Court Strikes Down Teacher Tenure in California

Court Strikes Down Teacher Tenure in California

Court Strikes Down Teacher Tenure in California

Last week’s landmark decision in Vergara v. California may not be the kill shot to public-sector unions that some are optimistically predicting, but there’s little question it put a serious dent in the union’s ability to pretend that their agenda is only for students.

On June 10, a California Superior Court ruled that state laws assuring permanent employment, a clunky dismissal process and seniority-based staff retention are unconstitutional.

The complaint against the state was filed by the nonprofit “Students Matter” on behalf of nine California students. 

This seems like a clear issue between citizens and their government; however, leaders from California’s two teacher unions were allowed to intervene in this case—evidently to protect the best interests of the adults they represent. 

It shouldn’t surprise anyone that unions—which collect money to be the employees’ special interest group—work against the interests of students in this way. Calling them “education associations” is nothing more than a marketing camouflage intended to blur the distinction between students’ interests and what benefits school employees.

I’ve written before about seniority and other policies that favor employees over students. Adult privilege is my primary complaint about the undue influence that the $80-million-a-year union industry has on our state school system. 

The Vergara ruling appears to signal that we are well past absurd extremes in operating schools in the interests of adults. According to the wording of the ruling itself:

“Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominately low-income and minority students. Plaintiff’s equal protection claim asserts that Challenged Statutes violate their fundamental rights to quality education by adversely affecting the quality of the education they are afforded by the state.

Substantial evidence makes it clear to this Court that the Challenged Statutes disproportionately affect poor and/or minority students. 

“All Challenged statutes are found unconstitutional for the reasons set forth herein above.”   

Vergara v. California Case No. BC484642 Tentative Decisions, Judge Rolf M. Treu, June 10, 2014

What this ruling could mean for Washington

Do the laws of California and Washington compare? California’s Constitution includes a requirement that citizens cannot be “denied equal protection of the laws” that’s based on the 14th Amendment to the U.S. Constitution.  

Washington’s Constitution does not include these words but has a potentially more impactful requirement to provide “for the education of all children residing within its borders, without distinction or preference on account of race, color, caste or sex.”  It goes on to say, “The Legislature shall provide for a general and uniform system of public schools.”

If the Vergara decision ends up standing on the U.S. Constitution’s “equal protection” provision (rather than just the California Constitution), the ruling would apply to Washington and all states.

California’s statutes of concern:

Washington’s similar policies:

Washington is a stronger local control state, so the California provisions related to seniority and dismissal do not appear in our laws. Those decisions are made by local school boards. In my experience, they are universally made exactly like the union officials desire—similar to California.

The one case I can recall where a school board tried to stand up for students was Tacoma.

In that case, the practice of experienced teachers having the right to flee poor neighborhood schools was contested.  The school board sought provisions in the union contract to use factors other than seniority to deploy staff. The union called a strike because of this proposed change. The strike was ended when the district agreed to create a committee to examine the idea rather than to adopt the policy.

State law does create the presumption of permanent employment (or “tenure”), but in Washington it is called “continuing contract.”

RCW 28A.405.210

“In the event it is determined that there is probable cause or causes that the employment contract of an employee should not be renewed by the district for the next ensuing term such employee shall be notified in writing on or before May 15th … shall specify the cause or causes for non-renewal of contract. … Every such employee so notified, at his or her request … shall be granted opportunity for hearing pursuant to RCW 28A.405.310 to determine whether there is sufficient cause or causes for non-renewal of contract.”

It’s worth noting that what counts as “cause” is not defined, but could actually be a matter that school boards negotiate and define.

The road ahead

First, the Vergara ruling will be subject to union appeals for a few years. Already the union marketing machine is working to marginalize the case. (RavitchCalifornia Teachers AssociationCalifornia Federation of TeachersNational Education Association, and even Washington Education Association). 

It’s possible that at the end of that road, the California and possibly U.S. Constitutions will be found to limit policies that harm student services for the sake of adult self-interests. Such a precedent could easily be applied to a host of union-sought practices which impact student services.

However, such a ruling also creates a precedent that uniformity of service is of public interest. Those of us who recognize that the uniform monopoly school system is built on the faulty foundation of “one-size-fits-all” should be ready to describe how parent-selected, customized services are acceptable under “equal protection.”

Second, before the final Vergara ruling impacts Washington, a lawsuit will need to be filed or lawmakers will need to act if Washington is to address how employees’ self-interest and the union officials’ agenda impacts students.

Having a court ruling like Vergara increases the attention to concerns about overprotecting adults, and makes it impossible for these facts to be ignored by union officials and the politicians they fund at the school board and state level.

More information

Managing the Teacher Workforce in Austere Times: The Implications of Teacher Layoffs, Center for Education Data & Research. Dan Goldhaber, 2011.  “…simulations suggest that a very different group of teachers would be targeted for layoffs under an effectiveness-based layoff scenario than under the seniority-driven system that exists today.”

Seniority-Based Layoffs Will Exacerbate Job Loss in Public Education, Center on Reinventing Public Education, February 2009  Marguerite Roza

Seniority-Based Layoffs, Can’t We Do Better? Education Week Blog Rick Hess, Dan Goldhaber

A Smarter Teacher Layoff System, The New Teacher Project, March 2010

The Irreplaceables: Understanding the Real Retention Crisis in America’s Urban Schools, The New Teacher Project, 2012

Teacher Layoffs: Rethinking “Last-Hired, First-Fired” Policies, National Council on Teacher Quality, February 2010. 

Adjudicating School Reform, Center for American Progress, 2009

Fixing Tenure: A Proposal for Assuring Teacher Effectiveness and Due Process, Center for American Progress, 2009

Senior Policy Analyst
Jami Lund is the Freedom Foundation’s Senior Policy Analyst. From 2004 to 2011, he developed legislative policy as a research analyst for the Washington House Republican Caucus. Prior to that he worked for the Freedom Foundation as the Project Manager for the Teachers Paycheck Protection project, shepherding the development of the Foundation’s landmark U.S. Supreme Court case to protect teacher rights. Jami is an accomplished speaker and researcher, one of Washington state’s top scholars on education policy and finance.