This past summer the trial court in Vergara v. State struck down California's tenure statutes and its last-in-first-out rules for layoffs.  A copycat suit followed in New York shortly thereafter.  You can find posts on those cases here and here.  Given the momentous nature of the case and the litigants' intent to spread the theory across other states, serious consideration of the issues the case and theory raise are incumbent.  Here is a summary of my analysis:

Reformers argue that ineffective teaching is the linchpin of educational inequality and failure.  Starting in 2010, they successfully sought important changes in teacher evaluation systems at the state and federal levels.  But a fundamental source of teachers’ strength to resist more aggressive reform remained in place: tenure.  Thus, in 2012, reformers theorized a novel constitutional strategy to eliminate tenure.  They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions.  This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter. 

The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education.  To date, however, no high court or scholar has thoroughly analyzed the theory.  This article offers that first analysis, concluding that the constitutional challenge to tenure raises a theoretically valid claim, but lacks a sufficient empirical basis.  At the theoretical level, the tenure challenge easily falls within broadly worded precedent that establishes students’ constitutional right to an equal and adequate education.  If ineffective teaching deprives students of equal or adequate education, state constitutions should protect against it.  But in the context of school funding cases—where the relevant precedent was first developed—courts have demanded that litigants precisely demonstrate multiple aspects of causation and harm.  Evidence on those points is lacking in regard to tenure.   

This split between theory and fact requires courts to proceed cautiously.  Rejecting current tenure challenges on their face would unfairly prejudice future legal challenges to teacher quality, particularly those predicated on potential empirical advances in social science. A facial rejection would also require courts to narrow the existing scope of the constitutional right to education.  This narrowing would negatively affect education rights in other important and developing contexts. The solution is to insist on more detailed evidence to support plaintiffs’ causal theories and presumed remedies.  By doing so, courts can validate students’ constitutional right to education without venturing into unsettled policy debates.

My full analysis and article, The Constitutional Challenge to Tenure, are available here.