Reboot Illinois
Could a California court decision on teacher tenure affect public education across the country? Critics of tenure laws that make it difficult for school districts to dismiss tenured butpoorly performing teachers, and that require school districts to retain such teachers over less experienced but higher performing teachers when making layoff decisions, think so. They believe this week’s decision in California’s Vergara v. California case could lead to similar lawsuits nationwide.
Some background from Education Week:
California’s laws governing teacher tenure and dismissal unfairly saddle disadvantaged and minority students with weak teachers, infringing on those students’ right under the state constitution to an equitable education, a state superior court judge ruled June 10.
The tentative ruling in the high-profile case strikes down the laws in question. It will be finalized within 30 days, and spells what appears to be a complete victory for the plaintiffs, nine California students and their families.
The landmark decision in Vergara v. California says the state’s constitutional guarantee includes having equal access to quality teaching—a step beyond the right to sufficient instructional time and money that rulings in previous equity suits have established.
The state’s teachers’ unions, which intervened as defendants in the suit, said they would seek an appeal. Judge Rolf Treu stayed any changes in the state laws until those appeals are settled.
Outside legal experts say the outcome of an appeal could go either way.
Still, in his ruling, Judge Treu said the plaintiffs had met the burden of proof.
“Evidence has been solicited in this trial of the specific effect of grossly ineffective teachers on students,” Treu wrote in the 16-page tentative ruling. “The evidence is compelling. Indeed, it shocks the conscience….”
The lawsuit was brought by the nonprofit Students Matter on behalf of nine California students. It was argued by a high-powered legal team chaired by famed litigators Theodore Boutrous and Theodore Olson. The plaintiffs sought to overturn five sections of the state education code that, they contended, allow teachers to receive tenure before proving their success; make it virtually impossible to fire abysmal teachers; and concentrate such weak teachers in schools serving low-income and minority students because of seniority rules.
The defendants argued that teacher tenure is necessary to attract and retain teachers, and that there’s little evidence that the laws in question had a disparate impact on poor or minority students. They said “well managed” districts had no problems addressing teacher quality, and that the entire trial distracted from more important concerns, such as the need to provide financial resources and supports for teachers and students in high-poverty, high-minority schools.
In California, state law mandates that the newest hires be let go first, regardless of job performance. Treu ruled that last-in-first-out policies require the state to “defend the proposition that the state has a compelling interest in the de facto separation of students from competent teachers, and a like interest in the de facto retention of incompetent ones.”
In Illinois, a teacher’s performance and qualifications are supposed to be the main criteria for choosing which teacher to keep if budgetary cuts have to be made in a school district. Under the law, which was part of a sweeping package of education reforms passed in 2011, teachers with the highest ratings would be fast-tracked to tenure after three years instead of four. Years of service would come into play only as a tiebreaker in layoff situations. The Chicago Tribune has more on the law from a 2011 editorial:
When cash-strapped districts cut staff, they now must first consider a teacher’s qualifications, specialty and performance in deciding who stays and who goes. Years of service would play the role of tiebreaker. The change is expected to roll out as soon as next year in most school districts.
Educators who earn top ratings during their first three years in the classroom will be fast-tracked for tenure without having to wait a fourth year, according to the law. This piggybacks on a new method for evaluating educator performance that unfolds from 2012 through 2016.
In an editorial this week, The Wall Street Journal hailed the decision as a breakthrough forimproving public education nationwide. It framed the issue as a civil rights victory:
Incompetent teachers are protected by tenure, which vests after two years. However, as the judge noted in his ruling, schools must determine whether to grant tenure well before March 15 of a teacher’s second year at which time many aren’t evencredentialed. The upshot is that the vast majority of probationary teachers—including 98% in Los Angeles Unified School District—receive tenure.
Unwieldy dismissal procedures, which Judge Treu describes as “uber due process,” then make it nearly impossible to fire teachers even for egregious misconduct. Fewer than 0.002% of California teachers are dismissed for unprofessional conduct or poor performance in any given year compared to 1% of other California public employees and 8% of workers in the private economy.
L.A. spent $3.5 million between 2000 and 2010 to fire seven teachers for poor performance. Yet only four of the seven were ultimately dismissed. Two received large settlement payouts, and one was retained. Chief of Human Resources Vivian Ekchian testified that the district employs 350 grossly ineffective teachers it hasn’t even sought to dismiss…
The state and California Teachers Association are sure to appeal, not least because Vergara could become a template for lawsuits nationwide that could topple the scandal that is the public-school status quo. Notably, Education Secretary Arne Duncan praised the decision as “a mandate to fix” educational inequities and opportunity to “build a new framework for the teaching profession.”
If state governments don’t act, disadvantaged students now have a claim to petition the judiciary to protect their rights as much as in the days of Jim Crow.
The California Teachers Association already said it will appeal the ruling. Education Week has more reaction from California and across the country:
• Theodore Boutrous, attorney for the plaintiffs:
“It’s terrific, a wonderful day for California students, the Calfornia education system, and the rule of law. Judge Treu’s decision is truly a landmark ruling, in the tradition of rulings of the Calfornia Supreme Court and the U.S. Supreme Court that laws that create inequality in the education system are struck down. This decision will reverberate powerfully throughout California and throughout the nation. … This is going to be a huge template for what’s wrong with education. It will impact the national education referendum going on right now.”
• Dennis Van Roekel, president, National Education Association:
“Just like the meritless lawsuit of Vergara v. State of California, the ruling by Superior Court Judge Rolf Treu is deeply flawed. Today’s ruling would make it harder to attract and retain quality teachers in our classrooms and ignores all research that shows experience is a key factor in effective teaching. … Let’s be clear: This lawsuit was never about helping students, but is yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education.”
•Julia Macias, one of the nine plaintiffs:
“Being a kid, sometimes it’s easy to feel as though your voices aren’t heard. Today I’m glad I did not stay quiet; with the support of my parents I was given the ability to fight for my right for an equal education.”
There already is talk of the impact this will have on other states.
Notes Education Week:
“Meanwhile, dozens of other states also have education-equity clauses in their constitutions. Case law on such matters in each state differs, but Mr. Boutrous and his team have said they want to take the core legal strategy in Vergara elsewhere.”
Next article: Stuck in a sickening and sick state in Illinois
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