California judge strikes down tenure, layoff laws

Beatriz Vergara testifies in Vergara v. California

California’s laws on teacher tenure, layoffs and dismissal are unconstitutional, a Los Angeles trial judge has ruled. Low-income and minority students don’t have equal access to competent teachers argued Students Matter, which sued on behalf of nine schoolchildren.

The evidence “shocks the conscience,” wrote Superior Court Judge Rolf M. Treu in the Vergara v. California decision. “There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms.”

Enforced will be delayed pending an appeal by the lawsuit’s defendants, the state and California’s two major teachers unions.

Plaintiffs alleged that schools serving poor students have more teachers with less seniority, and therefore are more likely to lose teachers during seniority-based layoffs. As a result, those schools suffer from higher turnover and more inexperienced and ineffective teachers.

The suit also challenged the state requirement that school districts make decisions on tenure after a teacher has had about 18 months on the job — thus denying districts adequate time to determine a teacher’s competence.

Moreover, because of cumbersome dismissal procedures, Students Matter said, in 10 years only 91 of California’s teachers, who now number 285,000, have been fired, most for inappropriate conduct. And, the group noted that only 19 were dismissed for unsatisfactory performance.

The unions called the lawsuit a threat to due process, such as the right to a pre-dismissal hearing, and to protections from arbitrary or unfair administrators.

Union spokesman Fred Glass said, “The millionaires behind this case have successfully diverted attention from the real problems of public education.” That’s a reference to Dave Welch, co-founder of a telecom company, who’s the primary founder of Students Matter.

Education Trust hailed the decision. “The decision will force California to address the reality that our most vulnerable students are less likely to have access to effective teachers.”

U.S. Education Secretary Arne Duncan called the decision a mandate for change.

For students in California and every other state, equal opportunities for learning must include the equal opportunity to be taught by a great teacher. The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students.

He hopes for a “collaborative process” — a deal, not an appeal — to write new laws that “protect students’ rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve.”

Vergara equals victory for kids, writes RiShawn Biddle on Dropout Nation.

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  1. Ann in L.A. says:

    I love this line from the decision, in the LIFO section (pg 14):

    “Distilled to its basics, the State Defendants’/Intervenor’s position requires them 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. The logic of this position is unfathomable and therefore constitutionally unsupportable.”

    • Why do you love it? The judge’s decision, frankly, reflects exceptionally poor reasoning verging on incompetence.

  2. Taking away my rights as a teacher isn’t going to improve schools in those communities. What are they going to do – force us to work at those schools at the point of a gun?

    The best teachers don’t work at those schools because they are shitholes run by tinpot dictators and full of barbarians with no intention of learning.

    • SC Math Teacher says:

      So I guess the district should step in and fire the administrators and start enforcing basic behavior rules. That is, unless, progressive nonsense precludes both. (I know little of LA, but I know that in NYC it is just about impossible to remove “barbarians with no intention of learning”.)

  3. Mike in Texas says:

    Big money buys a decision

    • Uh Mike? The case is titled “Vergara v. California”. I think it likely that California’s got more money to throw at this case then does “Vergera”.

      What’s really sweet is that it’s quite possible that one of the self-righteous defenders of the public education status quo helped the judge to his decision by stating that only about 1% to 3% of California teachers are grossly incompetent.

      The judge, in what must have been a shocking display of arithmetic skill calculated that California’s public education kids are daily subject to the ministrations of 2,750 to 8,250 grossly incompetent teachers.

      I guess the judge thought that was bad.

      But I’m sure you could have explained how that’s no big deal and the judge should just chill and not do anything too crazy.

    • Roger Sweeny says:

      Many “test cases” are paid for by organizations which are trying to change the law. Sometimes these organizations have lots of money. Sometimes history says it was a good thing they won. For example, the NAACP with Brown v. Board of Eduction.

      But money did not “buy” this decision any more than NAACP money “bought” Brown.

  4. So what happens to the old veteran teacher who is maxed out on the pay scale when the district needs to save money? Keep him or fire him and hire a new teacher for about half the price?

    We had a teacher actually be followed by a district admin trying to get him to retire. He was an AP teacher and his scores were 80% pass rate or higher. So I would think he would be deemed effective, but the district still would have wanted him gone to save money.

    And what determines effectiveness? Can’t be state testing because in high school it is only one grade level that takes it now.

    Who would want to be a teacher now?

    • Ann in L.A. says:

      Read the decision. It compares the 18-months=lifetime tenure to other non-teacher firing practices, and declares that the state failed to prove that teachers deserve almost iron-clad job security. They still are entitled to extensive grievance procedures and due process, including access to the courts.:

      From page 12 of the decision:

      State Defendants/Intervenors raise the entirely legitimate issue of due process. However, given the evidence above states, the Dismissal Statues present the issue of über due process. Evidence was presented that classified employees, fully endowed with due process rights guaranteed under Skelly v State Personnel Board (1975) had their discipline cases resolved with much less time and expense than those of teachers. Skelly holds that a position, such as that of a classified or certified employee of a school district, is a property right, and when such employee is threatened with disciplinary action, due process attaches. However, that due process requires a balancing test under Skelly […]

      “Due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority imposing the discipline.”

      Following the hearing of the administrative agency, of course, the employee has the right of a further multi-state appellate review process by the independent courts of this state to assess whether the factual determinations are supported by substantial evidence.

    • At the other side of that story, a young teacher who was awarded “Teacher of the Year” was laid off because she was low-seniority.

  5. anonymous says:

    “Dr” John Deasy’s comment would be funny if it wasn’t for the fact that just a month ago he decided to stop investigating instances of child sexual abuse by teachers in LAUSD.
    LAUSD quietly disbands Miramonte child-abuse investigation panel

  6. Widebody says:

    The Right decries “activist judges” until one finds in their favor.

  7. Miller Smith says:

    In order to get people to be teachers when a very valuable non-monetary benifit has been removed the California school systems will have to offer vastly increased pay in order to get highly effective teachers to teach in the war-zone schools. With the bennies the CA systems could get people of high quality to teach in war-zone schools…guess what chance they have now?
    Teachers should take this as a firing and not show up for school at the beginning of the school year. Not a strike. When contacted they say they have quit. The CA legislature will run to pass a ConAmend to bring back tenure.

    • Miller Smith says:

      “CA systems could [not] get people”

    • Ann in LA says:

      Having to work beside incompetent teachers is also a turn off to many. Part of the reason that teaching is a low-respect career is because there are incompetent teachers with tenure. Their existence at a school makes the other teachers look bad. Good teachers also have to cope with the students of these teachers when they hit their classrooms, far behind the students from the classrooms of better teachers.

      I also worry that the 18 months = lifetime employment attracts the wrong sort of people to the profession–the sort that would gladly work hard for 18 months, until tenure decisions are made, with the prospect of being able to slack off for the rest of their lives. A recent study showed that in some of the country’s largest districts as many as 1/6th of teacher miss 10% or more of the school year to absences.

      From the decision:

      “Why, then, the need for the current tortuous process required by the Dismissal Statutes for teacher dismissals, which have been decried by both plaintiff and defense witnesses? This is particular pertinent in light of the evidence before the Court that teachers themselves do not want grossly ineffective colleagues in the classroom.”

      • palisadesk says:

        Your point that nobody wants to work with the incompetent is well-taken. From the information given, it sounds like California has a very ineffective process for getting rid of incompetent teachers, and THAT is the problem (possibly complicated by lazy or ineffective administrators).

        I’ve seen a few incompetent teachers in my day, and yes, they CAN be fired (“tenure” simply means no firing without due process). The union protects their rights, as some cases may be administrator harassment, but does its best to counsel the teacher out and get him or her to resign voluntarily. This is in fact what happens in the majority of cases: once the wheels of termination are put in motion, the employee usually resigns.

        The advantage to this is that he or she can then get a positive reference for a future (non-teaching) position. Just because a person doesn’t have what it takes to be a good teacher doesn’t mean s/he is a vile human being. If the employee was punctual, met deadlines, worked well with others (etc.), he or she can get a recommendation for those qualities, and that seems fair to me. Most of the incompetent teachers I’ve known have been truly nice people, but lacked the organizational, management and/or observational skills needed. Some were not emotionally or psychologically resilient enough.

        There needs to be an exit door for these people, but I don’t see why it cannot be handled in a discreet, respectful process.

        Another thing, it should be ascertained whether the teacher is assigned to an appropriate position (some districts treat teachers like interchangeable widgets). I can teach severely dyslexic children to read well, but I sure would make an incompetent music teacher. I suspect many problems of “teacher competence” are closely related to administrative mismanagement.

  8. I’ve asked this question before, but never gotten a satisfactory answer:

    What is different about teaching, as compared to other professional jobs, that justifies the idea of tenure?

    I don’t know enough law to know if this particular decision was good or bad, but I’m deeply suspicious of any consequence-free workplace.

    Back in the 1980s, my father was a school administrator and had a dangerous shop teacher (not teaching or following the standard safety precautions with machinery) that he tried to fire for many years. It went on so long that the guy finally retired. How the union bosses could look at themselves in the mirror, I don’t know.

    • Miller Smith says:

      Rob, since teachers were overwhelmingly public employees tenure was instituted to insulate individual teachers and the teaching corps as a whole from the changing winds of political favor. Teachers and civil servant should bnot be subject to political whims.
      Before tenure teacher and professors were fired and hired based on the political party they were in or their religious orientation.
      With the death of tenure you will see a resurgence of political firings and hirings en mass. Teachers in East Tennessee can be fired due to being Democrats and Republicans in NYC won’t even get an interview.

      • Since the solution – tenure – appears to be no better and quite possibly worse then the problem it was meant to solve – teaching as a patronage job – perhaps the entire concept of public education ought to be reexamined?

      • But this was fixed long ago in workplace law. Discrimination of the type you describe is illegal in most states (all fifty?). If a group of teachers of a single political persuasion and no other distinction were fired, they could sue and win. This wasn’t true in the early 1900s, but it is true now. Also, there would be major political backlash if each new school board were to clean house and install all new teachers.

        Discrimination now seems to be in hiring. In higher ed, for example, it’s hard to explain why more than 80% of teachers come from one political party unless some sort of hiring shenanigans are taking place. Here, for example, is a case of this winding its way through the courts today:

        Strangely, this lack of diversity is not identified as one in need of a fix by our academic types.

        • PhillipMarlowe says:

          If you have ever worked for a govt employer (or for a very large private employer), you probably encountered managers who were willing to discharge (or at least harass) perfectly good employees whose only sin was making the manager look (or sometimes even feel) bad by daring to question the manager’s dumb ideas or sometimes by simply doing such a good job that the other employees (or the employer’s suppliers/customers/clients) realized the employee was more valuable than the manager.

          When the employer is the govt (or a very large private employer), there is little, if any, profit incentive motivating a manager. The manager’s own bosses will not know — or care — if the manager discharges (or harasses out) an excellent employee. The manager’s actions causing the discharge/quit of the excellent employee will not result in the govt/employer losing $/customers/clients and, even if it does, it is unlikely that the incompetent manager’s bosses will ever learn about the damage to the employer or that the damage was caused by the incompetent manager’s actions.

          This is why govt employees need due process (or union-contract just-cause) protection against arbitrary/vindictive/unjustified discharge/harassment. The govt/large-employer manager has little/nothing to lose by discharging/harassing a good employee. If that manager is incompetent/insecure or simply wants to give the good employee’s job to the manager’s buddy or brother-in-law, the good employee is toast without some kind of job protection.

          That is the real world. And, that is why federal, state, and local govts have long had civil service rules requiring just cause for discharge. These rules were not adopted to protect the civil servants; rather, they were adopted to protect the public from the inferior govt service that would be provided by the less-qualified employees hired under a spoils system.

          • So the solution to incompetent managers in government is to make it essentially impossible to fire incompetent employees?

            Apparently the judge wasn’t buying that point of view.

  9. PhillipMarlowe says:

    Eliminating tenure/eliminating LIFO will increase, not decrease, the number of incompetent teachers in the low-SES-area schools. Principals — at least competent principals — can discharge incompetent teachers notwithstanding the tenure statute; the principals just have to do their job of identifying poorly-performing teachers in the 1.75 years before the tenure date and/or identifying/documenting poor performance by teachers after the tenure date. Not that hard — that’s what principals are supposed to be doing. If they cannot do it (or will not do it), then the answer is to replace the incompetent/gutless principal, not eliminate the tenure statute.

    Without tenure, incompetent/insecure/vindictive principals will be able to discharge competent teachers who dare to challenge the principal’s dumb ideas/policies and replace them with kiss-up teachers who will praise whatever the principal does. Perhaps more importantly, if the competent teachers know that they can be easily discharged for standing up to an incompetent principal, the competent teachers will keep their heads down and will not speak up — to the principal, to central admin, or to parents — to question the principal’s dumb ideas/policies. And, competent teachers will — if they have the opportunity — leave teaching for another career or, at a minimum, will leave low-SES schools were the low-test-scores will make them easy marks for discharge by incompetent/insecure principals. And, when the competent teachers are discharged or otherwise leave the low-SES schools, where will the school system get competent replacements?

    Bottom line: More incompetent teachers in the low-SES schools.

    • Tell it to the judge.

      Apparently the judge was of the opinion that thousands of grossly incompetent teachers on the payroll was a good enough reason to end tenure and that estimate came from a defendant’s witness. Makes me wonder what the true percentage of grossly incompetent teachers might be but then I’m funny that way.

      Oh, and incompetent/insecure/vindictive principals aren’t a shortcoming of the public education system. They’re an inevitable result.

      School boards and superintendents don’t have to concern themselves with the sorts of schools principals run so they’re free to select principals that have *not* demonstrated the ability to run good schools.

      • Ann in L.A. says:

        Keep in mind that tenure wasn’t eliminated in the ruling, only the extreme tenure of California public schools. The judge saw the combination of tenure-at-18-months rule and the fact that it is almost impossible to fire anyone after that as too extreme. There can still be tenure, and it can still be hard to fire teachers, and it can still require a long due-process procedure to fire a teacher.

        All the judge did was say that California took the tenure protections so far as to endanger the students’ rights to a competent education.

    • Michael E. Lopez says:

      Removing tenure shifts our focus, then, from crappy teachers to crappy principals who don’t fire the crappy teachers.

      That’s probably a good thing. If your school isn’t getting the mission done, then you know whom to blame. Principals can’t throw up their hands anymore and say, “But there’s only so much I can do.”

      This effect flows all the way up, by the way. If you empower principals to actually carry out their jobs in such a way that the performance of their teachers is their responsibility, then you’ve also placed that same accountability on the superintendent/school board, who has the same responsibility for failing to get rid of a principal who isn’t getting the job done.

      But by making the problems at the bottom of the pyramid intractable, what we’ve done is free all the middle-managers of responsibility for the failures of the system.

      Now if only we could get rid of the silly certification laws and let principals pick the people they think best for the job ex ante….

  10. PhillipMarlowe says:

    This decision is wrong for so many reasons.

    – The CA law does not prevent competent administrators from discharging teachers quickly and inexpensively; the horror stories are caused by incompetent administrators who do not know how to identify/document poor performance.

    – The CA law’s 2-year probation period before tenure attaches is reasonable. Any competent/diligent manager can decide in a month — definitely in a year — if an employee is a good hire.

    – Even assuming that the CA law made teacher discharge too hard/slow/expensive, the appropriate remedy would be to strike the aspects of the law that caused the problems, not the entire law. As even the WaPo recognizes, teachers need just-cause/due-process protection from arbitrary discharge.

    – The judge assumes — wrongly and without analysis — that eliminating tenure will increase teacher quality. Absent tenure, principals will be able to discharge teachers who challenge the principal, who make the principal feel insecure, and who are more popular with the parents than the principal is. There are a lot of incompetent/insecure principals out there who will do just that. Perhaps more importantly, if teachers know that the principal can discharge whomever the principal wants to discharge, few — if any — teachers will dare to speak up when central admin or the principal implements a dumb (or even unlawful) policy (like saving $ by mainstreaming LD students who are legally entitled to be in special classes). Good teachers (and good potential teachers) will leave teaching to pursue other careers or will forsake low-SES schools for high-SES schools where low test scores will not put their unprotected jobs at risk. Eliminating tenure will make life worse, not better, for the students in the low-SES schools.

    • Ann in L.A. says:

      “wrongly and without analysis”

      I agree that the decision is poorly presented and lacking in references to prior case law. I’m guessing that the appeal will be successful. It will end up being a shot across the bow, with little damage done to the current system.

      • “A shot across the bow” isn’t the metaphor I’d use to quell fears. Quite the opposite.

        A well noised-around suit like this is liable to generate interest in the legislature which, let’s keep in mind, is the legislature that passed parental trigger. It hardly seems beyond the realm of possibility then that the legislature might decide it’s time to chime in again on the subject of public education.

        • Ann in L.A. says:

          Lawmakers getting involved! Heaven forbid!

          • I know. It’s a sad state of affairs when presumptions of moral superiority aren’t enough to shake the tax tree but we live in a severely diminished age and there’s just no keeping politicians from getting mixed up in politics.

    • – CA law does prevent competent administrators from discharging teachers quickly and inexpensively. The point of civil service law is to prevent the quick, inexpensive discharge of government employees to preclude patronage. Larded on top of that’s all the union steps necessary before discharge can occur.

      – So for two years every new teacher knows they could be fired for good reasons or bad. I’m sure that won’t effect their behavior before the gates of tenure open and it’ll cost between $250,000 and $450,000 and take as long as two years to fire them.

      – No, the appropriate remedy is to alter the public education system so that good teachers are seen as valuable and bad teachers as liabilities.

      – The judge assumes – rightly due to its painful obviousness – that a policy that protects the grossly incompetent is a policy that’s not in the public interest.

  11. By the way…where are they going to find those thousands of “good” teachers willing to go teach in inner city schools to replace those thousands of “bad” teachers they are going to fire?

    • PhillipMarlowe says:

      Well, maybe “Dr” Deasy will do things right when he goes to hire from the Philippines. The last time he tried, in Prince George’s County Maryland, the Human resources office run by his people messed things up and got the county barred from using the H1B visa program.

  12. PhillipMarlowe says:

    The judge seems not to have determined how many of these 1~3% “grossly ineffective” (a number which he did not independently verify) leave teaching on their own accord, jumping before they are pushed.

    • That “1% to 3%” figure came from the defendants’ witness which means the number’s almost certainly higher as common sense would dictate.

      Since the public education system is indifferent to teaching skill it follows that the grossly incompetent are most likely to find a happy home therein. People with some pride are rather less likely to find it a comfortable working environment with a larger then “1% to 3%” population of the grossly incompetent and find employment elsewhere.

  13. PhillipMarlowe says:

    Teach For America Gary Rubinstein examines Professor Kaine’s testimony:
    They should demand that he gives these difference in terms of percentiles and, to put those into more of a context, an approximation for how many questions different that would be on a fifty question multiple choice standardized test. If it amounts to one or two questions, as I believe it would, that would definitely be less likely to shock other Judge’s consciences.

  14. PhillipMarlowe says: