Education Victory in California: Teacher Tenure Ruled Unconstitutional

The court decision sending teachers unions across the country into a tailspin.

ruling with major implications for the rest of the nation, a Los Angeles Superior Court judge has declared that tenure, teacher disciplinary policies and seniority-based job protection as they currently exist in California public schools are unconstitutional. “Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students,” Judge Rolf M. Treu wrote in his ruling. “The evidence is compelling. Indeed, it shocks the conscience.”

Part of the compelling evidence in Vergara v. California was a “massive study” conducted in 2013 by Dr. Raj  Chetty, a William Henry Bloomberg Professor of Economics at Harvard. Treu noted that according to Chetty’s testimony, “a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” Harvard Professor Dr. Thomas Kane, who based a study of his own on Chetty’s groundbreaking work, came to equally damning conclusions. He testified that students in the Los Angeles Unified School District (LAUSD) taught by a teacher whose competency level is in bottom 5 percent “lose 9.54 months of learning in a single year compared to students with average teachers.”

Tenure and disciplinary policy work hand in glove in that regard. Attorneys for the advocacy group Students Matter, who filed the lawsuit on behalf of nine public school students in 2012, successfully argued that teachers protected by tenure laws are virtually impossible to fire, no matter how bad they are. LAUSD Superintendent John Deasy reinforced that reality when he testified that it takes more than two years on average to fire a bad tenured teacher, with some cases taking as long as a decade to resolve. He further noted the costs for doing so can run between $250,000 and $400,000 per teacher.

Plaintiffs also insisted that the state’s tenure system, which grants teachers permanent employment after testifying that a probationary period of "three or even five years” would be far more effective. In his ruling, Treu noted that Berliner estimated as many as 1-3 percent of California teachers are “grossly ineffective.” Since there are approximately 275,000 teachers statewide, 2,750 to 8,250 of them fall into that category. Treu ruled that such a reality has "a direct, real appreciable and negative impact on a significant number of California students now and well into the future for as long as said teachers hold their positions."

Kane’s study revealed that most of those students affected by bad teachers are black and Hispanic. Black students are 43 percent more likely than white students to have a teacher in the bottom 5 percent of competency inflicted upon them, while Hispanic students are 68 percent more likely than whites to endure the same fate. The educational “deficits” arising from such “disparate impact” amount to 1.08 months of schooling lost every year for black students, and 1.55 months of schooling lost every year for Hispanic students, relative to their white counterparts. Kane noted that these disparities occur even when schools do not have predominantly minority student populations.

Kane further testified that the so-called “achievement gap” is exacerbated by this ongoing reality. “Rather than assign them more effective teachers to help close the gap with white students they’re assigned less effective teachers, which results in the gap being slightly wider in the following year,” he explained.

Seniority-based job protection, more familiarly known as “first in, last out,” contributes to the overall problem as well. It is the policy whereby any teacher layoffs are based on seniority rather than the competency of the teachers involved. Superintendent Deasy and former mayor Antonio Villaraigosa spoke out against the practice. So did Treu, who cited the iconic case of Brown v. Board of Education while tying seniority to tenure and discipline policies to reach his decision. “Substantial evidence makes it clear to this Court that the Challenged Statutes disproportionately affect poor and/or minority students,” Treu wrote.

After ruling the statutes unconstitutional, he stayed all injunctive issues until they could be reviewed by an appellate court. He further noted it was the job of the state legislature, not the courts, to replace the current laws with new ones that “pass constitutional muster, thus providing each child in this state with a basically equal opportunity to achieve a quality education.”

Unsurprisingly, the two teachers unions involved in the case plan to appeal the decision. "We don't believe the court is the place to be making these kinds of policy decisions," said Frank Wells, a spokesman for the California Teachers Association who added that the ruling "is not going to help kids in badly managed school districts; it's only going to make things worse. We are confident that we will prevail on appeal,” he added. Joshua Peshtal, President of the California Federation of Teachers, was also upset. “We believe the judge fell victim to the anti-union, anti-teacher rhetoric of one of America’s finest corporate law firms,” he declared. Alex Caputo-Pearl, the president-elect of the Los Angeles teachers union, called the decision "an attack on teachers, which is a socially acceptable way to attack children,” adding that instead of providing for smaller classes or more counselors, “you attack teacher and student rights.”

Attorneys from both sides also voiced their opinions. “This is a monumental day for California’s public education system,” said plaintiff’s attorney Theodore Boutrous. “By striking down these irrational laws, the court has recognized that all students deserve a quality education. Today’s ruling is a victory not only for our nine plaintiffs; it is a victory for students, parents, and teachers across California.” Union lawyer James Finberg insisted the statutes prevent favoritism and politics from determining who is hired and retained, further claiming that three months is all that is necessary for administrator to make a “well-informed decision” regarding whether a probationary teacher should be kept on the job. Other lawyers representing teachers echoed the former sentiment, adding that socio-economic inequalities and school funding are far more important factors in determining the quality of an education.

Parties have 15 days to file objections. The California Attorney General's office was non-committal. "We are reviewing the tentative ruling and consulting with our clients," said Nick Pacilio, spokesman for Attorney General Kamala Harris. A spokesman for Democratic Gov. Jerry Brown declined to comment on the ruling.

Beatriz Vergara, for whom the suit was named, was one of nine students who said they filed the litigation because they were given teachers who lost control of their classrooms, and came to those classrooms unprepared to teach. The students also insisted that on occasion, some teachers told them they’d never amount to anything.

Both sides in this case do agree on one thing: this ruling will reverberate far beyond California. David Welch, a Silicon Valley technology entrepreneur and founder of Students Matter, has indicated his willingness to take on teachers unions in other states, especially states where teachers unions have been powerful enough to thwart legislative efforts to change the status quo. It is a status quo long defined by the symbiotic alliance between the Democratic Party and the teachers unions whose campaign contributions to the party elicit what is arguably the most transparent and despicable jobs-protection racket in the nation. A jobs-protection racket that has consigned millions of students, an increasing percentage of which are inner-city minorities, to decade after decade of sub-par education. It is a sub-par education that unequivocally “shocks the conscience."

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