Teacher Tenure and Judicial Activism

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.


Categories:Education Politics

  • http://none Robert J. Byrne

    A Better Public School


    In light of all of the problems given our children in America today, we must definitely find answers and especially in the area of education. At present all too many school systems are not fulfilling their intended mission. That mission should be to educate, every child in American, so that they indeed will have the best chance for success after high school graduation. Education should create thinking students than can resolve their own problems and find their own future. The first priority in every school district must be the student. The following steps are necessary to truly give every student in America a future:

    1. One Kindergarten through High School district per community, with the size of a district no greater than a county area.

    2. A school district’s residents are in total control in each school district with no Federal or State intervention in any way.

    3. A Board of Education will be elected in each district and they will serve without a salary.

    4. The objective in each school district will be to educate not indoctrinate and ultimately, to create a thinking person not an automaton.

    5. The teachers may have a Union that extends only to the boundaries of the School District. The NEA (National Education Association) and the AFT (American Teachers Federation will have no standing in any local School District

    6. Parent’s volunteer organizations should be developed to assist in all aspects of the educational process, including extra-curricular activities.

    7. Charter Schools will be eliminated. All Public Schools in every district should belong to the taxpayers in their respective districts and controlled completely by them. And a lottery should never be a part of any educational system. Every student must have the same opportunity.

    8. CURRICULUM: Kindergarten and grades 1, 2 and 3 will emphasize Reading, Writing and Arithmetic and Geography and History will be introduced at this level. There will be no computers, calculators, cell phones or any other similar devises in these four years. Those devices may be at home but not in the schools. The formative years are where children should learn to use their own minds and not become dependent on gadgets.

    Grades 4 through 8 should continue building on Reading, use of the English language and Mathematical skills. In these years there would be an introduction to the latest technology.

    Grade 9 to 12 is where you introduce the subjects that prepare the students for their future. Shop should be available in all High Schools and there should be an engineering section, with both offering internships where students can gain experiences that will help in making decisions for the future. Internships should be made available in all work experiences possible.

    9. ACTIVITIES: All of the activities in every school district in America will be decided by each school district’s Board of Education in collaboration with parents and teachers in the district.

    Any school Principal can allow a prayer, the Pledge of Allegiance or the singing of the National Anthem at any event large or small.

    In summary, all Public School Districts should be absent of all ‘social engineering’ such as ‘social promotions’ that deny a student their future.

    And the moral values that made this country the greatest country in the world can and should be part of any educational system.

    Commentary by Robert J. Byrne June 26, 2014

    • Joshua Mercer

      Do not touch my charter school.

  • Anon Ymous

    Tenure for elementary and high school teachers DOESN’T MAKE SENSE. The whole point of tenure (for Higher Ed professors) is to protect them and allow the to pursue any type of research or academic endeavor even if it’s controversial. A school teacher has no need for such protection. The problem starts when tenure is seen as a “labor” issue as opposed to an academic issue.

  • Harry Smith

    Very weak arguement against the power of the court system with no real data. In my opinion, a good teacher doesn’t need the protection of tenure. Simply put, the best of teachers should be paid more.

  • Matt

    Tenure is a popular boogeyman, but it is really misrepresented. It is simply the right to due process and a hearing before being fired. It isn’t absolute immunity. The reason that many states are pushing to get rid of tenure is due to the ongoing belt tightening and budget reductions. Without tenure in the way, the powers that be can simply choose not to renew expired contracts with their more experienced and expensive teachers, and with the job market the way it is, they can easily replace them with younger and less expensive entry level teachers. So without tenure, teachers essentially become contract workers-not the type of job security you would hope for from such a career

  • Sean Argir

    This is a very thoughtless article. It is true that many tenure teachers are very good but if you have tenure teachers that have bad records, it is very hard to get rid of them.

    I think Tenure should be gotten rid of. This is because a teacher who has had complaints against them more than a dozen times over a few years can still retain their job just because they are tenure. I have seen this happen and also have seen parents not fight against what a teacher is doing just because they are tenure.

    Tenure teachers can be awesome but because of their tenure status, it changes the attitudes of parents / guardians / schools to almost give a bow-down like attitude towards that teacher. Parents are too afraid to fight or just not positive enough that they can get a tenure teacher booted.

    This article should have stated both the negatives and positives of having tenure teachers along with getting rid of the tenure policy. This seems to be a very one-sided article with only opinions and no facts.

  • Russell Lewis

    The one thing you failed to mention is, the court ruled on a lawsuit brought before it by the very students who are affected by the ruling. When even the kids can see the tenure system is wrong, the court did a good thing for the kids.
    In the Catholic culture of, everything is for the procreation, growth, education, nurturing, protection of children, don’t be surprised when the children start to grow up and don’t always agree with the adults.



Receive our updates via email.