Last week in California a state-court judge declared that the state statute establishing teacher tenure violated the state constitutional right to an education. The court held that the tenure statutes disproportionately adversely affected poor and minority students, because the worst teachers protected by the statute are assigned to their schools. The evidence of the negative impact, the court found, “shocks the conscience.”
Much of the news coverage of the decision has focused on the impact on teachers’ unions — a powerful voice in the powerful field of public employee unions. The head of one of the unions affected by the California ruling said that the judge fell prey to anti-union sentiment and rhetoric and that teachers were being unfairly scapegoated for the problems that exist in public education. Those arguments will be tested: the court’s decision is just the first step in what will likely be a long litigation and appeal process.
As I read the reports on the California decision, I had two reactions. First, we’ve become an increasingly judge-driven society, in which courts and litigants are using constitutional provisions to overturn statutes and popular referendums. We applaud court rulings when we agree with their effect, but a heightened judicial role is a two-way street. I’m sure California teachers never dreamed that a constitutional right to education could be used to overturn a hard-won legislative victory on teacher tenure. And judicial involvement in policy-making can be complicated: if the existing California system of hiring and firing teachers is struck down, what will replace it? Legislative enactments are detailed and specific and supplemented by regulation; judicial rulings are much more high level.
Second, the concept of tenure — which was a means of ensuring academic freedom at the college and post-graduate level — does not fit well at the elementary and secondary school level. The idea was that professors who had proven their merit after years of work should be free to explore research or prepare writings that addressed controversial topics without worrying about being fired by those who disagreed with their conclusions. How does that translate to the public school setting, where curriculums are increasingly dictated by federal and state laws and regulations? In California, the state law overturned by the court seemed motivated less by notions of academic freedom and more by simple job preservation: teachers became tenured after only two years, strict seniority rules required that the newest teachers would be laid off first, and a welter of rules and procedures made it practically impossible to discharge incompetent tenured teachers.
We can expect to see more efforts to use broadly phrased state constitutional provisions to modify existing public policy, and more wrangling about teachers. They are on the front lines of public education and inevitably will be targets as people grow increasingly concerned about the state of our public schools and what to do about them.