There is an interesting ruling in California where Los Angeles County Judge Rolf Treu has issued a decision that is a condemnation of teacher tenure. Treu found that the tenure laws violate the right to equal protection guaranteed by the California Constitution because they make it so difficult to remove substandard teachers that students are being denied equality of education. Regardless of whether this novel decision will be upheld on appeal, it is an indictment of tenure rules where school districts have little ability to fire teachers who then end up being moved around to the harm of students. In reviewing the poor teachers and the inability to get rid of them, Treu called the system something that truly “shocks the conscience.” He struck down the tenure rules as unconstitutional, a decision which should face a determined challenge on appeal and one that breaks new ground in the area.
The lawsuit in Vergara v. California was brought on behalf of nine public school students. California gives teachers tenure after two years or less. Only four other states have such a rule — a reflection of the powerful teachers union in the state. Treu found that, once given tenure, it is simply too difficult for the district to get rid of terrible teachers: “The evidence this court heard was that it could take anywhere from two to almost 10 years and cost $50,000 to $450,000 to bring these cases to conclusion.”
The decision is likely to trigger other lawsuits around the country. However, the decision will likely face a serious challenge given cases like Fontana Unified School District v. Burman 45 Ca1.3d 208 (1988) where the Supreme Court held that the Education Code gives a local school district “substantial leeway in determining when to take disciplinary action against a permanent employee and what action to take.”
We previously discussed a case where a teacher stayed at home for seven years on full salary and benefits while his fitness was being reviewed under these rules.
The reactions to the opinion were both predictable and unpredictable. On the predictable side were union leaders who insisted that the judge was hoodwinked and that there is no such problem with the tenure system. Joshua Pechthalt, president of the California Federation of Teachers, is quoted as saying the judge “fell victim to anti-union, anti-teacher rhetoric of one of America’s best corporate law firms.”
However, United States Secretary of Education Arne Duncan gave a rather unexpected response for an administration with very close lies to the teacher unions: “The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students. Today’s court decision is a mandate to fix these problems.”
The California Teachers Associations is one of the most powerful unions in the world and a reportedly number one on the “Billion Dollar Club” — the top spenders in California politics. Indeed, the CTA spent ($211,849,298) twice as much as the next highest campaign contributor: the California State Council of Service Employees ($107,467,272). It also spent more than the contributions of Chevron, AT&T, and Philip Morris combined.
1. California Teachers Association $ 211,849,298
2. California State Council of Service Employees $ 107,467,272
3. Pharmaceutical Research and Manufacturers of America $ 104,912,997
4. Morongo Band of Mission Indians $ 83,600,438
5. Pechanga Band of Luiseno Indians $ 69,298,909
6. Pacific Gas & Electric Company $ 69,240,759
7. Chevron Corporation $ 66,257,132
8. AT&T Inc. $ 59,619,677
9. Philip Morris USA $ 50,756,360
10. Agua Caliente Band of Cahuilla Indians $ 49,078,448
11. Southern California Edison $ 43,412,031
12. California Hospital Association $ 43,281,456
13. California Chamber of Commerce $ 39,065,861
14. Western States Petroleum Association $ 35,214,325
15. Aera Energy LLC $ 34,671,163
GRAND TOTAL $1,067,726,126
Karen S:
I agree that tenure can pose an “insurmountable burden” to the elimination of the incompetent. But there are many systems of tenure. Certainly people of good will can develop procedures to terminate bad teachers while preserving the benefits of tenure. My sense is that efforts to outlaw teachers’ unions and tenure are really part of a larger effort to privatize the entire public education system.
John:
I am not an expert on Communism, Karl Marx or the Communist Manifesto. But I do know that none of your rants about collectivism have anything to do with the Constitution. I also know the following:
1. The Preamble to the Constitution is not a statute. It is an introductory statement of the general purposes for which governments are formed. The constitutionality of an act of Congress is not determined with reference to the Preamble, but by whether it falls within one or more of the powers expressly granted to the legislative branch under Article I. “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.” Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
2. The constitutional legitimacy of a particular institution, such as the public education system, does not require that its existence be “mandated” by the Constitution. It requires only that its creation be authorized by one or more of the constitutional powers conferred on government. The extent to which government may be involved in education and other fields has always been, and always will be, a subject of debate among reasonable people.
3. Karl Marx believed that history is a story of class struggle and that the industrial revolution had produced a capitalist class that exploited labor. He also believed that human freedom required the creation of a classless society. His analysis was quite accurate in many respects, but his proposed solution suffered from the same fallacy that infects most idealist philosophy, the failure to recognize a central truth about human nature: the tendency of the strong to take advantage of the weak irrespective of the form of government under which social structures are organized.
4. There is nothing inherently immoral in the phrase, “From each according to his ability, to each according to his need.” Indeed, such societies exist, but only among small groups who share the values of generosity and selflessness. Monastic communities are an example.
5. The phrase “general welfare” means different things to different people. Your understanding is defensible, but is much more limited than is commonly accepted.
6. THE STRENGTH OF AN ARGUMENT IS NOT AUGMENTED BY THE USE OF CAPITAL LETTERS.
7. For what it’s worth, Harvard was already 150 years old when the Constitution was adopted.
Mike Appleton wrote: “The constitutional legitimacy of a particular institution, such as the public education system, does not require that its existence be “mandated” by the Constitution. It requires only that its creation be authorized by one or more of the constitutional powers conferred on government. The extent to which government may be involved in education and other fields has always been, and always will be, a subject of debate among reasonable people.”
In order for the Federal Government to be legitimately involved in public education, the power should be authorized by the Constitution specifically, should it not? Otherwise it is in violation of the Tenth Amendment.
President Carter started the federal Department of Education to offer help to the States with education. It was basically a payback to the unions for their support I suppose. However, it has evolved into something that makes people think there is some kind of Constitutional right to public education. Would you not agree that there really is no such right?
Here’s an interesting article that articulates other aspects along this line of thought:
http://www.cato.org/blog/education-constitution
MA,
Are the Communist Manifesto and the Constitution the same or are they different?
If they are the same, why was the Communist Manifesto written 75 years after the Constitution? There should have been no need to write the Manifesto if the Constitution were the definitive foundational document.
What, then, are the differences?
The Preamble tells us the Founders established Justice, Tranquility, Common Defense and promoted the General Welfare. No judge, no elected official, no citizen can change that. Read it.
They didn’t establish Microsoft or Ford or Pfizer or Coca Cola or Gillete or Captiol Records or International Paper or Harvard. They established the government which was Justice, Tranquility, Common Defense and General Welfare. The “blessings of liberty” were Americans’ endeavors, businesses and industries, including those of education, healthcare and charity, conducted in the free markets of the private sector without governmental interference. The charity industry is the American form of redistribution of wealth and welfare and food stamps. In America, redistribution of wealth is accomplished by the private charity industry and was never mandated by the Constitution as public school was never mandated by the Constitution. If citizens can pay for their housing, clothing, food, healthcare, transportation etc., they can similarly pay for the education of their children (that might give them pause when conceiving children). The Founders expected nothing less. The Founders gave Americans freedom through self-reliance. Governmental provision imposes slavery to the government.
The Founders only PROMOTED the general welfare and deliberately excluded individual welfare. Individual welfare is the redistribution of wealth of Marx’s Manifesto. The communist government takes money from one man to give it to another. “From each according to his ability, to each according to his need.” The Founders excluded individual welfare or redistribution of wealth. The Founders provided for private property rights which means, under the Constitution, you cannot take money from one man to give it to another. The government can tax people to fund governmental operations which are Justice, Tranquility, Common Defense and General Welfare – security and infrastructure. The government shall not interfere in the economy or otherwise control or direct it and the government shall not redistribute wealth or take money from one man to give it to another in any form or for any purpose including, welfare, food stamps, public school/college, affirmative action, quotas, rent control, Medicare, social services, HHS, HUD, Labor, Education, etc., etc., ad infinitum.
THE GOVERNMENT HAS THE POWER TO TAX FOR GOVERNMENTAL OPERATIONS WHICH INCLUDE SECURITY AND INFRASTRUCTURE – POLICE, FIRE, JUSTICE, MILITARY, AND THE PROMOTION OF THE GENERAL WELFARE.
General Welfare Is promoted. General welfare is infrastructure. General is something that EVERY PERSON USES EQUALLY. General is that which affects or concerns all or most people, places or things; widespread. Education is for children only. Wel–fare meant fare-well or get along well, when the Founders wrote the Constitution. It didn’t mean free money for lazy people who don’t want to work. it meant the government will PROMOTE highways, mail, water, electricity, railroads, etc. Pay attention here. It says they PROMOTE the GENERAL WELFARE.
Say these words: The Preamble is not binding. When you do, you prove you lack understanding of the Founders; their “understandings,” their intent, their methods and their writings. The Founders did not write the Preamble for it to be ignored.
YOU MAY AMEND THE CONSTITUTION BUT YOU CANNOT AMEND THE PREAMBLE.
THE PREAMBLE IS THE AMERICAN CONTEXT.
THE CONSTITUTION PROVIDES FOR GOVERNANCE WITHIN THE PARAMETERS OF THE PREAMBLE.
paul
now i’m curious. is that five year rule for all school districts in the U S? i have several teachers in my family and i;ve never heard of that.
pete – it is true in Arizona, if you change districts, but not schools within the district. Part of the union contract.
Mike:
It is true that compensation attracts the best and the brightest.
Would you not also agree that tenure imposes an almost insurmountable obstruction to getting rid of bad teachers? It takes years in court, and hundreds of thousands of dollars, to fire a teacher.
When schools compete for students there is an impetus to get the best and brightest teachers.
Karen and Mike – added to the problem is the involuntary servitude teachers are in after they have been teaching for 5 or more years. If a teacher wants to move to another district, they can only take 5 years of experience with them. So if you have a great teacher with 20 years experience that you want to snag for your school, you have to convince them to take a deep cut in pay to move.
Karen S:
I may be somewhat prejudiced since one of my sisters recently retired after teaching Latin and Spanish for forty years. But my view is that attracting the “best and the brightest” is largely a function of compensation. And the truth is that society has never been willing to adequately compensate those who perform some of the most critical functions. Teachers here in Florida received no raises for the past five years.
Teaching is only one example. My mother and another of my sisters were both registered nurses. I know how hard they worked and how little appreciated that work was financially.
Private employers secure the best and the brightest by paying them. We have long expected those in the “caring” professions (largely comprised of women) to find satisfaction in the emotional reward that accompanies working with children and the ill.
It would mean a lot less govt. if taxes were voluntary. I say give it a try.
davidm:
Every form of taxation involves the extraction of wealth by government from an individual or an entity. The funds produced by that extraction are applied by government for variety of purposes, frequently including purposes with which I might strongly disagree. A transfer of my wealth to some purpose other than my purely personal benefit is a redistribution. This is not a complicated concept. A person who complains about the “redistribution of wealth” is merely stating that he or she is unhappy with application of those extracted taxes.
The suggestion that government could survive based only upon revenues voluntarily contributed is wishful thinking in my view. I believe the result of such an experiment would be anarchy, and in short order.
Mike Appleton wrote: “A transfer of my wealth to some purpose other than my purely personal benefit is a redistribution. This is not a complicated concept. A person who complains about the “redistribution of wealth” is merely stating that he or she is unhappy with application of those extracted taxes.”
Well, we clearly have a different perception of “wealth redistribution.” I think of wealth redistribution as taking the earnings of one person and giving those earning to another. Welfare, food stamps, unemployment, social security, medicare and medicaid are the kinds of things that I think about as wealth redistribution. Collecting taxes to fund the military for the security of everyone, to fund police, fire and rescue, to fund the building of roads and infrastructure that benefits everyone is not wealth redistribution.
I guess I can see your point, so maybe I will stop using that term wealth redistribution. If in your mind it is code for another meaning, then it will not help us communicate.
Mike Appleton wrote: “The suggestion that government could survive based only upon revenues voluntarily contributed is wishful thinking in my view. I believe the result of such an experiment would be anarchy, and in short order.”
I think anarchy might be better than the direction I see us heading now. If it is an anarchy like that advocated by Noam Chomsky, I could see how that might be better. That type of socialism is more palatable than one with a strong central authority. Are you familiar with the views of Noam Chomsky?
When people know facts about their local public schools, such as how they rank nationally, it changes their opinions, for instance their support for Charters and vouchers increases, while their support for tenure decreases. Only 25% of people polled support teacher tenure, after learning how public schools rank.
http://eagnews.org/poll-the-more-people-know-about-public-schools-the-more-they-favor-reforms/
So no matter what pro-teachers union people say, only 25% of Americans support teacher tenure. We don’t want it in our schools. And this also illustrates how unions have run afoul of the will of the people. The vast majority of people do not want tenure in our public schools, and yet tenured union workers are entrenched in our public school system. If the will of the people carries any weight in this country anymore, then we need to kick unions out of education, starting with tenure.
It seems too obvious to have to say it, but we parents only want the best teachers in our schools. If a teacher cannot or will not be the best, then we went him or her replaced with a better teacher.
Most of the private sector is able to attract quality talent without the tenure modeled by unions. Every day, businesses attract the best and the brightest as at-will employers.
John:
I wouldn’t know where to begin a response to your comment because it is disjointed, conclusory and only partially coherent. Your take on the powers granted the legislative branch under the Constitution are simply wrong. And I assume you realize that Karl Marx hadn’t even been born when the Constitution was adopted.
Your statements regarding “redistribution” make no sense whatsoever. What do you think taxation is?
Mike Appleton wrote: “Your statements regarding “redistribution” make no sense whatsoever. What do you think taxation is?”
I think John makes perfect sense. At least he explains himself. You just expect us to take your word for it that taxation is all about wealth redistribution. I asked you to expound upon that principle and sources that teach that, but you never responded.
Some people believe that taxation is a fund for security, not a fund for redistribution of wealth. Charities are what we use to redistribute wealth in a free society. There is no other way to give freely. Taxation is not giving because it is taken not given voluntarily. We could change that, however, if we had enough voters.
I personally think all government funding should be based upon voluntary contributions. Businesses and charities survive that way. There is no real reason that government can’t survive that way also.
MA,
Tell me if you are able to perceive any difference at all between the Constitution and the Communist Manifesto. If you have any grasp of the difference between private property and public property.
That your ilk has “evolved” the Constitution, I understand. That the Constitution imposed governmental control of the economy and redistribution of wealth, I don’t get at all.
When you controvert the right to private property for public school, you controvert the right to private property for any and all purposes. Have you read the limits in the Preamble? Did the Founders write the Preamble to be ignored? It limits government to security and infrastructure. The Founders told you what they established and you said I’m not gonna listen. How about that?
How do you reconcile your belief in governmental control of the economy and redistribution of wealth, with the freedom from that the Founders lived with and enjoyed?
The Founders enjoyed freedom to the degree that they owned slaves and you believe they established control of the economy and redistribution when they wrote the Constitution.
Is it possible that some people see collectivism as freedom, including the right to private property and the “blessings of liberty?” Are citizens free if they are forced to send their kids to undesirable public school or if they can send their kids to the school of their choice? Seriously?
Did you ever read Madison; that he did NOT desire or intend for the Constitution to be amended but for the very rare and extreme case wherein elected officials were abusing their power against the people? That he wrote the Constitution to stand and that he feared it would be destroyed; nullified.
Judges that corruptly and arbitrarily decide “precedents” have the power to nullify and amend the Constitution in their courtrooms. The SCOTUS can preside over the nationalization of the entire healthcare industry?
Yeah, just keep “evolving” the Constitution ’til it is a verbatim copy of the Communist Manifesto.
John:
Having read a number of your comments on constitutionalism, I suggest that when you buy your children’s education, you avoid shopping at the store where you purchased yours.
Bad teachers need to go, regardless of union or not. However it should not be used to punish dissent.
Either the Constitution provides for freedom, private property, self-reliance and precludes confiscatory taxation for the purpose of redistribution of wealth or it mandates redistribution. Either it frees Americans from tyrannical and oppressive rule or it imposes the dictatorship of the proletariat. Either the Constitution is the same as the Communist Manifesto or it is different. Either the Constitution frees us from union dictatorship or the unions strike the taxpayer and force more and ever more money out of him…for the benefit of the “striking teachers and wretched poor.”
Americans have the right to private property including money (personal; movable property). The government cannot take money from one man to give it to another. If you confiscate money for public school, you can confiscate for any form of redistribution of wealth. Once you redistribute one penny from one man to another, you are in violation of the Constitution. If you can confiscate taxes from one group to pay other people’s public school tuition, you can confiscate money for any other program and benefit you arbitrarily decide on without any limit. Once you nullify the Constitution, you implement the Communist Manifesto.
Please, just replace the Constitution with your Communist Manifesto. Then everything will be clear. No one will wonder anymore how all this governmental tyranny, oppression and dictatorship takes place in America. No one will wonder why their onerous tax burden is redistributed to lazy governmental workers, people who don’t like work.
The education and every other industry shall be conducted in the free markets of the private sector without governmental interference.
Go buy your own kids educations. I’ll buy educations for mine.
Just another anti-union screed by Professor Turley, who when offered tenure at his own university naturally declined it on the basis of free-market “principles.” And, of course, Professor Turley regularly rails against lifetmme tenure for political hacks on the U.S. supreme court, some of whom have had no experience as judges at all, let alone experience as good ones.
When America had more uniions, it had better public schools and a robust midlle class. America’s economic, educational, cultural, and scientific decline mirrors precisely the decades-long jihad against unions begun by Republican President Ronald Reagan, a former president of the Screen Actors Guild who considered unions absolutely necessary when his own working conditions and income depended on them, but not so much once some wealthy California industrialists like Justin Dart and Alfred Bloomingdale promised to buy his mansions and fund his political campaigns for him. Bald, two-faced hypocrite!
Solidarity forever! Screw the union-busting minions of the crony corporate oligarchy, no matter which right-wing faction of the Property Party they superficially belong to. And when Professor Turley becomes a Temporary Adjunct who has to teach at five different schools just to barely earn a living, then I’ll give a damn about what he thinks about teachers’ unions and tenure.
Michael – you only have to be adjunct at 3 schools to barely earn a living.
Much of this discussion is overlooking the fact that the court did not need to rely on the 14th Amendment, as the California Constitution contains its own equal protection provision.
blhlls wrote: “Much of this discussion is overlooking the fact that the court did not need to rely on the 14th Amendment, as the California Constitution contains its own equal protection provision.”
Excellent point, and in the Judge’s conclusion, it is the California Constitution that he relied upon, not the 14th Amendment. However, he did start out by resting the rationale based upon the Supreme Court’s wranglings about the 14th Amendment.
davidm2575
Dredd, I appreciate your effort to educate me.
I have often stated in this forum my dissatisfaction with the Fourteenth Amendment and how a civil war amendment meant to secure rights for blacks has through the last century been twisted and abused to invent all kinds of rights that were never written into our Constitution. In this particular case, the reasoning leads to the conclusion that any mistakes a State makes in attempting to educate children, if it results in some kids learning less than other kids, then the State’s laws and rules are unconstitutional. That kind of reasoning basically leads to the Federal Government basically needing to try to take over education and tell the States exactly how to do it. They are going to have to micromanage education for everyone in the end, but there is nobody to police them, so that approach doesn’t really do any good. It just moves the solution solvers further away from the problem to the people who are least likely going to be able to fix it.
I hope future generations will repeal or modify the 14th Amendment, but that is probably not very likely so we will either have to get use to federalism or start over.
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I have thought of your ideology as pre-fourteenth amendment for a while.
There is a very good book by Garrett Epps named: Democracy Reborn: The Fourteenth Amendment and The Fight For Equal Rights In America.
Some folks dub the Reconstruction Era the Second Revolution. That is a proper way to look at it.
To davidM: The post civil war 14th Amendment was not passed to secure rights for blacks or freed slaves only. It is intended to curb the oligarchy, the privileged class. Equal protection helps the downtrodden white trash. The Amendment imposes the protection of the Bill of Rights and other Constitutional provisions upon the states. Those who yell STATES RIGHTS! are complaining about the intrusion of federal courts to limit the oligarchs and this includes intrusions of federal marshals and even troops to prevent lynchings of blacks. The 13th Amendment is directed to freeing the slaves and the 15th Amendment to giving them and all men (not women) the right to vote. There is still an oligarch system alive in the South. Such as when you hear some white guy say: “My daddy didn’t vote and I don’t vote!”