CommonWealth Magazine: Opinion: California Tenure Case a Win for Students
June 13, 2014
By Liam Kerr
ON TUESDAY, TEACHERS unions and education reformers clashed yet again in newspaper headlines around the country. Randi Weingarten of the American Federation of Teachers called it a “sad day for public education,” while the Los Angeles Times trumpeted an “opportunity to change a broken system.”
The rhetorical appeals were familiar, but the context was not: The subject wasn’t a piece of legislation, a rally outside a state house, a super PAC-fueled election, or a series of backroom dealings with lobbyists. Instead, a milestone in progressive education reform took place in the calm of a courtroom. Nine California students faced the State of California and its two biggest teachers unions, each presenting their facts before an impartial judge. Los Angeles County Superior Court Judge Rolf Treu ruled that California’s teacher tenure laws were violating students’ civil rights by denying them equal access to a quality education—the state’s paramount interest in the realm of education. The decision launched national media frenzy, but the ruling was straightforward: A judge upheld the property rights – and workers’ rights – of teachers, but determined that the pendulum had swung too far away from the civil rights of California students.
Vergara v. California was brought by a group of nine public school students who claimed that five state statutes related to teacher tenure violated their rights under the California constitution. By that system, teachers were awarded tenure after only 16 months on the job, the process to dismiss “grossly ineffective” teachers was inordinately costly and time-consuming, and district-wide layoff decisions were based solely on seniority.
The Court found that each of these statutes violated students’ civil rights by adversely affecting the education of California students, especially for low-income and minority students. By ruling the statutes unconstitutional, Vergara does not forbid or eliminate tenure altogether; on the contrary, it holds that tenure and due process are fundamental safeguards to a teacher’s property rights to his or her position. Currently, districts decided whether or not a teacher would be awarded tenure in March of his or her second year of teaching. Curiously, teachers were certified in May of that year—meaning that teachers received tenure before being certified. The result was that districts were sometimes saddled with tenured, but uncertified, teachers after a woefully short timeframe to evaluate performance. Most states, including Massachusetts, afford 3-5 years before making tenure decisions. In striking down the policy, the court both affirmed the importance of tenure and urged a better policy.
The court completely rejected California’s “Last In, First Out” (LIFO) policy. Under LIFO, districts must base staffing decisions—whether on hiring or laying teachers off—on seniority alone. The most junior teachers must always be the first to go, even when those junior teachers are more effective. As the court found, this policy is especially damaging to low-income and minority students. The court also ruled that California’s system of protections for tenured teachers whom districts wish to dismiss constitutes not just due process, but “über due process” (original emphasis)—not merely protecting educators’ rights, but keeping “grossly ineffective teachers” in the classroom. Again, the court found that these teachers tend to be placed in classrooms with high numbers of low-income and minority students. The court therefore voided this statute, urging the state to come up with a new, more practical due process policy.
Vergara is, at its heart, a progressive victory in a civil rights case, an evolutionary step toward ensuring the same basic rights guaranteed in the state constitution. Two significant previous cases ensured districts serving poor and minority students in California would receive more: the 1971 case Serrano v. Priest guaranteed more money, and, in 1992, Butt v. California guaranteed more instructional time.
Vergara takes the next logical step, from “more” to “better.” Yes, underserved students need adequate funding and time in school. But the ruling showed that the future of educational equity court cases will not be quality-blind.
While Vergara affirms the paramount importance of children’s civil rights, it does not abandon teachers’ property rights. Educational systems, posits the court, have one overriding priority—they must offer all public students the best education possible, and they must do so equally. This idea is paradigmatically progressive—it hopes to better society by using public resources to close opportunity gaps. Any policy that disparately impacts the education a child receives based on that child’s social status is not only regressive, but also “shocks the conscience,” wrote Judge Treu. The state has an interest in protecting teachers’ rights, but its overriding interest is providing a good education to all of its students. Lengthening the period of time before granting tenure, streamlining the process for dismissal of teachers, and getting rid of LIFO all can serve both students and their teachers.
The verdict is also a winner in the court of public opinion. Even the rank and file in California’s teachers unions acknowledge the basic problem, with 65 percent agreeing that ineffective teachers were “unlikely to be dismissed for unsatisfactory performance.” An objective, non-ideological viewing of the facts leads most voters to side against teachers on these issues. As such, union responses – from the national American Federation of Teachers and National Education Association to chapters throughout the country, including Massachusetts – did not defend the specific policies at issue in the case. The focus was on an abstract bogeyman from the 1 percent, or vague allusions to due process. The tactic was summarized by former Clinton education advisor Andy Rotherham, who cited a legal maxim that “if you have the law on your side argue the law, if you don’t have the law argue the facts, and if you don’t have either then pound the table.”
The impact of this ruling is still far from the classroom-Vergara will certainly be appealed, and implementation still depends on quality management. But the ruling reverberated across the country because, like the civil rights litigation that preceded it, a legal focus on access to quality education has the potential to spread quickly.
While it may not reach Massachusetts, civil rights litigation has changed the Commonwealth’s education landscape before. The school finance-focused McDuffy v. Secretary of the Executive Office of Education, first filed in 1978, articulated specific rights for all students served as an impetus for the 1993 Education Reform Act that brought reform along with billions of dollars in additional state aid.
Vergara relied on expert testimony from a new generation of research beyond the most basic inputs of time and money. It also proved that in the quiet of a courtroom, there are no sacred cows. Massachusetts courts have already affirmed that the Constitution of the Commonwealth requires the Legislature to ensure equal opportunities throughout Massachusetts. Some will pound the table. But the law and the facts are now clearly on the side of reform.
Liam Kerr is Massachusetts state director of Democrats for Education Reform.
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