By Erwin Chemerinsky

Published in the June 25, 2014 Orange County Register.

Laws providing for job security for teachers are not to blame for educational problems in California or elsewhere. There is little evidence that lessening job protections for teachers would do anything to make education better. In fact, it might make education worse by making teaching a less attractive profession.

On June 10, a California Superior Court judge, Rolf Treu, concluded that the poor quality of some California schools was the result of job security for teachers and therefore invalidated several provisions of the California Education Code.

In a 15-page opinion in Vergara v. State of California, Judge Rolf Treu held unconstitutional a state law that requires schools to evaluate teachers for job security in the second year of employment, a provision that gives more senior teachers preference over junior teachers in layoffs and the process schools must follow to fire a teacher.

Treu found that between 1 and 3 percent of teachers in California are grossly ineffective. Based on that, he concluded that job security for teachers violates the California constitution. He said that low-income and minority students disproportionately suffer from the current system and that it therefore violates their constitutional rights.

Treu’s opinion rests on many unsupported assumptions. First, he assumes that school systems cannot already replace the 1 to 3 percent of teachers who are inadequate. In fact, some school superintendents testified at the trial that they can and do fire incompetent teachers. Judge Treu’s opinion ignores this.

Second, Treu assumes that giving more senior teachers preference over junior teachers when there are layoffs has resulted in a significant number of better, younger teachers being fired over inferior, more experienced ones.

Third and most importantly, Judge Treu assumes that providing teachers with job security leads to worse teachers and worse education. It would be interesting, for example, to compare states where teachers have job security with those that have none. Is there any evidence that education is better in the latter states? Within California, how is it that all school districts operate under this law, but it is no obstacle to excellent education in the highest performing school districts?

Treu assumes that it is tenure that leads to higher numbers of poor quality teachers in the poorest schools rather than the preferences of teachers who seek to work in schools with more resources, more involved parents and children who are not so overwhelmed by poverty that they come to school unable to learn.

Treu declares unconstitutional the state law that grants teachers tenure in their second year. I, too, believe that this is likely too early. But that doesn’t make it unconstitutional. Judge Treu concluded that California’s two-year period for evaluating a new teacher is unconstitutionally short. He observed that only five states have such a short period, but he also notes that 34 states use a three-year period. He does not explain whether or why he believes that three years is a constitutionally sufficient period in which to evaluate a new teacher for job security and, if so, why it is so much preferable to two years.

I believe that it is worth reexamining the state laws granting teachers job security, but it should be the California legislature – not the courts – that does this. There are difficult questions that need to be faced. Do the benefits of tenure – in attracting people to teaching and protecting academic freedom – outweigh the ill effects of keeping some ineffective teachers in classrooms? This is the ultimate question, but it is not one that can be easily answered. Ultimately, it should be for the legislature and not the courts to resolve this policy question.

Judge Treu’s opinion will be appealed. My prediction is that it will not stand up on appeal because he never adequately shows that it is teacher job security that is responsible for the poor quality of some schools in California or that it constitutes a constitutional violation. There is no doubt, though, that this litigation will be the model for other challenges to teacher job security across the country.

It is easy to scapegoat teachers for the problems in schools. But it misdirects attention. California is one of the worst states in the country in student-faculty ratios. Estimates vary, but it is in bottom half of all states in per pupil spending. Directing attention here would be far more important to improving education than eliminating job protections for teachers.

Erwin Chemerinsky is the dean of the UCI School of Law.