California Court: Keeping Terrible Teachers Is Unconstitutional

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Advocates of education reform have fought pitched political battles to force states and school districts to make it easier to fire the worst teachers. An education-reform group, Students Matter, developed an ingenious strategy: trying to end tenure protection for ineffective teachers in court. The group filed suit against the State of California. Today, the court ruled in its favor.

The difficulty of removing chronically ineffective teachers is probably the strongest piece of the pro-education-reform case. Tenure rules create a system where teachers are paid by length of service rather than merit, and removing even the worst ones is extremely arduous. (Here’s a Center for American Progress paper summarizing the research on the problem; yes, the author is my wife.)

What makes the California lawsuit fascinating is that it employs a classic liberal legal strategy. The plaintiffs show (1) current tenure rules make it nearly impossible for schools to fire chronically ineffective teachers, (2) having a chronically ineffective teacher imposes irreparable harm on a child in the form of lost wages, and (3) chronically ineffective teachers are disproportionately concentrated in schools with high numbers of minorities students. The third point turns the case into an equal protection violation.

Various left-wing critics of education reform have been lambasting the lawsuit. Their arguments mainly consist of pointing out that it is being financed by wealthy backers from Silicon Valley, which is true, though the accusation would likewise disqualify such causes as green energy and gay marriage. One outraged defender of tenure argues, “these forces are seeking to strip teachers of fundamental protections, using the patronizing argument that children must come first.” Well, I suppose an argument that the interests of children ought to supersede the interests of adult employees is patronizing at some level, so that’s probably true, too.

The suit was mostly seen, for good or ill, as a public relations gambit designed to highlight the most noxious side effect of tenure laws. Instead, the plaintiffs won as the judge, Rolf Treu, ruled that they had nailed the evidence. (“The evidence is compelling,” wrote Judge Treu, “Indeed, it shocks the conscience.”) Judge Treu left the tenure rules in place pending an appeal to the state Supreme Court. But even if the Supreme Court overturns his ruling, reformers are planning similar suits in other states. The legal fight for school reform is here to stay.