The teacher tenure, seniority and dismissal laws that the nonprofit organization Students Matter wants a judge to overturn are essential to create a “professional, stable workforce” and attract teachers into a profession with low pay and difficult conditions, a state deputy attorney general said Monday at the start of the much-anticipated Vergara v State of California trial.
“Eliminating due process and job security could bring about unintended consequences when California is embarking on innovative efforts,” like the Local Control Funding Formula, to improve public schools, Deputy Attorney General Nimrod Elias told Los Angeles County Superior Court Judge Rolf Treu. The proceedings were streamed over the Internet by the Courtroom View Network.
Deasy on the stand
As the trial’s opening witness, Los Angeles Unified Superintendent John Deasy sharply criticized the state’s dismissal laws for costing hundreds of thousands and sometimes millions of dollars to fire a bad teacher. The tenure law, he said, preempts the district’s ability to accurately predict whether a probationary teacher would be effective years later.
“There is no way this is sufficient time to make an incredibly important judgment,” he said, on the future impact of a teacher who will be in front of students on average 25 years.
Deasy has been a frequent critic of the five laws being challenged in Vergara v State of California. Two years ago, he sided with plaintiffs in a lawsuit challenging the district’s failure to include student test scores in teacher evaluations. He’ll be back on Tuesday to finish testimony and face what’s expected to be a sharp cross-examination.
California has one of the nation’s shortest probationary periods, during which teachers can be let go without cause, after which they automatically gain permanent status with due process rights. While probation by statute can last for up to two years, plaintiffs in Vergara assert, and Deasy confirmed, that district recommendations on granting tenure must be made by January of the second year, after only 16 months of observing and supporting a new teacher. This affords consideration of only one year of student test results and little time to determine whether a teacher is showing great potential for growth, he said. Complicating this further, he said, a new teacher may be assigned to teach kindergarten the first year and fourth grade the second, or high school algebra one year and geometry the next.
In the years preceding Deasy’s superintendency, nearly all probationary teachers were granted tenure in Los Angeles Unified; that percentage is now about 50 percent, he said. Dismissal actions have increased more than tenfold per year. Defense attorneys are expected to seize on those statistics as evidence that the tenure and dismissal statutes are not defective, whatever problems are attributable to administering them.
But Deasy testified that, due to the short probationary period, the district cannot avoid hiring teachers who prove to be ineffective.
Because of the costs and burdens that statutes impose, he said, the district is also unable to dismiss all ineffective tenured teachers. Costs include not only lawyers’ fees but time that school administrators spend away from school testifying. The burdens are the effort and documentation required after remediation has failed, he said. Because the process involves “lots and lots of lawyers” who will question every document, principals must build an “overwhelming” case – beyond the legal standard of a “preponderance of evidence.”
“I’ve had principals say they would think twice before going through the process again,” Deasy said.
In the lawsuit, nine students from Los Angeles Unified, Oakland Unified and three other districts are challenging longstanding legal protections that their attorneys say lead to hiring and keeping “grossly ineffective teachers.” The suit aims at five laws that the plaintiffs say interfere with districts’ ability to make effective decisions: statutes granting tenure or permanent status to probationary teachers after two years, mandating teacher layoffs based on years on the job and setting up a complex dismissal process that turns over appeals to an independent panel. Because disproportionate numbers of bad teachers end up teaching poor and minority children, the lawsuit says, the laws violate the state Constitution’s guarantee to all children of the opportunity for an equal education and should be thrown out.
Four hours of opening statements Monday revealed little common ground, with attorneys for the plaintiffs and for the defense agreeing only that, by the nature of a bell curve, some teachers will be more effective than others. There was no agreement, however, on how to identify those teachers; whether any of the nine plaintiffs actually had the worst teachers; whether the laws or bad managers led to hiring and retaining ineffective teachers; and whether the plaintiffs have overstated teachers’ impact on children, compared with factors like poverty and crowded classrooms.
“We are not saying we have all the answers,” said plaintiffs’ attorney Ted Boutrous. “We are not saying there are not other problems (in schools). We are not asking the court to create an evaluation system. We are not attempting to scapegoat teachers for racism and poverty.”
But, he said, the combination of the laws establishing tenure, ensuring layoffs primarily by seniority and creating an “arduous,” expensive dismissal process together “create a vicious cycle to harm students every day.” They “shackle” superintendents and principals from making the best employment decisions, and the results “scar students for years and sometimes for life.”
In response, defense attorneys said there was evidence linking the statutes and assignment of ineffective teachers to schools with the neediest students. They disputed the use of student test scores alone, through a “flawed” methodology called Valued Added Measures or VAM, to identify grossly ineffective teachers. And they said there was no evidence that the nine student plaintiffs had grossly ineffective teachers.
The students, some of whom are now high school students, are expected to appear as witnesses. Beatriz Vergara, for whom the lawsuit is named, will testify that her Los Angeles Unified teachers fell asleep in class and called her fellow Hispanic students the derogatory gang term “chollo.”
But the defense will call to the stand teachers whom the plaintiffs identified as ineffective to refute those characterizations. One of those teachers, Christine McLaughlin, a seventh grade English teacher at Pasadena Unified, was selected teacher of the year in Los Angeles County last year. Defense attorney James Finberg, representing the California Teachers Association and California Federation of Teachers, played video testimonial in which students praised her as an inspiring and caring teacher.
Deputy Attorney General Elias acknowledged that some high-poverty schools do have problems retaining teachers, who move to other schools when they can. But these schools are often “in dangerous areas with difficult working conditions” and a small applicant pool. Throwing out these laws “is not going to break that cycle,” he said. “There is no evidence that the laws force districts” to assign teachers to these schools.
The trial, expected to last at least a month, will pit dueling experts. Those for the plaintiffs will include Raj Chetty, a professor of economics at Harvard, whom Boutrous said will present research showing that grossly ineffective teachers – roughly 5 to 10 percent of teachers – create “irreparable harm” for students. Poor teachers lower students’ odds of graduating and getting into a good college, and raise the odds that students will become pregnant, and, over a lifetime, earn less money and save less for retirement, Boutrous said the research will show. Extensive research of more than a million Los Angeles Unified students over seven years by Harvard School of Education Professor Thomas Kane will establish the loss of a half-year learning for students in a classroom with a grossly ineffective teacher, as measured by test scores, Boutrous said. And that loss compounds for every additional ineffective teacher a students is afflicted with, he said.
But the blame is not the laws but how they’re enforced, Finberg said. Most districts effectively dismiss teachers and make wise decisions in hiring them.
“Good district management is needed for well-run schools,” he said.
Summary of the arguments
In their opening statements, attorneys outlined the evidence they will present on the laws in question in coming weeks.
In California, probationary teachers are at-will employees who can be fired without cause but who are entitled to permanent status or tenure, with due process protections, after two years.
Plaintiffs: California is an “outlier,” one of only a handful of states with such a short probationary period, said Boutrous. To bring a recommendation of tenure to the school board and meet legal notification requirements, the decision on whether to give tenure must be made by January of the second year, after only 16 months on the job. Such a short time leads to hurried judgments and mistakes.
Defense: Administrators largely agree that they have more than enough time to identify grossly ineffective teachers, “the worst of the worst,” said Elias. “They will testify that they will err on the side of caution,” denying permanent status “if they have any doubts about it.”
Plaintiffs: California has “a broken system,” Boutrous said, with a “byzantine series of hurdles” leading to a right of appeal before a three-person panel that takes control of employment decisions away from districts. Superintendents will testify that they lack the resources to go through the arduous process of firing grossly ineffective teachers, he said. Instead, they adopt workarounds: they pay off teachers through settlements; transfer them to other schools, where they become another principal’s problem; or send them to “rubber rooms,” where they are paid not to teach. Even 62 percent of teachers surveyed agreed that students would be better off if ineffective teachers were dismissed, according to economist Eric Hanushek, who will testify.
Defense: Tenure is not a guaranteed job for life, said Finberg, representing the teachers unions. Due-process protections insure that districts’ decisions will not be made arbitrarily, and protect teachers from cronyism, favoritism or punishments for teaching content, such as evolution, that some school board members don’t like. The small number of formal dismissals is deceiving. In 80 percent of the 530 dismissal actions filed between 2008-12, teachers reached a settlement or abandoned the challenge. And in most cases that go the full route, the districts have won, said Elias.
Layoffs by seniority
State law protects veteran teachers, although there are exceptions for less experienced teachers who have specialized training and who teach areas where teachers are in short supply, such as special education and high school science.
Plaintiffs: The “last in, first out” statute creates “an irrational system, firing some of the brightest and most enthusiastic teachers while retaining” the worst, Boutrous said. As was proven in the Reed case in Los Angeles Unified, the LIFO statute has decimated the staff at low-income schools schools where newer teachers were disproportionately assigned. A study by an expert witness, Daniel Goldhaber, a research professor at the University of Washington, found that only 16 percent of teachers laid off by seniority would be laid off based on an effectiveness-based system, Boutrous said.
Defense: There is a positive correlation between experience and effectiveness and so “in the aggregate,” more effective teachers are retained than laid off through seniority. And reductions in force should have nothing to do with teacher performance. It is not intended to be “a safety net for districts that have not dealt with ineffective teachers,” said Elias. Without this seniority protection, districts will let go their more expensive teachers, he said.
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