The Travesty of Teacher Tenure

By George Will

Wednesday, July 13, 2016

The mills of justice grind slowly, but life plunges on, leaving lives blighted when justice, by being delayed, is irremediably denied. Fortunately, California’s supreme court might soon decide to hear — four years after litigation began — the 21st century’s most portentous civil-rights case, which concerns an ongoing denial of equal protection of the law.

Every year, measurable injuries are inflicted on tens of thousands of already at-risk children by this state’s teacher-tenure system, which is so politically entrenched that only the courts can protect the discrete and insular minority it victimizes. In 2012, nine Los Angeles students recognizing the futility of expecting the legislature to rectify a wrong it has perpetrated asked California’s judiciary to continue its record of vindicating the rights of vulnerable minorities by requiring the state’s education system to conform to the state’s constitution.

After ten weeks of testimony, 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 ten 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. Another facet of the tenure system — the teachers last hired are the first fired when layoffs are required — reinforces the powerful tendency for incompetent teachers, who must teach somewhere, to accumulate in schools with the most teacher vacancies. 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. This variation is especially dramatic among students from educationally disadvantaged families. A single grossly ineffective teacher can deprive students of a full year of learning, with consequences that include lower graduation and college-attendance rates, and lifetime earnings more than $250,000 lower than for pupils without a single incompetent teacher. Because teachers’ unions insist that financial appropriations are the all-important determinants of schools’ successes, they are perversely reluctant to acknowledge the importance of quality teachers.

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.

The appeals court breezily said the injured were merely an “unlucky subset” of pupils, a “random assortment” produced not by the tenure laws but by the administration of them. This, however, is a distinction without a difference: The tenure laws’ purpose is to dictate outcomes by depriving administrators of discretion. Systemic results cannot be dismissed as “random.” Even if the tenure laws were neither written with a discriminatory motive nor administered with a discriminatory intent, the system is now known to produce — not invariably but with a high probability — predictable patterns of disparities.

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.