Is tenure unconstitutional in California?

posted at 10:31 am on June 11, 2014 by Ed Morrissey

Yesterday, a judge in Los Angeles committed a clear act of judicial activism, and yet at least measured by my inbox, conservatives celebrated the result. It’s not difficult to see why, either, as the ruling struck deep into the heart of California’s education establishment by declaring tenure as incompatible with the state’s constitution:

A Los Angeles County Superior Court judge struck down five key California rules affecting the hiring and firing of teachers Tuesday, agreeing with plaintiffs that they made it too difficult to remove ineffective teachers from public school classrooms and that children’s education suffered as a result.

If upheld, legal and education analysts say, the decision will reverberate throughout the nation’s education establishment.

Judge Rolf Treu found in Vergara v. California, a case brought by students with the support of education reform advocates and a high-power law firm, that the rules governing tenure and other teachers’ protections violated the state constitution, disproportionately affecting black and Hispanic students and cheating them of a basic education.

The laws include a tenure law that evaluates a teacher’s fitness for permanent employment after only 18 months on the job, costly and lengthy procedures for dismissal, and a “last in, first out” mandate to make decisions about layoffs and reassignment solely on the basis of seniority.

With rare clarity and a forcefulness that legal analysts say bode well for likely appellate challenges, Judge Treu said the five rules “impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.”

The reaction in the video from the union official is at least somewhat overwrought. It does not appear that Judge Treu overturned all forms of due process for teachers, or even all of the extraordinary forms not found in other employment contexts. What it does do is force California to rethink the broken process in which incompetent or abusive teachers end up in sinecures for life because there is no practical way to get rid of them, and to force school districts to reward competence and performance over  the current absolute reliance on seniority. Due process in appealing terminations and demotions can still co-exist with those priorities, which put students ahead of the teachers in the system. The hysterical reaction to this idea is one reason why the situation has become so intolerable that Judge Treu thought judicial activism was the only recourse.

Needless to say, the unions aren’t about to take this lying down. They got a stay from Judge Treu while they put together an appeal, and plan to move forward quickly to get this overturned:

Glenn Rothner, an attorney who represented the unions, said he is confident the ruling will fall on appeal.

“This is a very wrongheaded solution,” Rothner said. “We know that this is not the last word on this case. We believe very strongly that we will prevail on appeal.”

Joshua Pechthalt, president of the California Federation of Teachers, said the judge “fell victim to anti-union, anti-teacher rhetoric of one of America’s best corporate law firms.”

Teachers have done outstanding work in the face of devastating budget cuts in recent years, Pechthalt said.

Actually, the K-12 education budget increased from FY2010-11′s $36.8 billion to FY2013-14′s $39.8 billion, and Jerry Brown’s proposed FY2014-15 budget hikes that to over $45 billion. Where are the “devastating” budget cuts claimed by the unions? One has to presume that it’s the kind of budget cuts that are defined as “we didn’t get the increase we demanded” cuts. Otherwise, one has to presume that the teachers unions are particularly bad at math and research, which is … another reason to get rid of these laws.

The LA Times editorial board cheers the ruling:

California’s extraordinary protections for public school teachers were dealt a heavy blow Tuesday when a Los Angeles County Superior Court judge ruled that the state’s tenure laws unconstitutionally deprive students of an adequate education. To this extent, the judge’s opinion was absolutely correct: The tenure laws are bad policy. In almost no other field of work is it remotely as hard to fire someone for incompetence, or for not doing the job at all. Lawmakers have been far too deferential to the powerful California Teachers Assn. over the years, and now they have been given a strong prod to change their ways. …

Treu’s ruling is not prescriptive, nor does it call for eliminating due process for fired teachers. The Legislature can, and should, continue to offer reasonable protections for teachers, because without them, schools have too much incentive to replace higher-paid, experienced teachers with lower-paid beginners. There are common-sense ways to provide such protections — for example, by allowing binding arbitration in disputed firings rather than requiring disputes to be decided, as they currently are, by an ad hoc panel with so many rules and restrictions that it can take years just to get to a hearing.

It’s time for the state to stop defending laws that are indefensible, and to get to work on ones that are fairer to students.

The application of this ruling outside of California seems limited, except perhaps in states that have adopted similar language in their own state constitutions about the right to quality education. Treu’s ruling does not rely on the US Constitution, and it has yet to be endorsed by a state appellate court as of yet. It is a signal, though, that people are fed up feeding tens of billions of dollars into educational systems that produce poor results, and that disgust over the priorities of the people within the system has reached a level where even the judiciary can no longer ignore it. California’s legislature had better take this lesson and apply it regardless of whether the ruling holds up on appeal.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

But the education system’s primary role is to provide life long jobs to teachers, not the education of children. Everyone knows this. -Typical union loving leftist.

Flange on June 11, 2014 at 10:35 AM

Yeah Ed, I am struggling with the “unconstitutional” tag as well. How is it unconsitutional? Is it stupid? Certainly. But was it legally created as a term of contracts? Yep.

I do love that the union is the one getting its ox gored this time, but I see little difference here between a judge who creates gay marriage out of thin air. I think it was none of his business. I am getting tired of legislative robes.

Zomcon JEM on June 11, 2014 at 10:40 AM

Gosh, I hope that’s really a Teacher’s Union person in that picture.

Cindy Munford on June 11, 2014 at 10:42 AM

Give a darn break. I’m sick of that tired old line “Teachers are not bad that much.” That is so untrue these days. I most cases if you include the benefits and there minimum 2 month vacations they are paid higher that the national average.

jlemieu1 on June 11, 2014 at 10:45 AM

that the rules governing tenure and other teachers’ protections violated the state constitution, disproportionately affecting black and Hispanic students and cheating them of a basic education.

That’s totally retarded. This judge is a moron. A dangerous moron, at that.

Tenure for public school teachers is ridiculous but it isn’t for the court to determine and this sort of “disparate impact” stupidity should never find its way to the inside of any court, anyhow.

This is a rumble among America-hating idiots.

ThePrimordialOrderedPair on June 11, 2014 at 10:46 AM

Gosh, I hope that’s really a Teacher’s Union person in that picture.

Cindy Munford on June 11, 2014 at 10:42 AM

She’s an English teacher….

PatriotRider on June 11, 2014 at 10:46 AM

The application of this ruling outside of California seems limited, except perhaps in states that have adopted similar language in their own state constitutions about the right to quality education.

New York appears to be in the same boat.

blammm on June 11, 2014 at 10:47 AM

It is obvious that California teachers have to understand syntax and sentence structure.

MSGTAS on June 11, 2014 at 10:47 AM

But the education system’s primary role is to provide life long jobs to teachers, not the education of children. Everyone knows this. -Typical union loving leftist.

Flange on June 11, 2014 at 10:35 AM

Actually it’s primary function is to launder tax collections into the coffers of the democrat party.

It’s secondary function is indoctrination.

ConstantineXI on June 11, 2014 at 10:48 AM

Gosh, I hope that’s really a Teacher’s Union person in that picture.

Cindy Munford on June 11, 2014 at 10:42 AM

Here’s another great moment in public schools…

Chicago Public Schools prom slogan: ‘This Is Are Story’

Brat on June 11, 2014 at 10:51 AM

I stared at the picture on the front page for at least a minute, wondering whether someone was being ironic or not.

He Who Some Call A Traitor on June 11, 2014 at 10:51 AM

Yeah Ed, I am struggling with the “unconstitutional” tag as well. How is it unconsitutional? Is it stupid? Certainly. But was it legally created as a term of contracts? Yep.

I do love that the union is the one getting its ox gored this time, but I see little difference here between a judge who creates gay marriage out of thin air. I think it was none of his business. I am getting tired of legislative robes.

Zomcon JEM on June 11, 2014 at 10:40 AM

Unconstitutional according to California’s State Constitution. California’s State Constitution guarantee’s every student in California the right to the best possible education that the state can provide. Ed calls this Judicial Activism, but consider how the LA Slimes, (Which is even more liberally biased then the NY Slime) endorses it as a correct and proper application of California State Law.

oscarwilde on June 11, 2014 at 10:52 AM

similar language in their own state constitutions about the right to quality education.

LOL. Education departments are composed of the DUMBEST people on any college or university campus. The standardized scores for the intended education grads (GREs) are THE LOWEST of all grad school applicants, by miles. They score worse on the math sections than even the English and Sociology grads!! It’s impossible to get any quality education when you have the dumbest people in society designing and providing said education.

Luckily, for most students, there is everything they need available, free, on the internet and they can find quality instruction there, because they won’t find it among any (but a handful) of the morons who staff the public schools.

ThePrimordialOrderedPair on June 11, 2014 at 10:53 AM

Brat on June 11, 2014 at 10:51 AM

Nice. And it was the senior prom, so they had had the full compliment of instruction and are now off to be indoctrinated. That’s once the colleges get another five grand or more from their parents for all the remediation required before they can actually take college credit classes.

Cindy Munford on June 11, 2014 at 10:54 AM

Tenure in the public school system should be eliminated. No one should be guaranteed job security, especially if they are incompetent.

Cindy Munford on June 11, 2014 at 10:59 AM

Tenure in the public school system should be eliminated. No one should be guaranteed job security, especially if they are incompetent.

Cindy Munford on June 11, 2014 at 10:59 AM

Judicial activism in California would be to pull a Governor Scott Walker and break the teacher’s Union altogether. It would be a great start in returning California to the citizens of California. Eliminating tenure, though is helpful.

oscarwilde on June 11, 2014 at 11:02 AM

Yes, this is judicial activism. I don’t condone it. But it is very schadenfreudic to watch.

GWB on June 11, 2014 at 11:05 AM

The Legislature can, and should, continue to offer reasonable protections for teachers, because without them, schools have too much incentive to replace higher-paid, experienced teachers with lower-paid beginners.

Another reason to have total school choice. If parents were the customers and were empowered to choose a different school, schools would be competing for the best teachers to present a better product to their customers. Highly-qualified and experienced teachers would be sought after. There’s all the incentive you need.

But, under the present system, parents are not the customer and largely are a captive population. Public schools have no real incentive to win their business or keep them happy.

PackerBronco on June 11, 2014 at 11:06 AM

Teachers Onion: “What our we going two dew!? Thus iz cereal! Are dews R at stake?”

ExpressoBold on June 11, 2014 at 11:06 AM

I’m sick of that tired old line “Teachers are not bad that much.” That is so untrue these days.

jlemieu1 on June 11, 2014 at 10:45 AM

I assume that “not bad” should be “not paid”.

But the typo works pretty well anyway.

PackerBronco on June 11, 2014 at 11:10 AM

Actually it’s primary function is to launder tax collections into the coffers of the democrat party.

It’s secondary function is indoctrination.

ConstantineXI on June 11, 2014 at 10:48 AM

I thought that’s what lifelong teaching jobs meant. You’re certainly right that that’s all teachers unions are for.

Flange on June 11, 2014 at 11:10 AM

Here’s hoping this goes national. It must, for the children, especially the minority and poor children.

Schadenfreude on June 11, 2014 at 11:13 AM

oscarwilde on June 11, 2014 at 10:52 AM

I understood that as the State Constitution – not a federal finding. My comment still stands. The passages cited do not justify the ruling. Its a tortured interpretation. And also illogical.

Judges need to keep with judging and quit legislating.

Zomcon JEM on June 11, 2014 at 11:16 AM

Tenure in the public school system should be eliminated.

Cindy Munford on June 11, 2014 at 10:59 AM

Rix on June 11, 2014 at 11:23 AM

This plus Brat ousting Cantor, and it’s shaping up to be a good week.

rbj on June 11, 2014 at 11:23 AM

The ruling is as ridiculous as the Supreme Court’s ruling that the 14th Amendment mandates recognition of homosexual marriage. Teacher unions should be denounced and defanged, but not this way.

Our constitutional system of checks and balances has been turned on its head for too long by judges legislating from the bench. They are one branch of government, responsible to the people just like the other two. Judicial review is one thing; usurpation of self-government another. We should move against this by establishing a clear judicial override mechanism. At the federal level, for example, a supermajority in Congress and presidential concurrence vacates any federal judge’s ruling. In that way two branches of government veto the third–not the other way round, which is minority rule (tyranny).

Would that provoke a constitutional crisis? Fine with me. Enshrine it in law. Amend the Constitution if necessary. But let’s put an end to this nonsense.

spiritof61 on June 11, 2014 at 11:25 AM

oscarwilde on June 11, 2014 at 11:02 AM

I always viewed tenure as something college professor were given because they do a lot of research and writing and sometimes that is going to go against popular public perception and/or the college hierarchy. So obviously they need extra First Amendment guarantees. It doesn’t make sense for some public school teacher cranking out a curriculum already set for them to be guaranteed a job when they can become ineffective at any time and when they do they should be gone. I don’t see California going the way of Wisconsin but it is fun to think about.

Cindy Munford on June 11, 2014 at 11:27 AM

As much as I applaud the outcome, why is this a judicial issue?

bobs1196 on June 11, 2014 at 11:28 AM

Give a darn break. I’m sick of that tired old line “Teachers are not bad that much.” That is so untrue these days. I most cases if you include the benefits and there minimum 2 month vacations they are paid higher that the national average.
jlemieu1 on June 11, 2014 at 10:45 AM

In my state, teachers they are paid well above the median household income, not just median income, not even taking into account benefits, time off, job security, etc.

Mullaney on June 11, 2014 at 11:29 AM

Rix on June 11, 2014 at 11:23 AM

No argument from me.

Cindy Munford on June 11, 2014 at 11:32 AM

bobs1196 on June 11, 2014 at 11:28 AM

Because the students sued and apparently they have standing.

Cindy Munford on June 11, 2014 at 11:33 AM

Here’s another great moment in public schools…

Chicago Public Schools prom slogan: ‘This Is Are Story’

Brat on June 11, 2014 at 10:51 AM

I’m seeing the are/our confusion every day, which is odd because that’s one mistake that I didn’t see until a couple of years ago. It seems to have come out of nowhere and spread like a disease.

slickwillie2001 on June 11, 2014 at 11:45 AM

It would be the first step in getting kids away from the dumb-them-down-and-indoctrinate-them machine

formwiz on June 11, 2014 at 11:46 AM

I’m surprised it wasn’t, “This is R Story.”

Deano1952 on June 11, 2014 at 11:49 AM

Is tenure unconstitutional in California?

…no…but squirt guns are!

KOOLAID2 on June 11, 2014 at 11:50 AM

It’s time for the state to stop defending laws that are indefensible, and to get to work on ones that are fairer to students.

You’ll note that the LA Times didn’t mention the cozy relationship between the DEMOCRATIC PARTY and the TEACHER’S UNION.

GarandFan on June 11, 2014 at 11:51 AM

Teacher tenure rules definitely need a revamp, but the court way overstepped its authority here. Good results generally don’t flow from bad processes.

Ricard on June 11, 2014 at 12:25 PM

Unions are finding it hard to push the thooth paste back into the tube. The public has wised up. Unions procreate the lowest common denominator. Look forward to more beat down for unions.

StevC on June 11, 2014 at 12:38 PM

I understood that as the State Constitution – not a federal finding. My comment still stands. The passages cited do not justify the ruling. Its a tortured interpretation. And also illogical.
Judges need to keep with judging and quit legislating.
Zomcon JEM on June 11, 2014 at 11:16 AM

Have you read the 16-page decision? Very interesting read, for sure. Two things stood out for me:

From Page 8 of the decision: There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms. Dr Berliner, an expert called by State Defendents, testified that 1-3% of teachers in Califfornia are grossly ineffective. Given that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250. Considering the effect of grossly ineffective teachers on students, as indicated above, it therefore cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said teachers hold their positions.

From Page 11 of the decision: The evidence this Court heard was that it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring those (dismissal) cases to conclusion under the Dismissal Statutes, and tha given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases. Indeed, defense witness Dr Johnson testified that dismissals are “extremely rare” in California because administrators believe it to be “impossible” to dismiss a tenured teacher under the current system. Substantial evidence has been submitted to support this conclusion.

And then there is the pertinent Article 9 of the California Constitution…

Newtie and the Beauty on June 11, 2014 at 12:54 PM

I’m seeing the are/our confusion every day, which is odd because that’s one mistake that I didn’t see until a couple of years ago. It seems to have come out of nowhere and spread like a disease.
slickwillie2001 on June 11, 2014 at 11:45 AM

There, their, they’re, Willie…

Newtie and the Beauty on June 11, 2014 at 12:57 PM

Teachers have done outstanding work in the face of devastating budget cuts in recent years, Pechthalt said.

They invariably use Democrat budget math. If the demand is for a $80 billion increase and the budget makers provide only a $40 billion increase, then it is a ‘devastating budget cut’ that the increase was $40 billion less than what was demanded.

And ‘outstanding work’ means in the past year only half a dozen students were made pregnant by teachers, whereas it used to be a full dozen just a few years back.

s1im on June 11, 2014 at 2:09 PM

Is tenure unconstitutional in California?

Union closed shops are un-Constitutional in America. They represent a takings without compensation.

ThePrimordialOrderedPair on June 11, 2014 at 2:38 PM

CA is a state-wide ‘rubber room’ for dysfunctional teachers.

Another Drew on June 11, 2014 at 4:32 PM

Teachers (and I’m a public school teacher myself) often have a rather difficult time looking at the system with impartial eyes from without. A certain bon mot by Upton Sinclair comes to mind.

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”

Tzetzes on June 11, 2014 at 9:54 PM