Imagine a company that cannot fire people for low performance. The company wouldn’t make money, right? And high performers wouldn’t want to work there because they’d have to be with low performers.

So in almost every work environment, people get fired for low performance, for not doing what their boss wants, for not operating the way the company wants. This is why Marissa Mayer ruled out telecommuting at Yahoo,  and why the company’s stock went up after she made that change: commitment matters, and weeding out low performers works.

But not in schools. In California, as in most states, tenured teachers get fired at the rate of less than 1%, thanks to teachers unions. Which means there is no culture of firing the lowest performers. Teachers argue that they can’t focus on teaching if they have to worry about losing their jobs, an argument that underlines the core principle of school: teachers think they are replacing parents. If you have a job in any other sector, you have to worry about being let go all the time. If you are a parent, you never worry about being let go. (You are stuck, actually.)

Mayors and governors who have tried to wrestle the teachers’ union have had little success. The teacher unions are strong politically. But more importantly, the parents feel that if they admit their local teachers are sub-par then they’d have to admit that their kids spend eight hours a day with a poor teacher. That’s a hard pill to swallow. So while parents agree in principle that bad teachers should be fired, parents don’t want to see their particular child’s teacher fired for not teaching anything the year their kid was in school.

Which brings us back to California: If you sue someone in the US, you have to have a plaintiff, and the plaintiff for this case is the kids. So kids are suing California public schools for not firing teachers. It’s a great lawsuit, but here’s the rub: The only way the kids have a lawsuit is that the test scores for third and fourth graders hold the teachers accountable. And the teachers failed by those standards.

So the very same parents who are opting out of testing because it’s a waste of their kid’s time are the parents who are going to benefit from the testing, because otherwise there are no grounds for suing over permitting the outrageous demands of teachers unions at the expense of kids.

To be clear, here is what you should notice:

1. We need testing to push through school reform. No testing means no metrics for proving the need for change.

2. We need to have kids suing teachers to instigate the reforms. There’s no change without a lawsuit and there’s no lawsuit without a plaintiff.

3. To get grounds to sue, kids must take tests and then accept their own teachers as adversaries. So kids spend eight hours a day in school amidst unstable relationships with poor teachers, all in the name of reforming a public school system.

And the worst part: No one even has a plan for how to reform school once we can start firing teachers. So let’s say we eliminate testing and tenured teachers. What do we install in the current system? The research says we need self-directed learning. But there is no path to that, even in the most wide-reaching of all school reform plans.

All we have right now is kids as guinea pigs and plaintiffs for a society wrestling with the problems of a failing publicly-funded education system.