For supporters of education reform, a recent decision by California Judge Rolf Treu, ruling teacher tenure unconstitutional, was transformational.
Now schools can freely fire bad teachers and put the U.S. back on top as the best educational system in the world. Of course very few legal battles end after one court decision and this case will be no different.
By concluding that the due process protections afforded to educators under tenure denied students "equal opportunity to achieve a quality education," Judge Treu seems to ignore that correlation does not prove causation.
If tenure unfairly protects teachers, there should be a considerably higher number of teachers fired per year at schools where tenure is not available. The data, however, show that is not the case. Believing tenure is to blame for low termination rates and proving that tenure keeps bad teachers in the classroom are two very different things.
Additionally if Judge Treu believes that tenure results in the retention of bad teachers which leads to an unequal opportunity for students to achieve then he must believe that the counterfactual is true. This means Judge Treu feels that hiring new teachers will lead to equal opportunity for all students because if it doesn't then the correlation between tenure and student achievement is anecdotal.
Unfortunately, data show that new hires are less effective than their more experienced counterparts. Given that 46 percent of teachers leave the profession in the first five years, it should come as no surprise that those individuals that administrators have observed, mentored and granted tenure are more skilled than those fresh out of college.
It should also be noted that in many parts of the country there is a shortage of quality educators waiting in the wings.
Giving administrators additional tools to remove bad teachers only improves educational outcomes if the replacement teacher is more skilled. A study of New York schools shows that a school can hire as many as 11 teachers before finding one highly effective teacher.
This suggests students are likely to experience years of poor teaching and turnover before getting a better option. In this regard, Judge Treu is like the football fan who wants to trade his starting QB because he believes anyone else would be an improvement. But the reality is not every teacher is going to be the Peyton Manning of teachers, and not every backup is magically superior to the starter.
Judge Treu also mentioned the cost of removing a tenured teacher as reason to remove these protections. But such a concern is irrelevant to this conversation. The cost of due process should not be a reason to deny a person their due process.
A study of the costs of teacher turnover in Texas found the replacement cost to be over $56,000. It is also true that the documentation and mediation process of tenure helps schools avoid many wrongful termination lawsuits, which can cost a school district millions in damages on top of the standard court costs associated with these sorts of cases.
Some "bad" teachers simply need additional training to improve their skill set. The cost of this instruction is likely far less than the expense of replacing these teachers, and it yields results quicker. This suggests if Judge Treu's goal is to provide equal opportunity to all students, he would spend more time focusing on what improves these opportunities than postulating about what doesn't.
If Judge Treu took this tact he would notice that in Washington, D.C., charter schools expel 72 of every 10,000 students, while traditional D.C. public schools only expelled 1 per every 10,000.
Bad students take up a considerable amount of a teacher's time and energy leaving the other students in the classroom with fewer opportunities to learn. Perhaps the key to improving the student's access to high quality teaching requires giving public schools the same flexibility charter schools have to remove "bad students." If this inequality between schools reduces the educational opportunities for students to learn, perhaps this legislative double standard, which gives preference to charter schools, should be ruled unconstitutional as well.
Perhaps the problems are not with tenure but instead with the administrators that do the hiring. Chicago schools were given the green light to fire poor performing teachers, however some 40 percent of schools fired zero teachers. If our schools are crawling with ineffective educators, why wouldn't these administrators seize this opportunity to thin the herd? Could it be that the whole "bad teachers" meme is a fallacy or is there a similar epidemic of "bad administrators"? Either way, eliminating tenure will not have the desired effect reformers believe it will.
Supporters of weakening tenure rules will find out such a change will have unintended consequences. It could allow administrators to remove highly effective teachers for any number of non-performance based reasons. They could fire the most experienced teachers simply to cut costs. Teachers could also be fired for having a different set of political beliefs. Imagine the outrage from reformers when a teacher gets fired because of their views on abortion or religion? Would you want to be the teacher in charge of educating the principal's or superintendent's kids, when reprimanding that student or giving them a poor grade could cost you your job?
While attempting to give all students access to a high quality of education is an admirable goal, Judge Treu appears to be living in an information vacuum since the data on tenure and retention of bad teachers are hardly as definitive and causational as he seems to believe it is. The real world impact of this decision could increase a school's legal costs while making the equal opportunity for students to achieve less likely, not more.
In the end, this "win" could end up being a huge loss for the people who need it the most.