California’s Teacher Tenure Battle Continues in the Court of Appeals

Tenure for teachers is a contentious issue in California. The current struggle stems from a California Superior Court’s decision in Vergara v. California that struck down California’s teacher tenure system. Governor Jerry Brown has appealed the decision. The decision stalled an effort by California’s teachers union to expand tenure protections in the state. Opponents of the tenure plan argue that, because of the plan, those identified as poor teachers are not fired, merely moved to other districts. Plaintiffs’ attorney Marcellus McRae discusses the litigation in this report.

Marcellus McRae

Marcellus McRae

Measurement of teacher effectiveness in California schools is exactly the problem, McRae says. The absence of a good measurement system is one reason the system is “deeply flawed.” The current policies “focus on irrelevant considerations.” Having a teacher’s license doesn’t necessarily make the holder a good teacher. The system looks at the number of advanced degrees teachers hold and how long they have taught. But those things don’t measure teaching skills. McRae says that evaluation is possible, but the state choose not to implement it.

There is, says McRae, an enormous amount of evidence to support the position that California’s tenure system doesn’t work. California is one of only four states that grants tenure after two years or less. The court agreed that the time period w too short. School districts can’t make informed decisions based on fifteen months of experience on a teacher’s part. Once a teacher achieves tenure, the teacher is largely immune from being removed. McRae says that “it costs too much and it takes too long to dismiss certificated teachers.” Evidence at trial showed that the process could take as long as five years and cost as much as $500,000.

What means, McRae explains, is that some ineffective teachers remain in classes, teaching children. Out of 275,000 certificated teachers in the state, fewer than three are fired. Schools take other steps to deal with ineffective teachers. Sometimes, teachers are paid to leave schools. Teachers continue to teach while procedures to fire them are in progress. Some ineffective teachers are moved to “rubber rooms” where they are “paid to sit and do nothing.” Another solution to the ineffective teacher problem is to move the teacher to another school. According to McRae, a disproportionate number of them end up in low income and minority schools. And being exposed to ineffective teachers can cause a child to have an earning capacity much lower than someone who had a good teacher.

McRae suggests that the Vergara case can serve as a compass, pointing schools back to their basic mission of educating children. The purpose of schools is not to be “job sites.” The case also points out the falsity of the notion that “the interests of teachers and students are always alike.” Keeping one’s job and teaching one’s students are not the same issue. It is possible to teach children and protect teachers, but the paramount issue will always be the best interests of the children.

A spokesperson for the teacher’s union said that the laws struck down in Vergara had no connection to teach assignment. McRae disagrees. A tenure system that feeds ineffective teachers into the pool of available teachers essentially guarantees that a school official will at some point have to decide what to do with an ineffective teacher. And where the tenure laws make it virtually impossible to fire an ineffective teacher, it is reasonably certain that ineffective teachers will be assigned to less fortunate schools. Also, the laws require that, when schools have to lay off teachers, the decisions be made without regard to effectiveness.

Marcellus Antonio McRae is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. California Lawyer featured him as one of its honorees in its 2014 California Lawyer Attorney of the Year Awards. He is a member of the firm’s White Collar Defense and Investigations, Government Contracts, Media, Entertainment and Technology, and International Trade and Regulation Compliance Practice Groups. The Legal Broadcast Network is a featured network of the Sequence Media Group.