I will protect your pensions. Nothing about your pension is going to change when I am governor. - Chris Christie, "An Open Letter to the Teachers of NJ" October, 2009

Thursday, September 18, 2014

David Boies's Flim-Flam on Tenure

I suspect that celebrity lawyer David Boies -- recruited by celebrity education non-expert Campbell Brown to lead the fight against teacher tenure -- has begun to realize he can't possibly win his case against educator due process on the merits. So he's doing what all lawyers do when they find themselves with a dud of a case: obscuring the issue at hand by conflating it with other unrelated matters.

In this interview, for example, Boies tries to make us believe that gutting teacher tenure, establishing school funding equity, and "choice" are all complementary strategies for improving education:
We're talking about not just tenure, we're talking about financing of the education system -- what else? Are there are other areas where you think people who are looking to improve the education system in this country could use the courts and the precedent of Brown vs. Board?
If you had fiscal equality, and you had promotion and retention on the merits, and you had some family choice, those three things would go a very long ways toward radically improving our education system. I believe we will have initiatives in other states before the New York case is over with. The decision has not been made.
First of all, let's point out that David Boies ain't done crap to bring funding equity to New York State, a place that desperately needs it. He's jumped into the reformy fight with Brown and the anti-tenure crowd and left the struggle to establish equity in New York to others. I'm sure these folks would be happy to have a big celebrity like Boies show up on cable TV and promote their cause, but he's just too busy taking away the workplace protections of middle-class workers. Sorry.

It's worth noting that what the equity champions are proposing might mean that people like Boies and Brown and her enablers would have to pay more in taxes to make up for the $4 billion that New York needs to lawfully fund its schools. Perish the thought...

Second: if you want to establish funding equity, I can't think of a worse way to do so than by expanding charter schools -- especially in the way New York has allowed them to flourish.

Stealing from Bruce Baker (again) here: many of NYC's charters are getting more money than their neighboring public schools, even when accounting for size inefficiencies. In addition, as we all know, charters serve fewer kids at-risk, fewer kids who are Limited English Proficient, and fewer kids with special education needs. "Choice," as it is currently practiced, is making funding inequities worse, not better.

Finally: we do have teacher promotion and retention on the merits. And if you don't believe me, you can ask David Boies:
Scarborough (6:20): "So Randi [Weingarten, President of the AFT] says that tenure laws and other job protections are a bulwark against cronyism, patronage, and hiring based on who you know, not what you know." 
Boies: "We haven't been doing that in our educational system for years. That's not the way you get a job in New York City. It's not the way you get a job teaching in Buffalo, or in Illinois where I grew up. People get jobs based on merit. What we need to do is we need to keep that merit system going while they progress. We do it in every other profession, and we need to do it here."
So, in David Boies's world, one day teachers get jobs on merit... another day, they don't.

This self-contradiction is so typical of the reformy world. Brown can't even tell us exactly what she wants; all she and Boies know is we have to do something, no matter how destructive it may ultimately turn out to be.

The other hallmark of the reformy mind is how easily it generates received wisdom with little to no evidence:
I talked to Jesse Rothstein of Berkeley last week. He made two arguments about tenure that I'm hoping you can respond to. He pointed out that staffing in urban schools is often very difficult for reasons unconnected to tenure. Principals may have teachers they don't like very much, but they're worried about dismissing them, because they know that it's an unattractive job. It's emotional stressful. The pay is low compared to what people with a college education make elsewhere. 
If the point is eliminating teacher tenure will not solve all the problems of inner city schools, he's 100 percent right about that. If he's saying that he thinks the improvement would be a relatively small improvement, I think that doesn't fit with the experience of educators. 
David, you "think that doesn't fit" with teachers' experience? What evidence do you have to support that belief? Anything?

There isn't even any evidence that there would be a "small improvement" -- quite the contrary, in fact. Some of the best performing districts have teacher tenure. Some of the best performing states, such as Massachusetts and New Jersey, have teacher tenure. Where is any evidence at all that gutting tenure would help student achievement? If it exists, I haven't seen it.
Rothstein also argued that teacher tenure is attractive to people considering the profession, that people who are in other lines of work where their compensation is based in large part on how they perform, like finance, for example, are paid much better, and that if teachers were no longer protected by tenure, they'd have to be paid more in order to attract the same number of applicants and applicants of the same quality to the profession. 
As a matter of theoretical economics, everything that affects a person's job can theoretically affect how much money they're going to want for it. But remember, teacher tenure helps the people that are already there and hurts the people that are coming in. You may feel that you would be a really great teacher, and the district would want to keep you, but if they have to lay people off, you're going to get laid off no matter how good you are. When you come to work for my law firm and you do a really good job, we're not going to lay you off. It is not at all clear to me that teacher tenure is a draw to bring new people into the system. 
As I have argued here and here, the empirical evidence strongly contradicts Boies's beliefs. No one disputes that teachers gain most in effectiveness within their first few years. Senior teachers consistently show greater effectiveness than novices, and there is evidence that even teachers who are in their fourth decade (!) outperform those in their first few years.

I am all for getting rid of bad teachers, and I don't think we should wait for layoffs to do so. But the idea that we can accurately gauge the effectiveness of teachers with a precision that would allow us to supersede the use of seniority is absurd. Further, layoffs don't happen solely on the basis of seniority: programs in the arts, student support services, and other "non-core" staff positions go on the chopping block well before STEM teachers are let go.

To believe that schools are afflicted with large numbers of layoffs of great younger teachers to the benefit of older burnouts is to engage in a fantasy. But even if Boies thinks this really is a problem, wouldn't he be better off attacking inequities in funding so that schools wouldn't have to worry about layoffs in the first place? Where are your priorities, David?
Second, I think that very rarely do the people who want to become teachers, who are going to be really good teachers, base that decision on whether they will get tenure. While I agree completely that attracting good teachers is difficult, and we need to spend more time doing that -- in part by paying them more money -- I don't think there's any evidence for the idea that somehow tenure  attracts good teachers. In fact, I think the evidence is to the contrary.
Don't bother clicking the link to find this "evidence"; the link, in fact, will take you to Rothstein's argument against gutting tenure. The truth is that teachers do value tenure. Terry Moe, hardly a friend to teachers unions, says you'd have to pay teachers up to 50 percent more to make up for the loss of tenure. The notion that you could just take away tenure and good teachers will magically appear is ludicrous.

But you know what really pisses me off about the assertion here? At the same time Boies tut-tuts about teachers not wanting to be treated like professionals, he suggests that we shouldn't be paid like professionals. He actually thinks he can take away part of our compensation and we'll just nod and smile.

If Boies signed an employment contract with a law firm, and that firm later tried to break the contract, you can bet your last dollar David Boies would drag their butts into court. It's really no different here: Boies wants to break the contract teachers made with New York State, and he's not making any guarantees that anything will be offered in exchange for giving up tenure.

I called out Jonathan Alter on this a while ago. Reformy folks love to say they want to pay teachers more in exchange for giving up tenure, or instituting merit pay, or removing step guides, or whatever latest scheme they've hatched. But they never, ever say how much more they're willing to pay, and they never, ever say where they plan on getting the money.

Well, fellas, I may be a teacher, but I'm not stupid. When you have an actual plan, show it to us -- until then, your promises are as empty as your rhetoric.

One last thing:
We went through this in the marriage equality battle, where there were some people who said, "Stick to the legislators." If we had stuck to the legislators, we would not have marriage equality in Pennsylvania or Virginia or Oklahoma or Utah, any of these states. We wouldn't even have it in California. There's a limit to how far you can go legislatively.
I applaud Boies's fight for marriage equity, but I very much resent any analogy made between taking away the due process rights of teachers and withholding the right of two people who love each other to get married. Any implication, intentional or otherwise, that the folks like me who are standing up for tenure and the bigots who oppose marriage equity are somehow equivalent rubs me raw.

And David, I know this may come as a shock, but guess what? There are plenty of gay and lesbian teachers. Do you think that it's possible that maybe there are some bigoted administrators and school board members out there who would love nothing more than to purge their schools of the "threat" posed by LGBT educators?

I suppose you'll happily represent them all for free in court when the time comes, right?


StateAidGuy said...

"Some of the best performing states, such as Massachusetts and New Jersey, have teacher tenure."

This contradicts an argument you’ve made repeatedly regarding the (apparent) success of charter schools. You say charters only appear to outperform district schools because they serve demographically different students. Ok, point taken about charters, but surely you know that Massachusetts and NJ are two of the best educated and most affluent states in the country. Something would be seriously amiss if kids there weren’t among the highest performing.

You call out education “non-experts” for having the audacity to oppose tenure, as if their “non-expert” status makes their opinions on education illegitimate. But plenty of bona fide education experts also oppose tenure and as a student of education, surely you realize that bona fide experts disagree on numerous issues.

Also, for a non-expert to have an opinion on tenure or anything in education is nothing like a non-expert having an opinion on cancer treatment or bridge engineering, where the non-expert likely has zero experience and where values don’t play a role in decision making. Your average non-expert who is weighing in on this has 13 years of public school experience personally and many more years of experience as a public school parent, so an opponent of tenure has personal experience that should be accorded some respect.

How is it different for a non-educator to have an opinion on tenure than it is for a non-economist to have an opinion on the minimum wage?

"Where is any evidence at all that gutting tenure would help student achievement? If it exists, I haven't seen it."

It's not just about measures that will appear in testing. It's about having teachers who are respectful of children and fulfill professional obligations. If a teacher bullies a child or demands back rubs, (like a Lopatcong teacher had children give him) that kind of problem is unlikely to appear in test scores. For me personally, my worst teacher was someone I had for two years in high school chemistry. Since high school chem is an untested subject, his ineffective teaching would not appear in any way. So, even if test-based evidence for the problems of tenure didn't exist (which I don't concede) that does not mean that the evidence doesn't exist.

I think you also miss one argument about the disproportionate impact of tenure on low-income kids: low-income kids are disproportionately impacted by having an ineffective teacher because they learn less in their home environments. Even if the argument that ineffective tenured teachers are more common in low-income districts isn’t true, it is far from the only reason to change tenure.

Finally, people who oppose tenure aren’t anti-middle class or anti-union. Lots of progressives oppose tenure, including Barack Obama. 30-40% of teachers themselves oppose tenure. Changing tenure isn’t about robbing teachers of all due process either and making teachers at-will employees; it’s about changing what that due process is so that the balance of power is different.

Giuseppe said...

StateAidGuy says that "Massachusetts and NJ are two of the best educated and most affluent states in the country. Something would be seriously amiss if kids there weren’t among the highest performing." Well, gee whiz, thanks for not giving any damn credit to the TENURED teachers. If tenure is so horrible, so uncivilized, so barbaric, so heinous, you would think that it alone would sink MA and NJ to educational wastelands. No mention about the administrators and principals who hire the teachers in the first place, who assess the teacher's performance during the trial period and who continue to observe and evaluate the teachers throughout their careers. TENURE IS NOT A LIFETIME GUARANTEE OF EMPLOYMENT!!!!!! It just means due process. Countless teachers have been falsely accused and railroaded. Tenure is needed to protect teachers from crackpot parents and petty, vindictive principals, for example. Here in NJ, the trial period has been increased to 4 years and the tenure case process has been streamlined.

Duke said...

First, thank you for acquiescing to my point about tenure. As you concede, there are many other factors that contribute far more to student achievement than whether a district or state grants teacher tenure. Nice work making my point for me.

Second: I don't have a problem with non-experts having an opinion. I have a problem when the media puts non-experts on my TV in place of people who have informed opinions.

I have opinions about airline safety, as I have flown in planes. I have opinions on health insurance, as I have been to the doctor. I have opinions on the climate, as I live on planet Earth.

Should I be given large amounts of media time to opine on these subjects? Wouldn't the public be better served by putting people on my TV who know what the hell they're talking about?

Third: sorry you had a bad chem teacher. There's probably a fair chance your principal knew he wasn't great. But please explain to me how removing the workplace protections of his colleagues would have put better people's resumes on your principal's desk.

Fourth: teachers who are "great" aren't "great" everywhere. Do you think the "highly effective" teacher in Millburn will be "highly effective" in Irvington? And, again: how does removing tenure help get better teachers into places like Camden? There is no empirical evidence to support that belief.

Fifth: give me a source for that 30-40%.

Finally: I have no problem with changing the due process procedures -- that was the entire point of TEACHNJ, written largely by the NJEA. But Brown et al have never spelled out what they want. If you want an honest debate, let's start with that.

Thanks for reading.

Giuseppe said...

"Lots of progressives oppose tenure, including Barack Obama. 30-40% of teachers themselves oppose tenure." I would also like a citation for those numbers. I did not know that Obama was against tenure? In any case, lots of progressives support tenure and 60% to 70% of teachers are pro tenure, assuming that StateAidGuy's numbers are right.

Giuseppe said...

From the NYPost: "Duncan met with President Obama and teachers at a White House event Monday, where he said he supports tenure, but California’s 18-month requirement was too easy.

“I will always support the right to tenure. We just want that to be a meaningful bar,” Duncan said, noting that California teachers got tenure after just 18 months, adding tenure “is something that should be earned through demonstrated effectiveness.” https://nypost.com/2014/07/07/duncan-digs-at-california-teacher-tenure-during-obama-meeting/ Obama is against tenure?????????????????? StateAidGuy????????????

Duke said...

Nice job, G.

StateAidGuy said...


You didn’t make it clear that your point about non-experts was only the media attention they receive, not their actual opinions. “I suspect that celebrity lawyer David Boies -- recruited by celebrity education non-expert Campbell Brown to lead the fight against teacher tenure….”

Even if your only objection is Brown’s media attention, well, I’m sorry, but the media always gives celebrities attention for their causes. On my drive to work today I heard an interview with Mark Raffalo on NPR about climate change and heard references to Emma Thompson and Peter Gabriel marching for action. When I turned my computer on to Yahoo news the first thing I saw was that Emma Watson was campaigning at the UN for women’s rights. I agree with all four of those celebrities on the issues and don’t care at all that none is an expert.

But I don’t want to argue about the media’s tendencies but about tenure itself. You say Massachusetts and NJ are strict tenure states and yet have high performing students. This proves is that tenure and relatively high-performance aren’t incompatible, but that’s like pointing to a low-spending district that has high performance (Glen Ridge, for instance) and saying that school funding doesn’t matter.

Your example of tenure “working” and my example of low-funding “working” are obviously flawed arguments because there are so many other factors at work in student success. Reasonable people who want tenure reform don’t consider tenure the biggest problem schools have; reasonable people consider tenure to be one problem that is legislatively fixable. Also, who is to say that schools in NJ and Mass wouldn’t be even better without tenure?

Is tenure a problem? I believe it is, especially in New York, where Campbell Brown is focusing most of her advocacy. As I mentioned before, the problems of tenure don’t always show up in test scores, which is the defense you used of NJ and Massachusetts. In New York and California the worst teachers are not allowed to teach but have to be kept on the payroll. If a teacher is in a Rubber Room, how would the lack of skill show up in test scores? Many teachers don’t teach tested subjects anyway. If a teacher is insulting to a handful of students, endangers students etc that doesn’t show up in scores.

I think David Boies is right that patronage hiring and firing is less common than it was in the past.


I’ve seen argument this many times, but come on. Obviously tenure isn’t literally a job for life, but it’s incredibly difficult, expensive, and time consuming to fire a bad teacher, even in cases of misconduct. Even when a teacher pleads guilty to child abuse (like the following example), the process takes years and hundreds of thousands of dollars.


Also, you blame administrators for giving tenure to bad teachers in the first place. What you are implicitly stating is that more new teachers should be fired before they get tenure. If this is what you believe, then you are underscoring how tenure diminishes job security for those who do not have it while it increases job security for those who do have it. If a principal has an untenured teacher who is ok, but with some problems, in a strict tenure system that principal is incentivized to not give the teacher another chance to develop and fire him or her lest the problems grow worse and he or she be unremoveable.

StateAidGuy said...

I've seen several polls that show a large minority of teachers favor tenure reform.



When I was a teacher I knew a few anti-tenure teachers too.

The point of this isn't to show that tenure reform is automatically good, the point is to show that being anti-tenure shouldn't be construed as being anti-teacher. Anti-tenure=anti-tenure. That's all.

StateAidGuy said...

Finally, Arne Duncan, and, by extension, Barack Obama, support the Vergara decision.


I don't know what parameters you have for supporting and opposing tenure, but while Arne Duncan says he supports tenure, he wants to see it weakened. His definition of "support tenure" is probably very different from yours. He doesn't buy that tenure, at least in CA, is just "due process."

Giuseppe said...

What the hell kind of question is this: "Get rid of tenure for teachers?" Wow, talk about a biased, slanted question. I would have thought they would ask, "Keep tenure for teachers or not" or "Do you support tenure or not?" In any case, most of the teachers do not want to get rid of tenure and the more experienced teachers are more supportive of tenure.

StateAidGuy said...


I agree, the question was biased, but if a third of teachers agree with it anyway it suggests (again) that a large minority of teachers do not like tenure.

Anyway, here is a more recent survey of teachers that shows a large minority are against the status quo on tenure.


(the following is a quote from the survey description)

Teachers unions, of course, remain s teadfast in their defense of teacher tenure. Dennis Van Roekel, the outgoing president of the National Education Association, described the California lawsuit as “yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools.” American Federation of Teachers president Randi Weingarten assured her members that “this [decision] will not be the last word.”

But, surprisingly, a majority of teachers do not favor the status quo of most states, under which most teachers receive tenure as a matter of course without explicit consideration of student-achievement data. It is true that teachers endorse tenure by a two-to-one margin: 60% in favor, with 32% opposed. Furthermore, only 31% of teachers like the idea of basing tenure on student test performance. But when responses to the two questions are combined, just 41% of teachers both favor tenure and oppose using information from state tests when awarding it. In short, when it comes to the teacher-tenure laws in most states, less than half of teachers and fewer than 1 in 10 Americans prefer the status quo.

Robert D. Skeels * rdsathene said...

@StateAidGuy: Obama is a progressive?