Eliminating job security for teachers is not going to attract better teachers or do much to improve the quality of public education. If you've shopped at a retail store or flown on any major airline, you know that some employees are excellent and some are not, but the difference between the good employees and the bad ones is not in who has job security. Retail and restaurant employees can typically be fired for no reason; airline employees, who are unionized, typically cannot. So why do so many critics of public education assume that eliminating job security for teachers would improve the quality of education?
A California trial judge decided this month that the poor quality of some California schools was the result of job security for teachers and therefore invalidated several provisions of the California Education Code. In a brief 15-page opinion in Vergara v. California, Judge Rolf Treu held unconstitutional a state law that requires schools to evaluate teachers for job security in the second year of employment, a provision that gives more senior teachers preference over junior teachers in layoffs, and the process schools must follow to fire a teacher.
Vergara was a test case initiated and funded by a Silicon Valley millionaire, and was litigated by large firm corporate lawyers with no particular expertise in education law and policy. They sued the state education officials and agencies along with three school districts in Oakland, Los Angeles and San Jose, challenging a wide array of state laws protecting teachers against arbitrary decisions in retention and job assignment.
Treu's opinion found that between 1 and 3 percent of teachers in California are grossly ineffective. Based on that, he concluded that job security for teachers violates the California Constitution.
The reasoning of the opinion is as flawed as the result is troubling. If job security is the cause of poor quality teachers, what accounts for the overwhelming majority of California public school teachers who are good or excellent? As Treu's opinion notes, several states have no statutory job security for teachers, yet he never compares the percentage of grossly ineffective teachers in those states to California and never considers whether or why poor quality teachers exist in those schools.
Quite crucially, the judge assumes that it is tenure that leads to higher numbers of poor quality teachers in the poorest schools rather than the preferences of teachers who seek to work in schools with more resources, more involved parents and children who are not so overwhelmed by poverty that they come to school unable to learn.
Treu finds California's two-year period for evaluating a new teacher to be unconstitutionally brief and notes that only five states have such a short period, but he also notes that 34 states use a three-year period. He does not explain whether or why he believes that three years is a constitutionally sufficient period in which to evaluate a new teacher for job security and, if so, why it is preferable to two years. He finds unspecified aspects of the existing process for terminating teachers to be unconstitutional because it is too burdensome on schools. Yet he acknowledges that teachers must be "afforded reasonable due process when their dismissals are sought" and does not explain what kinds of procedural protection are constitutionally permissible and why the existing system is not.
Statutory and contractual job security for teachers were reforms adopted by almost every state nearly half a century ago as a way of making teaching a profession attractive to educated men rather than a short-term job for young women to do before marrying and staying home to raise children. Tenure was also considered desirable to encourage teachers to take intellectual and pedagogical risks with students - to allow them to teach evolution in biology classes or controversial books in literature classes without fear of retaliation from hostile parents or school boards.
Some aspects of teacher tenure should be reformed. Perhaps the tenure decision should be made in the fifth year of teaching rather than the second. And it should not be a herculean task to fire an incompetent teacher. But those are the kinds of reforms that school officials, teachers' unions, education policy experts and legislatures should design through discussion. It is judicial activism of the worst sort for a trial judge to do so alone.
California schools desperately need to be improved. But eliminating job security for teachers will not do much, if anything, to improve them and may make it harder to attract and keep talented teachers.
Erwin Chemerinsky is the dean of the University of California, Irvine School of Law. Catherine Fisk is a professor at UC Irvine School of Law.