Biglaw’s Big Dumb Teacher Tenure Lawsuits

Like the massive disparities in funding between school districts:

The majority of states have flat or regressive funding distribution patterns that ignore the need for additional funding in high poverty settings. Even among “progressive” states, only eight provide more than a 10% boost to high poverty districts. In the five most regressive states (North Dakota, Vermont, New Hampshire, North Carolina, Nevada), the poorest districts receive at least 20% less funding than higher wealth districts.

For the fun of it, here’s Stephen Colbert absolutely wrecking former CNN anchor Campbell Brown, whose group is behind the New York tenure challenge on this point. Oh, and a few other points for good measure:

Honestly, the line “I mostly just want to attack you” may be the closest he’s come to breaking character in one of these interviews.

Serrano v. Priest, cited by the plaintiffs as proving that California had “solved” school funding disparities. Which is just empirically false. Even if you accept, as plaintiffs in Vergara asked the judge to, the puffery of “teachers are so important!” as proof that teacher quality outstripped factors such as funding disparity, it shouldn’t require a genius to connect improving funding and school support disparities to the best method for attracting quality teachers to struggling districts.

And this funding disparity manifests itself in limited course offerings which annually compound to keep students in poorer districts behind the eight ball. Per this Education Department study:

Access to advanced courses. Eighty-one percent (81%) of Asian-American high school students and 71% of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, less than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high school. Black students (57%), Latino students (67%), students with disabilities (63%), and English language learner students (65%) also have less access to the full range of courses.

Or the lack of access to pre-school learning opportunities — and the racially stilted access to what resources exist — from the same study:

Access to preschool. About 40% of public school districts do not offer preschool, and where it is available, it is mostly part-day only. Of the school districts that operate public preschool programs, barely half are available to all students within the district.

Suspension of preschool children. Black students represent 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once.

While we’re looking at using the legal system to create constitutional protections for students — and in particular poor and minority students (which these groups, fronted by wealthy white people, always claim as their goal) — why not revisit Milliken v. Bradley. That decision — recently billed as “one of the worst Supreme Court decisions” by the Washington Post — constitutionally sanctioned de facto segregation in public schools by taking a dump on Brown v. Board and declaring that if all the white families find a way to move out of the neighborhood, keeping black kids in mostly black, poorly funded schools is not segregation any more. That seems like a constitutional fight that could really help poor and minority students. Maybe look into that?

None of these factors have much to do with the quality of teachers in districts, and yet there is a mountain of evidence that each of these factors disadvantages the students in districts on the short end of that stick. The judge in Vergara blew off these concerns. Because… think of the children!

Now it’s not entirely unreasonable to concede that there are other problems, but assert that ineffective teachers cloaked in tenure is at least one problem. And, hey, if we can do something to help isn’t it worth it? First of all, you’re LEGAL GIANTS. You don’t need to pick and choose fringe battles. Go take your talents to somebody bringing a lawsuit to overturn Milliken or join up with the ongoing legal fight for real funding equality or something that actually gets to the heart of the issue. Second, this would be a naive assessment of the impact of eliminating tenure on balance.

Because teacher tenure is not only not the biggest threat to education, eliminating it is itself a threat on multiple levels. On the micro level, the job security of teachers is integral to their ability to confront school administrators to protect students. As teacher M. Shannon Hernandez writes:

Over the course of my teaching career (15 years), teacher tenure is what allowed me to protect children and their rights without fear of retaliation or termination…. Due process gave me the protection I needed when it was time to speak up because the school system was out of money for textbooks, and I was expected to develop a curriculum and secure my own materials for teaching 60 students a day. Due process also has allowed me to advocate for students who were misplaced and were not getting their educational needs met in the current classroom setting. Because I could use my voice and was protected by due process, I was able to secure a smaller class size for these children, so that the students could get the one-on-one attention they deserved — ensuring their reading and writing scores would improve and approach grade level standards.

That tenure on balance protects children or that no alternative protection will replace this aspect of tenure once eliminated… not discussed by the judge.

Killing tenure is also an approach that deepens the schooling crisis on a macro level. Any solution that banks on giving school districts the right to fire more established teachers at will only weakens the power of teacher unions. People don’t like teacher unions and when you ask people, it’s not entirely clear why. Jonathan Alter said this nonsensical horses**t in the documentary Waiting for “Superman” (affiliate link):

It’s very, very important to hold two contradictory ideas in your head at the same time. Teachers are great, a national treasure. Teachers’ unions are, generally speaking, a menace and an impediment to reform.

Except… unions are just bunches of teachers. This propaganda technique, which is rarely called out so clearly (because most proponents are clever enough to understand it’s illogical), is called dissociation, and teachers have been enjoying its company for years now. Basically, the average American has warm feelings toward the teachers they run across: their kids’ instructors, their friends, neighbors, etc. Teacher unions are made up of these same people, but a union is so much easier to label as a faceless entity worthy of ridicule. But when you skip over the misinformation campaign, the largest political entity lobbying for more funding, more teachers, more training, generally better schools in this country are the teacher unions. Because of the job security teachers have, they can clash with officials in the roles as union members. It’s useful when, say, they need to take on lawyers who get their marching orders from dips**t tech moguls who’ve never taught a class in their life. If money talks, then gutting the unions is the surest path to setting up the amateurs who want to dictate the course of education.

In the Vergara closing arguments, Gibson needled the defense for never making an argument in defense of tenure. For example, they said, the defense argued about teacher salaries and working conditions. Except, that’s all about union strength unless you’re trying to be deliberately disingenuous.

Oh. Right.

So look, before we lavish any accolades on these legal luminaries for costuming themselves as educational reformers, let’s take a second to consider the pros and cons of all the alternative legal challenges they could have brought to address shortcomings in American education.

And then ask them why they won’t please think of the children.

Sorry, it’s a despicable tactic, but it seems to work for them.