Saturday, July 26, 2014

California court rules that teacher tenure is unconstitutional racial discrimination

Cameron Diaz in "Bad Teacher" Courtesy Columbia Pictures

Los Angeles County Superior Court judge Rolfe Treu delivered a blockbuster ruling today in the case of Vergara v California, holding that the state's teacher tenure rules are unconstitutional. An appeal is inevitable, and Treu has stayed any judgment pending an appeal to California's high court, but even if his ruling is reversed the fact that the plaintiff prevailed at any level is very likely to spur litigation in additional states.

What is teacher tenure?

K-12 teachers don't really enjoy tenure in the same way that university professors do. But in many states, including California, they enjoy a broad array of employment protections that unions like to characterize as due process. The upshot of these protections is that a teacher cannot be fired at will by a principal or other school official, nor can a teacher simply be dismissed for being relatively ineffective at teaching. Teachers can be (and are) dismissed for certain forms of egregious misconduct, but merely being less effective at teaching than 80 percent of your peers does not constitute grounds for dismissal. In addition, teacher compensation schemes are typically closely linked to seniority meaning that a long-serving but below-average teacher can take up a lot of space on a school district's budget.

People who identify as education reformers typically oppose this system, and think it should be replaced by one in which both salary and job security are more closely tied to measures of performance.

What did Judge Treu rule?

Citing the landmark Brown v Board of Education case, Treu held that students have a constitutional right to equal education. He further held that California's system of teacher job security violates that right. He cited empirical evidence that being taught by an ineffective teacher has long-term negative consequences for students. And he cited empirical evidence that ineffective teachers are much more likely to be located in heavily minority schools. Therefore, California's teacher tenure system violates constitutional equality guarantees.

Who favors this outcome? Who is against it?

Teachers unions, obviously, think Treu got it wrong. And they will have many liberals allies who regard the anti-tenure movement as thinly veiled union-busting.

What's more, even though conservatives will largely cheer this policy outcome, the legal logic isn't one conservatives normally embrace. Treu is essentially advancing a disparate impact theory, holding that a policy that has no discriminatory intent is nonetheless unconstitutional because its negative consequences fall much more heavily on minority kids than on white ones. Typically this is a left-wing theory of how anti-discrimination policy should work that conservatives view very skeptically. The particular politics of public education have scrambled the normal ideological alignment somewhat in this case.

Backing Treu's ruling will be Students Matter, a California non-profit funded mostly by rich Silicon Valley types that was founded to pursue the case. More broadly a constellation of education reform groups around the country — typically run by moderate Democrats, sometimes by moderate Republicans — have been pushing for reforms of this kind for years.

What's the case for teacher tenure?

The case for strong teacher job security largely operates on two levels. The more general level is that some people think the American labor market should generally feature strong labor unions and strong employment protections. It happens to be the case that most American workers aren't in unions and don't enjoy those protections, but teachers do and should continue to operate this way as a small step to a broader vision of a more social democratic labor market.

The specific case has to do with the difficulty of moving from the general idea of merit-based employment decisions to the need to find specific operational rules. Reformers tend to favor using what's known as a value-added model that tracks student test scores and measures teachers based on how much their students' scores rise. Critics argue that these value-added models are unstable and unreliable. They also worry that test-based incentive programs will lead to cheating and "teaching to the test."

Proponents note that value-added measures correlate with adult life outcomes. The students of teachers who are highly rated by VA methods are more likely to attend college, more likely to attend highly ranked colleges, earn higher salaries, live in higher socioeconomic status neighborhoods, and even save more for retirement.

What happens now?

Nothing. Treu issued a "tentative decision" in anticipation of appeal. That means his ruling has no immediate consequences and California education will continue as if nothing happened. The case will be appealed to the California Supreme Court. If that court rules in favor of the plaintiffs, there will be huge change in California education. If not, things will continue on their present course.

But California is only one of 50 states. The fact that this lawsuit met with any measure of success will encourage reform groups to file similar litigation in other states. Expect more litigation soon.

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