Teachers generally enjoy job protection which is much greater than all other public sector employees. Such laws have been much criticized in recent years as a result of the increased focus on student performance. Reports of “rubber rooms” in New York, where incompetent teachers were parked, have been much publicized and much maligned. Some states, such as Wisconsin and Florida, have repealed or watered-down teacher tenure laws.
In a groundbreaking ruling, a Los Angeles court struck down five California statutes related to teacher tenure, saying they violated the equal protection clause of the California constitution. In Vergara v. State of California, the court said that the Permanent Employment Statute, Dismissal Statutes, and Last-In-First-Out Statute have kept “grossly ineffective” teachers in the classroom, disproportionately affecting poor and minority students. The Permanent Employment Statute requires tenure decisions to be made in less than two years, even before teaching credentials are granted, resulting in some cases in which teachers are not permitted to teach, but cannot be fired. The Dismissal Statutes require what the court called “über due process,” making it so burdensome for school districts to fire teachers that they often do not even try. The Last-In-First-Out Statute requires that the last teacher hired be the first let go during layoffs, no matter how effective she is and no matter how ineffective more senior teachers may be. Relying on social science research, the court concluded that these students lost educational opportunities and ultimately suffered reduced lifetime earnings because of these laws. Therefore, the court reasoned, poor and minority students were not receiving equal protection of the law with respect to their fundamental right to education. This decision is expected to have ripple effects throughout the country. Could teacher tenure be struck down in Connecticut?
Connecticut’s laws are similar to California’s laws in most relevant respects. Connecticut jurisprudence deems education to be a fundamental right, so the constitutional analysis would be similar. However, the Connecticut Constitution’s equal protection clause applies only to “religion, race, color, ancestry, or national origin.” Therefore, “poor” students would not be a protected class. However, if racial or ethnic disparities could be shown, a similar equal protection argument could prevail. Connecticut’s statute pertaining to teacher tenure is similar with respect to “über due process,” requiring costly hearings to terminate a tenured teacher, even for proper causes. Connecticut’s Teacher Tenure Act requires that non-tenured teachers be laid off before tenured teachers, resulting in the situation that an ineffective tenured teacher would have more job security than a superstar new teacher. However, unlike the California law, the Connecticut law does allow factors other than seniority to be taken into account within those bands of tenured and non-tenured teachers. The most significant difference between the two statutory schemes is the amount of time before tenure is granted. Connecticut provides for tenure after four years, while California required such decisions in less than two years. Therefore, while a similar case could prevail in Connecticut, the laws are not as uncompromising as California’s, so it would be a more difficult battle.
Is this the beginning of the end of teacher tenure? Perhaps. But given the politics in Connecticut and the strength of the teachers’ unions, it would appear unlikely that the Teacher Tenure Act will be repealed. We will have to wait and see if anyone is willing to challenge the law as unconstitutional. Assuming the California decision withstands appeal, the prospects of such a challenge in Connecticut will certainly increase.