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?