I don’t want to throw cold water on the excitement many folks have expressed abut the ruling in Vergara v. California ending teacher tenure protections, but I do think it is important to cool some of the heated enthusiasm. Matt was appropriately cautious, noting that the decision will certainly be appealed and will take years to play out, but not everyone has been so measured.
I see the decision as more important as a symbol of the political challenges facing unions than as a change in policy that will significantly advance student achievement. I’m skeptical of the educational impact of the ruling because:
1) It may well be reversed on appeal. I’m also no lawyer, but I’m enough of a political analyst to see that the Courts are reluctant to make major policy changes without broad support from elites. As Matt notes, the Courts tend to be lagging indicators of elite opinion, not cutting edge agents of change. And this is as it should be. We shouldn’t want unelected judges making too many big policy decisions without enough support from the democratically elected branches to ensure that the decisions can stand and be implemented. It is an impressive sign of the fading political influence of teacher unions and the intellectual incoherence of some of their central policy positions that a judge was willing to strike down teacher tenure. But I don’t think there is broad enough support for higher courts to stick with this policy stand. They’ll find a way to walk back from the ledge.
2) Even if laws protecting tenure are struck down, it is unclear how broadly it will really be used to remove ineffective teachers. There is a good amount of evidence that principals can distinguish between effective and ineffective teachers, but there isn’t a lot of evidence that principals will exercise that judgment very often even when they are empowered to do so. Brian Jacob examined a program in Chicago that made it very easy for principals to dismiss teachers. The good news is that when they dismissed teachers those teachers tended to be much less effective (as measured by VAM). The bad news is that they rarely used their power to get rid of teachers. Jacob wrote:
this analysis reveals that many principals – including those in some of the worst performing schools in the district – did not dismiss any teachers despite how easy it was under the new policy. This result is consistent with the fact that existing teacher contracts in many large urban school districts actually provide considerably more flexibility than is commonly believed and yet administrators rarely take advantage of such flexibility (Ballou 2000, Hess and Loup 2008, Price 2009). The apparent reluctance of many Chicago principals to utilize the additional flexibility granted under the new contract may indicate that issues such as teacher supply and/or social norms governing employment relations are more important factors than policymakers have realized.
To change those norms we need to address the motivation of principals to dismiss ineffective teachers even when they are empowered to do that. Of course, when schools have to attract students and revenue in competitive systems, principals are more active in replacing teachers they deem ineffective. Choice really does matter for other reforms to work well.
My former student and soon to be a professor of education, James Shuls, sent me his thoughts on Vergara. Here is what he sent:
Back in April, I posted a series of quotes from Marcellus McRae’s closing argument in Vergara v. California to Jay Blog. Yesterday, the court handed down its decision and it appears that McRae was right, “You can’t make sense out of nonsense.”
Today, I have a piece on the Daily Caller summarizing the ruling and highlighting my take-a-way from the case.
On its face, this was a legal case that considered whether teacher tenure and other job protections violated California’s state constitution. At a more fundamental level, however, this was an evaluation of policies lauded by teachers unions throughout the country – teacher tenure, due process, and last-in, first-out provisions. For these policies to be found unconstitutional they first had to be proven to have an adverse effect on disadvantaged students; and indeed, they were.
I go on to say:
Legally, there are still many questions to be resolved. In the court of public opinion, however, the ruling could not be clearer: Teacher tenure has been tried and it has been found wanting. You simply cannot make sense out of nonsense.
I invite you to check out the full piece here.
James Shuls is the Director of Education Policy at the Show-Me Institute. Follow on Twitter @shulsie