I want to continue a conversation from office hours this past Friday around the issue of teacher tenure. The essential question is whether removing or changing some of the laws that protect teachers from being fired is likely to improve student outcomes, especially for the poorest students attending the most segregated schools.

In 2014, a California court ruled in Vergara v. California that the state's tenure laws "were unconstitutional because they ultimately translated into a disproportionate amount of ineffective teachers working in schools that served primarily poor black and Latino students." This holding was, however, reversed on appeal, and the CA Supreme Court declined to hear it. (Reading about this case was one of the reasons I left teaching and came to law school, having seen this kind of thing firsthand.)

There's a similar case, Davids v. New York, currently working its way through the New York courts. It rests on a similar theory to Vergara, and a little over a week ago survived an appeal of a denial of summary judgment.

I am instinctively sympathetic to unions and believe that teachers generally are in need of a lot more respect, support and compensation than opprobrium, but my working theory is that the Vergara and Davids plaintiffs are basically right, and that weakening some of these protections would be in students' best interests (and most teachers' best interests in the long run). But it's not so simple, as opponents of the decision Erwin Chemerinsky and Richard Kahlenberg illustrate.

What do you all think?

The question is what, exactly, would teachers be pressured to do if they did not have tenure. If we assume that teachers without tenure would be pressured to do a better job providing an education to students, I would probably agree with you. However, I am not comfortable making that assumption.

I was not a classroom teacher in public schools myself. But I coached High School Speech and Debate in several public schools prior to law school, and many of my close friends and colleagues in this field are classroom teachers.

It is rare for administration, particularly in low-performing schools, to be targeting the actual performance of teachers in providing a holistic, rewarding education to all of their students. There are several reasons for this. Firstly, it is extremely time-consuming to get this kind of holistic information as to how teachers are performing, and most principals have access to little more than grades and standardized test scores. Grades are stupid and standardized test scores are of limited validity. Removing tenure, particularly for veteran teachers, will often result in sacrificing real education and learning, like discussing careers, life experiences, and the realities of the surrounding community in favor of doing repetitive and soul-crushing exercises for the purpose of boosting test scores. This is the first reason I believe this is a poor idea.

Secondly, removing teacher tenure tends to make the imperative not to do anything controversial in the public school system even stronger than it is already. And it is strong. Just this week I had a student tell me her history teacher said she could not comment on the morality of Indian Removal in the United States. At the point where discussion of literal, honest-to-god ethnic cleansing and genocide in anything other than state-approved terms is prevented, the chilling effect on speech is clearly too strong for too much real education to happen.

Some teachers are poor at their jobs, but for removing tenure to remedy this, you would need to have extremely well-informed and competent administrators who targeted the right things in deciding whether to fire teachers. And I am more confident in the skill and desire of veteran teachers to do actual education than I am of administrators to not seek the career incentives of higher test scores and less controversy which are clearly placed in front of them. Given this, I believe there are better options for dealing with poor teachers, like collaborative learning communities between educators, sabbaticals, optional assignments, and more freedom for teachers to choose their own curriculum which would better improve teacher performance than allowing administrators to more easily threaten termination.

On a side note, a friend of a friend just did a piece in the Guardian today mentioning that teaching at the pre-collegiate level has been systematically deskilled, devalued, and bureaucratized in the past 100 years in the United States partly because of how it became gendered labor - which was itself a strategy in part to deskill and devalue it. https://www.theguardian.com/commentisfree/2018/apr/10/women-teachers-strikes-america

-- JoeBruner - 10 Apr 2018

Hi Zane -- thank you for the thoughtful post. One point that lingers in the background of this issue, which was mentioned briefly in class, is the baseline posture of our "At Will Employment" system in the United States. It's a default that we've all come to accept and expect without question. It might create flexibility in hiring and changing one's role, but it undoubtedly feeds into the inherent disparity of bargaining power between employer and employee. Unions help tip the scale back to the employee, and I'm okay with the thumb on the scale being heavy in this case. Unions fight for and have obtained security of tenure for their members, which changes the working dynamic and prevents economically expedient firings. Teachers deserve this protection and this protection arguably creates much more benefit than it does abuse. It's a shield that protects a teacher's daily decisions and allows for some healthy creativity and perhaps some necessary "insubordination" to go against bad administrative policies without fear of being sacked for no cause. Unions also serve as a sword, but my intuition tells me that they are still the David going up against Goliath. At the end of the day, empowered teachers will led to empowered students.

-- MilesGreene - 11 Apr 2018