Court ruling in California tenure challenge is unlikely to derail the reform movement

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An appeals court decision this week upholding California’s teacher tenure and seniority rules leaves school reform forces at a crossroads as they press for changes across the nation.

The movement had made the Vergara case — which would have thrown out the nation’s most generous teacher employment protections — a centerpiece in their effort to remake schools.

Despite the defeat in California, nonprofit organizations and advocacy groups have scored victories in other states. But experts say making inroads has become harder recently as teachers’ unions have flexed their muscle locally and nationally.


The Vergara decision came just weeks after another major victory for teachers’ unions. The U.S. Supreme Court was set to review a California case, which could have prevented unions from collecting dues from employees who didn’t agree to become members.

Some observers believed the conservative court would rule against the unions. But the court deadlocked 4-4 after the death of Justice Antonin Scalia in February.

Chester Finn, a former Reagan administration education official and senior fellow at the conservative-leaning Thomas B. Fordham Institute, acknowledged that teachers’ unions have racked up significant victories. “The two big courtroom centered strategies for weakening teacher union power both kind of bit the dust in the last few weeks,” he said. “If I were the head of one of the unions, I would be gloating with satisfaction that my side prevailed and that these bad guys haven’t done any serious damage to me.”

But he and others believe reform efforts can move forward from the defeats, noting they continue to be well-funded and well-organized.

In California, backers were looking for the silver linings in the Vergara defeat while also noting they were appealing the case to the California Supreme Court.

“I think where the movement goes is where it’s been going for the last two years — people are suddenly paying attention to the impact of ineffective teachers on students, about evaluation, about dismissal policies,” said Eric Hanushek, a senior fellow at the conservative Hoover Institution at Stanford University who testified on behalf of the Vergara plaintiffs.


Ben Austin, an official with Students Matter, the nonprofit Silicon Valley group sponsoring the Vergara plaintiffs, agrees: “I can remember not that long ago when these issues were untouchable; you just couldn’t mention them without getting laughed out of the halls” of Sacramento.

Unlike in many other states, California lawmakers refused to mandate the use of student test scores as a significant portion of a teacher’s evaluation. Traditional teacher job protections are probably the strongest in the country: an instructor earns tenure safeguards after two years,; the dismissal process is longer and more complex than for other state employees, and layoffs are based primarily on seniority rather than performance.

The Vergara lawsuit, to supporters, represented a way around the political stronghold. They argue that it’s far too difficult to remove bad teachers and that this hurts students.

Unions and their supporters said eliminating tenure and seniority would result in a lower-quality teaching corps and cause the profession to attract and retain fewer talented people who have other career options.

Randi Weingarten, president of the American Federation of Teachers union, hailed the Vegara ruling.

Weingarten acknowledges that the current tenure laws are problematic, and said that the state of California should “work together” to improve them.


“You can’t fire your way to a teaching force,” she said.

Reform forces scored big wins in North Carolina, which virtually eliminated tenure. And in Wisconsin, union political funding has largely dried up because of laws that limit the collection of membership dues.

Currently, there are two similar lawsuits that target tenure in New York and Minnesota, and backers say those are moving forward despite Vergara.

But the environment has been more challenging elsewhere. In New York City, Mayor Bill de Blasio has been pushing back against reforms embraced by predecessor Michael Bloomberg.

Still, one advantage the reformers still retain is money. The movement is backed by some of the nation’s wealthiest foundations and philanthropists, including Bloomberg and the heirs to the Walmart fortune.

“They have a huge reservoir of money,” said retired California teacher Anthony Cody, who has become a leader of a group opposing the reformers. “And they will keep trying to find avenues to break unions wherever they can.”