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Could Vergara Happen Here? (Part 2)

June 17, 2014 By Michael Diedrich, Education Fellow

Yesterday, I discussed Vergara v. California in detail. Today, I’ll examine whether a similarly argued case would be successful in Minnesota.

The Vergara ruling found that the California statutes for granting tenure, dismissing teachers, and using seniority in layoffs violated the state constitution and will need to be rewritten (if the ruling survives appeal). The ruling mostly argued that the statutes contribute in some way -- not always made explicit -- to the number and unequal distribution of “grossly ineffective” teachers.

Whether a similar ruling is possible here depends on the similarity of both states’ constitutions and tenure statutes, as well as the broader logic used to connect tenure systems to teacher distribution.

On education and equal protection, California and Minnesota have fairly similar constitutions. Both require a public school system and equal protection for all. While Minnesota’s constitution lacks an explicit equal protection clause, past rulings have found that, “Equal protection is an inherent but unenumerated right found and confirmed in Minnesota's state constitution.”

So, students in Minnesota and California can be assumed to share similar rights to an equitable education. How do the tenure statutes compare?

One major difference between California and Minnesota is the period of time before a teacher can be offered tenure. California requires teachers to be granted tenure after their second year, with the decision made mid-year. This is particularly problematic since California’s induction program for new teachers makes final credentialing recommendations after the end of the second year of teaching. This has produced cases of tenure being given to teachers who wind up uncredentialed, which understandably came under fire in the Vergara ruling.

Minnesota’s tenure process (described in 122A.40, subd. 5 and 6), by contrast, requires teachers to be untenured for three years, during which time they must be evaluated three times a year by administration and participate in a peer review process agreed to by the district and the local union. Minnesota’s system appears to avoid the Vergara ruling’s criticisms.

California’s system of due process for dismissing tenured teachers includes three statutes challenged in the Vergara case. The judge found this trio of rules excessive, although he still found due process rights -- including notification of the proposed termination, explanation of the reasons for it, a copy of the charges and materials being brought, right to respond, and access to an appeals process -- appropriate.

Although it can be difficult to tell from statutory language alone, Minnesota’s process as laid out in 122A.40, subd. 7 and 14, appears simpler. One additional component in Minnesota’s laws that does not appear to have an analogue in the challenged California statutes is the identification of “inefficiency in teaching,” as assessed by an evaluation system, as grounds for termination (122A.40, subd. 9). The language governing evaluation systems also includes the following language [122A.40, subd. 8(12)]: “[The evaluation process] must discipline a teacher for not making adequate progress in the teacher improvement process...that may include a last chance warning, termination, discharge, nonrenewal, transfer to a different position, a leave of absence, or other discipline a school administrator determines is appropriate.”

While it is unclear if the judge would have found Minnesota’s dismissal system too burdensome, at appears at the least to be less burdensome than California’s. It’s also worth noting here that the connection between the legal process for termination and what administrators think is the legal process for termination can be somewhat fuzzy.

When it comes to layoffs, both Minnesota and California statutes rely on seniority as the determinant of layoff order (in Minnesota, that’s 122A.40, subd. 11). However, many Minnesota districts have negotiated alternative layoff plans (including, for example, exceptions for Montessori and bilingual teachers working in those programs). Still, it is likely that the state law as written would be criticized by the logic of the Vergara ruling, which was at its least flexible when discussing seniority with respect to layoffs.

All of which leaves us back at the question: Could Vergara happen here? The short, obvious answer is, “No,” or at least, “Not exactly.” Our statutes, especially with respect to the granting of tenure and the incorporation of an evaluation process, are different enough from California’s that they would seem to escape the majority of the judge’s objections, with the possible exception of the use of seniority in layoffs.

However, this would not keep the same overarching logic from causing trouble in Minnesota. While the Vergara judge found particular reasons to dispute each of the challenged statutes, ultimately his ruling rested on the disparate impact of (a) grossly ineffective teachers existing in the first place, (b) students of color and students from under-resourced backgrounds being more likely to have a grossly ineffective teacher, and (c) the existence of laws governing teacher tenure that could be construed as potentially affecting the number and distribution of grossly ineffective teachers.

Minnesota has already been mentioned as among the states likely to face Vergara-style lawsuits. While our laws, for the most part, escape the particular criticisms of California’s in the Vergara ruling, the reasoning used to connect statutes to outcomes could still be used against Minnesota’s system. We should be ready for the conversation about teacher tenure to grow louder during the next legislative session, if not sooner.

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  • cathy says:

    June 23, 2014 at 9:34 am

    Clearly, something has to change in the tenure system. There are teachers who just shouldn’t be in teaching. We had a 3rd grade teacher who had no patience with the students. She pinched my daughter’s arm until it was black and blue. On another occasion, she told the class to ignore our daughter because the teacher couldn’t hear her when answering a question after raising her hand. This teacher was on LOA at least once a year for “nerves.” When I reported her behavior to the principal and school board, nothing could be done because of “tenure.” She ruined our daughter’s school experience for the rest of her school years. When talking to other parents, this teacher had a long history of this behavior.

    • Alec says:

      June 23, 2014 at 10:53 am

      That is a complete lie. Tenure does not mean teachers cannot be put on improvement plans, disciplined, processed out, or whatever. Either the principal was lying, or this story is not factual. Either way, the statement that nothing could be done to the teacher because of tenure is false.

      • Sonja says:

        June 23, 2014 at 7:37 pm

        Alec is right. I know teachers who have been removed. The principal went through due process. That’s what the union is for—to ensure due process.  In my mother’s day, some teachers were fired because they didn’t sleep with the principal. Without due process, no reason had to be given, which is also as it is now for teachers in their first 3 years of employment. They can be fired without cause or reason.
        Minnesota’s standards for tenure are rigorous. I have taught in urban, suburban, and rural Minnesota districts. Teachers take the three-times-a-year evaluations very seriously. Most tenured teachers still go through evaluations 3 times a year, too.

    • Sonja says:

      June 23, 2014 at 12:49 pm

      Cathy, a black and blue arm is evidence of abuse. A teacher can easily be fired over that. I feel bad for your daughter. I wish you had taken pictures and contacted the police. A teacher doesn’t get to abuse your daughter any more than a stranger gets to.