Seniority and Tenure, the Absence of Human Decision-Making

Published by —  The only big surprise regarding the Vergara v. California decision is that it took so long.

I first read a teachers contract 20-ish years ago.  A group of parents who were furious about their kids’ schooling had organized an advocacy group.  Of its several subcommittees, I joined the one examining the contract.  Cluelessly, I thought the meetings would be like a book group, where smart, funny people reflected on what they’d read.  Well, the people were smart, funny and reflective, but the contract itself was terrifying, the meetings upsetting.  My darling twins were in kindergarten at the time.  This contract was governing their education?  My family was in no position to start funding a couple of lifetimes of private school.

But suddenly I did understand how those kindergarten teachers could saunter in 5, 10, 15 minutes after the bell, still chatting and sucking down iced coffee.  Tenure made them virtually untouchable.  When I complained to the principal, he shrugged and said he had to pick his battles.  At least they weren’t bad teachers, he assured me.  But making a stink about their tardiness would sour the teacher atmosphere in the building; vengeance would rain on him torrentially.

Then a Teacher-of-the-Year was laid off, aka “bumped,” out of his teaching position for lack of seniority.  Despite the wealth of evidence about his effectiveness, the Last In, First Out, or “LIFO” rule applied.  No one could stop this insanity?  Well, no, LIFO is still a problem, all over the nation.

During the annual summer ritual called “cattle call,” teachers bidding on open jobs wrote their date of hire on placards so as they bid, holding up the cards, administrators could determine seniority.  This was the process for giving college-educated professionals the responsibility for educating children.  Teachers were “excessed” because a program got cut or enrollment dropped got preference for hiring, so “consolidations” in another district school sent four utterly incompetent teachers into one of my kids’ 9th grade.  The year was disastrous for him.

Over my 20 years as an education columnist, the kids inside the public education industry grew ever more invisible behind a dense thicket of district, state and federal rules, on top of contractual provisions.  Students were trapped in environments designed to serve the adults, first and foremost.

Then last week my inbox was flooded with press releases from myriad organizations, hailing or decrying the Vergara v. California decision.  In brief, Judge Rolf Treu agreed with nine student plaintiffs that laws and labor agreements cementing teachers’ rights to tenure and hiring by seniority did constitute a violation of the students’ civil rights.  With refreshingly dramatic flair, he compared his decision to that of Brown v. Board of Education which exposed racial segregation in schools.  His point was that like segregation, teacher tenure and seniority adversely affect kids.  So why, pray, do we keep these horrible practices in place?

The only big surprise regarding this decision is that it took so long.  Many court challenges have already failed.  And this one might still fail, as it winds its way through layers of court systems.

On the upside, diverse advocates are out banging drums, pots, pans, anything loud, begging other states to mount similar challenges as soon as possible.  They hope to fashion a rational decision in the court of public opinion long before the U.S. Supreme Court takes their shot.  Honestly, the decision entices my now-jaded self back into close observance of education’s legal morass.  It could be fun to see the kids win a few.

But here’s the downside: in the big picture, seniority and tenure are merely two trees in a large, dense forest shrouding kids’ opportunities.  The charter school movement has taught us that even the ability to hire and fire based on merit is far from a panacea.  By definition, charters are free from a number of similarly-bad local and contractual regulations, but still even the successful ones struggle.  Local, state and federal ordinances and regulations are still in force, many of which are specifically hostile to charters.  The regulatory forces affecting schools are by no means laser-focused on doing right by the kids.

Teachers unions assert that contractual provisions are no biggie.  The problem is that kids and their families are getting worse.  You can’t make great cars, clothes, buildings without good materials.  Increasingly, dysfunctional families send emotionally chaotic or even feral kids to school.  And it’s true that all too often home support is thin, if not completely lacking.  Kids’ addictions to electronic sitters, sedatives and time-wasters are undermining their ability to read, never mind pay attention in school.  The unions are not wrong about this.

But to use the troubles of the kids themselves as an excuse for the failures of the education industry is wrong.  Education’s problems are many and across sectors.  Every single issue needs to be addressed.  But we can certainly start with the glaringly obvious places where we see contracts, policies or laws serving adult interests, not the students’.

So celebrate the Vergara decision as a small, important victory.  But don’t think for a moment that the kids are even remotely out of the woods.

Julia Steiny is a freelance columnist who also blogs about Restorative Practices and Restorative Justice.  After serving on the Providence School Board, she became the Providence Journal’s education columnist for 16 years, and has written for many other outlets.  As the founding director of the Youth Restoration Project, she’s been building demonstration projects in Rhode Island since 2008.  She analyzes data and provides communications consulting on Information Works! and the RIDataHUB, through The Providence Plan.  For more detail, see or contact her at or 24 Corliss Street #40022, Providence, RI 02904.

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