Teacher Tenure: Vergara v. State of California

National media characterized this decision, Vergara v. State of California, as abolishing tenure. The school reform organization that sponsored the suit touted the decision as "a historic victory." This impartial examination analyzes the decision in terms of its likely effect in California and elsewhere.

The suit was filed on behalf of high-poverty and high-minority schools in California. The trial court judge ruled that each of the statutory requirements violated the state's constitution: the two-year probationary period of the teacher tenure statute; the "super" due process of three related teacher-dismissal statutes, and the last-in-first-out provision of the teacher reduction-in-force statute.

Gov. Jerry Brown has appealed the decision to the appellate level. Meanwhile, it is in abeyance. The three primary options in California are: the legislature amending the laws to meet the trial judge's implicit revisions, which is not to abolish tenure; the appellate court reversing the trial judge's decision, which is subject to criticism for being unusually activist, or the appellate court affirming or modifying the decision, which is possible in light of the tradition of deference to the trial judge's factual findings that are the foundation of his decision. The final choice is likely to take years, including possible appeal to California's supreme court.

The Vergara decision is likely to have a ripple effect in terms of litigation in other states, but its leverage is limited. It is only a trial court decision, thus carrying negligible legal weight. Its importability is restricted to the few states with similarly solid state constitutional foundations.

Even if the ruling is upheld, forcing the California legislature to revise the challenged statutes, the Vergara decision is not likely to come close to resolving the substantial educational disparity faced by low-income and minority students. The revisions the opinion signaled were: extending teachers' probationary period, adopting dismissal procedures for those accused of egregious misconduct, and introducing merit into reduction-in-force criteria. Yet, the victory for the students would be as hollow as it is historic for several reasons:

• Limited role of law. The state constitutional minimum is far from the educational optimum. For example, the number of grossly ineffective teachers may not be significantly reduced because of the considerable and unchanged cost and length of proceedings.
• Practices of school culture. For example, the evidence is considerable that in the rest of the country, administrators do not resort to teacher termination based on incompetence. The National Center on Education Statistics found the average number of tenured teachers terminated for poor performance per school district was less than .1 percent in 2010-2011.
• Unofficial responses to incompetent teachers. This end-run gamesmanship includes pass the turkey (inflated ratings), dance of the lemons (transfers), and passing the trash (resignation deals).
• Systemic factors. The revisions do not extend to interrelated problems, such as the remaining teachers who are moderately ineffective, recruitment and retention, equitable resources, and security protection in teacher contracts in collective bargaining jurisdictions.

In conclusion, the Vergara decision is more significant symbolically than legally. Analyzed objectively, its real meaning is not to abolish tenure. Rather, the decision serves as a stimulus for "rebalancing" tenure to its original meaning of reasonable due process and as a reminder of the overriding need for more comprehensive reform. The fulcrum for such policymaking ultimately is in the legislative, not judicial, branch, requiring powerful and collaborative educational leadership and broad-based political will.