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Could Vergara Happen Here? (Part 1)

June 16, 2014 By Michael Diedrich, Education Fellow

With Judge Rolf Treu of California ruling that state's teacher tenure system unconstitutional, there's been a lot of discussion about what the case might mean in Minnesota and around the country. Today I’ll be taking a look at what exactly the California ruling has to say. Tomorrow, I’ll dig into what it means for Minnesota.

As a refresher, Vergara v. California was brought by nine students, backed in a serious way by Silicon Valley entrepreneur David Welch and Students Matter, the organization he set up for the purpose of this court fight. Students Matter put up the money for a powerful legal team and aggressive PR strategy in support of the case.

At the heart of the case were five state statutes: one [4492.21(b)] about how tenure is granted, three [44934, 44938(b)(1), and 44944] about how to dismiss tenured teachers, and one [44955] about the use of last-in-first-out (LIFO) seniority policies in teacher layoffs. The plaintiffs argued that these statutes, as they are currently written and implemented, violate the California state constitution’s equal protection clause.

Specifically, the California constitution establishes that it is the state’s responsibility to ensure that there are public schools, and it’s equal protection clause holds that the benefits and protections of the law (including those about the constitutionally-required schools) extend to all citizens.

The ruling then establishes that there exist grossly ineffective teachers in California, that the effects of grossly ineffective teachers on students are bad, and that students of color are more likely to be served by grossly ineffective teachers. Some of this comes from market-reformers’ greatest hits (the “bad teachers cost $1.4 million per classroom in lifetime earnings” study, an estimate of how many “months” of learning students lose with bad teachers). Cleverly, though, much of it is based on evidence supplied by the defense (that is, the state agencies/officials and unions intervening on their behalf). For example, one of the witnesses for the defense estimated that roughly 1-3% of California teachers are grossly ineffective. This figure is cited multiple times in the ruling, with an interesting backstory and context recently discussed in Slate.

The jump from the determination that “the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students” to the conclusion that the five tenure-related statutes “impose a real and appreciable impact on students’ fundamental right to equality of education” and “impose a disproportionate burden on poor and minority students” is where some may find issue with the ruling. For example, the ruling gives no consideration to whether states without these laws are any better at removing grossly ineffective teachers.

So let’s see what the ruling says about each of these statutes.

As a general trend, even when finding that the particular statutes are unconstitutional, the ruling does not, in general, ban the granting of tenure, the guarantee of due process for tenured teachers, or even the use of seniority in layoffs.

With respect to the process of granting tenure, the ruling primarily criticizes the current statute’s use of a two-year window for granting tenure, with the tenure decision made by mid-March of a teacher’s second year. (For those who are curious, Minnesota has a three-year tenure requirement. More on that tomorrow.) The ruling cites defense witnesses who agreed that a three- to five-year period would be more appropriate, and notes that 41 states have tenure periods that are three years or more in length. However, the ruling does not find that the granting of tenure is unconstitutional, only that the current statute’s process is.

Similarly, when analyzing due process, the ruling agrees that there is no problem with requiring that tenured teachers be notified that they will be dismissed, be presented with reasons for that dismissal, be able to review the evidence supporting those reasons, and be allowed to respond to those charges, with access to appeals processes at least in the courts. Instead, the particular process currently established in three California statutes is ruled to be too long and expensive (with estimates ranging from two to ten years and $50,000 to $450,000). Presumably, an alternative approach to due process would be constitutional.

Finally, we reach the LIFO discussion. Here, the ruling clearly finds that requiring seniority be the sole factor in layoffs is problematic. However, it does appear that a system that allowed for the use of seniority along with other factors would be permissible. (Minnesota's default system is similar to California's, although some districts have modified their layoff plans.)This is the area where the ruling is at its least flexible, but even so, there is still breathing room for the use of seniority (just not the sole use of it). One does wonder if a more rigorous system of screening for and removing ineffective teachers outside the layoff process would convert this issue to one solely of fairness to workers instead of a quality control mechanism.

Much of the explanation for how these laws impact the number and distribution of grossly ineffective teachers is left either theoretical or implicit, with hypothetical or, in some cases, anecdotal explanations being used to justify the connection. This leap of reasoning will likely be contested in appeals, although it has grounds in historical “disparate impact” rulings that don’t require the direct linkage of specific statutes to specific unequal outcomes.

So what does all this mean for Minnesota? Are we likely to find ourselves on the list of states facing similar lawsuits? I’ll explore this more tomorrow, with a comparison of Minnesota’s constitutional requirements and tenure-related statutes to those in California.


Read Part 2

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  • Joe says:

    June 23, 2014 at 9:48 am

    Here’s to hoping Vegara makes it to Minnesota! I love how the article does not even go near the inequality argument. Are there factors beyond a teacher’s control? Of course. Like everyone in every job. Moving bad teachers to poor schools and giving them more challenging assignments is not anecdotal. It is all but documented policy.

    The difference now is that there are enough new experimental schools that foster ownership and collaboration between administration and instructors (rather than raw protection and circling the wagons mentality) to show there is a better way to handle these situations.

    If the unions spent half as much energy trying to promote the idea that some teachers are better than others- so let’s find ways to share the wealth by helping lesser teachers to learn from better ones and pay accordingly- this whole adversarial confrontation could be avoided.

    But no. They want to be seen as gifted professionals but be treated for employment purposes as unskilled assembly workers. Good teachers (and good people who cannot stomach the current state of teaching) are too important and too needed to keep perpetuating this system.

    • Alec says:

      June 23, 2014 at 10:50 am

      No one is buying your, ” The only way to honor the vast majority of quality tachers is to take away their protection against abuse” line except for the anti-labor oligarchs you speak for. It is laughable for you to speak of equality of opportunity while at the same lauding the test prep factories that eliminate every single opportunity for creative and critical thinking except for what the state tests.  Only in the Orwellian world of corporate reform does taking away rights of all professionals because of a couple bad ones show value for this professionals. Only in the Orwellian world of corporate education reform does removing almost all opportunities for the most vulnerable students, so they can perform well on bubble tests, count as equity. It is seriously gross.

    • Sonja says:

      June 23, 2014 at 8:23 pm

      Joe, I don’t believe you are talking from experience, research, or studies. If you’ve studied on your own, cool.
      First, as you surely know, overall charter schools have been less effective than regular public schools. Charter schools have only recently attained quality close to public schools, but only after many have been put out of business for poor teaching. You would have us believe that the public schools are full of poor teachers, but it’s the charter schools that have had problems. And, the elite private schools score no better, and often worse, than public schools if you compare them by student body characteristics.  (Thus, Blake has about the same number of National Merit Scholars as Eastview, Eagan, or Apple Valley high schools. But in order to duplicate Blake’s student demographics, you’d have to include ALL of Eastview, Eagan, and Apple Valley high school’s National Merit scholars in order to get that income level and educated-parent level.)

      Next—you would insult teachers by claiming that a union is only for unskilled assembly workers. This is where you show complete ignorance of the subject. Teacher’s unions are like the old fashioned employment guilds in Germany. People who read talking points rather than news may not know that teachers take many classes from their unions, and much of the professional development offered by the unions is considerably superior to the private-sector-advertised stuff that superintendents and principals spend mega-bucks for. It is also more targeted to student needs than classes offered at colleges and universities.

      Unfortunately, it is people with attitudes like yours: attitudes that having a union that protects the interests of teachers, the teaching profession, and the students is somehow a cop-out, that makes it less attractive to be a teacher. Who wants to be a teacher when they have to listen to people like Joe spout things without knowledge or research? I suppose you may believe that your ignorance of issues could be pinned on bad teachers? And don’t be cynical. You would be surprised how many school districts would ignore students who have special needs, and also who are gifted, without the constant advocacy of those students’ teachers. We know what is happening. We know when an administrator claims to be spending money on gifted and special needs students when they are really creating a large pool of money that may include those students, but does not necessarily get 100% used for those students.

      I will, of course, instruct my engineer sisters, my uncles who are doctors and lawyers, etc., that their professional organizations that dictate industry standards are ‘merely’ clones for unskilled assembly worker in your opinions. There are electricians’ guilds, plumbers’ unions, University clubs, the AMA, the Bar…  yet you repeat a baseless claim about ‘unskilled assembly’ and you insult those hard working assembly workers while you’re at it. Do you understand how offensive it is for you to dismiss the hard work of manual laborers?  Do you believe we can have a world of 100% managers and no workers? I truly hope you have no direct reports. And remember, students are the ‘direct reports’ of teachers. We treat our students with respect. Do you treat your direct-reports with respect, or just with scorn that they haven’t reached your own level of achievement?