The Road Show Blaming Teachers for Society’s Ills Moves from California to New York

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Posted in: Constitutional Law

Back in June, a California superior court judge declared that a group of state laws governing the employment of public school teachers is unconstitutional. In his short ruling, Judge Rolf Treu concluded that California’s system has a disparate impact on minority students, who are concentrated in poorer school districts. Along with many conservative activists, the Obama Administration’s Secretary of Education praised the ruling.

This lawsuit did not arise organically, but was instead a well-financed effort, backed by charter school advocates wielding millions of dollars in resources, money that was principally supplied by a Silicon Valley multi-millionaire. After their (probably temporary) win in California, that group quickly took aim at the public school system in New York State, filing suit in a Staten Island court over the summer.

As I will describe below, the details of California’s Vergara case do not support the broad conclusions that the judge reached, or that the press has widely reported. In particular, nothing in the judge’s ruling supports the holding that tenure for schoolteachers is unconstitutional. Instead, his analysis showed at most that the challenged laws might have some curable unintended effects as a matter of policy.

Nonetheless, the Vergara case and its New York cousin are, in fact, the current incarnation of an increasingly fierce campaign to blame any and all problems in this country’s public schools on teachers in general, and to focus that blame on tenure and other job protections for teachers, which ultimately makes these cases part of a concerted attack on teachers’ unions.

Therefore, before turning to the Vergara case and the arguments offered by the plaintiffs there and in New York, I will first describe the state of knowledge about the effects—both positive and negative—of teacher tenure and other due process protections for teachers in the United States.

Job Protections for Teachers: What Is at Stake?

In the United States, the default rule for work arrangements is known as “at-will employment.” Essentially, the at-will system allows employers to fire any employee at any time, for any reason—or for no reason at all. This puts power squarely in the hands of employers, but supposedly people are free to contract around that default position. That is, if a would-be employee is lucky enough—which, in this case, means that she possesses a unique market characteristic that gives her unusual bargaining strength—she can extract a concession from a company to supersede the default at-will rules. Some people, therefore, can individually obtain for-cause dismissal provisions in their job contracts.

For everyone else, however, the situation is simple: If the boss wakes up in a bad mood, everyone who gets in his way can be in trouble. There are various theories that implausibly claim that this power will not be abused, but in any case, most employees are at all times only a moment away from being fired.

Teachers have long been given more due process protections than the usual worker, mostly as a result of the creation of teachers’ unions that fought for tenure systems across the country. While the cynical view is that the teachers simply want something—protection from being fired—that anyone else would envy, there are actually very good reasons why tenure should exist.

Teachers are in a unique situation, providing knowledge to students regarding subjects that are often politically charged. Science classes should, if they are to reflect the state of scientific knowledge, cover subjects such as evolution, climate change, and so on. History classes must confront the complicated lessons of American history’s most difficult periods, including Vietnam, the Civil Rights Era, the stakes in the Civil War, and other fraught topics. (A Colorado school district’s recent efforts to teach “patriotic values” to its students is only the most recent example of the kind of muddled thinking that non-teachers can try to impose on teaching in the schools.)

Even stepping back from these high-voltage controversies, schoolteachers also must deal with people who are often unwilling to admit that their children have done anything wrong. If a child receives a low grade, the teacher gets the blame. Teachers, on a daily basis, must tell people things that they do not want to hear. If the mayor’s son is disruptive in school, it is the teachers who have to choose whether to do something about it, or instead to allow a powerful person to bully them into letting his son live by different rules.

Teachers also are often privy to information about how a school district is operated, seeing when funds are being diverted by politically connected administrators, and when the students are being denied basic rights. Indeed, having tenured teachers on staff provides protection even for untenured teachers, because the tenured teachers can stand up to administrators and politicians in ways that an at-will employee never could on her own.

For all of these reasons and more, it is important that teachers be provided job security that is currently not available for people in other lines of work. To be clear, I believe that at-will employment is the wrong default for all types of jobs; but no matter what laws govern the rest of the work force, teachers need to be guaranteed that they can say “no” even to the most powerful people in town.

Job Protections and the Quality of Teachers

Beyond the many reasons that teachers’ effectiveness requires them to be shielded from being fired at someone else’s whim, there are also reasons tenure and other job protections are essential to attracting a qualified pool of teachers in the first place.

New Jersey Governor Christie’s infamous 2010 rant against a schoolteacher, which was one of the moments that turned Christie into a national star among conservatives, is merely one small data point in an ongoing effort to vilify teachers. Even without the vitriol recently leveled against them, however, the simple fact is that teachers have always been treated disrespectfully in this country (especially when compared to the way that other countries honor their teachers).

Teachers are educated professionals, nearly all of whom hold bachelors degrees with special certification in teaching, and many of whom hold masters and doctorate degrees. Even so, they have never been treated with the respect afforded the other professions. Due to a complicated and unfortunate history of sexism in U.S. labor markets more generally, teachers have been treated perhaps as well-meaning souls, but not as the professionals that they are.

This disrespect showed up especially in the form of low pay. Over the years, teachers’ unions were able to raise salaries somewhat, but never to the point where teaching was anything but a middle class job. In many areas, in fact, the pay barely supports a lower-middle class standard of living.

One of the most important non-salary aspects of the job that matters greatly to any teacher—or, just as importantly, any potential teacher—is job security. The pay might be low, and the social status might be low and falling, but with job protections in place, it was at least possible for a young person to imagine a stable life in teaching.

Those who disparage teacher tenure as protecting “bad teachers,” therefore, are imagining that “guaranteed job security” (which is obviously an exaggeration, since many tenured teachers are fired every year) only has the effect of keeping ineffective teachers on the job. What they leave out is that tenure and other protections also bring and keep good teachers who would otherwise never risk getting into such a job, if they could be fired as easily as a barrista at Starbucks can be dismissed.

In short, even if we are only going to look at the effect of job protections on teachers’ “quality,” it is an empirical question whether the net impact of tenure is positive or negative. Similarly, changes in the law to allow teachers to be fired more easily might backfire, if those changes drive out the best teachers (and future teachers) from the field.

The Empirical Evidence: The Weakening of Tenure Rules Has Not Improved Teacher “Quality”

As it happens, the ongoing attacks on teachers and their unions have resulted in an extended natural nationwide experiment, allowing researchers to assess the effects of changes in work rules. Indeed, this is one of the most heavily studied sets of questions in the social sciences. Every time a state, or an individual district, experiments with a change in how teachers are treated, we have new data about what really matters in our schools.

Although all empirical inquiries are based on incomplete data, and even though they are sometimes subject to various interpretations, we do in fact have a very clear picture of the effects changes in teachers’ job protections have on the schools.

The clear verdict is that the moves to make it easier to fire teachers have not improved schools, by any measure of “quality” that one might use. In fact, we still see that tenured teachers in wealthier districts are “good teachers,” at least in the sense that federal and state testing-obsessed standards require. We also know that non-unionized public charter schools have not shown any improvement over the schools that they displace.

It would be one thing if we were only discussing an idea that had never been tried, but efforts to make teachers’ jobs less secure have been going on for decades, and none of the supposed reforms have delivered what was promised.

The bottom line is that the teachers are being blamed as a group for supposedly caring more about themselves than about their students. The reality is, however, that making teachers the villains has not succeeded in improving matters, and there are still plenty of well-protected teachers who are doing a great job of teaching our children.

The California “Anti-Tenure” Decision

Given that we have plenty of evidence that teacher tenure and other job protections have no statistical connection to any of the bad outcomes that we see in schools, and that those protections serve important positive goals, why would any legislator or judge buy into a public-relations campaign—no matter how well financed—that tries to claim that children are harmed by the hiring and firing practices for teachers?

In California, the anti-tenure campaign seized upon an equal protection claim. The campaign’s proponents noted that measured educational outcomes are worse in poor areas, where a majority of students are from racial and ethnic minority groups. Then, they made a simple, illogical leap: If teachers have tenure, and some teachers do not seem to succeed at teaching students, then the teachers must be to blame for the students’ poor performance.

But even that willful effort to ignore basic logic needed one extra step. Somehow, it had to be claimed that the students in poorer schools were uniquely harmed by tenure, because only then could there be a constitutional equal protection claim.

The judge who heard the California case bought into that argument, but he could do so only by conflating a number of different effects, and then blaming the entire system for all of the bad effects.

After describing California’s laws regarding the initial awarding of tenure, the dismissal of tenured teachers, and a “last in, first out” (LIFO) system that supposedly protects seniority over quality, the judge concluded that all of the statutes are unconstitutional.

What is especially odd about this holding is that the judge’s constitutional ruling ultimately relies only on the purported effects of the LIFO statute. That is, even if one were to believe that the awarding of tenure and the dismissal rules combine to protect ineffective teachers (a highly dubious claim), only the LIFO statute could possibly have the supposed effect of placing the pool of bad teachers disproportionately in poor/minority school districts.

In other words, the judge rejected all of the teachers’ job protections as unconstitutional, even though the most that he can say about the non-LIFO rules is that they might be responsible for allowing some bad teachers to stay on the job. (And to be clear, his evidence on those claims is utterly unconvincing, as I will discuss in a future column.) No matter how much he tries to inflame passions by citing economic studies out of context (focusing, for example, on the supposed costs of “grossly ineffective” teachers on future economic performance by their students), there is nothing unconstitutional about those laws unless they impose unequal burdens on specific classes of individuals.

In legal parlance, the judge is guilty of failing to engage in the equivalent of a “severability” analysis. That is, instead of saying, “The legislature has passed these laws, and the modest judicial stance should be to leave as much of the people’s representatives’ work in place as possible,” the judge said, “The current set of laws regarding teachers’ hiring and firing results—for a combination of reasons that I have not bothered to separate—in some ineffective teachers being concentrated in poorer districts.”

This failure on the judge’s part is especially egregious, of course, because courts apply the usual severability analysis when they are evaluating a challenge to a single statute. If, for example, the “individual mandate” in the Affordable Care Act had been deemed to violate the Constitution, the next step would have been to decide whether that provision is the only part of the ACA that is infirm, or whether larger sections of the law, or the entirety of the law, are implicated. For the judge in Vergara to treat separate laws as inseparable, therefore, is simply bizarre.

In addition, even the judge’s own analysis of the tenure law (the so-called “Permanent Employment Statute”) does not support the more general claim that tenure harms students. The judge complains that California’s law takes too little time to evaluate a new teacher before awarding tenure. That state’s system has a two-year probationary period, and the judge points out that “32 states have a three year period, and nine states have four or five. California is one of only five outlier states with a period of two years or less. Four states have no tenure system at all.” (Referring back to a previous point, there is simply no evidence that those four non-tenure states have better schools than the rest of the country.)

Again, even if one were inclined to give the judge in this case a pass, and to say that he is not in the position to re-write the statute, he has not shown how tenure after two years on its own could possibly create an equal protection violation. He even directly quotes the state’s experts as saying that “3-5 years would be a better time frame to make the tenure decision for the mutual benefit of students and teachers.”

But for those who are eager to change the laws to make teachers’s jobs less secure and attractive, which is exactly what the plaintiffs and their wealthy backers are trying to accomplish in California and New York (and, let’s be honest, everywhere else), there is actually not much of substance to celebrate in the Vergara decision, even though the decision has been an enormous symbolic victory.

After all, even after engaging in a strained reading of the evidence a judge has found that a two-years-to-tenure system, along with a dismissal system that makes tenure worth having, interacting with a LIFO teacher allocation system, collectively harms minority students in a disparate fashion. He then found that adding even one more year before tenure would be better for students. If, as the judge seems to assume, the equal protection claim hangs together, then any improvement to any of the relevant laws could cure the constitutional defect.

In short, despite the judge’s rhetoric, and despite the heated proclamations from those who wish to attack teachers more generally, the Vergara case (if, against all odds, it is not overturned on appeal) will stand at most for the proposition that California should change some aspect of its teacher hiring, retention, and allocation system so that it does not disproportionately harm minority students.

This is, ultimately, good news. For those who thought that Vergara was somehow the death knell for teacher tenure, the reality is quite different. Teachers continue to deserve unique job protections, both to allow them to do their jobs, and to encourage more and better people to become teachers. Vergara should not change that.

Therefore, only if politicians allow the loudest voices to mislead them about the evidence (and about the content of the Vergara case) will they get this wrong. Sadly, there is no guarantee that legislatures across the country, as well as Congress and the White House, might not in fact continue to blame teachers for problems far beyond the reach of schools. But at least we now know that, if they do, it will be because they are ignoring reality and instead scapegoating the people who have devoted their lives to teaching children.

  • Victor Grunden

    This article seems to be about preserving status quo rather than quality teaching. A constantly heard theme is American students are not as capable as some other Nations and therefore the import quota for technically qualified people must be increased along with increasing student workload. I’ve always disagreed with that thinking. Now, because society doesn’t want to deal with a student getting beaten up for getting good grades, or having to run a gauntlet of criminals to get to school and then deal with criminals at school, the teachers and public schools in general are under attack. Ignoring these extemporaneous factors for a while and looking at the California decision, it seems the judge is saying two years is too short to decide tenure. In most cases, one is talking about two years out of college. In addition, that means only one year of students have proceeded to other classes and teachers. Education is accumulative from day one. Thus, a weak link can affect the long term education of students. Tenure as originally applied improved overall education. Tenure today has become a permanent job guarantee issue rather than maintaining educational standards. That’s the rub. As for respect. Some people are raised to respect authority. Some to defy authority. One respects teachers, one doesn’t. Teachers use to only work seven or eight months, so their pay reflected that. Education is about freedom of expression, not politically correct conclusions from any of America or the World’s experience. Even non-tenured teaching use to have contracts and were not considered at will employees. In short, this seems like more blaming the weak for failures of the powerful of all political stripes while students suffer.

  • Dan Libby

    Tenure for government employees is more often than not detrimental to the efficient and beneficial running of government for the people. I base this on my observations as an educator and government administrator for almost four decades. Tenure (through the unions) protect bad teachers and adversely affect the quality of education we can deliver to the student. Judge Treu has it right! Bully for him!

    • Except we have FACTS here. Charter schools do not have tenure, yet get the EXACT SAME RESULTS as public schools with similar student populations where teachers *do* have tenure. This has been confirmed by multiple studies across the nation now, i.e., actual data, i.e., those inconvenient truth thingies. Tenure, in other words, has been proven to have zero effect on student outcomes.