Last week’s appalling California Superior Court decision in Vergara v. California, which overturned California statutes guaranteeing due process protections for K-12 teachers with more than two years experience (so-called “teacher tenure”) and layoff by seniority, has engendered considerable concern among instructors in higher education.  To what extent does this decision threaten the protections of the tenure system in higher education?  Does the decision apply to colleges and universities?

The simple answer is that this decision by Superior Court Judge Rolf M. Treu will not have a direct impact on higher education.  For one thing, what is commonly referred to as “teacher tenure” in K-12 education is only partially comparable to tenure in higher education, at least as that concept is articulated in AAUP’s classic 1915 and 1940 statements.  “Teacher tenure” is in fact solely a system wherein teachers who have completed an initial probationary period may be dismissed only “for cause” after a due process procedure guaranteeing their rights.  While to some extent this system protects the quite limited academic freedom rights enjoyed by such teachers — and, after all, academic freedom, if it exists at all, will necessarily mean something quite different when the education of young children is involved — its main goal is to ensure a stable work force, job security and the attractiveness of employment in largely underfunded K-12 public schools.

Moreover, the decision does not invalidate individual or collective teacher contracts, but instead overturns a statute that requires such contracts to include such provisions.  Not only does this leave open the possibility that K-12 contracts might still include such provisions, it also clearly distinguishes these policies from those which exist in higher education.  California law does not similarly require that all public higher education contracts include tenure provisions, either tenure as the AAUP understands it or as outlined in the “teacher tenure” statute overturned by Judge Treu.   Neither, I suspect, do the laws of other states, otherwise we would obviously not be witnessing the widespread proliferation of part-time contingent contracts, under which faculty may be dismissed without hearing or often even the semblance of cause.

In addition, the basic argument of the Vergara decision is that these laws violate the equal protection provisions of the U.S. and California Constitutions.  As Scott Lemieux wrote in The American Prospect, “The California courts have long held that under both the 14th Amendment of the U.S. Constitution and the state constitution education is a fundamental right that must be provided on equal terms. This doctrine is salutary; indeed, like Justice Thurgood Marshall, I think the Supreme Court erred by not reading the 14th Amendment the same way.”

That the Supreme Court has not endorsed this doctrine, however, suggests that the applicability of Vergara, if upheld, to other states will be limited, even for K-12 education.  But its application to higher education — as law — will essentially be nonexistent, because no court anywhere has yet ruled that higher education is “a fundamental right that must be provided on equal terms” (if only some court had done so!).  As a result, in California the University of California and the California State University systems are not funded equally.  And the community colleges receive even less state funding and, moreover, their funding varies — sometimes dramatically — district by district, with wealthier districts generally better funded than poorer ones.  Were a court to seek to impose such equal protection on public higher education institutions, moreover, the extension of this principle to tenure provisions would be highly problematic and could well be seen as an improper intervention into policies better left to educators to decide, given the inclination of most courts to intervene in higher education only where absolutely essential.

Indeed, the applicability of this principle to K-12 “teacher tenure” is itself highly questionable on legal grounds, and there is therefore good reason to hope that this unfortunate and poorly reasoned ruling will be overturned on appeal.  The Prospect‘s Lemieux is one of many who have pointed out the flaws in Judge Treu’s opinion:

There is one huge difference between this week’s case and the previous holdings. Previous precedents involved cases where poor school districts were being treated differently under state law. In Serrano v. Priest I and II, the issue was one of poorer school districts receiving fewer resources, and Butt v. California concerned a school district closing six weeks early because of a lack of resources. These were clear cases of equal protection violations: Poor districts were treated differently than affluent ones in ways that almost certainly had deleterious consequences for the education of students in the former.

In this case, however, there’s no formally unequal treatment; the tenure system created by statute in California statute applies to all school districts. For most of the conservatives cynically praising Treu’s decision, this should be the end of the discussion; to their thinking, as long as districts are treated the same there’s no equal protection violation. But conservatives are wrong about this. A statute that formally treats people or groups the same can violate equal protection if the effect of the law is discriminatory. Education policy provides a particularly vivid example of the vacuity of the conservative premise that formally equal treatment is sufficient. Reading Brown v. Board to require nothing but the elimination of de jure discrimination in pupil assignment has allowed far too many local educational systems to be both separate and unequal in practice.

So there’s nothing wrong with a disparate impact analysis per se. But if Treu’s opinion were to fulfill its premise, he needed to make the case that California’s tenure system disproportionately burdens the educational opportunites of the poor. And it’s here that his amateurish policy analysis manifestly fails to deliver the goods.

The logic of Treu’s holding runs like this:

1. California’s tenure system makes it very difficult to fire poor teachers;
2. Poor teachers tend to be concentrated in districts with less affluent students; and therefore
3. California’s tenure system unconstitutionally discriminates against poor students.

Treu’s opinion provides relatively strong evidence for the first two points, but his logical train derails completely on point #3. . . .

. . . the 14th Amendment does not require optimal policy; it requires nondiscriminatory policy. And Treu’s assertion that the tenure system discriminates against poor districts fails to address crucial “compared to what” questions. Treu considers the downside of tenure: making it more difficult to fire incompetent teachers. But there are also upsides: most importantly, job security makes teaching a more attractive profession to talented potential teachers.

Lemieux quotes Dana Goldstein, whose measured article in The Atlantic makes clear that the decision will do nothing to improve education for the most at-risk students.  “For high-poverty schools, hiring is at least as big of a challenge as firing, and the Vergara decision does nothing to make it easier for the most struggling schools to attract or retain the best teacher candidates.”  As Lemieux concludes,

Treu simply assumes, not only without evidence but in the face of logic and reason, that there is a group of highly skilled teachers waiting to fill the least desirable teaching jobs in the California school system, despite the fact that these jobs aren’t particularly remunerative and, thanks to Treu, now must also be insecure.

The imaginary group of skilled educators chomping at the bit to take the most challenging teaching jobs—even though Treu has made the jobs even less attractive—isn’t the only can opener his poorly reasoned opinion assumes. He also seems to think that the identification of incompetent teachers is a straightforward process, and in the absence of tenure protections school systems would be run as pure meritocracies. In practice, however, evaluating teachers is a difficult, labor-intensive job, and giving administrators unfettered discretion is likely to lead to cronyism, discrimination, and people rewarded based on their willingness to suck up to superiors rather than their talent and initiative in teaching.

These questions aren’t purely hypothetical; Treu’s shaky causal logic could be tested in a number of ways. As Treu points out, many states provide less or no tenure protection to teachers. A serious opinion would then consider the question of whether these states are less likely to concentrate poor teachers in poor school districts. He might also consider whether teacher tenure has led to poor educational outcomes in other national contexts. But Treu’s opinion is the opposite of serious; it just uncritically takes the shoddy arguments made by reflexive opponents of teacher’s unions at face value and, even worse, reads them into the state constitution.

Educational opportunities in the United States remain tragically unequal. But clumsy, unjustified judicial policy-making will make these problems worse before it makes them better. And the California state constitution does not require the California legislature to agree with Michelle Rhee.

But if this poorly argued decision will not have a direct impact on higher education, no one should underestimate its indirect effects.  The decision is less important, for K-12 as well as higher education, for what it will do to the law, in California or elsewhere, than as part of an organized and coordinated assault on teachers, other public employees, quality education, and academic freedom at all levels, hiding behind the phony flag of education “reform.”  That assault has already begun in higher education and if it is to be repelled we need to join with our K-12 colleagues and others to expose the phony character and dangerous essence of the arguments so crudely endorsed by Judge Treu.

Fortunately, not everyone has responded to Vergara with the craven stupidity of an Arne Duncan.  One good place to send anyone who wants to understand the decision would be this splendid piece by Los Angeles Times columnist Michael Hiltzik.  He writes:

Tuesday’s ruling by Los Angeles County Superior Court Judge Rolf Treu declaring all sorts of job protections for teachers “unconstitutional” is being hailed by a certain category of education activists.

What’s curious about this is that they seem to have a unanimous view about the reason California schools are supposedly so bad: It’s the teachers unions.

Not the imbalance of financial resources between rich districts and poor. Not the social pathologies–poverty, joblessness, racial discrimination, violence–that affect educational attainment in disadvantaged communities.

Not California’s rank at the very bottom of all states in its per-pupil expenditures, at $8,342 (in 2011), according to the quality index published by EducationWeek. That’s 30% below the national average of $11,864, reflecting the consistent shortchanging of the K-12 system by the state.

But California ranks much higher compared with other states in measures of teacher incentives and working conditions, so clearly those are the factors that need to be changed.

To Judge Treu and the plutocrats who funded Vergara v. California, the lawsuit on which he ruled, what’s “unconstitutional” about California’s school system is that teachers have too much due-process protection from being fired.

Observes David B. Cohen, a schoolteacher and associate director of Accomplished California Teachers, an education advocacy group associated with Stanford University, one should be “suspicious of wealthy and powerful individuals and groups whose advocacy for children leads to ‘reforms’ that won’t cost a cent, but will weaken labor.”

That’s a good description of Students Matter, the organization that has financed the Vergara lawsuit. It isn’t surprising that the animating force behind Students Matter is David Welch, a resident of one of the leafier enclaves of Silicon Valley, who has investments in charter schools and educational technology, both of which trends are questioned by, yes, teachers unions. And properly so.

“Students Matter has done nothing that will put a needed book or computer in a school,” Cohen observes. “Not one wifi hotspot. Not one more librarian, nurse, or counselor. Not one more paintbrush or musical instrument. Not one hour of instructional aide support for students or professional development for teachers. They don’t have any apparent interest in the more glaring inadequacies that their considerable wealth and PR savvy could help.”

Critics of teacher unions maintain that they’re entrenched interests that block needed reforms. But they don’t have anything like the deadening effect on education of the fans of ventures like Students Matter and the Vergara lawsuit. . . .

By some reckonings, the biggest threat to real progress in our schools is Arne Duncan. The education secretary has bought hook, line and sinker the argument that the key to pedagogical competitiveness for America is to equip every child with a laptop or tablet.

As we’ve pointed out before, this is a policy that benefits no one but the shareholders of Apple Inc. The company has stood foursquare with Duncan in his fatuous technology campaign, which is likely to impoverish the neediest school districts by diverting their scarce resources into wasteful hardware while skimping on–here’s a surprise!–teachers. . . .

Among the remarkable features of Judge Treu’s ruling is the absence of any understanding of how to provide better teachers to students more consistently, or even how to measure quality. He seems to think it’s a simple matter of pointing at “bad” teachers and running them out the door.

Treu barely acknowledges the tools administrators commonly use to deal with problem teachers, other than lengthy and costly firing procedures. He glosses over the statistic mentioned in his own courtroom that the number of “grossly ineffective” teachers in California–he doesn’t specify how they’re defined–amount to 1% to 3% of the total. In absolute terms that may be a big number in a state with 275,000 teachers, but it’s hard to see how, even if they are all ineffective and all concentrated in the disadvantaged districts he says he cares about, it rises to the level of a constitutional offense warranting removing job protection for all teachers. . . .

Eviscerating the due process protection of teachers on the job won’t guarantee quality; it will only give administrators more leeway to harass or promote teachers for any reasons they choose.

Goldstein’s article in The Atlantic argues that “hiring is at least as big of a challenge as firing, and the Vergara decision does nothing to make it easier for the most struggling schools to attract or retain the best teacher candidates.”  She writes:

From 2009 to 2011, the federal government offered 1,500 effective teachers in 10 major cities—including Los Angeles—a $20,000 bonus to transfer to an open job at a higher poverty school with lower test scores. In the world of public education, $20,000 is a major financial incentive. All these teachers were already employed by urban districts with diverse student populations; they weren’t scared of working with poor, non-white children. Yet less than a quarter of the eligible teachers chose to apply for the bonuses. Most did not want to teach in the schools that were the most deeply segregated by race and class and faced major pressure to raise test scores.

Principals have known about this problem for ages. In Chicago, economist Brian Jacob found that when the city’s school district made it easier for principals to fire teachers, nearly 40 percent of principals, including many at the worst performing, poorest schools, fired no teachers at all. Why? For one thing, firing a coworker is unpleasant. It takes more than a policy change to overturn the culture of public education, which values collegiality and continuous improvement over swift accountability. That culture is not a wholly bad thing—with so many teachers avoiding the poorest schools, principals have little choice but to work with their existing staffs to help them get better at their jobs.

The lesson here is that California’s tenure policies may be insensible, but they aren’t the only, or even the primary, driver of the teacher-quality gap between the state’s middle-class and low-income schools. The larger problem is that too few of the best teachers are willing to work long-term in the country’s most racially isolated and poorest neighborhoods. There are lots of reasons why, ranging from plain old racism and classism to the higher principal turnover that turns poor schools into chaotic workplaces that mature teachers avoid. The schools with the most poverty are also more likely to focus on standardized test prep, which teachers dislike. Plus, teachers tend to live in middle-class neighborhoods and may not want a long commute.

Educational equality is about more than teacher-seniority rules: It is about making the schools that serve poor children more attractive places for the smartest, most ambitious people to spend their careers. To do that, those schools need excellent, stable principals who inspire confidence in great teachers. They need rich curricula that stimulate both adults and children. And ideally, their student bodies should be more socioeconomically integrated so schools are less overwhelmed by the social challenges of poverty. Of course, all that is a tall policy order; much more difficult, it turns out, than overturning tenure laws.

Another thoughtful response has come from Jim Miller and Kelly Mayhew, two community college instructors writing in the San Diego Free Press:

Last week’s decision in the Vergara v. the State of California lawsuit that undermined tenure and seniority rights was a profound slap in the face to teachers who have committed their careers to improving the lives of our children.  It was yet another significant victory for those who are seeking to impose corporate education reforms by pitting teachers against children in a cynical, destructive, and utterly counterproductive fashion.

As tenured professors in the community college system, union members, and parents of a child in California’s public school system, we have a unique perspective on this matter.  Although the “Vergara” decision has no effect on our jobs at San Diego City College, it does affect the professional lives of the educators who teach our son and it will do them, and him, more harm than good. . . .

Pitting our child against his teachers, as the “Vergara” lawsuit seeks to do, is a fool’s errand. It destroys any sense of community in our schools and heaps scorn on the very people we all want to trust with our children’s futures.  The interests of teachers and students are not diametrically opposed, as so many in the corporate education reform industry would have us think, but rather inextricably linked.  When we disrespect teachers, we demean our education system and do nothing to help students.

Miller and Mayhew identify six “blind spots” of the Judge Treu’s ruling:

1) The lawsuit ignores the real problems of public education

By focusing exclusively on tenure and seniority rights, the “Vergara” decision brackets off economic inequality, poverty, and the ongoing underfunding of our education system. . . .  The central factor that hurts poor children’s educations is not “bad teachers” but poverty itself and all the aspects of children’s lives that this affects from home environment, to health, to community support.  . . .

2) Stripping teachers of their workplace professional rights will harm, not improve, student learning

The central myth promoted by the anti-public education “reformers” is that rules and regulations make it impossible to fire “bad teachers.”  The facts suggest otherwise.  Contrary to the corporate education reform propaganda, a teacher can be fired at any time during the first two years of his or her career.  In the course of this lengthy probation period, administrators can fire them for any reason, or for no reason at all. After this probationary period, a teacher can still be fired if their administrator can document a problem necessitating dismissal and convince a panel of experts that the teacher deserves to be fired.  Teachers aren’t guaranteed jobs for life, they have a right to a hearing and due process.

This process does not harm students but a system with a revolving door of new teachers would. Indeed, the problem we have in our K-12 system is not that we can’t fire “bad teachers” but that we are having trouble recruiting and keeping teachers, period. . . . 

3) This attack on the teaching profession will make it harder to attract and retain quality teachers

As opposed to the myth that our schools are stacked full of overpaid, underperforming teachers keeping out a wave of eager, idealistic new teachers chomping at the bit to come save the world, attracting and retaining teachers has always been one of the biggest problems in the field of education. Teaching is hard, underpaid, and too often undervalued.  . . .  Most teachers leave the field within the first five years. And, as we see teaching college students, many of our brightest students look at the discourse surrounding education today and say, “Why would anybody want to do that?” Thus just as we most need to be encouraging teachers to enter the profession and stay we are consistently demonizing them. . . .

4) “Tenure” protects academic freedom

What most people call “tenure” is merely the right to a hearing before dismissal.  This became law through the understanding that political pressures and the arbitrary actions of administrators could and often did destroy academic freedom.  Academic freedom is the right to teach to academic standards and curriculum in a balanced fashion, with all points of view aired, rather than through one “approved” viewpoint.  It protects the rights of teachers to raise difficult questions and challenge status quo thinking.  This is a key aspect of education in a democratic society.  Back in the “good old days” before academic freedom, teachers were fired for advocating for ethnically relevant curriculum for minority students, challenging McCarthyism, writing columns like this one, teaching classic literature deemed inappropriate by reactionary school board members, or simply being gay.  The list goes on and on.  So, if you value freedom of thought and teachers who challenge students to think, you should be concerned about the implications of this case.

5) Seniority is transparent and fair, and not the reason why layoffs occur

By focusing exclusively on seniority as the reason for layoffs of bright new teachers Vergara ignores the elephant in the room: underfunding. If our educational system was adequately funded, we would never have to deal with layoffs.  But we all know it is not.  . . .  Seniority simply ensures transparency and fairness rather than the arbitrary authority of administrators to rule by whim.  Most research shows that experienced teachers actually get better learning outcomes than inexperienced teachers but no one would deny the need for the new fresh energy that younger teachers bring to the classroom. So the bad old teacher versus the good new teacher frame is false  If we want good education for our children the answer is to adequately fund our system so good experienced teachers can mentor new ones and we can have the best of both worlds.  Getting rid of seniority does nothing.

6) The wealthy backers of this suit are not pro-public education; they are just anti-union

The funders of Vergara are not civil rights activists or defenders of public education. They are just using civil rights rhetoric to achieve their goal of destroying teachers’ rights. Consider who’s funding the suit.  David Welch is a charter school entrepreneur and his allies include folks like Eli Broad of Parent Revolution and a who’s who of the usual anti-union, anti-public education suspects.  Their “students versus teachers” rhetoric is a convenient mask for a privatization and union busting agenda.

Hiltzik and Miller and Mayhew are but two of those who have responded to Vergara with reasoned arguments.  Here are a few other informative responses:

• Jesse Rothstein, associate professor of public policy and economics at the University of California, Berkeley, who was an expert witness for the defendants in the case, wrote this op-ed piece in The New York Times.
• Jack Schneider, assistant professor of education at the College of the Holy Cross in Massachusetts and author of From the Ivory Tower to the Schoolhouse: How Scholarship Becomes Common Knowledge in Education, wrote this op-ed piece in the Los Angeles Times.
• And you might check out “Tenure Is Not the Problem: Teacher protections are not why poor schools are failing. Segregation is” in Slate.
• See too this piece in the Washington Monthly online.
• Even the pro-business Forbes magazine expressed skepticism of the ruling.

And last, but by no means not least, there is a terrific site, “The Vergara Trial: The Money and Motive Behind the Lawsuit,” where you can read trial briefs and much of the trial testimony, engage with research on the issues, learn about the plaintiffs and the defendants, and access updated links to all sorts of interesting media coverage.  If you’re interested in this important case, the site is essential.