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After Vergara, activists expect court battles over teacher tenure across the U.S.

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Los Angeles – When a California judge ruled earlier this week that tenure deprives the state’s students of their right to an education, activists prepared for a national legal battle that threatens the power of teachers unions across the country.

In his decision in Vergara v. California, Judge Rolf Treu of Los Angeles Superior Court ruled that the state’s laws governing tenure, seniority and dismissal are unconstitutional. Students Matter, the nonprofit behind the lawsuit, is preparing to bring litigation in several states with teacher-protection laws similar to California’s, according to spokesperson Manny Rivera, but the group is not yet ready to name the states.

The nine plaintiffs, including Beatriz Vergara, who brought suit against the state. This slide, without names, was shown in court.

The nine plaintiffs, including Beatriz Vergara, who brought suit against the state. This slide, without names, was shown in court.

Union representatives are also gearing up for a contentious legal battle, starting with an appeal of Treu’s decision. “From the judge’s comments throughout this trial, we could see he was not particularly amenable to the arguments that we were making,” said California Federation of Teachers president Joshua Pechthalt. “He clearly drank the Kool-Aid of a very powerful corporate law firm that used civil-rights rhetoric to make its argument.”

Students Matter, founded in 2011 by Silicon Valley entrepreneur David Welch, filed the lawsuit on behalf of nine student plaintiffs who claimed bad teachers denied their right to equal access to a quality education under the California Constitution. The case is named after 15-year-old plaintiff Beatriz Vergara. The students’ lawyers argued that teacher protection-laws made it nearly impossible to get rid of “grossly ineffective” teachers who disproportionately teach poor and minority students. Judge Treu agreed that the students’ civil rights had been violated.

“This is a wake up call to states and policymakers,” said Sandi Jacobs, vice president of the National Council on Teacher Quality, a D.C.-based research group that tracks teacher policies.   Jacobs testified for the students in the case.

“The judge was forceful in framing the case as a moral issue,’’ Jacobs said. “Policies that aren’t in students’ best interest can be challenged.”

Eric Lerum, vice president of national policy for StudentsFirst, an education-reform group led by former District of Columbia schools chief Michelle Rhee, expects more cases using civil-rights language to strike down teacher-protection laws.

“This is the first time we’ve heard a court describe personnel policies in terms of the way past courts have described segregation and unequal funding,” Lerum said. “That moves things forward and represents an evolution in case law for schools.”

Such lawsuits will be particularly effective in states whose constitutions, like California’s, contain language establishing the right to a quality education.

StudentsFirst has already researched state constitutions and state teacher-protection laws and Lerum said his organization could be involved in future court fights.

“When we started, we realized litigation may be a strategy,” Lerum said. “I wouldn’t take anything off the table.”

The states to watch, Lerum said, are Minnesota, New Jersey, and Connecticut. Their constitutions make a strong commitment to education for all and have been slow to address their teacher-protection laws.

But it’s still not clear how much the California decision applies to other states. In his decision, Judge Treu cited testimony that California’s teacher-protection laws are anomalous. California is one of only five states where it takes two years or less to earn tenure. Thirty-two states have a three-year trial period, and nine states have four or five years.

“This is a wake up call to states and policymakers,” said Sandi Jacobs, vice president of the National Council on Teacher Quality, a D.C.-based research group that tracks teacher policies. Jacobs testified for the students in the case.

“California’s going to have to get with the rest of the country,” said Lerum. “Teachers will have to earn tenure in four years, and maybe tenure should be based on how they perform. If you have a strong evaluation policy and dismissal process, then we shouldn’t have to settle for having ineffective teachers in the classroom.”

The one rule Lerum expects to be removed altogether is “last in, first out” or LIFO. Under this practice, the last teacher hired is the first teacher fired during budget cuts or when enrollment declines.

“LIFO is the low-hanging fruit,” said Lerum. “It’s common sense. Why lay off a good teacher over a bad one with seniority?”

Union leaders say the court cases have replaced failed ballot initiatives that would have reduced union power. “The courts have become a place that is pretty anti-union and anti-teacher,” Pechthalt said.

The teachers unions say the case focuses on a few bad teachers, when the majority of teachers are doing a good job. Bad teachers should get more training or be counseled to leave the profession, Pechthalt and others say. He argues that the real issue is funding. If the state wants to improve education, it has to provide the schools with adequate resources and smaller class sizes.

“The Vergara trial is another part of the ‘beat upon teachers’ narrative,” said Pechthalt. “Blame teachers for the problems of public education. It’s demoralizing.”

California, which spends $9,202 per student, ranks 13th lowest of the 50 states in per pupil spending, according to a report from the National Education Association for the 2012-2013 school year. Some states, including Massachusetts and Vermont, spend more than double that figure and do a better job of educating their students, Pechthalt said.

“In California, we expect quality education on the cheap, and that doesn’t work,” he said.

The California legislature has to decide which policies should replace current teacher-protection laws. At the same time, the appeals process will play out in the higher courts.

California teachers unions are confident they will win on appeal, which could take as long as two years. “The decision wasn’t terribly detailed, and it ignored an overwhelming number of award-winning superintendents, teachers, and education policy experts who say these laws work well in California in well-run districts with competent administrators,” said Frank Wells, spokesperson for California Federation of Teachers. He hopes an appeals court will agree.

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