In 2012, education reformers theorized a novel constitutional strategy to eliminate tenure. They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions. This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter.
The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education. To date, however, no high court or scholar has thoroughly analyzed the theory. This article offers that first analysis, concluding that the constitutional challenge to tenure raises a theoretically valid claim, but lacks a sufficient empirical basis. At the theoretical level, the tenure challenge easily falls within broadly worded precedent that establishes students’ constitutional right to an equal and adequate education. If ineffective teaching deprives students of equal or adequate education, state constitutions should protect against it. But in the context of school funding cases — where the relevant precedent was first developed — courts have demanded that litigants precisely demonstrate multiple aspects of causation and harm. Evidence on those points is lacking in regard to tenure.
This split between theory and fact requires courts to proceed cautiously. Rejecting current tenure challenges on their face would unfairly prejudice future legal challenges to teacher quality, particularly those predicated on potential empirical advances in social science. A facial rejection would also require courts to narrow the existing scope of the constitutional right to education. This narrowing would negatively affect education rights in other important and developing contexts. The solution is to insist on more detailed evidence to support plaintiffs’ causal theories and presumed remedies. By doing so, courts can validate students’ constitutional right to education without venturing into unsettled policy debates.
Black, Derek W., The Constitutional Challenge to Teacher Tenure. California Law Review, Vol. 104, 2016.