With something this straightforward, it's unfortunate that the polemicists have decided to do their best to cloud the issue. The argument in favor of the initiative, printed in the ballot handbook, implies that it will get more money into the classroom, and suggests that the only reason one might have to be opposed to it is that ot one has been confused by union bosses. The rebuttal says that the initiative will discourage recruitment of quality teachers and that it is nothing more than an attempt to scapegoat teachers. The argument against goes even further, claiming that teachers don't have tenure (using a weaselly redefinition of the word) and outright lying with the claim that the initiative takes away the right of a teacher to an administrative hearing before they are fired.

Both are, I think, missing the point, and missing an opportunity; for it is difficult to make an informed decision on this proposition without understanding how it fits into the scheme of "tenure", and why we have such a thing in the first place.

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The first thing to ask, I suppose, is "is there such a thing as teacher tenure?" The California Teachers' Association, in their argument against Proposition 74, says there isn't: that "California teachers are not guaranteed a job for life, which means they don't have tenure." But Dictionary.com defines tenure as "The status of holding one's position on a permanent basis without periodic contract renewals", which status teachers clearly have. Moreover, teachers who have been granted 'permanent employee' status can only be fired for a select list of things, including (but not limited to) conviction of a felony, membership in the Communist party, alcoholism, and advocating criminal syndicalism; and even then, such employees are entitled to an administrative hearing, with appeals, to ensure that they are being fired for cause. Since most private sector employees live in a world where, unless they can prove they are being discriminated against in violation of the various civil rights acts, they can be fired at the whim of their employer, the status teachers have is quite different from that of ordinary employees. In common usage, "tenure" is the word used to describe that status. The CTA appears to be attempting to redefine the word away from its ordinary meaning.¹.

But why does such a system exist? Part of it is a standard, bureaucratic protection offered to all civil servants: a protection against arbitrary dismissal for political reasons, the result of decades of effort to end the patronage games of nineteenth century politics. But that's not all of it; the historical record in California shows a pernicious system whereby school boards and administrators would lay off high-salary teachers in order to reduce expenditures (much as many companies will lay-off their most senior, expensive employees during budget contractions). And the pro-tenure rhetoric claims that the issue is "academic freedom" - eg, protecting teachers from being fired for teaching things that the research community believes to be true but which the Board of Education, Superintendent, or Principal do not.  All of this boils down to two general cases: tenure exists in order to (a) protect teachers from being fired for political reasons, and (b) protect teachers from being fired for failing to meet arbitrary criteria not related to their job performance.

I would submit that both of these are good things; moreover, I would argue that in concept this style of protection ought to apply to any job, anywhere. Employers in industries with highly competitive job markets understand this; few software companies would fire an employee for being a political activist in their spare time, and even fewer would require adherence to Disney-style dress codes. Yet employers in markets which aren't highly competitive are often not so enlightened; and employers who are effectively in monopoly positions vis-a-vis their workforce are rarely so enlightened. Rules like this, by infringing on the liberty of employers to not employ people who do things they dislike, extend and protect the liberty of employees to live their own lives free of interference by their employers. They are predicated on the presumption that, in contract negotiations, employers have the upper hand, and that the power to withhold a job is in effect a form of coercion - and that presumption is well borne out by the history of corporate activity, both within America and abroad. Their particular application in the world of public education is also borne out by history - given that, in a world with tenure, teachers can be fired for failing students who have committed the sin of plaigirism (if their parents are politically well connected), and given that in the pre-tenure world it was common for teachers to be fired for political activism, it is hard to imagine tenure, as such, as being anything other than a great boon to the freedom of teachers to live their own lives, free of slavish devotion to the whims of the body politic.

Yet the gap between intent and effect is often larger than the Colorado River's chasm; and - however much the rhetoric of those supporting the initiative suggests they would be perfectly happy to do away with tenure entirely - the question under consideration is not the abolition of tenure: it is, instead, the assertion that tenure has created a system in which it is impossible to fire teachers for cause, and the proposal of a specific fix for doing so. So, given that tenure is a good thing in concept, the next logical question is this: is there such a gap between the goal of tenure and its implementation, that firing teachers for cause is impractical?

The proponents of both answers to that question have armed themselves with naught aside from anecdotes. But anecdotes do not a good case make. Those who say 'aye' can cite any number of cases in which firing a particularly bad teacher was painful, expensive, and protracted; those who say 'nay' can cite any number of cases in which teachers have been fired for bizarre and quixotic reasons. There does not appear to be any reasonable statistical data on the subject. Yet I suspect the proponents have the advantage here; for who among us cannot remember, from our own educational experiences, a teacher who was simply so incompetent that he/she should never have been allowed to teach? My memories involve a teacher - let us call her Mrs. C - whose lectures were incoherent because she was drinking between classes, whose grading seemed to be based entirely on whether or not she liked the students, who was utterly unable to impart any information or passion in her classes whatsoever. She should have been put out to pasture, as the saying goes, long before she was; the fact that she wasn't indicates either incompetence on the district administrative level (in that they hadn't noticed the problem), or a sufficiently high cost of doing so that the district decided it wasn't worth it to pay that cost.

My anecdote, to be sure, does not a case make; but i'm convinced that almost every child of the public schools in California has a similar story. Most teachers are hardworking, devoted employees; but there are some bad apples, and getting rid of them seems to be impractical for some reason or another.

And yet ... how do you change the system to reduce the cost of getting rid of Mrs. C and her analogs, while also ensuring that it remains difficult for a school district to fire a teacher for attending an unpopular political rally or for getting pregnant while unmarried? In particular, does this initiative solve the former problem without recreating the latter?

The initiative is an attempt to solve the problem of Mrs. C and her cohorts, to be sure. It seeks to do so by extending the time it takes before a teacher is provided with the full protection of permanent employee status, a provision which has generated very little controversy; the idea seems to be that a longer time period will allow for more substantial analysis of the teacher's work. It also seeks to do so by changing the rules that govern when a permanent employee can be fired; and that is the point where it could become problematic.

California law already allows tenured teachers to be fired for "unsatisfactory performance", a term so vague as to be meaningless. Yet clearly it is difficult to establish "unsatisfactory performance" under the current rules - but the difficulty lies not in anything written in code or procedure, but in the mentality and mindset of teachers, administrators, and judges, and the body of precedent set in administrative hearings and their appeals. This initiative seeks to define a certain thing - "two consecutive unsatisfactory evaluations" as automatically constituting "unsatisfactory performance" and, to the extent that that same thing would not currently be construed as unsatisfactory performance, to bypass the established cultural  mentality and body of precedent. Fair enough; since those are the actual locus of the problem, that is the only way change is going to occur.

But what are the grounds for an "unsatisfactory evaluation"? The California Education Code requires that each district have a uniform system of evaluation (within the district), and requires that the standards used for such evaluation shall be assessed as it reasonably relates to certain educational objectives, except that "Nothing in this section shall be construed as in any way limiting the authority of school district governing boards to develop and adopt additional evaluation and assessment guidelines or criteria." In fact, while the education code contains some provisions indicating that the evaluation criteria MUST include certain things, it contains no exclusionary limits whatsoever on what cannot be used as grounds for evaluation.

So, if Proposition 74 passes, two unsatisfactory evaluations, which can be based upon any criteria the school district chooses, shall be sufficient grounds to terminate a "permanent employee".  Said employee shall, of course, be entitled to an administrative hearing and an appeal of the decision to fire them; but the law implies a presumption that the two unsatisfactory evaluations are sufficient, and it would therefore  be difficult to win such a hearing or  appeal. This initiative effectively allows teachers to be fired for any reason at all, providing only that the school board indicate in advance that something will be grounds for an unsatisfactory evaluation. It eviscerates, in short, the protections of tenure.

I agree with the proponents of the measure that tenure has introduced problematic side-effects that need to be remedied. I do not agree that this initiative is the way to do it. It eviscerates the meaning of teacher tenure, effectively using the existence of side-effects as an excuse for abolishing the system entirely. It attempts to fix a problem with tenure without taking into account the problems tenure was intended to fix.

¹There is an interesting and bizarre political subtext to this initiative which I'll leave for a later post. I want to look at the merits of the idea before delving into the politics surrounding it, no matter how easy it is to get distracted by the latter.