Andrew Strom is Associate General Counsel of SEIU Local 32BJ.

The trial court decision in Vergara v. State of California drew headlines recently because the judge struck down several provisions of California’s laws governing tenure for public school teachers.  One of the provisions at issue was the “last-in, first-out rule,” which provides that the last hired teacher will be the first one let go in the event of layoffs.  Here’s how the judge described the rule:  “No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one, who all parties agree is creating a positive atmosphere for his/her students, is separated from them and a senior grossly ineffective one who all parties agree is harming the students entrusted to her/him is left in place.”

When you put it that way, it seems pretty hard to defend “last in, first out.”  But, in reality, is it ever really the case that “all parties agree” that a senior teacher is “harming the students?”  After all, if all parties agree that a teacher is harming students, he can be fired for cause.  In theory, of course it makes sense to lay off the worst teachers first.  But that presumes there is an objective way to rank every teacher in a school district.

Any alternative to last-in, first-out would suffer from one of two major flaws.  Either it would grant school administrators unreviewable discretion to determine which teachers are the “worst,” or it would invite lengthy and costly litigation over every layoff decision.  How would a district go about ranking its teachers from best to worst?  And does anyone think that “all parties” would agree on any ranking?  What if a long-term teacher is losing his job because he has been labeled one of the worst teachers in the district?  The judge in Vergara agreed that before a teacher is dismissed for being ineffective, the teacher is entitled to a hearing.  By the same logic, a teacher should be entitled to a hearing to challenge her ranking if that ranking is used to decide that she will be laid off.  And, in order to challenge her ranking, she would have to be allowed to challenge not just her own evaluation, but the evaluation of other teachers who are ranked above her.  The hearings would be exponentially more expensive and time consuming than ordinary dismissal hearings.  And, if the teacher prevailed, the district would owe backpay.  Teachers might not be the only ones who object to the rankings used to determine who gets laid off.  What happens when parents see a teacher who they think is “grossly ineffective” ranked high enough to avoid a layoff.  If the students in Vergara had standing to challenge the tenure laws, wouldn’t they also have standing to challenge the rankings of individual teachers?

Last-in, first-out may not be a perfect rule.  But, in any large, publicly accountable institution, there is a lot to be said for a rule that is transparent and easy to administer.  “All parties” may not agree who the worst teacher is, but they can easily figure out which teacher was hired last.