Court case highlights travesty, tragedy of tenure

system to conform to the state’s Constitution.

The trial court found the tenure system incompatible with the California Supreme Court’s decision, now almost half a century old, that the state Constitution, which declares education a “fundamental” state concern, guarantees “equality of treatment” to all K-12 pupils. It “shocks the conscience,” the trial court said, that there is “no dispute” that “a significant number of grossly ineffective teachers” — perhaps more than 8,000, each with 28 students — are doing quantifiable damage to children’s life prospects.

Technically, California teachers are granted lifetime tenure after just two years. Actually, they must be notified of tenured status after just 16 months. (Thirty-two states grant tenure after three years, nine states after four or five. Four states never grant tenure.) When incompetent or negligent teachers gain tenure, dismissal procedures are so complex and costly that the process can take up to 10 years and cost up to $450,000. The trial court called the power to dismiss “illusory.” Each year approximately two teachers are dismissed for unsatisfactory performance — 0.0007 percent of California’s 277,000 teachers.

Instead, school districts are forced to adopt what is called the “dance of the lemons,” whereby grossly ineffective teachers are shuffled from school to school. These are disproportionately schools attended by low-income minority children.

Abundant research demonstrates that teacher quality is the most important school variable determining academic performance. This is why there is more variation in student achievement within than between schools.

The appeals court responded with a judicial shrug to the trial court’s factual findings. It said California’s tenure system does not constitute a denial of equal protection because the identifiable class of people being injured have no “shared trait.” Oh? What about their shared injury? The injured pupils share a susceptibility to injury because of their shared trait of being economically disadvantaged. This trait concentrated them in schools that themselves have a shared trait — disproportionately high numbers of bad teachers.

Liberal and conservative legal luminaries, from Harvard’s Laurence Tribe to Stanford’s Michael McConnell, have urged California’s Supreme Court to do what the appeals court neglected to do — apply heightened scrutiny to the tenure laws that prioritize teachers’ job security over pupils’ constitutional right regarding education. California’s Supreme Court will have national resonance if it affirms that public schools are established to enable children to flourish, not to make even dreadful teachers secure.