This week a California court ruled that teacher tenure violated the state constitution by harming the educational opportunities of disadvantaged children. Already, some conservative activists and commentators (and some non-conservative ones, too) are praising this as a great step, and encouraging similar lawsuits in other states. This is, I think, a mistake.
First, one should not be too confident that eliminating teacher tenure will improve educational outcomes. Children do poorly in school for many different reasons, many of which don’t have anything to do with the quality of the school itself or its teachers. Tenure for public school teachers exists all over the place, and student performance varies widely from school to school. That is, some kids who study under tenured teachers are doing quite well, while others under other tenured teachers are doing quite poorly. So how can you claim with confidence that tenure is the cause of bad student performance where you find bad student performance? So, simply as a policy matter, I think the people who are hailing this decision as a major step toward better education are deluding themselves.
Second, there is a big problem with the way this thing was done. I am not an expert on the state constitutions, but I think I can say without fear of being proven wrong that none of them say anything about teacher tenure. Some of them have provisions obligating the state to provide public education, but even there I have little doubt that the framers of those constitutions did not intend–and that the language they used would not support–using such provisions to give a court power to determine policy questions like whether teachers should have tenure or not. In other words, this decision is just another example of judicial activism, of judges manipulating law to give themselves power to make public policy. It is a kind of lawlessness and disregard for self-government that nobody–especially conservatives–should be cheering.