Is tenure unconstitutional in California?

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.