almost “impossible to dismiss a tenured teacher under the current system,” and when facing reductions in force, require districts to keep more senior teachers, even those who are ineffective, over more junior but more effective teachers.
Some in the media have already declared this case as an opening legal attack on tenure and seniority. While this may make for good headlines, for many reasons it also grossly overstates the importance of this case.
First, the decision was issued by a trial court. Appeals will undoubtedly be filed. We don’t know what an appellate court will say, or what the California Supreme Court will say, if the case ever gets there. Moreover, based on the published decision, we don’t know what the full record really shows. The decision’s entire focus appears to have been on tenure and other related laws without so much as a hint that other factors that impact poor performing schools were even considered.
Second, the court’s decision does not pertain to tenure per se, but to the California statutes which were at the heart of the case. California apparently has a two year tenure statute. Practically, the court said that the time to determine whether tenure should be granted is even shorter because boards have to make their decision to grant tenure no later than March 15 into the second year of service. The judge contrasted this with 32 states that have a three-year period for acquiring tenure, nine that have a four- to five-year road to tenure and four that have no tenure system at all. California and four other states are the only states that have a two year tenure system.
California also has a dismissal statute. According to the decision the dismissal statute makes it so burdensome to prove a case that it is rarely used. The “evidence” was that it could take anywhere from two to almost ten years to bring a case to conclusion and the costs ranged from $50,000 to $450,000. The court said that this “state of affairs” was “particularly noteworthy in view of the admitted number of grossly ineffective teachers currently in the system across the state” with a high concentration found in the poorer districts. It’s not clear from the decision what evidence was presented to substantiate this conclusion or what yardstick was used to measure what makes for an ineffective teacher.
The decision also held against the seniority statutes in California. Taking a page from the general media criticism leveled at the seniority concept of “last in, first out” the court said that “[n]o matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher,” the junior gifted teacher always loses out. As with so much of the political attacks on the concept of seniority, the court appeared to completely discount the value of experience.
So, this broadside constitutional attack on the tenure and seniority statutes of California certainly caught the attention of the media as well as the educational establishment. But, what made this decision particularly interesting to legal and political pundits alike was the judge’s attempt to put the decision in the context of the landmark 1954 desegregation case of Brown v. Board of Education. In fact, the Brown matter is referenced at the outset in the opening paragraph of the decision.
In Brown the Court in a unanimous decision held that the legal concept of “separate but equal,” which had been upheld by the Court some 60 years earlier, was in fact inherently unequal and violated the students’ rights of equal protection under both the federal and state constitutions. The parallel seen by the court was that the same constitutional principles that require “equal” access to public education, apply to the “quality of the educational experience”; that as students have a constitutional right to equal access to a quality public education, that they also have a constitutional right to have quality teachers. The court found that tenure and the burdensome dismissal process and seniority were inapposite to the right to expect to have quality teachers in the classroom. He found that tenure and seniority disproportionately shielded ineffective teachers in poor and minority school districts.
As the judge tried to link this case to equal protection precedents such as Brown, he also went to some lengths to emphasize that his was a “legal” decision, not a political one. He wrote that the duty of the court was “dictated by the Constitution and the common law.” He said that the court’s job was to “avoid considering the political aspects of the case and focus only on the legal ones”… that while judges “do not leave their personal opinions at the courthouse door … it is incumbent upon them not let such opinions color their view of the cases before them that day.”
That’s what he wrote. However, an objective read of the decision shows that the politics of tenure was not secreted away somewhere; that the judge’s personal opinion may have come through the court house door after all. Though the judge stated that politics should not dictate a decision, it’s hard to conclude that this was not a political decision. The statutes in question were legislative enactments. The standard to be applied when challenging the constitutionality of a statute is the standard of “strict scrutiny” because statutes carry with them a presumption of validity. That’s not to mean that they are sacrosanct or immune from constitutional challenge. But when they are challenged plaintiffs have a high bar to overcome. Here, while the court found that the plaintiffs met their burden, it’s not clear how compelling the evidence was, particularly because from the decision we don’t know what measures were used to determine effectiveness or ineffectiveness. Was it test scores? Was it anecdotal? Was it the lack of evaluations or poor evaluations?
What we do know is that the decision declaring California’s tenure and related statutes unconstitutional will in all likelihood be “stayed” pending an appeal. That means the decision will be “enjoined” until an appellate court renders a decision. And there most certainly will be an appeal, if one already hasn’t been filed, in which all the major educational stakeholders will participate.
What impact does this decision have on New Jersey? Legally – none. It does not serve as a precedent because it does not pertain to New Jersey or its laws. Moreover, because it is a trial court decision even the courts in California aren’t bound by it. However, the decision feeds into the political notion – popular in much of the media and in some political circles that schools would be better without tenure and seniority.
What examples are there of what can happen when tenure is removed? In New Jersey, it’s the loss of tenure by superintendents more than twenty years ago. Did it make superintendents more effective or more independent from political interference? Did it elevate the quality of the performance of superintendents? Did it make boards of education more conscious of their limited role as policy makers? Did it lead to more stability? Most everyone in public education would agree that the evidence shows that the loss of tenure certainly has led to greater mobility for superintendents, and just as certainly has resulted in less stability for the districts, teachers and students they serve. Continuity and consistency has given way to a revolving door of superintendents. Who has benefited from this loss of tenure? Interims.
The loss of tenure for superintendents is the only active and recent example we have – at least in New Jersey – of what can happen when tenure is lost. By most, if not all accounts, it is a failed experiment.
So, for those who want to see this California decision as an opening legal salvo against tenure and against seniority, the fact is that it does not serve as a precedent anywhere. For those who would buy into the decision, the response should be the old legal maxim, “caveat emptor – let the buyer beware.”