The Tenure/LIFO Court Decision

“Sh*t, Sh*t, Sh*t!!!”

I wasn’t present when AFT President Randi Weingarten and NEA President Dennis van Roekel heard about “Vergara vs California,” but it’s easy to imagine them uttering an expletive (or two or three).

Understand, I’m not talking about their reaction to the judge’s decision earlier this week. I’m imagining how they might have reacted when the lawsuit challenging California’s tenure and seniority rules was filed in May 2012, more than two years ago.

Why might they have cursed when the lawsuit was filed? Because, I suspect, they knew that the three California rules were indefensible. These rules are not based on anything remotely connected to pedagogy or the needs of students but were political decisions made by the state legislature, heavily influenced by the powerful California Teachers Association, the CTA{{1}}.

Consider the three provisions:

1) Tenure after TWO years? How can any organization, let alone something as complex as a school function that way? And by the way, the ‘two year’ rule actually means that a school principal has to make that ‘lifetime’ decision about halfway through the teacher’s second year on the job, after he or she has been in charge of a classroom for perhaps 14-15 months at most.
2) Slavish devotion to “Last Hired, First Fired,” as if the profession of teaching were labor’s equivalent of sanitation workers or pipefitters. 100% seniority! Nothing else matters, not a principal’s judgement, not student performance, not the teacher’s contributions to the school, and not student evaluation. Just years on the job!
3) A convoluted and complex process to remove inadequate teachers that reportedly involves about 70 discrete steps, takes years and can cost hundreds of thousands of dollars.

The case against those three provisions, “Vergara{{2}} vs. California,” was decided this week: “A California judge ruled {{3}} Tuesday that teacher tenure laws deprived students of their right to an education under the State Constitution and violated their civil rights. The decision hands teachers’ unions a major defeat in a landmark case, one that could radically alter how California teachers are hired and fired and prompt challenges to tenure laws in other states.”

Editorial pages of both the New York Times and the Wall Street Journal praised the decision. How often do those two papers agree on something?

U.S. Secretary of Education Arne Duncan applauded the ruling: “For students in California and every other state, equal opportunities for learning must include the equal opportunity to be taught by a great teacher. The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students. Today’s court decision is a mandate to fix these problems.”{{4}}

Teacher union foes like Whitney Tilson and RiShawn Biddle could hardly restrain themselves, while union leaders Weingarten, van Roekel and New York City’s United Federation of Teachers President Michael Mulgrew complained that the decision diverted attention from social unfairness{{5}} and then attacked the man behind the lawsuit. Here’s part of Mulgrew’s statement: “What shocks the conscience is the way the judge misread the evidence and the law, and sided with a Silicon Valley millionaire who never taught a day in his life.”{{6}}

Judge Treu stayed the decision pending appeal and urged the legislature to fix the problems, but how likely is it that the California legislature will act to make earning tenure a more reasonable process, perhaps after three or even four years of teaching, instead of two?

That’s probably not going to happen because the CTA still wields great power. But if California needs a model, New York City’s approach to granting tenure seems to work well, as Chalkbeat explains here.

“Last hired, first fired”–using seniority as the sole factor in layoffs–is as indefensible as 2-year tenure, but it is also counter-productive because it alienates young teachers, some of whom are showing their displeasure by declining to support their national and state unions. That’s happened in Modesto, California and Wicomico, Maryland, where local chapters want to disaffiliate with their state association and the NEA itself. In neither case has it been pretty.

Tenure and due process are essential, in my view, but excessive protectionism (70+ steps to remove a teacher?) alienates the general public and the majority of effective teachers, particularly young teachers who are still full of idealism and resent seeing their union spend so much money defending teachers who probably should have been counseled out of the profession years ago.

With the modal ‘years of experience’ of teachers dropping dramatically, from 15 years in 1987 to 1 or 2 years today, young teachers are a force to be reckoned with. If a significant number of them abandon the familiar NEA/AFT model, or if they develop and adopt a new form of teacher unionism, public education and the teaching profession will be forever changed.

These are difficult times for teacher unions: declining membership and revenue, harsh criticism from traditional allies (like the leadership of the Democratic party), and now a court decision that will undoubtedly lead to similar challenges in other states.

The effort to blame poor education results on teachers and unions is misguided and malicious. It’s scapegoating, pure and simple, but–it must be said–protectionist policies like those in California play into the stereotype.

[[1]]1. I lived in California from 2000-2010 and made a film, “First to Worst,” about the decline of the state’s public school system. Just to cite one case of the CTA’s power, the union wielded its influence to get Reed Hastings bounced from the State Board of Education in 2005. The Netflix founder had been appointed by Governor Gray Davis, a Democrat, in 2000 and reappointed by Arnold Schwarzenegger, a Republican. Hastings was serving as Chair of the Board, but his advocacy of bilingual education and charter schools angered the CTA and–in lockstep–many statehouse Democrats (Hastings’ own party).[[1]]
[[2]]2. The Vergara in the case is Beatriz Vergara, one of nine minors, all students, who were plaintiffs in the case. The effort, however, was funded by a wealthy Silicon Valley technology magnate named David Welch and his organization, Students Matter. A great deal of material about the case is on its website: [[2]]
[[3]]3. Here’s Judge Rolf Treu’s ruling: [[3]]
[[4]]4. He continued: “Together, we must work to increase public confidence in public education. This decision presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students’ rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve. My hope is that today’s decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift. Every state, every school district needs to have that kind of conversation. At the federal level, we are committed to encouraging and supporting that dialogue in partnership with states. At the same time, we all need to continue to address other inequities in education–including school funding, access to quality early childhood programs and school discipline.”[[4]]
[[5]]5. They have a point, it must be noted. California ranks at the bottom of all states in per-pupil spending ($8,342), which is about 30% below the national average of $11,864. [[5]]
[[6]]6. [[6]]

24 thoughts on “The Tenure/LIFO Court Decision

  1. John,

    You were semi-right on one point, the case in that court was decided when the judge got strict scrutiny backwards.

    Here’s my latest.

    Yes, we should use the POLITICAL PROCESS to lengthen the tenure process.

    Yes, we should mend, but not end seniority, if we had partners who were interested in solutions. It takes two to compromise, and we shouldn’t go along with a deal which, in a time of rampant school closures, allow districts to engage in age discrimination without restraint.

    Yes, there are “reportedly” horrible cases in terminations like there are mega-foulups in every field. In those few cases, I suspect that blame is shared.

    You are missing the point. This is a disgraceful misuse of the legal system, merely a venue to attack teachers and unions. We who respect the law and its potential to expand equity should be extra horrified by Vergara.

    Why would you believe the 70 steps to remove a teacher graphic? Did you carefully read the evidence by Kane, Goldhaber, and Chetty and find any connection between their theories and the evidence needed to determine strict scrutiny? Why would demonizing teachers and taking our rights away make the job more attractive? You don’t think that SIG and other efforts that encourage age discrimination played a role in the drop in modal years of experience?


  2. John, I think you got this one entirely correct. These K-12 practices in California (and they are similar for the community colleges) have numerous negative dimensions. True the poor teachers serve students poorly. True they take an enormous amount of administrative time. But they also create a very unfortunate atmosphere in the school: the administration either turns a blind eye (not good); or the administration commences the lengthy procedures to terminate the employee. Should they choose the latter, the union involved will dutifully defend the teacher, setting up a protracted, acrimonious series of events. Whatever the outcome of the process, the process itself makes the administration look (and at times feel) isolated from the teaching corps (not good). The existing rules make the very difficult job of site leader all the more difficult. Changes to the law and regulations that would protect teacher rights while permitting appropriate and swift terminations would be an important step in the right direction.


  3. John,

    Thorough and fair coverage, as usual. But just because this argument became a court case doesn’t make it the right question. A better question is: why isn’t teaching a profession in this country, like law, medicine, architecture? You have written about the Trusting Teachers book, which details what’s different when teachers are actually in charge of a school. Among the key differences: nearly no turnover. When you have authority over your work, you tend to stick around. The problem today is the “deal” we have with teachers. Historically, we didn’t offer teachers much authority but also didn’t hold them ultimately accountable for results. These days we seem bent on holding them accountable, but still not giving them authority. Who would take a deal like that? No wonder nearly half quit the career early on. What would should offer is complete authority over what matters for school success in return for authentic accountability for student results. There are so far only about 60 such schools run by teachers in the U.S. But seeing the differences in these schools makes court cases like Vergara seem like yesterday’s news.


  4. ““Sh*t, Sh*t, Sh*t!!!””

    Yep, shit, shit, shit is what the Vergara decision is and also your take on it.


  5. The majority of teachers and their local unions are professionals. They do not seem to understand the professional environment in the commercial world – where even the past vaulted “HP way” of professional retention in times of downturn included a culling of about 1/20 of the underperforming professionals during normal times.
    In California, progressive teacher’s locals like the San Jose Unified District’s are stymied when they try to test and negotiate more modern arrangements. (denial of 3 yr. tenure test by the State Board of Ed.) This court opinion – will force legislative action (for I believe it will be rapidly upheld on appeal) to modify and improve dismissal and the interrelated tenure process. NOT eliminate – just modify and improve.
    This is another ‘once in a half century’ opportunity for reform (CA tenure law started in the 50’s I recall)


    • It urks me when people like Steve Nelson start comparing teaching to other professions. They are not the same. Sure, you may be a manager in charge of a unit in a corporation and may have to manage differences, and possibly reprimand an employee or fire them. In education (K-12), we are also dealing with the same issues while also teaching what we need our students to know. Now it sounds like there is no difference between the manager and the K-12 teacher, but there is! First, the manager (and every other profession) deals with adults and has the opportunity to fire them. The teacher has children, not adults, and has to treat them much differently than the manager. The teacher can also not fire the students. I have been both a manager in private industry and I am a teacher now, so I know what I am talking about.


  6. The plaintiffs did not even go to schools where their claim of ‘grossly ineffective teachers’ couldn’t be fired was true — the kids went to charters, pilot schools (where tenure didn’t exist), and I think one or two of the kids were in a Teacher of the Year’s classroom (not really grossly ineffective).

    Then there is the Strict Scrutiny thing, which, according to many attorneys, was the wrong test.

    And last, there is the fact that John Merrow has outlived his journalistic usefulness.


    • Strict scrutiny is the issue. I don’t know if it was the luck of the draw or what, but when Vergara landed in the court of someone who would make a ONE SENTENCE judgment that strict scrutiny applies to the defendants, that virtually assumed the trial court ruling. It won’t hold on appeal. But, the billionaires can shop around for venues where they can start off with that advantage. I doubt they will ultimately win in court but, for them, this is just a political battle fought on a legal battleground.


  7. I have written a response to this.

    Let’s think about what this stance suggests we ought to do.

    In spite of the fact that the effort to blame poor results on teachers and unions is totally wrong, we should capitulate to the central demands of the “reformers.” Get rid of seniority. Base evaluations – and the decision as to who is terminated — more on student performance (test scores) and principal judgment.

    The result will be to make a profession that has become less and less desirable, even less so.

    Turnover has already been on the rise. Charter schools already are demonstrating the model at work, and have significantly higher teacher turnover to show for it. Moving public schools in this direction will drive turnover upwards there as well. Turnover has been shown to have a strong negative effect on student performance.

    Read the rest of my thoughts here:


    • Anthony
      You say ‘get rid of seniority’ suggesting that I had written that, but I never suggested that, nor would I. I think other factors must be part of any layoff decision, that’s all. It shouldn’t be 100% seniority, I said. What do you believe? Should a teacher’s contribution to the academic community count for something? Student performance? Student evaluation?

      Do you seriously defend tenure after two years (meaning a decision must be taken part way through the second year? I gather that actually hurts the promising young teacher, because a principal might decide not to ‘gamble.’ thus more turnover.

      What is your explanation for the disaffection with national and state unions among young teachers?


      • John,
        I don’t mean this wrong, but have your read the Vergara case? Have you studied its evidence, its logic?

        If you had, I don’t think you would consider a relative detail like the date for determining tenure to be comparable to the extreme overreach of the case.

        Read the case, study their web site, watch some of their extreme teacher-bashing propaganda before you write about Vergara as if it is an appropriate legal action, and not a well-funded attack on unions and the teaching profession.
        Recognize Vergara for what it is, the opening shot in a new national assault on teachers, and you won’t start quibbling about your more subtle views on seniority vs what we believe.

        Everyone should follow Anthony’s link. He draws upon your words to explain why, no, so-called “student performance” should never count in a teachers’ evaluation. It is deplorable policy.

        In another non-Vergara context, we can discuss the use of contribution to academic community and student evaluations. But that has nothing to do with Vergara.

        I honestly believe you should go to the Students Matter web site, study the case, and reconsider your apparent assumption that Vergara isn’t a mortal threat to what you as well as we believe about public education.


      • The corporate backed prosecution’s StudentsMatter dot org website is very detailed but also very one-sided, with many testimonies by right-wing economists like Hanushek, Goldhaber, Chetty, Kane et al.

        In contrast, the website for the other side is not particularly detailed. I would like to see the testimonies and evidence they presented.

        Anyone know where complete trial transcripts and videos can be found for free?


      • John,
        If you lay off teachers based on something other than date of hire, using other factors such as those you suggest, you have indeed gotten rid of seniority, as far as I am concerned. I do not think it is a good use of administrative resources to maintain some sort of complex ranking system in which every component in a teacher’s job performance is constantly measured to determine the rankings that one would need to make this calculation. And such a complex system would be subject to all sorts of manipulation and unintended consequences. A seniority system based on date of hire is fair, rational and simple. The other factors you list should be considered on a teacher’s evaluation, but to base layoffs on this is to ask for trouble.

        Yes, I seriously defend tenure after two years. Because I know that teachers must either have completed a year of student teaching, or a year or two with alternative credentials before that two years begins. I also defend it based on the fact that this entire controversy has been cooked up. There is not a crisis of bad teachers as you stated yourself. Therefore we should be highly skeptical of remedies to a phony ailment.

        I think young teachers may have a different perspective from those who have been in the profession for a longer time. Clearly, less experienced teachers are put at a disadvantage in the event of layoffs if seniority is followed. And if younger teachers do not intend to stay in the profession for more than a few years, they may never see any benefit from such a system. So those are some concrete reasons they might feel differently.


  8. The issue is due process as well as accountability on an even playing field. In Wisconsin tenure was after 3 years when I started however, I never gave any thought to tenure. Didn’t even know when I had it or what it really did.

    We must stop generalizing terms like tenure and get down to what they mean in different states. As we fix the system, each part of the system must respond. Not respond as one but respond in their own way to assure due process and fair accountability.

    As in California, it seems the easiest target was hit. All states must review their tenure policies. However, the solution does not simply rely on fixing tenure, but relies on fixing the tired worn out system of education. To do that every talking point with reason must be put on the table.


    • I agree. I looked but could not find a list.

      Can anyone point us to the actual regulations stipulating that 70 steps must be followed in order to fire a teacher who has due process rights in CA?


    • I think Wiggins is wrong, but I don’t think he deserves the vitriol directed at him.

      Definitely, everyone should follow link to Renee Moore who writes,

      “Tenure has become a convenient excuse and political gimmick, but it has never been the real reason less qualified teachers remain in schools or systems—that’s an administrative failing.”

      As your comment below indicates, if we want to address administrative failures, we can make progress. By the way, this vicious Vergara scorched-earth politics isn’t helpful. Why not help administrators build the capacity to follow processes that aren’t that all-fired difficult to implement?


  9. From Steven Sawchuk’s Ed Week blog: “After New York City encouraged principals to be more deliberative in awarding tenure, ineffective teachers were more likely to leave schools or the profession voluntarily—to the benefit of students, according to a recently released working paper.

    Even though the overall percentage of teachers actually denied tenure did not change much, the more-rigorous process appears to have reshaped the workforce—suggesting that changes in practice rather than underlying tenure laws, may bear fruit, said Susanna Loeb, a Stanford University professor and one of the study’s authors.

    “Within current tenure laws, there’s quite a bit of flexibility that districts aren’t using in order to improve their workforce. This did not require a change in the law; it simply required a change in practice,” Loeb said. “It wasn’t necessarily greeted warmly by everyone involved, but you didn’t need a court case or legislative change to change practice, and I think that’s true in a number of places.” ” READ THE REST ON THE ED WEEK SITE


    • So, John, is this a retraction?

      We can work within the system to tweek minor issues like years before tenure, and when districts change practice, as Sawchuk and Loeb explain, we can get results.

      Vergara, however, is a part of a corporate assault on public schools. Pretending otherwise won’t encourgae districts and reformers to get real about solutions.


  10. John, Thank you for your thoughtful explication of the Vergara case findings. While I agree with nearly all of your conclusions, I am less clear about your assertion that tenure is essential. I would be very interested in reading your argument for K-12 teacher tenure or references to thoughtful experts who make a compelling case for the guarantees of permanent employment status.


    • Chris – Maybe I’m reading your comment wrong … but are you saying that somewhere teachers get guaranteed permanent employment? If so, can you share where that is true?


  11. I think that’s what Chris means, Brian. And it’s clearly a commonly held misconception based on very outdated info. I live in Calif and have taught, been laid off, and looked for work only here for the last several yrs. These “perks” to being a teacher that existed when my mom started teaching 20 yrs ago, no longer exist. My mom will have to work until she’s well into her late 60’s just to have enough money to eat in her retirement. Teacher pensions have been slashed, health care is rarely covered anymore and if it is, your salary will barely pay for a small apt to offset that. And as others have said, tenure in K-12 does not mean job security for life the way it does in higher education. I have a friend who works in LAUSD and has had tenure for yrs. She’s been pink slipped every year for at least 6 yrs and never finds out until the very end of the summer that she still has a job. Often, teachers in large districts like that are shuffled from one school to another every year, whether they have tenure or not. They are just plugged back in wherever they will fit in a scramble after the budget is finished, so as to get to a breaking point of sanity. They love teaching, but the powers-that-be are making their lives hell, despite them doing nothing wrong. It was obvious to my high school students that teachers have no job security and are treated badly by those with power over them, why is it so hard for adults to see it?

    I have two major problems that haven’t already been mentioned with the conversation that has been going on for ye-e-ars on this subject. 1) People keep talking about the lack of discretion principals and other admin have in public education. This is incredibly false. While superintendents, district office admins, and school boards also often throw their weight around unfairly, school admins do, too. Most of the time, it’s a combination of these players working together. Why does this happen? Besides some of them just letting power get to them, many times they use what has become the most politically expedient way to balance the budget-cut teachers. I don’t know who first served up this Kool-Aid, but they sure have been successful with it. Usually it’s new teachers cut because they don’t have tenure, have no due process rights, and therefore the unions cannot intervene to protect them at all. The reason it’s “messier” to fire more experienced teachers is not because it’s impossible, it’s because tenured teachers can actually fight it. Sometimes they win, sometimes they don’t. Sometimes they should win, sometimes they shouldn’t. But the point is they have the legal right to fight back. The fact that at private and charter schools, where there is no tenure and no unions, principals have even more “discretion” to lay off any teachers they want. There is no due process to prove whether or not the teacher is being laid off for good cause and not just a personal vendetta, which any employee of any type of job in this country (and world) deserves. Why are teachers the first to be assumed to be in the wrong? Admins, like CEOs and people in other forms of management positions are at least as likely to be in the wrong. Why do some people defer to them so, as if they can do no wrong? Anyone who thinks that teachers have more power than their principals, has really drunk too much of that Kool-Aid.

    2) Why do people think that public schools have a monopoly on bad teachers? Are there bad teachers that slip through the cracks, partly due to tenure. Yes, absolutely. I have had some of them as teachers myself and suffered some consequences from it. But I have worked in and been a student in all the various types of educational institutions, public (affluent & low income), private schools of diff stripes, and low income charters and have suffered the consequences of bad teachers in every one of these educational facilities. Bad teachers are kept on to the same degree throughout this state in private and charter schools as they are in low and high income public schools. Giving admins more power to fire tenured teachers is not going to fix the problem. Refraining from slashing school budgets to scorched earth levels, so that admins stop wielding lay off axes every year would be a much more efficient way to make sure that we have as many good teachers as possible. But even that will not ultimately prevent it. I tutored a girl last year who went to an astronomically expensive, very prestigious private school with every possible resource. She had a few horrible teachers, exactly the type people talk about at “failing” public schools: teachers who didn’t show up; or did but didn’t teach at all; turn over from one substitute to the next, completely wrecking her academic year… Unless she decides to speak out against them, no one will ever know that this is a problem at those schools because they can advertize themselves however they want to with no oversight to prove whether it’s true or not. And because it’s got a good reputation, her parents will keep forking over the big bucks because, if nothing else, when colleges see the name on her transcripts they will think she had a good education.


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