I have now spent 38 years in higher education as a professor, administrator, and now adjunct professor. During this time I have come to believe that education reform will never work unless the concept of teacher tenure is eliminated. Tenure is a concept that was originally developed to protect the academic freedom of teachers. The idea was to protect teachers who held controversial views from being fired for exercising their right to free speech and, by so doing, to ensure that students would be exposed to a variety of different perspectives as part of their education.

For the purpose of this column, I will put aside the sad fact that academic freedom has morphed into a concept in which teachers and students may express their views on any subject as long as their views toe the line of liberal orthodoxy. In a typical public school, college, or university, the only point of view students can expect to consistently hear is the liberal point of view. Liberals control education in America and use that control to, in turn, control the thinking of students. This is a subject I have written on extensively at this site and, along with my colleague Archie Jones, have authored a book on (Liberal Tyranny in Higher Education). But liberal tyranny in education is grist for another mill. The focus of this column is teacher tenure and the positive effect eliminating it could have on education in America.

What was supposed to be a method for protecting academic freedom has, over time, become nothing more than a method for protecting incompetent teachers. Tenure is the favorite tool of teacher unions for making sure that when budget cuts threaten positions, the most senior teachers are protected with no thought given to their job performance. This is the last-in-first-out rule of thumb that tenure allows teacher unions to apply when downsizing occurs. This rule of thumb means that when cutbacks are necessary, even the best teachers will be laid off first if they do not yet have tenure. It also means that the most incompetent teachers will remain on the payroll provided they do have tenure.

But things might be changing concerning teacher tenure. There might be a slight crack in the armor that has surrounded this concept for so many years. Recently a California court ruled that the last-in-first-out aspect of teacher tenure violates the Equal Protection Clause of the Constitution. In handing down the court’s decision, Superior Court judge Rolf M. Treu of Los Angeles observed that “No matter how gifted the junior teacher, and no matter how grossly incompetent the senior teacher,” the junior teacher is one let go when downsizing is necessary. Treu called this arrangement “unfathomable” and “constitutionally unsupportable.”

Although the decision in this case was right on target and brimming with common sense, it took me a few minutes to take it in. After all this was a California Court handing down a decision based on the Constitution rather than some judge’s personal political views. Rather than legislate from the bench, Judge Treu and the Court did the right thing and handed down a decision based on a long-standing Constitutional principle. Of course, it is too early in the game to pop the cork on a champagne bottle. California’s powerful teacher unions are certain to file appeals. However, for the moment at least, those who use tenure to protect incompetent teachers have something to worry about.

If this decision stands up on appeal, it will deal a death blow to one of the most treasured aspects of teacher tenure. In the private sector when downsizing becomes necessary businesses take the opportunity to unload their dead wood so that they come out of the crisis they are facing stronger and better prepared to perform at competitive levels. Thanks to last-in-first-out, this does not happen in education at any level—elementary, high school, or college. Consequently, every budget crisis in education that requires layoffs just worsens the quality of instruction provided to students.

I am not claiming that long-serving, tenured teachers are all incompetent. This is hardly the case. But some are. Consequently, when layoffs are necessary it makes sense to keep the better performing teachers regardless of length of service and eliminate those who do not meet performance standards, even if they have many more years in the classroom. As things stood prior to Judge Treu’s decision, the only recourse administrators had for dealing with incompetent teachers was to assign them to the low-performing schools teachers avoid like the plague in the hope that the experience would encourage them to resign. In reality though, this rarely happens. Incompetent teachers don’t resign. They just take out their frustrations on students by becoming even less interested in performing up to par. It is a vicious and counterproductive cycle. With any luck, Judge Treu and his colleagues may have broken the cycle.