Having just completed a three-part series titled "An Educator's Lament" on the symptoms, causes and stakes of the demise of American education, I was planning to retire the keyboard for a few days. Then the news broke on Vergara v. California. Alas, I feel compelled to weigh in.
Vergara v. California concerns teacher tenure -- the granting of "permanent" teaching positions -- in California's system of K-12 public education. On June 10, 2014, California Superior Court Judge Rolf M. Treu ruled in favor of the plaintiffs, who oppose California's tenure statutes, and against the California Teachers Association, which favors them.
The ruling begins by recognizing that "education is perhaps the most important function of state and local governments." Agreed. The judge then accepts the arguments that ineffective teachers are "disproportionately situated in schools serving low-income and minority students," that "there are a significant number of grossly ineffective teachers currently active in California classrooms," and that California's tenure statutes inappropriately shield ineffective teachers from dismissal. He concludes, therefore, that all the "challenged statutes" are unconstitutional. These include California's "two-year" tenure law and its LIFO policy (Last In, First Out), which mandates that newer teachers be dismissed before those with greater seniority during reductions in force.
The devil is in the details. Far from open and shut, the case features interesting nuances. First, the judge did not rule that all tenure statutes are unconstitutional, only that California's "two-year" law is. Second, the plaintiffs -- nine public school minors and their parents -- had the backing of individuals and organizations with deep pockets and questionable agendas, among them the Walton Family Foundation and the American Legislative Exchange Council (ALEC), whose educational task force seeks to privatize education. Third, the judge asserts that the level of teaching incompetence "shocks the conscience," and the ruling states categorically: "There is no dispute that there are significant numbers of grossly ineffective teachers ..." How many, one might ask? Five percent, 10 percent, 20, 50? According to the expert witness: 1-3 percent. Admittedly, no "grossly ineffective" teacher should be allowed to remain in the classroom, but this figure strikes me as admirably low level relative to most other fields. Finally, California's tenure statute, in which the probationary period is only two years, is definitely an "outlier." Educational experts recommend 3-5 years probation, the national average tenure period is 3.1 years, and teachers themselves find probationary periods as long as 5.4 years reasonable, as reported in The Atlantic (June 11, 2014).
Because my experience as a high-school teacher is now 40 years in the rear-view mirror, I'll confine further comments primarily to the case for tenure at public universities. First, a little background. Also according to The Atlantic of June 11:
Tenure has existed in K-12 public education since 1909, when 'good government' reformers borrowed the concept from Germany. The idea spread quickly from New Jersey to New York to Chicago and then across the country. During the Progressive Era, both teachers unions and school-accountability hawks embraced the policy, which prevented teaching jobs from being given out as favors by political bosses.
Modern university tenure policy dates to 1940, when the American Union of University Professors (AAUP) adopted its Statement of Principles on Academic Freedom and Tenure. Contrary to popular opinion, tenure does not guarantee a lifetime appointment, because college and university faculty can be dismissed for ethical or moral violations, and many are subject to some variant of post-tenure review. Tenure, however, does guarantee due process in dismissals.
As I see it, tenure serves two other essential educational functions: It partially insulates public education from politicization, and it insures diversity of opinion through "academic freedom."
As discussed in a previous post, intellectual and ethical growth occurs in stages, categorized by the late Harvard educational psychologist William G. Perry as dualism, multiplicity and relativism. Multiplicity involves the recognition that some issues involve competing or conflicting points of view over which even authorities may disagree. Exposure to multiple, contradictory viewpoints is essential for cognitive growth and a stepping stone toward the eventual goal of high-level ("reflective" or "evaluative") reasoning. Tenure is the field in which many opinions can bloom. Imagine public universities without tenure protections. Each time the governorship changed political affiliations, the new governor could in principle dismiss all faculty not of his persuasion and replace them with the ideologically pure. Educational chaos would ensue.
A common public misperception is that tenure perpetuates mediocrity by permitting lifetime appointments for lackluster professors. In practice, the reverse is true: Tenure contributes to hiring the best and brightest. Some years ago, I read an eye-opening back-page essay in the Chronicle of Higher Education. Its gist: Tenure decisions are best made during hiring. This somewhat paradoxical wisdom deserves some explication: When there's a good chance that a new colleague will be a colleague for life, it's important to hire well.
My academic department has taken this advice to heart. We've grown from 20-something full-time faculty to 45 in my nearly two decades there as a full-time member. During that period, due to attrition, retirements, and growth, we've hired perhaps 40 new faculty members. It's not uncommon to receive 300 or more applications for one to three open positions. We vet our applicants carefully and subject them to a two-day interview that assesses the candidate's teaching ability and dedication, their research accomplishments and potential, their inclinations toward service, and their compatibility with students, colleagues, and administrators. As a result of this scrutiny, in two decades, the departmental faculty has never erred in a hiring decision. We may scrap over who is the best fit, but we've never gotten a lemon. Frankly, I'm astounded by the quality, year after year, of our new hires.
My department is not unique in its hiring rigor. The university has a current enrollment of approximately 20,000 students, which translates into a full-time faculty of just under 1,000. Over the years, I've gotten to know hundreds of these capable, dedicated, and good-hearted professionals. In two decades, I've met just one who, in my estimation, should never have been tenured. (No, I won't tell you who that was, but he/she was not in my department and is long gone.) What other profession has this kind of track record? Thank tenure for the phenomenal quality of university faculty.
Admittedly, the California K-12 tenure has a glaring problem: two years is too short for a tenure clock. A university-level tenure clock ticks for seven years. In practice, that translates to five, because new faculty members submit their portfolios early in the fall of the sixth year. The decision is finalized in the spring, and the seventh year is available for appeals, should they be necessary. Five years is ample time to know for sure what you've got.
Bottom line: Tenure serves the best interests of education, but California's K-12 tenure procedure is flawed. Still, it could easily be fixed by tweaking the duration of the probationary period in the same way that fiscal problems with funding Social Security could easily be fixed by tweaks such as raising the income cap.
The real issue is whether the organizations behind Vergara v. California simply want to fix the tenure system in California or to use the lawsuit as a front to undermine the safeguards of public education. Given that some of the shadowy groups (e.g., ALEC) supporting the lawsuit seek the privatization of education and Social Security, and sow disinformation that our Social Security system is insolvent, I smell a rat.