On February 11 in California Superior Court in Los Angeles, Beatriz Vergara, 15, testified to enduring a string of bad public-school teachers. A sixth-grade math teacher slept in class. A seventh-grade history teacher told Latino students they would “clean houses for a living.” A seventh-grade science teacher called female students “stick figure” and “whore.”
Beatriz, her 16-year-old sister Elizabeth, and seven other students say bad teachers denied their right to equal access to a quality education under the California Constitution. Their case, Vergara v. California, is attempting to overturn teacher-protection laws in the state that the students’ lawyers say make it nearly impossible to fire “grossly ineffective” teachers. The nonprofit Students Matter, which filed the lawsuit on behalf of the plaintiffs, was founded in 2011 by Silicon Valley entrepreneur David Welch.
Both sides in Vergara v. California predict the case will be the first in a long line of lawsuits to hit states over teacher-protection rights, opening a new front in the attack on laws governing tenure, seniority and dismissal. Should Vergara prove victorious, states like California—whose constitution contains language establishing the right to a quality education—will be particularly vulnerable to lawsuits. Even states without such language in their constitutions won’t be off limits to litigation.
“Sometimes litigation is the only route,” says Eric Lerum, vice president of national policy for Students First, an education-reform group led by former District of Columbia schools chief Michelle Rhee. “In states where it looks as though changes are not going to happen through the legislature, you may have to force action.”
Minnesota is one state to watch. Lerum says the state passes a litmus test that makes it a possible target for future court cases. First, its constitution makes a strong commitment to education for all, and second, the state has been slow to address its teacher-protection laws.
Students First gives Minnesota a D for its education policies. The state, according to the organization’s “policy report card,” relies too much on seniority, as opposed to classroom performance, when making decisions about teachers. Seniority factors into pay, dismissals, and placement of teachers.
Lerum isn’t the only one analyzing the lawsuit landscape. According to Sandi Jacobs, vice president of the National Council on Teacher Quality (NCTQ), a D.C.-based research group that tracks teacher policies, it’s likely there are groups across the country working behind the scenes to build cases challenging teacher tenure laws.
Jacobs, who testified for the plaintiffs in Vergara, expects to see litigation over the seniority practice of LIFO, or “last-in, first-out.” Under this practice, the last teacher hired is the first fired in bad economic times or when student enrollment declines. Jacobs says many states, not just Minnesota, have work to do in ensuring that it’s the best teachers, not just the most senior, who remain in classrooms.
“Performance should be what matters most,” says Jacobs. “We should make sure we are not laying off effective teachers if there are ineffective teachers we could be laying off. Basing decisions solely on seniority without any consideration of teacher performance isn’t putting students’ needs first.”
Only 18 states require districts to include performance as a factor in layoff decisions, according to a recent NCTQ report. Ripe for litigation are 10 states where seniority must be factored into layoff decisions—Hawaii, Kentucky, Minnesota, New Jersey, New York, Oregon, Pennsylvania, West Virginia, Wisconsin and California, which has now become the test case.
At stake in California: a tenure system that grants teachers permanent status after 18 months, a layoff system based mainly on seniority, and a sometimes slow, costly system for dismissing teachers.
The two California teachers unions defend teacher-protection laws, created in the early twentieth century to prevent teachers from arbitrary dismissal. The plaintiffs’ lawyers contend that teachers no longer need these special protections because state and federal laws now protect all workers from discrimination and unfair dismissal.
The reliance on courts to declare teacher-protection laws unconstitutional is necessary, say the students’ lawyers. They argue the legislative process takes too long, while children in public schools—the poorest of whom disproportionately have the least experienced, most ineffective teachers—suffer.
“The problem would never be remedied if it were left to the California legislature,” says Marcellus McRae, one of the plaintiffs’ lawyers in the Vergara case. “Its track record hasn’t been great. How long are public-school kids supposed to wait for the legislative process to decide they can have their constitutional rights?”
Defendants in the case, the two California teachers unions, say the case is an attempt to knock down the teacher protections that rich entrepreneurs see as obstacles in their goal to run schools more like businesses.
“Millionaires see this as a war on teachers,” says Joshua Pechthalt, president of the California Federation of Teachers. “They want to use the idea of market forces to make teachers compete with each other. They think competition and the incentive of merit pay will make teachers better. But that’s not how it works.”
Business-minded reformers have argued that teachers who fail to bring their students to grade level, as evidenced by test scores, should be let go. Teacher-protection laws—which have been challenged with mixed results in state legislatures, on school boards and through ballot initiatives—are seen as an impediment to holding teachers accountable for student learning.
The reformers are aiming to lengthen the probation period before a teacher earns tenure, to link teacher evaluations to student test-scores, to institute merit pay, and to streamline the teacher dismissal process. Teachers unions in most states have used their considerable power to block such measures.
“The union’s approach is to treat all teachers the same,” says Lerum of Students First. “That’s a principle of unionism and solidarity. But we can’t do that anymore. There are students who need teachers with even higher skills and who have a far greater impact on students than other teachers.”
If the current set of reformers truly wanted to protect students’ civil rights, says Pechthalt of the California Federation of Teachers, they would support initiatives like Proposition 30, which taxes wealthy California residents to raise money for public schools.
“This trial is not about equity,” says Linda Darling-Hammond, a professor of education at Stanford University who testified for the defense. “It’s hard to argue that teacher-protection laws are the reason we have a big achievement gap. We have a big achievement gap because we have a big opportunity gap, which has been caused by a big funding gap.”
Darling-Hammond argues that if those behind the case were really concerned about equity, they would take on unequal school funding, especially given that some school districts in California were receiving four times as much funding as other districts—until a new law, passed last year, increased funding for districts with high-needs students. California’s per-pupil spending has traditionally ranked near the bottom nationally.
McRae admits that teacher protections are not the only problem in schools. Unequal funding, poverty, and myriad other problems play into the quality of a child’s education. “This case just happens to have a scalpel on one of those problems. It doesn’t mean we don’t stand with you in saying it would be great to address all the problems.”