For teachers in California public schools, the first two years are make-or-break.

What is teacher tenure?

New teachers in California face a steep learning curve and a deadline: For the first two years they work under probationary status and can be dismissed at will. After that, they have a certain degree of job security commonly called tenure, though more accurately known as due process protection from dismissal. (The term tenure is borrowed from higher education.)

California's tenure policy for preK-12 teachers is unusually quick. Most US states require three years and evidence of competence. As a practical matter, California school districts need to decide within about 18 months whether a new teacher should be made a permanent member of the faculty, or let go. Those are the choices.

Many teachers start their tenure in boom times

As described in Lesson 3.2, demand for teachers is cyclical. When the stock market rises and budgets increase, lots of school districts want to hire teachers at the same time, creating teacher shortages. In those conditions, it's relatively easy to get a teaching job, if you have the credentials. School districts hire who they can while they can.

When the stock market drops, by contrast, California's budget for education falls with it. Districts are obligated to notify teachers by March 15 if they can't guarantee their position for the coming school year. Seniority usually determines the pecking order for these layoff notifications (pink slips).

There have been multiple attempts to reform teacher tenure policies in California. Many have sought to delay awarding of tenure by a year or two, since California's tenure policy is unusually quick. Other proposals have sought to make tenure status conditional on evidence of good work. Others seek to reduce the role of seniority as a factor in layoffs or forced placements, or to streamline the steps involved in dismissing teachers.

Dismissals for cause are rare

To protect their members from capricious dismissal, teachers unions negotiate due process requirements in their contracts with employers.

These requirements can be daunting and costly. Teacher dismissals for cause are quite rare in California, even in cases of egregious misconduct. Serious cases are escalated to the Division of Professional Practices (DPP), which reports annually on its workload. In 2022-23 DPP opened 5,740 cases, the largest number of which involved alcohol. Cases take an average of a year to process to closure. In 2023 the CTC closed 699 cases with adverse actions, mainly suspension or revocation of credentials.

Because the process of firing a teacher is difficult, time consuming, uncertain, and costly, principals sometimes use a more expedient solution: they make a deal. If a poorly-performing teacher agrees to move to another school, the principal agrees to award a satisfactory rating. This practice, known as the dance of the lemons, was colorfully derided in Davis Guggenheim’s 2010 film Waiting for Superman (video clip).

In a layoff, who gets fired?

Last hired, first fired.

In negotiation with their unions and within the constraints of employment law, California school districts set their own policies for what happens when layoffs are likely or unavoidable. Each year, by March 15, districts issue pink slips (layoff notices) to employees who need to consider their alternatives. In 2022, the legislature extended this requirement beyond teachers to include classified employees, which means that a legal process is required to lay off just about anyone who works in public education.

California's largest teachers union, CTA, has taken the position that seniority is the least unfair option when layoffs are unavoidable. According to CTA, “In most cases, the order of layoff must be based on credentials and qualifications; seniority dates; probationary vs. permanent status; and experience. In some circumstances, the district may also consider specialized training and education.” The union provides advice to its members about how to survive a layoff.

Seniority-based layoffs can have devastating effects on students and school communities. In most districts, the teachers most recently hired are the first let go, regardless of what they teach, how amazing they are, or whether the layoffs will have a disproportionate impact on a particular group of students or a particular school.

Seniority-based layoff policies are also known as last-hired-first-fired or last-in-first-out (LIFO) policies.

Education Trust West, a nonprofit organization, 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 above).

The use of seniority as a factor in teacher dismissal came sharply into question in the lean budget year of 2010. Focusing on data in Los Angeles Unified, the ACLU argued that seniority-based provisions had a disparate impact on students in poverty in low-performing schools. After four years of negotiations, the case was settled and 37 schools received additional funds for teacher training.

Some advocates had hoped for a broader set of changes. In 2012, a series of lawsuits (Vergara, Robles-Wong and CQE) sought to strike down tenure and seniority practices in California state law. The suits attracted a great deal of interest, but ultimatelyfailed to bring about change. A three-judge panel didn't dispute that "deplorable staffing decisions being made by some local administrators… have a deleterious impact on poor and minority students in California’s public schools", but concluded that laws regarding tenure and seniority did not "inevitably" cause this impact.

Inevitable harm might be impossible to prove, but that's essentially the standard that the court applied to itself in deciding the case. "The court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are 'a good idea'.”

In practice, the court kicked the can to the legislature, or future courts, to address the unequal damage caused by layoffs. The underlying policies that allow the "deplorable staffing decisions" remain in place.

This lesson was updated in November, 2023