By Ana Choi
Last month, David Boies—the star litigator who represented Al Gore in Bush v. Gore and argued against California’s Prop 8 in Hollingsworth v. Perry—became the chairman of Partnership for Educational Justice (PEJ), an organization founded by former CNN anchor Campbell Brown to pursue lawsuits challenging teacher tenure. According to an interview with the Washington Post, Boies is crafting a state-by-state litigation strategy in order to eliminate teacher tenure through the court system. Boies’s decision to join PEJ followed on the heels of Vergara v. California, a case in which a California judge ruled that teacher tenure laws violate students’ civil rights under the state’s constitution (the teachers union and Gov. Jerry Brown are appealing).
The movement to end teacher tenure has rallied a very unusual coalition of individuals from both sides of the political spectrum: David Boies, Ted Olson (Boies’s opponent in Bush and ally in Hollingsworth), Robert Gibbs and Ben LaBolt (former Obama aides), Jeb Bush, and Jay Lefkowitz (former deputy assistant for domestic policy under President Bush), to name a few. There is representation both from the conservative side as well as the progressive side, which has traditionally been pro-union.
The primary argument against teacher tenure is that it leads to a lower quality education for students by making it difficult to remove incompetent teachers, which is a relatively nonpartisan assertion. However, Boies goes further and makes the argument that getting rid of teacher tenure is an important element of equalizing education for all students (focusing on equality rather than adequacy of education), thereby giving a very progressive flavor to his cause. In the WP interview, he references the gay marriage cause and even the desegregation cause when justifying his decision to pursue change through the judicial branch rather than the legislative branch. By aligning the tenure issue with gay marriage and desegregation, Boies makes it clear that he really does view the tenure issue as being about equality.
Unfortunately, it is difficult to see how getting rid of teacher tenure will have any effect, by itself, on educational equality. Without tenure, schools in low-income areas will be able to fire incompetent teachers, but they will still be at a huge disadvantage compared to schools in affluent areas when trying to attract and retain qualified teachers (this problem stems from the fact that schools are often funded by local real estate taxes). In fact, getting rid of tenure might make it even more difficult to attract qualified individuals to teach in low-income areas, which is a challenging job as it is. As Jess Rothstein—a former Obama administration economist—said about low-income schools in an interview, “Even if you give the principal the freedom to fire lots of teachers, they won’t do it very often, because they know the alternative is worse. You’ve got to have people in the classrooms—that’s your first priority.” In the meantime, schools in high-income areas will continue to enjoy the same advantages that they currently enjoy because of greater funding.
Boies himself acknowledges that tenure is only part of the problem, and that his ultimate goal of equalizing education cannot be realized without equal funding for schools across a state. He worries that the debate over tenure might be a distraction from other, larger issues in public education. However, if it is a distraction, it is only a distraction because individuals like Boies and Brown are making it a distraction by pursuing this type of litigation. There is a mismatch between what Boies and others claim they are trying to achieve—education equality—and what they are actually achieving by getting rid of teacher tenure. Ending teacher tenure might be a sensible goal if the one is solely concerned about getting rid of the very worst teachers who are currently entrenched in their jobs, but it is definitely the wrong thing to focus on if one is concerned with education equality.