california teacher tenure public schools

Attorneys Theodore Boutrous and Marcellus McRae 

On June 10th, a Superior Court judge in California struck down California’s teacher tenure laws. While you may not be a California resident, I can tell you this is going to matter for your state, your children and your schools. In the national debate on educational reform, one of the most vilified terms is “tenure.” The Vergara case on its face appears to be about increasing student opportunities, but in reality it is all about weakening both the diversity of the teaching force and teachers’ labor protections. This is not a case of students’ interests winning out over teachers’: there are no victors in this decision.

What is tenure? First, tenure is different at the K-12 level and the higher education level. As a college professor, tenure is a property interest in one’s job, roughly the equivalent of becoming a partner at a law firm or medical practice. It makes the person with tenure a long-term part of the management of the business or institution.

But this is not the meaning of tenure in K-12 education—tenured teachers are not like law firm partners (if you don’t believe me ask a teacher to see their paycheck stub!) For educators of the nation’s youth, tenure means the right to due process. That means that before a teacher can be relieved of their teaching position, they have the right to a legal process that allows them to make a defense to the charges against them. In California schools, this process of achieving tenure and acquiring the right to due process was 2 years—somewhat shorter than most states, where three or four years would be more typical.

Why this matters for communities of color in particular: the Vergara case is distinct because the case against tenure was premised on the notion that tenure is bad for Latino and Black children’s education. The nine students from across California who are the plaintiffs in the Vergara case claim that Black, Latino, and poor children were systematically deprived of quality teachers due to tenure laws. The plaintiffs argued that lower-quality teachers were being warehoused in schools where poor and Black and Latino children attended, thus subjecting these children to a lower quality education than their White and affluent peers.

Now you may be wondering, how did nine students from California Public Schools organically emerge and unite to challenge tenure rules? Well if you weren’t wondering this, you should be. The nine students are backed by David Welch, founder of Students Matter (an organization “dedicated to sponsoring impact litigation”) and a Silicon Valley telecommunications magnate. While this may on its face appear an organic challenge to educational inequity, it is actually a coordinated anti-labor union effort backed by both Welch and stockpiles of anti-labor money.

The Vergara decision struck down five elements of California’s education code. These had to do with the time frame for tenure evaluation, the teacher dismissal process length, and decisions of employment being based on seniority.

Was this a step in the right direction? On its face, this seems to be--after all, who wants to have their children taught by under-qualified teachers? However, when you look closer another portrait emerges.

Teacher unions and teacher tenure came into being because the profession was—as it is today—predominantly female and subject to management by predominantly male school boards and superintendents. For instance, women teachers were often required to resign from their jobs when they married. Male teachers were paid more than female teachers. Black teachers suffered not only the injustice of lower pay, but the daily wrong of having to instruct students using books and supplies that had been discarded as inadequate by white schools. Membership in the NAACP could be grounds for teacher discharge.

Greater labor protections were urgently needed. Teacher unions, the due process they advocated for, and the teacher tenure system they helped to create were built to provide these protections. Vergara’s attack on teacher tenure and teacher unions ultimately means that many Black and Latino teachers—crucial standard-bearers of the middle class in today’s communities of color—will experience greater job insecurity. As challenges to the tenure process roll out across the nation, the Vergara decision provides a model and rationale for weakening pro-worker employment law.

Second, while there are extremely ineffective teachers, expert testimony in the trial estimated they make up about 1-3 percent of the teaching force. Is there a way that we locate those 1 to 3 percent without jeopardizing hundreds of thousands of hard working and successful teachers? Some would answer yes and would suggest using “value added assessments” of teachers. But we should be wary of easy solutions here, too; “value-added assessments” have a number of serious measurement issues and it would be dangerous—to teachers and students--to use them for determining employment too quickly.

Be careful not to quickly applaud this decision as a victory for students. We should be cautious about the doors this decision opens. First, with weakening of teacher tenure laws, there is an increased chance that more inexperienced teachers will be coming to low-income and predominantly minority schools. Programs like Teach for America and other teaching corps programs locate their members—who are Whiter and more affluent than the historic core of the teaching profession in the US--in the most demanding settings only to have their teachers leave classrooms quickly, often before they’ve become high-quality teachers. Second, there is evidence that attracting high quality teachers to hard-to-staff schools is very difficult and when teachers have options, those with more success opt out of schools that high numbers of Black students.

We all want better for our children. The problem is that the path to “better” is seldom agreed upon. But the principles that unite us—the commitment to fair treatment and to proven mechanisms of remedying workplace discrimination—can’t be cast aside on the say-so of a Silicon valley magnate. In my estimation, the Vergara decision opens the door to less access to quality education, not more. And rather than strengthening students’ opportunities, it weakens teachers’ labor protections.

Dr. R. L'Heureux Lewis-McCoy is an Associate Professor of Sociology and Black Studies in the Colin Powell School of Civic and Global Leadership at the City College of New York. He is the author of Inequality in the Promised Land: Race, Resources, and Suburban Schooling. You can follow him on Twitter @dumilewis or visit his website.