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By Tom Watts
A California trial court judge decided in Vergara v. California today that California’s teacher tenure system violates the state constitution. This is a big deal: teacher tenure has been a political controversy for years, and, while anti-tenure advocates have repeatedly won legislative victories, this is their first judicial victory. However, I want to suggest that overheated rhetoric around the decision is exactly that: overheated. The decision probably does not herald the end of teacher tenure nationwide, nor is it likely the harbinger of mass dismissals of teachers.
As a doctrinal matter, this case may be confusing for those more accustomed to federal equal protection analysis. Unlike the federal Equal Protection Clause, California’s Equal Protection Clause is the basis for the state’s constitutional right to education, because education is a fundamental interest under California constitutional law. (California also has another constitutional right related to education, which derives from the Free Schools Clause, not directly at issue here.) Thus, the court discussed a few times (e.g., page 15 of the decision) the extent to which the teacher tenure system disproportionately injured poor and minority students, but, unlike a comparable result under federal equal protection analysis, the court was not suggesting that California could fix the problem by more equitably distributing the negative effects of the tenure system. Rather, the tenure system violates students’ right to an education, regardless of any disproportionate effect. That is, the tenure system was struck down as adequacy matter, not as an equity matter (see page 3 of the decision).
This doctrinal framework limits the reach of the decision. Reports in the New York Times and the LA Times, among others, suggested that the effect could be national in scope. Perhaps, these articles suggest, teacher tenure will be challenged in other states across the country. Of course, they are right in one sense: lawsuits may be filed, and courts will decide what they decide. However, the specific holding of Vergara was that the California teacher tenure system violates the state constitution, which is significant for two reasons.
First, as already mentioned, California has especially strong constitutional guarantees of the right to education. Courts have struck down the school financing system, forbid a disparity in the length of a school year, and struck down fees for extracurriculars. Most other states do not go as far as California in their constitutional guarantees of education (e.g., North Carolina allows fees), so the arguments from Vergara may not work outside California.
Second, the court emphasized repeatedly that California’s teacher tenure system is a dysfunctional outlier. For example, tenure decisions are communicated to the teacher in March of the teacher’s second year (faster than in 41 other states, according to page 10 of the decision), but the induction period does not end until May, and recommendations for credentialing come at the end of the induction period. This means that teachers get tenure before they are credentialed as teachers, a backwards approach. The decision also points out other ways that California’s system is unusual, such as its strict “last-in, first-out” policy for dismissal (pages 13-14 of the decision). California’s outlier status appeared to affect the judge; states that have more typical systems may have different outcomes.
Even in California, the decision may have limited effect. The court emphasized several times that one of its chief concerns was the retention of “grossly ineffective teachers” (e.g., page 8 of the decision). However, the court repeatedly used a figure that estimated the percent of teachers that are grossly ineffective as 1-3% of teachers in California (e.g., page 8 of the decision). That is, California need not fire half the teachers to address the court’s concerns; making it easier to get rid of the bottom few percent is probably sufficient. The court’s repeated use of this numerical range seems to be an acknowledgement that most teachers are doing the best they can in difficult environments without enough support, and only a few are truly, irredeemably awful. This decision is best understood as a message to the bottom 1-3% of California teachers: shape up, or you will lose your jobs.