No, There Really Isn’t a Case for Teacher Tenure

Last week, a hard-fought legal case brought on behalf of nine California public-school students resulted in a stunning and, for many, exciting decision: A number of the state’s teacher-tenure violate the state constitution by depriving California students of the equal opportunity for a quality education. The decision, Vergara v. State of California, enjoined the statutes — meaning they can’t be enforced and are void — but pending an appeal, so this fight will continue.

There isn’t one specific provision in the California constitution that’s violated, exactly: Rather, the court identifies three “pertinent” clauses in the constitution: a guarantee of equal protection under the law, a provision ordering the legislature to encourage “intellectual [and] scientific improvement,” and a requirement that the legislature “provide for a system of common schools.” There is precedent, according to the Los Angeles County Superior Court judge Rolf Treu, that these three provisions combine to make the state constitution “the ultimate guarantor of a meaningful, basically equal educational opportunity” for the state’s students.

I’ll leave aside most of the debate of whether this was correctly decided as a legal matter. There are a few interesting policy questions here: Was the court right that the state’s teacher-employment policies are a significant impediment in students’ getting a quality education? And would education reformers of a conservative stripe be wise to try this strategy in other states, many of which have constitutional provisions that can be construed like California’s?

I think the answers are, roughly, (1) yes and (2) no. I’ll tackle the first question here, and the second in another post.

Three key aspects to the state’s teacher policies were challenged: the way tenure (“permanent employment”) is granted, the process for firing teachers, and the last-in-first-out method of laying off teachers when it’s financially necessary. (Technically these issues comprise five specific statute in the California teachers’ code.)

The problems with these policies are, on their face, relatively obvious: Tenure is granted after just two years, when there’s not going to be enough evidence to determine whether a teacher is effective (this is lower than the national standard — three to five years). The “due process” for firing teachers takes an incredibly long amount of time, dozens of individual steps, and can cost hundreds of thousands of dollars — such that the firing rate among California teachers with tenure is 0.002 percent in a given year. The LIFO method of layoffs, especially when teachers, after a certain point relatively early on in their careers, don’t really improve with experience, means that the layoff decisions schools do have to make have nothing to do with teacher quality and may scare away teachers who are considering starting the career.

But are there benefits to these laws that outweigh the fact that they protect some bad teachers? Teachers’ unions would certainly argue yes: Job security could improve the quality of education teachers provide, for instance. The L.A. judge doesn’t appear to confront this question in detail, which is probably a weakness in his legal reasoning, but there isn’t much reputable evidence that I know of finding that this effect is very useful.

Catherine Rampell of the Washington Post suggests there’s another defense of these policies: Yes, the protections afforded to teachers seem insensible, she argues, but giving school districts the ability to fire bad teachers won’t help much when we can’t afford to attract good teachers to replace them. And, in fact, the job security given to teachers is an appealing, cheap way we compensate them for the fact that their cash salaries aren’t terribly generous.

First, the benefits to being able to fire bad teachers are real and significant: There are lots of problems with evaluating teachers, but even the defendants in this case admitted that there are thousands of teachers in the California system (though this is just a 1–3 percent of California teachers) who are clearly ineffective. Replacing them with even mediocre teachers — or actually just firing them without hiring anyone new, as Andrew Biggs has proposed — would help tens of thousands of California students. Great teachers boost students a lot, but bad teachers really hurt them, too.

Rampell points to a study finding that principals rarely take advantage of new powers to dismiss bad teachers — but studies find that these powers probably improve teacher performance and student achievement anyway (is this really surprising?). Moreover, maybe we have to figure out how to get administrators to fire ineffective teachers, too — see Rick Hess on the “missing half of school reform” — but the first order of business is giving them the ability to do so.

What about the idea that job security is a cheap way to attract better teachers? Tenure and other protections may make the overall compensation package teachers get more valuable at no obvious added financial cost to taxpayers. But if it reduces average teacher quality in other ways (by making it too hard to fire incompetent ones), it’s not a free lunch at all. We’ll need higher compensation, better management, more teachers, or some other costly input to make up for the costs incurred by keeping bad teachers around. Job security as compensation may appear to keep costs for taxpayers low, but it comes with costs that may easily invalidate these apparent benefits. And sometimes, by the way, tenure comes with explicit but unintended financial costs: Some school systems pay non-negligible numbers of ineffective teachers to do nothing in “rubber rooms,” and the Sisyphean firing process can cost a school several times a teacher’s salary.

Rampell also suggests a similar defense of the fact that a great deal of teachers’ financial compensation comes in defined-benefit pensions: It’s one way that policymakers have been able to guarantee teachers decent compensation without having to get taxpayers to pony up for it.

This is clever. Having usually looked at these issues from the point of view that it’s a bad thing for policymakers to make promises taxpayers don’t plan to keep, I’d never thought about how taxpayers’ making unpaid-for promises to teachers could actually be a good thing for education, raising their compensation on the cheap.

But it’s really not as sensible as Rampell says: Taxpayers in plenty of states have fully funded teachers’ pensions at a huge cost already, at least by highly optimistic government accounting rules. The fact that proper accounting shows they will owe these teachers even more at some point hasn’t made the system cheap for now — because it hasn’t been cheap. The system will just prove to be even more inefficient and expensive than it has been already. Moreover, as with defending job security as a cheaper way to attract decent teachers, defined-benefit pension plans have big downsides with hidden costs: They make it unappealing for a talented person to work as a teacher for just part of a career, make it hard for teachers to move around, offer huge bonuses to older teachers who don’t add any special value, etc. (And this is all viewing education in isolation — committing future taxpayers to pay for pensions teachers are earning now is going to mean spending less on other priorities in the future. You can’t really trick taxpayers into paying more for the government than they want.)

The fundamental problem with the defense of these policies, then, is that teachers’ ironclad job security and gold-plated pensions aren’t exactly a way around Americans’ being exceedingly cheap about spending on education. Because Americans aren’t cheap about education at all, as Reihan has pointed out. The Newark public schools, for instance, spend $26,000 a year per student.

Rather, these bizarre policies are result of the way public-sector collective bargaining, combined with the emotional appeal of education spending, has enabled public-school teachers to win both decent cash compensation and very valuable fringe benefits (both non-financial compensation, like job security, and future benefits). Judge Treu was right to suggest that dismantling aspects of this system is a good way to start improving teacher quality. But Rampell, who’s likely more qualified to talk about education policy than the judge, disagrees, and suggests it basically can be left alone, with more spending layered on top.

And that would be the problem with leaving education policy up to judges: There are in fact many more Judge Rampells, if you will, than there are Judge Treus. Leaving policy to judges has not served conservative ideas in the past, and this exception shouldn’t hearten education reformers on the right in the way it has. I’ll have more on this in a future post.

Patrick Brennan — Patrick Brennan is a writer and policy analyst based in Washington, D.C. He was Director of Digital Content for Marco Rubio's presidential campaign, writing op-eds, policy content, and leading the ...

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