Are Lawsuits Ending or Mending Teacher Tenure?

Last month Los Angeles Superior Court Judge Rolf M. Treu handed down a landmark decision in Vergara v. California. A group of student plaintiffs supported by a Silicon Valley entrepreneur argued that state tenure laws violated the State Constitution, kept bad teachers on the job, and deprived them of a quality education.

A similar lawsuit is making its way through the State Supreme Court in New York and other state courts across the country, according to the New York Times:

Challenges to teacher tenure laws are moving to the courts since efforts in state legislatures have repeatedly been turned back. Critics of the existing rules say tenure essentially guarantees teachers a job for life. According to the New York suit, only 12 teachers in New York City were fired for poor performance from 1997 to 2007 because of a legally guaranteed hearing process that frequently consumes years and hundreds of thousands of dollars in legal fees. …

In New York, teachers can earn tenure after a three-year probationary period, which city school officials can extend for another year, and often do. That represents one big difference with California, where teachers can win tenure after 18 months, and even before being certified.

Larry Sand, a retired teacher and president of the California Teachers Empowerment Network explains that even if an anticipated Vergara appeal by the California Teachers Association fails, a new law will have to replace the stricken one. One may already be in the works based on a pending Los Angeles legal settlement, Reed v. the State of California. Seniority-based teacher layoffs, also referred to as last-in, first-out or LIFO, disproportionately affected teachers in 45 of LA’s poorest schools, since the newest teachers are often assigned to schools where more experienced teachers don’t want to work (a longstanding teacher union practice).

After years of wrangling between the local United Teachers of Los Angeles union and the ACLU, who sued on behalf of students, both sides reached a settlement that awards about $25 million annually to affected schools for three years to pay for more administrators, teacher training, and mentor teachers; however, the LIFO issue was never addressed. Reps from both sides applauded the decision, but as Sand notes in his latest City Journal article:

…the agreement never mentions the words “seniority” or “last in/first out.”

What boosters of the Reed settlement can’t explain is how adding administrators to underperforming schools would help retain good teachers. In L.A. Unified, administrators are “at-will” employees, but they’re treated like unionized teachers, and they’re almost never fired for incompetence. …

“What these 37 schools need urgently is stability in teacher staffs, and this settlement is tailored to achieve that result,” Mark Rosenbaum, the ACLU’s chief counsel in Southern California, told me in an e-mail. “And should budget-based layoffs have to take place in the future, then it will be a no-brainer under current law that the teachers who have been specially trained and taught on these campuses will keep their jobs, no matter their years of seniority.” Rosenbaum is alluding to a part of the education code stipulating that, if a teacher has “special training and experience,” seniority can be waived. This exemption prioritizes teacher credentials, elevating an “input” (training) over an “output” (effectiveness in the classroom). Should layoffs be necessary, schools need to hold on to their best teachers, regardless of whether they have “special training.”

Sand speculates that given the prevailing political climate, a new California seniority law will like be “LIFO lite,” requiring additional teacher training as an alternative to dismissal. He’s right that hiring and firing of teachers should be based on outputs such as teachers’ demonstrated contribution to improved student learning, not more inputs such as time served, training, or additional credentials—none of which have a demonstrated positive impact on improved student achievement. Sand predicts:

Most likely, the legislature would craft a one-size-fits-all state law making small changes to the current system, satisfying the minimum requirements of Vergara and leaving the problem of seniority largely unsolved. Until California has a system that evaluates teachers on how well their students learn, the state’s public education will suffer.

And, until California parents start demanding the right to choose their children’s education providers no matter where they happen to live, don’t expect Sacramento politicians to enact any teacher quality requirements that would benefit students instead of teacher union members.