The first two years for California teachers are make-or-break.

For their first two years, new teachers in California can be dismissed "at will" by their employer - usually a school district. After two years of employment, however, teachers in most districts enjoy strong "due process" protections commonly referred to as "tenure."

Number of years for a teacher to receive tenure, by state, 2012. Source: National Council on Teacher Quality (NCTQ) Copyright 2012

Whenever hard times hit the stock market, California's budget falls. Budget pressure leads to a flurry of springtime "pink slips," the common name for a required notice sent to teachers when their position cannot be guaranteed. Seniority is usually the key element for determining the pecking order, at minimum as a tie-breaker.

Reforms that affect tenure usually seek to delay its onset, and there have been multiple attempts. Other reforms seek to reduce the role of seniority as a factor in layoffs or forced placements, or to streamline the steps involved in dismissing an underperforming teacher. Dismissals for cause are quite rare in California due to the complexity and expense of the required process. California's legislators have struggled for years in efforts to revise and streamline the process of dismissing a teacher for cause.

Dismissals are rare

Rather than pursue a lengthy dismissal process, principals sometimes use a more expedient solution to remove unwanted staff: they make a deal. If a poorly-performing teacher agrees to move to another school, the principal agrees to give her or him a satisfactory rating. This practice, known as the dance of the lemons, is colorfully derided in Davis Guggenheim’s 2010 film Waiting for Superman.

The California Teachers Association rejects the word "tenure" and refers to these protections as a form of due process. In a down market, when layoffs are unavoidable the CTA position is that seniority is usually the least unfair option, protecting teachers from dismissal for "arbitrary, unfair or unjustifiable reasons."

Young teachers
make way
for those with
seniority
knowing someday
THEY'LL have
priority.

In 2011, Michelle Rhee established Students First, an advocacy organization that put reform of tenure and seniority policies among its top priorities. The organization put particular emphasis on the practice of seniority-based layoffs, also known as last-hired-first-fired or last-in-first-out (LIFO) policies.

The use of seniority as a factor in teacher dismissal came sharply into question in the lean budget year of 2010. The ACLU challenged the constitutionality of seniority-based provisions on the basis that such policies have a disparate impact on students in poverty. In 2011, California schools sent layoff notices to about 20,000 teachers on a seniority basis, and generally did not renew first- and second-year teachers.

In 2012, an advocacy group called Students Matter sponsored a set of lawsuits against the state of California, seeking to strike down state laws that codify tenure and seniority practices. The basis of the suit was that these practices thwart students' right to an education, which is guaranteed in the state constitution. The complaint makes for interesting reading. The case, called Vergara v California, went to trial in January, 2014 and was closed in August 2016 having failed on appeal. The proponents' and opponents' coverage of the proceedings outline the views on each side.

Seniority and tenure policies, normally a dull hum in the background noise of education reform priorities, rose to importance in 2010 because economic changes drove teacher layoffs in relatively large numbers.

Education Trust West explained the impact of seniority-based employment rules coherently in its report Victims of the Churn. The report criticizes "bumping" rights with particular vigor (see graphic).

The next lesson will turn to one of the least understood elements of teacher compensation: pensions.