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Teacher Tenure Unconstitutional, Violates Educational Opp. Right

By William Peacock, Esq. on June 10, 2014 | Last updated on March 21, 2019

Uh, yeah, you read that right: tenure is unconstitutional, and shocks the conscience. Or, to be a bit more clear, the effects of tenure are unconstitutional, says Los Angeles Superior Court Judge Rolf M. Treu.

How? It's simple: when you give someone a lifetime contract, sometimes that person begins to let their job performance suffer. And guess where terrible tenured teachers end up? The places nobody else wants to go -- schools in poorer neighborhoods. These schools, when staffed with burnouts, deprive the predominately poor and/or minority students of their state and federally guaranteed "equal education opportunity."

It's an interesting leap from tenured teachers to unequal education, one that is sure to be appealed. If it stands, however, it could be the beginning of a war on tenure nationwide.

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Federal and State Constitutional Questions

In Brown v. Board of Education, the U.S. Supreme Court stated that education "is a right which must be made available to all on equal terms." Cases in California have echoed this right under the state's constitution as well, with a school term length disparity and funding disparities found to violate the right to an equal educational opportunity.

This challenge addressed the issue of tenured teachers being stashed away in less desirable locales -- typically low-income areas.

"Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students," Judge Treu wrote in his opinion, available on our Courtside Blog. "The evidence is compelling. Indeed, it shocks the conscience."

The evidence cited by the court included one expert's estimate that a single year of bad instruction would cost that student $1.4 million in lifetime earnings. Another expert testified that the worst five percent of teachers deprive their students of 9.54 months of learning per year. A third expert, called by the state, testified that there are as many as 8,250 incompetent teachers currently working in California.

First, Not Last Battle

Obviously, Judge Treu's decision will be appealed, likely for years to come. But it might not be the only litigation over tenure to come. David Welch, who founded and financed the organization behind the lawsuit ("Students Matter"), has extended the offer to similar legal fights elsewhere, especially in states with powerful teachers' unions, reports The New York Times.

And in the legislatures, three states have already eliminated tenure, with many other attempts, including one in California, falling flat.

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