None of this is to say California’s teacher termination procedures shouldn’t be modified by the Legislature and by school districts. Tenure at the K-12 level was intended to give teachers due process rights before being fired, not a lifetime job guarantee. More districts should adopt “peer review” programs, in which excellent teachers work with struggling colleagues, but if improvement is not seen, a committee of teachers and administrators recommends termination.
But the right-wing and some members of the left are cheering the Vergara decision as a step toward throwing tenure away entirely. That would be a huge mistake. As the late American Federation of Teachers president Albert Shanker observed, before teacher tenure protections were adopted in New York City in 1917, teachers could be fired in order to make room for a councilman’s cousin, or for a more junior teacher whose salary was lower. In the South, where teachers often lack tenure today, they think twice about writing a controversial blog post or showing up at a rally. Without tenure, will a teacher push for high standards when giving a bad grade to the son of an influential parent might shorten her career?
Tenure is also an important way of attracting talent. Teacher union foe Terry Moe has found in polling that “most teachers see the security of tenure as being worth tens of thousands of dollars a year.” In his survey of teachers, a majority would have to be paid 50 percent more to give up tenure. Eliminating or significantly curtailing tenure rights could mean that school districts have to offer much more money to attract today’s level of teacher quality.
Although the Vergara decision was applauded by some Democrats, such as California Congressman George Miller, the Broad Foundation’s Reed, and, most notably, Education Secretary Arne Duncan, the litigation is part of a pattern in education where Republicans exploit inequality to promote deeply conservative policies, chipping away at public schools. The right-wing has been using the sad reality that poor and minority kids are stuck in lousy segregated schools as an argument for private school vouchers. Now, in Vergara, inequality in access to good teachers is leveraged to promote an anti-union agenda.
Rather than gutting hard-won protections for teachers, the next legal case should go after economic segregation itself. Instead of invoking Brown in a broad metaphorical sense, why not bring a state-level suit against actual segregation by class and race? If it is a violation of the California state constitution to have tenure laws that make it hard to fire bad teachers in poor and minority communities, why isn’t it a violation when the state and districts draw school boundary lines in a way that promotes deeply unequal, economically segregated schools that many strong educators won’t teach in?
Years ago, Connecticut plaintiffs prevailed in a lawsuit, Sheff v. O’Neill, which challenged de facto economic and racial school segregation. As a result, thousands of poor kids have been given access to integrated magnet schools in the city of Hartford and to integrated suburban schools. Careful research comparing students who applied for a lottery to attend the integrated magnet schools found that those admitted later performed better on math and reading than those who lost the lottery and attended other urban schools. California needs a similar lawsuit. Such a case would underline a profound truth: The big problem in education is not that unions have won too many benefits and supports for teachers. It’s the disappearance of the American common school, which once educated rich and poor side by side.