America’s Teacher-Tenure Horror Story

Roger G. Waite

TCS News

A Hollow Hope in California?

We’ve all heard the teacher-tenure horror stories. In New York, grossly incompetent, and sometimes borderline criminal, teachers while away months on the public dime in the “rubber rooms” while the city goes through the cumbersome process of firing them. In Chicago a couple decades ago, a judge, since elected to the Illinois Supreme Court, actually reinstated a teacher who habitually came to class in clothes befouled by her own waste and had finally been fired after assaulting six third-graders; the judge decided she shouldn’t have been cashiered since the attacks were not “premeditated” and didn’t send any of the children to the hospital.


So it’s tempting to see Vergara v. California, the recent California state ruling striking down its teacher tenure and seniority laws, as an unalloyed good. But we shouldn’t. While the ruling recognized some of the key problems with the status quo in public education, the cure it proposes—extensive judicial tinkering with complex public-policy decisions—may be almost as troublesome as the ailment.


In many ways Vergara is just the latest manifestation of an old, and confused, legal strategy. In the 1970’s, inspired by the success of courts in enforcing certain negative rights in education—one thinks especially of the desegregation and school prayer cases—activists tried to reconfigure the same basic formula in enforce positive rights, such as the right to a specific quality of education. Little did they consider that they were asking the courts to take up an entirely different task from that of those earlier cases.


Their first line of attack was on the school funding formulas. While the federal courts and a number of states rejected this maneuver, a few, like California and New Jersey, fell for it.


In response to a series of rulings that found California’s heavy reliance on unequal local tax-bases a violation of its constitution, the legislature adopted a scheme to control local school spending centrally and shift more costs to the state. This went a long way toward equalizing spending, but had a decidedly mixed record on its ultimate goal, improving the quality of education. Decreased local control of funding naturally brought on demands for increasingly centralized control of expenditures. The dynamic checks of local control were replaced with less flexible state-level bureaucracy. More and more funds came to be disbursed as specialized grants that could not easily be reallocated as needs changed.   All of these trends have strengthened the hand of teacher unions and special interests, often at the expense of students, parents, and the general public. Overall, since mid-century California’s K-12 system has gone from being one of the nation’s best to something of a mess.


New Jersey’s experience was no more encouraging. For nearly a quarter-century the state’s school financing was under heavy court supervision to ensure that the poorest districts, so-called Abbott districts, had roughly as much funding as the wealthiest. By  2011, New Jersey had developed a system where nearly 60 percent of state K-12 aid went to Abbott districts, which had only about 20 percent of the school population. The districts with the highest per-pupil spending were overwhelmingly covered by the Abbott decision. Unfortunately, as in California, the centralization of funding came with unpleasant tradeoffs. Excessive and wasteful spending ever tempts local officials when so much of their budget comes from the state; as this was New Jersey, the temptation was not frequently resisted. Unsurprisingly, a 2010 study found that in the state, even controlling for other factors, increased reliance on non-local funds correlated with lower student performance. Despite some improvements, particularly in the lower grades, overall many concluded, in the words of one former senior state educational official, the Abbott line of decisions was a huge failure” at improving student performance.


The common factor in both these mangled reform attempts is the myopia and naïveté of judges dabbling in policymaking. Lawmakers have the freedom to consult widely; judges are largely limited to whatever the litigants choose to put before them. The range of interests reflected in these decisions thus tended to be limited to those of the activists bringing suit and the state. The activists got hung up on state aid formulas and overly credulous judges converted those hang-ups into a central feature of their states’ educational policy for decades. Moreover, their decisions failed to respond to evolving political conditions. California underwent massive upheavals in its fiscal policy after the first school finance cases were concluded; later decisions hardly reflected that reality. Rulings that were often rash to begin with became further disconnected from reality over the years.


The Vergara decision shifts the inquiry from money to personnel but it shows the same troubling tendencies. Because the state’s tenure and seniority laws allow poor teachers to stay in the classroom, they must be subjected to strict scrutiny by the court, its author, Judge Rolf Treu, reasons. And since, in his breezy and brief analysis, they fail to meet that standard, he must strike them down. While Judge Treu rightly concludes the laws contribute to a dysfunctional state of affairs, he is utterly blind to the question of whether or how striking the laws down will improve the situation.


Consider the effects of abolishing teacher tenure in a vacuum: it would make it easier to fire underperforming teachers, but it doesn’t necessarily create the incentives to do so. Unlike in a competitive market, managers in public education, which is something like a monopoly, have little incentive to put effective provision of services above their own peace of mind and ease. Principals tend to take a go-along-to-get-along attitude with their staff rather than stir things up for the sake of student achievement, especially—as is often the case in low-performing schools—when parent involvement is minimal. One finds an obvious example of this dodge in the recent reform of teacher evaluations in states like Florida and Tennessee. The legislatures there toughened up the requirements, in principle, but when it came to implementing them principals mostly gave out the same sky-high “satisfactory” rates they did before.


But beyond this, ending teacher tenure creates a huge tradeoff that Treu’s analysis simply overlooks. As Terry Moe pointed out in his masterful study of teachers’ unions, Special Interest, a major component of public schoolteachers’ compensation comes not as salary or even pension, but as favorable work rules. Indeed Moe estimated that the average teacher values tenure protection at about 20 percent of his salary—just as an investor accepts a lower rate of return in exchange for less risk. While the worst teachers probably hold tenure most dear, a major cut in compensation will necessarily hinder the recruitment of good teachers. Properly aligning pay and work rules so they benefit both teachers and students is precisely the sort of complex and evolving task that needs to be steered by the political branches, not the courts.


A system where a teacher gets virtual lifetime job security after 18 months—as one can in California—is clearly broken. The plantiffs in Vergara have helped to bring more attention to this farce but their designs to use the courts to solve the problem are simply a wrong turn. To fix this problem, California—and every state—needs lawmakers constantly willing to take on union obstructionism and bureaucratic inertia; it needs an engaged public that will hold its leaders accountable and demands local control and real choice for families. You won’t find either of those in a courtroom.

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