Tenure for teachers? 9 California students sue to end policy

This week a Los Angeles judge will hear a case seeking to deem several statutes in California's education code unconstitutional. The case deals with teacher tenure, dismissing teachers, and the last-hired, first-fired rule.

Tony Avelar/The Christian Science Monitor
Sonny Wong, first grade teacher at Francis Scott Key Elementary School in San Francisco, hands out the TeacherMate Handheld Computer System to her students during a lesson in May 2009.

Nine California public school students are suing the state over its laws on teacher tenure, seniority and other protections that the plaintiffs say keep bad educators in classrooms.

The case that goes to trial Monday in Los Angeles Superior Court is the latest battle in a growing nationwide challenge to union-backed protections for teachers in an effort to hold them more accountable for their work. The nonjury trial is expected to wrap up in March.

"The system is dysfunctional and arbitrary due to these outdated laws that handcuff school administrators," said Theodore J. Boutrous, the lead attorney on the case sponsored by an educational reform group.

States across the nation have weakened teaching job protections, including generations-old tenure, to give administrators more flexibility to fire bad teachers.

Tenure was created in the early 20th century to prevent arbitrary or discriminatory firings based on factors such as gender, nationality or political beliefs. It spelled out strict rules under which teachers could be dismissed after a probationary period, though opponents claim they make it virtually impossible to fire teachers who aren't making the grade.

The changes are occurring as states replace virtually automatic "satisfactory" teacher evaluations with those linked to teacher performance and base teacher layoffs on performance instead of seniority.

Teachers' unions are fighting back, arguing the changes lower morale, deny teachers due process, and unfairly target older teachers. They also say the evaluations are too dependent on standardized tests and that eliminating such protections erases a vital support system for a profession already losing talented people to higher paid private sector positions.

The California Teachers Association and the California Federation of Teachers intervened and asked the court to throw out the lawsuit filed against the state, including the Department of Education, Gov. Jerry Brown and Superintendent of Public Education Tom Torlakson.

"It is deceptive and dishonest to pretend that teacher due process rights are unfair to students," said California Federation of Teachers President Josh Pechthalt, the parent of a ninth-grade student in the Los Angeles Unified School District. "Students need a stable, experienced teaching workforce. They won't have one if this lawsuit succeeds in gutting basic teacher rights."

Judge Rolf Treu, who will decide the case, rejected a motion to dismiss the case.

The lawsuit wants the court to deem unconstitutional five statutes within the state education code. Besides the one on tenure, three others lay out the steps to dismiss a teacher, and the fifth mandates the last-hired, first-fired rule, which the lawsuit's attorneys say hurts teachers who are young but may be talented.

The plaintiffs are students primarily from the Los Angeles and Bay areas. They are supported by a nonprofit organization called Students Matter that says it fights for education equality.

Los Angeles Unified School District Superintendent John Deasy, who oversees the nation's second-largest school district, will be called to testify by the plaintiffs, Boutrous said.

Plaintiff attorneys say teachers too often get tenure by just showing up for work — after about 18 months in California. Afterward, bad teachers are almost impossible or too expensive to fire, Boutrous said.

"The school system knowingly puts kids in classrooms with teachers who are grossly substandard," Boutrous said, adding that it was crucial to turn to the courts because "the political system can't fix this."

Many districts send substandard teachers to disadvantaged schools instead of dismissing them because those schools are seen as less desirable places to work by experienced teachers, who can have priority where they are assigned, Boutrous said.

The California teacher unions say they support improving teacher evaluations and streamlining the dismissal process. But those changes should be the work of the Legislature not the courts.

Laura Lacar, a high school teacher in the ABC School District, fears the law could expand beyond what happens in the classroom.

"It would be very scary to me, if this lawsuit succeeds, to think that I might not have a job next year, not for anything I'd done in the classroom, but because my principal didn't like me, or my clothing, or something I'd said."

Declaring the laws unconstitutional will allow the Legislature to craft legislation that does work, the lawsuit's attorneys say.

Karen Martinez, who lives in San Jose, said her daughter, Daniella, who is a plaintiff, reached the third grade unable to read before a teacher helped her.

"I'm hoping with all my heart that we win this case, so California can change a system that is clearly failing so many children," Karen Martinez said. "To me, it's common sense: appreciate and reward the teachers who are doing great, and hold accountable the teachers who are failing our kids."

Terry Moe, a senior fellow at Stanford University's Hoover Institution who has researched teacher unions and their impact on public education, said there's a long way to go even in states that have adopted new laws.

"Unions can make life difficult for administrators in coming years," he said. "The political pressure on the ground is strong. It's going to be really difficult to follow through on these new laws and put a dent in teacher tenure and really do away with the role of seniority."

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