Why is California’s teacher tenure unconstitutional?

A judge has ruled that Californa’s laws giving school teachers tenure after 18 months is unconstitutional (nytimes) on the grounds that it means some students will be taught by incompetents. But why does that follow? Californians love to pay 50-year-old retirees $100,000+/year for not working (see this article for some statistics; this article, on the other hand, indicates that it is tough for the newly retired to get more than $200,000 per year; this article has some data on what yet-to-retire workers earn). If a school administrator decided that a 24-year-old tenured teacher was incompetent, why would it be against state tradition to pay that person $50,000-100,000/year to stay home and play Xbox? It would cost taxpayers more, admittedly, to send tenured-but-ineffective teachers home and hire replacements, but that’s an accounting/efficiency problem, not a constitutional one. And California taxpayers have a demonstrated willingness to pay public employees without regard to their contributions/efforts.

So why can’t California school systems meet their commitments to teachers (pay without regard to performance) and also to students (teachers meeting a minimum standard in each classroom) simply by adding some more tax dollars?


  1. Izzie L.

    June 11, 2014 @ 12:37 am


    In modern parlance, “unconstitutional” is an undemocratic power grab by the judicial system. Normally, elected state legislatures get to pass laws that decide, for example, whether or not that state will have a teacher tenure system, but if you call something “unconstitutional” then you take that decision away from the legislature (and the voters – ballot initiatives have also been labeled “unconstitutional”). The Supreme Court started this a long time ago (1803 – Marbury vs. Madison) but in recent decades it has only accelerated – things that everyone accept for hundred of years as being well within the purview of the legislature (e.g. the ability to pass laws limiting marriage to mixed sex couples only) were suddenly determined to be “unconstitutional”, often for very vague handwaving reasons that don’t seem to have a lot of textual support in the Constitution itself (e.g. “the evolving right of privacy”, which is not actually mentioned in the US Constitution). Usually whether you consider this an abuse of power or a way of vindicating deep injustices usually depends on your feelings about the underlying issue. Or as Lenin said, “Who, whom?”

    Your solution (pay the bad teachers for not working) was how a good chunk of Mark Zuckerberg’s $100 million donation to the Newark schools was used (to no lasting good effect). See the recent New Yorker article. For all of California, you would need billions. California is already losing business to lower taxed states and is (arguably) not in a good position to raise taxes even more.

    Rotten teachers certainly add to the educational problems of schools in poor areas but no one has ever figured out how to make high achievers out of large numbers of NAM students. Does anyone really think that getting rid of tenure will “fix” the schools and make inner city students perform on the level of rich suburban kids?

  2. philg

    June 11, 2014 @ 8:34 am


    Izzie: I am aware that it would be expensive to pay teachers identified as bad to sit home and play Xbox. And that the cost could be “billions.” But if it were unconstitutional to waste taxpayer dollars then a lot of government would need to be shut down. http://taxfoundation.org/article/annual-state-local-tax-burden-ranking-fy-2011 shows that California is the 4th least efficient state in the Union, carving out 11.4% of state income to run its government (compare to 7.5% in Texas, for example). Why couldn’t California to spend 13% of state income so that it could pay teachers that it didn’t like to stay home for 80 years (age 24 to 104 (assume that a person who isn’t worn out from having to work will get plenty of fresh air and exercise))?

  3. Joshua Levinson

    June 11, 2014 @ 9:12 am


    “Unconstitutional” doesn’t have any connection to “wise” or “unwise.” It means it infringes on the Constitutional rights of someone. It means the legislature did something that relies on a power that the constitution grants either to the people or to the federal government.

    It may also conflict with other things that the courts have not yet deemed unconstitutional. That may be because precedent has changed, or an appropriate case has not yet made it to the courts for them to decide on constitutionality.

    But in either case, something being smart us wholly tangential.

  4. Izzie L.

    June 11, 2014 @ 10:41 am


    Philip – I take your point. As a logical (if not practical) matter, there is nothing that prevents the state of California from having two (or more) teachers for each classroom – one that it pays for staying home and another competent one that actually teaches the children. Since teacher tenure begins after 18 months of employment in California and last until their lifetime pension begins 30 years later (or so, unless you go out on disability first), you might end up with quite a few non-working teachers for each effective one. So the school administration might be tempted for budget reasons to put some of the more marginal teachers to work despite their weaknesses, but you are still correct in theory. As I said before, this is not entirely pie in the sky – this was in fact the solution that was tried in Newark with Zuckerberg’s money. So how could this rise to the level of being “unconstitutional” when it is really just about money and not vindicating some fundamental civil right?

    I have read the judge’s opinion http://studentsmatter.org/wp-content/uploads/2014/06/Tenative-Decision.pdf and this point does not appear to have been considered at all. Perhaps the union’s lawyers thought that it was too much chutzpah to raise this, even for them. Perhaps you could file a amicus brief with the appeals court in order to point this out to them.

  5. Olentzero

    June 11, 2014 @ 4:05 pm


    I don’t think we should debate the constitutional merits of public school teachers’ tenure, and paying government employees exorbitant salaries and pensions is perhaps a very bad idea but not criminal; the government in all its forms wastes lots of money. What I know is that forcing kids to be taught by incompetent teachers is a crime, and as a society we should not tolerate that crime.

  6. E. Rekshun

    June 11, 2014 @ 6:08 pm


    @Olentzero: What I know is that forcing kids to be taught by incompetent teachers is a crime, and as a society we should not tolerate that crime.

    Well, one could say the same thing about any government employee. For example, forcing Americans to be governed by an incompetent President is a crime…

  7. Peter T.

    June 11, 2014 @ 7:03 pm


    “..but no one has ever figured out how to make high achievers out of large numbers of NAM students” – Izzie L.

    What a bunch b.s.!

    Maybe no large public school district in the U.S. has, but a lot of private schools (mostly Catholic parochial schools that server the inner cities) have had consistent success in providing NAM students with a quality education. It’s not like NAM students are in some way genetically inferior to Asians and Whites. Or are you a follower of William Shockley and a believer in his theories on eugenics?

  8. philg

    June 11, 2014 @ 10:47 pm


    Peter: I actually have never heard the term “NAM”. But whenever lavishly funded inner city schools talk about how they can’t teach because their students come from poor backgrounds or whatever, I say “What if we told the FAA that about half of the people who graduate from our flight school don’t know the theory or practice of flying, but it wasn’t our fault because they came from poor families? Do you think that the FAA would say ‘Oh, that makes sense.’?”

    It does seem that an institution where students show up 6 hours per day, most of the weekdays of the year, for 13 years straight, should be able to teach something…

  9. Anonymous

    June 12, 2014 @ 1:38 am


    It is not clear that California’s government is as comparatively inefficient as the Tax Foundations numbers suggest. One reason that California’s state and local taxes are so high is that so much of the money the state remits in Federal taxes does not return to the state. Put another way, other states are able to manage with lower taxes because government spending in their states is subsidized by Federal tax dollars originating in California.

  10. Peter T.

    June 12, 2014 @ 5:48 am


    NAM is shorthand for Non-Asian Minority.

  11. Paul Houle

    June 12, 2014 @ 10:37 am


    I would not say that Californians “like” to pay public servants so much, it just seems somehow that they have to, probably because of legal frameworks that were created in the past when the population and economy of California was absolutely exploding and it was cheap to offer workers pensions. For instance, California’s constitution makes public sector pensions irrevocable.

    Californians fought back with a “starve the beast” policy


    this means the only way homeowners can push back against the public sector unions is to “just say no” to the construction of any new housing (see part 8 of the following document)


    The Ithaca City School district got a 62% percent of the vote for a tax cap override this year, getting a more than 60% supermajority. I live in a rural area, however, where almost everyone college educated either sends their kids to a private school or home schools. So far as anyone outside the machine can tell, our school is a magnet school for behaviorally disturbed children so every class has a psychotic kid in it that wastes 10-30% of each class so the inner city and rich suburb schools don’t have them.

  12. Izzie L.

    June 12, 2014 @ 10:57 am


    >One reason that California’s state and local taxes are so high is that so much of the money the state remits in Federal taxes does not return to the state….

    Texas does almost as poorly as California on net state-Federal remits but its tax burden is much lower.

    The best way to be a winner on state-Federal remits is to have lots of old people, poor people and military bases bringing Federal money in and not many rich working age people in high Federal tax brackets sending money to Washington. It’s not so clear that you really want your state to “win” on this. The same people who mail in big checks to the IRS also send lot of $ to their state revenue depts. too. Having those net remitters move to another state (or country) would “help” your remit stats but not really help your state.

  13. Izzie L.

    June 12, 2014 @ 11:06 am


    “What if we told the FAA that about half of the people who graduate from our flight school don’t know the theory or practice of flying, but it wasn’t our fault because they came from poor families?”

    Would your answer be the same if you had to accept everyone who applied to your school, if everyone who attended your school was required by law to attend whether they were really interested or not, and all the best students were already taken by other flight schools?

Log in