Biglaw's Big Dumb Teacher Tenure Lawsuits

Legal luminaries throwing their reputations behind the anti-tenure effort just highlights how flimsy it is, as a matter of law and policy.

Won’t somebody please think of the children?

That quote comes from the contemptible Helen Lovejoy and probably a bunch of other sanctimonious folks trying to dupe the public into backing some BS agenda armed with the logical fallacy of an emotional appeal. The devil of it is these empty emotional pleas are so convincing to a lot of people. Sadly, lawyers aren’t above pulling this card to snowjob judges and the media.[1]

After the Vergara v. California decision there was a brief volley of commentary before everyone moved on to the next big event. The decision struck California’s teacher tenure law as unconstitutional because granting tenure to experienced teachers could possibly, maybe mean that a “bad” teacher couldn’t be fired fast enough. The decision earned the praise of a bi-partisan peanut gallery from the dwindling posse of Republicans in California to Secretary of Education and NBA Celebrity All-Star MVP Arne Duncan.

Everyone seems to want in on the “education would be peachy if it weren’t for the teachers” movement — including a metric s**t ton of Biglaw bigwigs. Gibson Dunn’s Ted Boutrous and Randy Mastro spearheaded the Vergara case. Ted Olson advised. David Boies is the chair of the Partnership for Educational Justice, a group fronted by former CNN anchor Campbell Brown bringing a similar lawsuit in New York fronted by Kirkland’s Jay Lefkowitzpro bono, of course. Now even Professor Larry Tribe is in the mix.

Stop the sanctimonious love-in. They aren’t championing children, they’re either starstruck or shilling or both. I mean, the Republicans have always wanted to kill unions because it’s easier to gut public schools for fun and profit. Democrats have jumped on board more recently because they want to suck up to tech billionaires like Bill Gates who preach that fixing the public education system that they never really participated in themselves is as simple as building an internet browser (which it is, if you want Internet Explorer).[2]

And all these legal luminaries throwing their reputations behind this effort just highlights how flimsy it is, as a matter of law and policy….

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The anti-tenure movement is about giving school districts the cover of a constitutional right to fire their teachers at will.

Full stop.

Not the right to fire “ineffective teachers,” but any teacher the district wants. The argument is that school districts need the power to fire teachers at will because that’s the only barrier to ridding schools of “bad” teachers. Which they can’t define.

Here’s a fun fact you don’t read much in these discussions: tenure does not mean schools can’t fire incompetent teachers. If a tenured teacher is bad at their job there’s a process for firing them. Proponents try to cover that up, but in their closing presentation in the Vergara case you can notice cleverly worded language like how tenure doesn’t provide for “timely” dismissal. Because honesty would require saying, “we can still fire tenured teachers.” Yeah, it may take a little longer — anti-tenure types fear-monger that it may take a whole two years and therefore lazy administrators will choose not to pursue it — but they can be fired. The narrowly tailored solution to the “problem” defined by the plaintiffs would be challenging the process used to fire tenured teachers as unconstitutional as applied. Or challenging the credentialing requirements. Instead they want a constitutional right to fire teachers at will based on “competence” without definition.[3] As enjoyable as it may be to go cockroach hunting with a bazooka, it makes for really terrible policy.

The bazooka-to-cockroach comparison isn’t an exaggeration either. Per the judge’s opinion in the Vergara decision:

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There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms. Dr. Berliner, an expert called by the State Defendants, testified that 1-3% of teachers in California are grossly ineffective.

You have got to be f**king kidding me. There’s a massive, multi-state litigation over 1-3% of the teacher workforce. Add in that many — some might argue “most” — of these ineffective teachers are, obviously, inexperienced teachers not covered by any tenure law, and this case is now Higgs-Boson minuscule. The Vergara decision makes no effort to parse out how many of the handful of “ineffective” teachers in California are and are not covered by the state’s tenure law.

Unbelievably, the plaintiffs in Vergara argued that California had more incidence of incompetence than the rest of the country. This, however, is untrue, and California is on par with the rest of the country when it comes to having an overwhelmingly qualified teaching core. As Education Week reported last year:

In Michigan, 98 percent of teachers were rated effective or better under new teacher-evaluation systems recently put in place. In Florida, 97 percent of teachers were deemed effective or better. Principals in Tennessee judged 98 percent of teachers to be “at expectations” or better last school year, while evaluators in Georgia gave good reviews to 94 percent of teachers taking part in a pilot evaluation program.

One can argue that the incidence of ineffective teachers is much higher than these assessments suggest, but if assessments aren’t reliable, then what the hell are we even doing here? The plaintiffs can’t have it both ways.

Or maybe they can. In Vergara, the plaintiffs argued that tenure was unconstitutionally subjecting them to “grossly ineffective” teachers and yet none of the plaintiff students ever had a single teacher deemed ineffective. This was ignored by the decision. Am I the only one around here who gives a s**t about standing?

Not only did none of them have a “grossly ineffective” teacher, but some of the plaintiffs attended schools where there are no tenured teachers. Two of the plaintiffs attend charter schools, where there is no tenure or seniority, and as you will read below, “Beatriz and Elizabeth Vergara both attend a “Pilot School” in LAUSD that is free to let teachers go at the end of the school year for any reason, including ineffectiveness.

But back to the methodology that designates an ineffective teacher. In fact, expert evidence suggests that these assessments are basically a crapshoot.

The American Statistical Association recently examined the practice of basing teachers’ performance evaluations on students’ standardized test scores and warned against this approach. Reflecting on the new ASA study referenced above, education journalist Valerie Strauss wrote on her blog at The Washington Post that current teacher evaluation methods of evaluating teachers “purport to be able to take student standardized test scores and measure the ‘value’ a teacher adds to student learning through complicated formulas,” but “these formulas can’t actually do this with sufficient reliability and validity.”

So the designation of “ineffective teacher” remains by and large arbitrary.

The Vergara court accepted the 1-3% figure and never had occasion to question the methodology of teacher assessments writ large. But the fact that this benchmarking — which is mostly made up from whole cloth — is so arbitrary is the real reason why this movement set its sights on dismantling tenure outright. Cleveland Board of Education v. Loudermill set forth some bare bones due process rights for tenured teachers. Arbitrary assessments of competence face an uphill battle under the prevailing due process regime. But if teacher tenure itself was unconstitutional? Then we can make all sorts of crazy assessments!

The proponents of the assault on teacher tenure also drape themselves in the fact that the bulk of teachers deemed “ineffective” work in urban school districts teaching poor and minority children in a pandering effort to garner liberal support for what was historically the conservative hobby horse of union bashing. Aw. That’s sad. Unfortunately, the fact that minority children are in underperforming school districts does not make “firing teachers” a constitutional issue, it makes “balancing school funding and the pay incentives for teachers to work in disadvantaged school districts” a constitutional issue. Because teachers certainly have an easier go of it if they bolt for districts with more support resources.

From the excellent Diane Ravitch blog cited above:

Betty Olson-Jones, former president of the Oakland Education Association, testified: “Oakland has an extremely difficult time retaining teachers. The statistic that I was always struck with was of the beginning teachers in 2003, there were about 300 who began in Oakland, and by 2008 about 76 percent of those left. Generally, the turnover rate is about 50 percent, even higher among some — in some schools. I feel that part of the reason is that the conditions are very difficult, very high-poverty rate in Oakland, lack of support services. Oakland has very few counselors, nurses, one librarian left, high class size, high standard of living in the bay area. Children come with a lot of needs that aren’t fulfilled, and teachers are expected to make up that difference and are agonized often by their inability to do so because they lack the support and the conditions to do so.”

Without tenure to protect job security within a school district, one would expect even more good teachers to abandon the public school system for the private sector. Tenure was one of the very few incentives left — beyond the goodness of their hearts — to keep any teacher with a solid résumé from leaving the public system. This is, again, given no regard in the decision.

One wonders if, before all these legal luminaries cast their lots and reputations with these anti-teacher organizations, they undertook the basic background research required to understand the state of public education in America? Because that’s the pre-requisite I’d expect at least of a public intellectual and advocate like Professor Tribe. Is eliminating teacher tenure laws by judicial fiat the way to solve flagging public education?

Because surveying the evidence turns up a treasure trove of alternative causes. Let’s check them out on the next page. And also a visit from Stephen Colbert on this issue….



[1] In addition to “media” there’s whatever the hell we’re calling this Frank Bruni tripe. Actually, “tripe” may be his speciality since he’s their glorified restaurant critic. I don’t even have time to rip this a new one. I’ll defer to Professor Michael Dorf on that one.
[2] Seriously, Windows requires 30 “updates” to fix every flaw they couldn’t get straight in the first place. Do we really want that to be our model of education?
[3] In Vergara, the plaintiffs couched their argument in the claim that California’s 2 year tenure rule was just too short. Which did, of course, fly in the face of their “last in first out laws fire tons of qualified non-tenured teachers” but who’s trying to apply logic to this? Anyway, one could say, as a witness cited by the plaintiffs opined, that a 3-5 year probationary period would be acceptable. But that would be dumb because these same lawyers are pursuing similar cases in states with the 3-5 year requirement.
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