Judge Makes Correct Call on Flawed Teacher Tenure Laws

Los Angeles Superior Court Judge Rolf M. Treu ruled last week that five provisions of the state education code are unconstitutional, including teach tenure, sending shock waves from Eureka to San Diego. The decision is a seismic event in the public education landscape, equivalent to a 9.0 on the Richter Scale.

Silicon Valley entrepreneur Dave Welch funded the lawsuit that brought about the ruling through his group, Students Matter.

I should stipulate that I believe classroom teaching is one of the most important and difficult professions. It takes an enormous skill set, including knowledge of subject(s), discipline techniques, organization, patience, hard work, physical/mental stamina, developmental awareness and more. Teachers are far too often victims of an underfunded and fractured system. They should be afforded job protection in collective bargaining agreements in meaningful ways.

But should tenure be a fundamental right of protection for K-12 teachers? This is a question I have grappled with for many years. The question was answered in a powerful and controversial opinion rendered by Judge Treu, and I fully agree with his opinion.

We call it tenure, but the lawful term used in California is “permanent.” The Permanent Employment Statute was struck down as unconstitutional. Judge Treu wrote in his 16-page decision, "This court finds that both students and teachers are unfairly, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statue."

During my teaching career I viewed tenure from the perspective of being safe to express my personal views when challenged by students in the context of the subject at hand. I did not fear geting capriciously fired for my personal beliefs. But tenure was never intended to be an impediment to removing teachers who underperform or are ineffective on behalf of their students. The work is too important to allow mediocre teachers to remain after attempts at corrective feedback and coaching.

Nothing is final, though, as Judge Treu stayed his momentous decision pending appeals.

His decision reads, "This Court is confident that the independent judiciary of this state is no less dedicated to the protection of reasonable due process rights of teachers than it is of protecting the rights of children ..."

I say amen to that.

The decision also cites evidence that African-American and Latino students in California are 68 percent and 43 percent more likely, respectively, to be taught by a teacher in the bottom 5 percentile.

As a former principal of elementary and middle schools in Santa Clara County for nearly two decades, I was successful in dismissing two permanent (tenured) teachers. It took enormous time and documentation to achieve the result, and that meant time was taken from leading and supervising others to achieve personal and school goals. The system, as currently structured, stacks the deck against principals. Principals are at-will management, while the majority of their teaching staffs are defined as permanent employees.

In a book published last week by Richard Whitmire, titled "On The Rocketship,” he quotes one of my columns about approving more Rocketship schools (page 82):

"The status quo was unacceptable. ...There is no doubt that the vast preponderance of teachers, principals and superintendents work tirelessly to see that all children succeed. However, they sometimes fall victim to a system that works in favor of adults rather than children.”

Whitmire continues: "Change, concluded Di Salvo, will only come about through disruptive forces.”

The historical decision rendered by Judge Treu brings another disruptive force to the Board of Education—the first was high-quality charter schools, whose teachers are usually non-union and hired at will. One of the 10 student defendants who sued, leading to Teu’s decision, is Daniella Martinez from Alum Rock School District. Her mother, Karen Martinez, was recently elected to the Alum Rock School Board.

Next week, I will write about the decision we’ll reach tonight to authorize or deny a Rocketship Charter in Alum Rock Union School District. Their Board on a 3-2 vote denied that charter last month. Trustee Martinez voted to approve it.

Joseph Di Salvo is a member of the Santa Clara County Office of Education’s Board of Trustees. He is a San Jose native. His columns reflect his personal opinion.


  1. “This court finds that both students and teachers are unfairly, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statue.”

    Ok, so other than thinking it’s bad public policy, what was the constitutional basis for this decision? I’m not opposed to it, I just can’t stand judges striking down laws simply because they disagree with them.

  2. I was in Education for 34 years. I do not believe that the problem is the Tenure Law but the Administrators who DO NOT Document the problems with individual teachers and then follow thru with their dismissal. You can not be Mr. Nice Guy/Gal and do the job that they were hired to do.

  3. > Administrators who DO NOT Document the problems with individual teachers

    Documentation? You want documentation?


    “Miss Moneypenney, take a memo.

    Teacher Lousewort is no damn good. He’s fired.

    What’s next on my calendar?”

  4. I’m afraid I’d agree with the decision. Tenured Teachers in Under-performing Schools “sleep”, “refuse to have parent teacher conferences”, “issue F- grades in Science to students who won the district science fair the same year” and “leave 12 middle school girls at a local university, so what if the school has the highest sex crime rate and it was dark when she got on the bus and didn’t bother to tell anyone she left her group upon arrival”.

    I’m sorry, there are many good tenured teachers. But, the principals role against a tenured teacher is just not going to last when tenured teachers have clout to bully the students and the principals.

    It is unconstitutional to prevent even one student from access to a quality education. Tenured rules are used by bad teachers to bully the administration, other teachers and the students. They may be finding out that Parents aren’t going to take it lying down anymore!

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