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California Court's Indefensible Defense of Dysfunctional Education Policies

A California appeals court yesterday restored a series of education policies that harm students by making ineffective teachers extremely difficult to fire. The court overturned a lower court ruling, Vergara v. California, which had struck down teacher tenure, “last in, first out” personnel policies, and a complicated process to challenge dismissals.

The plaintiffs have said they plan to appeal to the California Supreme Court. They should, given the stakes involved and the appeal court’s strange reasoning. Moreover, education reform activists in other states should continue pursue their own challenges as well. There is an ongoing case in New York State, and a challenge in Minnesota was filed this week.

Tenure gives teachers ironclad job protections, which proponents claim prevents politicized hiring and firing and safeguards academic freedom. Yet, standard civil service-style hiring policies can achieve those goals just as well, without compromising accountability to the same extent. Categorical job protections that make discipline and firing overly onerous inevitably end up shielding poor performers.  California’s pre-Vergara tenure system awarded tenure after only two years on the job. “Last in, first out” hiring policies compound the damage by prioritizing seniority over performance in retention decisions. And complex dismissal appeals processes pile on even further.

So how did the appeals court defend this? Well, the court’s decision doesn’t so much dispute the ill effects of these policies on the quality of teaching personnel, so much as deflect blame for bad educational outcomes to school districts’ higher-ups.

Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

In other words, while the laws in question may lead to the hiring of more poorly performing teachers, what really matters is where they end up being assigned, not that they were able to be hired in the first place. As for the court’s claim of lack of disparate impact, notes Reason’s Brian Doherty, it “seems … to be saying that if the crummy policies are as near as we can tell causing equal harm to all California students rather than special harm to an identifiable group, then the Court feels powerless to overturn them … .”

As to what policies like tenure and “last in, first out” do in the real world, Cami Anderson, who was Newark Public Schools superintendent until last year, describes her experience in her previous position as New York City’s superintendent of Alternative High Schools and Programs.

The incredible work of some dedicated educators was overshadowed by far too many who lamented that our students were unreachable and regularly told me students were best served with low-level work sheets and mindless busy work. When I arrived at District 79 in 2006, it was the exception, rather than the rule, to observe a teacher conducting lessons that actively engaged students.

Meanwhile, our district employed nearly a dozen “principals” and “vice principals” who did not serve in any formal leadership capacity. Lawyers had negotiated settlements to place them “off the radar” rather than attempt to navigate the byzantine tenure-revocation process. Caring teachers were often discouraged and driven to become less effective or leave the district. People were quick to tell me there was nothing I could do about it because of labor laws and practices—and that asking questions made you a target.

Fortunately, state lawmakers who want to reform education don’t need to wait for citizens to bring a court challenge. California Assembly Republican Leader Chad Mayes, quoted in The Los Angeles Times, said following yesterday’s appeals court ruling: “Legislators in Sacramento have the tools available right now to end bad policies such as ‘last in, first out’ and our currently flawed teacher tenure system.”

Former CEI Warren Brookes Journalism Fellow Carrie Sheffield interviewed former CNN anchor Campbell Brown, who helped organize the challenge to tenure in New York. See the interview here.

For more on government employee unions, see here.