More on Vergara: The Strange Logic of California's Tenure Laws

Lots of criticism is pouring in over the decision issued in Vergara v. California, in which Superior Court Judge Rolf M. Treu struck down five California statutes regulating the "tenure system" for California public school teachers. In a blog post at the New York Review of Books website, New York University professor and education historian Diane Ravitch wrote: "The Vergara decision will do nothing to improve working conditions, to attract better qualified teachers, or to increase the resources available to the neediest children."

Perhaps not, but the judge's decision did expose some strange and unjust policies. For example, under the now-invalidated statutes, it was possible for teachers to receive tenure before they earned their teaching credentials. As Judge Treu noted, this could leave "the applicable district with a non-credentialed teacher with tenure" (decision, p. 9). Moreover, so little time is given (about the equivalent of three and half semesters) to make the tenure decision, the result is that "teachers are [given tenure] who would not have been had more time been provided in the process" (p. 10). This can also result, as the judge noted, in teachers being denied tenure who, given more time, would have received it.  


Imagine if this occurred in medicine or law -- a doctor secured permanent (and basically impossible-to-rescind employment) before she received her medical license, or a lawyer received similar job security from a law firm before he passed the bar exam. No medical office or firm would accept this, and their peers in their field, as well as their patients and clients, wouldn't either. Why, then, should we allow this in teaching?

California's "last in, first out" statute -- or "LIFO," as it's called -- also earned Judge Treu's criticism, and for good reason. Said the judge:

This statute contains no exception or waiver based on teacher effectiveness. The last-hired teacher is the statutorily-mandated first-fired one when lay-offs occur. No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one, who all parties agree is creating a positive atmosphere for his/her students, is separated from them and a senior grossly ineffective one who all parties agree is harming the students entrusted to her/him is left in place. The result is classroom disruption on two fronts, a lose-lose situation. Contrast this to the junior/efficient teacher remaining an a senior/incompetent teacher being removed, a win-win situation, and the point is clear.

Distilled to its basics, the State Defendats'/Intervenors' position requires them to defend the propostion [sic] that the state has a compelling interest in the de facto separation of students from competent teachers, and a like interest in the de facto retention of incompetent ones. The logic of this position is unfathomable and therefore constitutionally unsupportable (p. 14).

It's been unfathomable long before last week's decision. Writing in December of 2012 in the Los Angeles Times, Bhavini Bhakta, a California teacher who lost teaching jobs solely because of LIFO, observed, "LIFO is the functional equivalent of an NBA team being forced to fire LeBron James because a bench warmer on the team has more years in the league." In her op-ed, she described receiving a pink slip from her principal the same year she won her school's Teacher of the Year Award. 

"Sometimes, the pink slips are rescinded at the last minute," Bhakta wrote, and "sometimes they aren't. But the system has forced many excellent teachers out of teaching and into more stable professions."

No one wants teachers to lack job protections and due process, and the solution is surely not a reversal, a "first in, first out" policy. As I wrote last week, the subject is complex. But the regulations that California had in place possessed significant deficiencies, and Judge Treu's decision nicely highlighted why. 

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J Cosgrove
4 years 1 month ago
For an opinion by a prominent lawyer, Richard Epstein, who thinks that the judge did not go far enough: Epstein is what is called a classical liberal, not to be confused with current liberals or progressives with whom he has serious issues. He is a prolific writer who has written extensively against those who see the government as solutions to most societal problems.


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