The VERGARA case

My Take on the Vergara case--Part 1

by Rich Kitchens, 9/3/14

I have been asked by many people about my “take” on the Vergara v. California ruling that purportedly overturned California teacher tenure laws. Some folks think that I can cut through the biases of most of the commentators given my status as a former teacher, union president and union-side negotiator, as well as having been a site administrator and district-side negotiator, and my current job as advocate for both sides (albeit at different times) in my education law practice. Thanks for your confidence.

As a teacher I personally knew the frustration and challenges of struggling in classrooms full of students who made my life and career difficult, have seen administrators who only saw me teach perhaps once or twice during the year in those situations, and have been laid off because I was “Last in, so first out” (LIFO) many times in three different school districts. All I wanted was a stable place to ply my emerging craft, coach some basketball, to develop a career that would span my working life. I found it in my fifth district in five years, where the then-Superintendent told me (“And I’ll deny if you every tell anyone,” he said to me) that while I had been RIFed on March 15, if I wanted a job there the next year I could have it. (Apparently I had unknowingly impressed the kid of a school board member that year.) Some teachers would have to be “moved around,” he said, in order for me to stay at the high school. I told him I don’t care about them, that I’d like to be back. I then stayed another 34 years. It worked out.

In the time there I grew as a teacher and became a strident union negotiator, union President, and in the process learned a lot about the non-public side of the teaching profession. I was in the position—more than a few times—of having to facilitate teacher discipline while upholding their legal rights, in some cases protecting the teacher from over-aggressive administrators, sometimes encouraging my colleagues to change their ways, sometimes encouraging them to seek another profession.

After 30 years as a classroom teacher I moved into administration. While it is still in the education profession, it is an entirely different kind of work, requiring new discipline on my part (my new superintendent said, wryly, “Lose the sarcasm!”), and, of course, seeing things from an entirely new angle. I had negotiated the teacher union contract at the table, and now I was at the table, but from the other side. I met with parents more than with kids…or teachers. Perhaps the biggest frustration was the little time I was allowed—because of all the different balls in the air juggled by a high school Principal—to be in classrooms, working with teachers (and students) to be the “curriculum and education leader” we expect a Principal to be. (That’s the fiction perpetrated on aspiring administrators in graduate-level ed admin programs: that you will be the “educational and curriculum leader of the school.”) The job clearly should be restructured, and schools need more administrators, not less, but that is a topic for a different posting.

As an administrator, however, I would hear incessant complaints from parents about this teacher or that teacher. Almost daily there were parents (or other teachers, too) taking issue about a teacher’s actions, a particular policy, a curriculum program, or an assignment. Groups of parents would combine their energies (sometimes holding semi-secret meetings at night) and formulate small posses to attempt to intimidate administration to take action against a teacher. It was not unusual for parents to lie, deceive, and manipulate to avoid certain teachers, or to gain their student some perceived advantage. In this town’s cocktail party circuit I suspect that there were two main topics of conversation that dominated the social scene: college applications, and the teachers at the high school.

Add to this background my current position as an attorney who focuses on education law. I get many calls each week from teachers around California who are upset about the way they are being treated by their school leaders. Some are in crisis over various allegations or charges made against them. Sometimes it is about the evaluation process. Sometimes they are frustrated about the way they are being treated by their supervisors. I almost always tell them to first speak with their teacher organization. Sometimes they don’t work well with their union rep or don’t trust the union leadership to have their best interests at heart. That’s usually when I get called.

The point of this lengthy trip down memory lane? I guess it is to establish my credibility as someone who has seen it all, from a variety of sides, and can then have some insight into the problems with teacher tenure and the benefits it provides.

The Vergara decision asserted that the LIFO system in California and the two-year tenure track resulted in an unequal education that disproportionately and negatively affected poor kids in California. Let’s get some things straight.

1.    Teaching is hard work and difficult work. Not everyone can do it, and it requires many skills and wisdom to do well, and many of these skills are developed over time and practice. Teachers are underpaid, and until we compensate them commensurate with their skills and abilities, it will be difficult to have enough of them. Even then, more money alone does not a great teacher make. How do you objectively measure and compensate for being “inspirational”? They need much more time than they get now to work together with other teachers to enhance their skills. Today we ask them to innovate more and to develop more in-depth assignments to teach the Common Core. They need support. They are the most important variable relating to what we can do in our schools.

2.    Administrators are overworked and underpaid. Each school needs to double the number of administrators on hand to do even an adequate job given increased expectations of transparency and communication with the community and the importance of supporting teachers and kids. I don’t think we should merely pay administrators more (as Marshall Tuck says), but we absolutely need more boots on the ground. Administrators should spend some time in classrooms each day. Right now that is just not feasible. Since we are encouraging our police to wear cameras on the job, maybe it is time to put cameras in our classrooms.

3.    Teacher evaluation is important. Nobody disputes that quality teaching is the absolute key in-school variable in student learning. We must put effort into identifying key elements of what it means to be a good teacher and how to develop these skills. Evaluation should be a broad-based team effort among more than that sole administrator who gets assigned to evaluate a dozen or more teachers each year. The modern teacher should not be able to say, as many do, “evaluation is not my job; that’s what the administrator is paid for.” They must jump on board of the process, and this will take training, time, money. Anything short of that is pretty much a waste of our resources. One model I have seen is Teacher Evaluation 2.0.

4.    Schools should have flexibility in hiring, firing, and scheduling their employees. Movement on salary schedules should not happen automatically, but rather be based on skill and achievement. The problem, of course, is to decide how to measure achievement. Different sets of kids manifest achievement in different ways and we have not yet figured out how to quantify this. It is clearly not as simple as one assessment (or even a battery) of “objective” examinations. (See: Atlanta.)

5.    The reliance on “seniority” should be changed. Not only in situations regarding teacher layoffs (LIFO), but in scheduling as well. California is one of only 10 states where seniority is the sole factor in determining whether a teacher is kept on when lay-offs occur. But perhaps more insidiously, often what teachers are assigned to teach, which school they are assigned to teach within a district, and their schedule of when they are to teacher are sometimes determined solely by their seniority rather than on the best interests of the student and school. This is indefensible.

6.    It is virtually impossible to get rid of a tenured ineffective teacher. Some districts assign teachers who are under investigation to “teacher jails” (“LAUSD’s teacher jails shut down”) or put them on other “administrative leaves,” often for many years, without being able or willing to terminate them. For a school district, it can cost hundreds of thousands of dollars to walk the “termination gauntlet” because of court decisions and Ed Code statutes that protect teachers’ due process rights. Districts appropriately weigh this potential cost against simply giving the intransigent teacher a schedule that keeps her or him out of harms way. If the teacher cannot be counseled out of teaching, retirement is the only option. But let’s be clear: we are not talking about the abusive teacher who throws a kid to the floor and kicks them. We are talking about those who other teachers might even grade as a “D” or an “F” teacher.

7.    Tenure should be made more difficult. The judge in Vergara said that California is one of only five states that have a tenure period of two years or less. It is not possible to adequately determine—in what amounts to 13 months of teaching (about a year and a half in the classroom) whether a particular teacher should have the protections afforded by tenure. So, principals gamble if they permit that teacher to stay beyond March 15 of their 3nd year. On the other hand, in some cases they won’t gamble and non-re-elect a teacher who might have some promise and could have been worked with and “developed” into a great teacher. So you will likely get a brand new inexperienced teacher the next year and the cycle continues. You just don’t know enough to make these decisions in the time frame the law requires.

All this said, so what about Vergara? The decision striking down all 5 teacher tenure protection laws (LIFO, tenure, and dismal) set off a “socio-political bomb” whose effects will not be felt for a while.  Much has been said in defense of the ruling as well as in opposition. Other suits have arisen, for example, the Wright case in New York and in Kansas on similar issues. The ACLU has just successfully sued the state alleging the state abdicated its obligation to EL students.

To remind us all, the judge in Vergara reasoned that the dismissal statutes prevent firing even “grossly ineffective” teachers whose effect on students “shocks the conscience”; the logic of the “last in, first out” law that prevents job performance from being a factor in layoff decisions is “unfathomable.” Taken as a group, the Ed Code statutes at issue particularly harm the most vulnerable: the poor, minority, non-English-speaking students often clustered in low-performing schools.

What does it mean to provide an “equal education” in California? The right to public education is clearly a fundamental right under the California Constitution. So is an equal access to that education. It is clear also that it is of substantial importance to a person in his or her own life situation.

            Judge Treu’s logic followed that since it is extremely difficult to fire poor teachers, and poor teachers tend to be concentrated in schools with less affluent students, therefore the tenure/senior system unconstitutionally discriminates against poor students. This denies those students an equal access to this fundamental right.

            When a fundamental right—like education—is put at risk, it is viewed under the legal microscope of what is called “strict scrutiny.” This means the burden of proof is shifted to the government to prove that their laws or actions (here, the tenure and seniority laws) serve a compelling interest and that  there is no less restrictive way of achieving the fundamental right of equal education of our students.

The Vergara ruling is now final and put on hold pending the appeals which are to be filed by October 27, 2014. What are its chances of surviving the appellate process? I would expect any Court of Appeal decision to itself be appealed to the California Supreme Court. Some of the issues that I see that could affect the next steps:

1.    Is the poor quality of some schools in California the result of the teacher job security laws (tenure, seniority)?  

First off, how does one go about assessing school quality? Most people adopt the Potter Stewart thinking on a school’s quality: “I can’t define it but I know it when I see it.” Test scores? Is Miramonte High School (API: 932) a school of higher quality than Campolindo High (API: 921)? [Hint: those schools, while close in geography and demographics, will hotly contest the answer to the question.] Football team records? Graduation rates? National Merit Scholars?

I have worked in what I considered excellent schools despite test scores that were lower than other schools nearby. Any readily available metric on school quality is too subjective to me.

So too with the notion of “teacher quality.” My fellow administrators and I once set out to “grade” the teachers on our staff, and we came up with some similarities (mostly on the ones we considered “bad,” but many differences that spoke to our particular lenses.

Even if we could provide an objective grade—which I actually think is attainable if and when we take the evaluation process seriously and put adequate time, effort, and money into it—is the school quality merely the sum of the teachers’ quality? Of course not. School quality also is influenced by the educational background and drive of the student body, which is itself strongly influenced by many outside factors (home situations, the family’s view of education, peer influences, just to name a few). Parental support for schools is huge—as it impacts the student attitude and approach as well as the teachers’ motivation and administrative attentiveness to important details—and the willingness of a community at large to tax itself to overcome school funding shortcomings draws much from this parental support…or lack of support.

How does teacher tenure and seniority rules in California (while more teacher-friendly than in most other states) factor into this shaky equation? I have seen the results in the classroom on our students of what I considered to be a bad teacher. Yet the laws and current reality teacher employment law held the administrator back. I have witnessed school district administrators back away from moving to terminate tenured teachers because “it wasn’t worth the fight.” And, these situations were in what most everyone would call “good schools.” Show me the actual evidence that this is happening more in schools with poorer students and I can go along with the Judge. I have worked in those so-called “poor schools” and I saw lots of hard-working, dedicated, “good” teachers plying the craft, just to not get the results from their students.

So, in the end, I don’t believe that the case was adequately made on the key first point: tenure/seniority laws do not themselves deny equal education to students in poorer schools.

Are they a part of the problem. Perhaps. But I don’t see the evidence of this in the Judge’s decision in Vergara.

2.    Even if this is so, does this constitute a constitutional violation? Is the Vergara decision an example of that kind of “judicial activism” for which judges often get chastised? Should this be the kind of issue that is really political and be left to the legislature to remedy rather than the courts?

Case precedent in California, cited by Judge Treu, seems to allow court intervention. In the Serrano cases of the 1970s, the state Supreme Court entered the school funding fray and attempted to set standards to bring about a measure of equal funding for students across the state. However, that has resulted in a funding scheme for school districts that is ludicrous, complex beyond belief, and is not working to boot. The state Supreme Court, which can and should review its entry into the field of local education funding, might be loathe to give credence to the view that equal education—again, a constitutional mandate here—can be brought about by throwing out the laws which deal with teacher seniority and tenure. They are the product—for better or, as in this case, worse—of legislative wrangling, the political power of the CTA, and a bit of compromise thirty years ago. Such is politics. I predict the state Supreme Court—when it gets the case—punts it back to the legislative process.

3.    Assume a large number (the judge liked the number of at least 8,000) of grossly ineffective teachers. Is this enough to create a “disparate impact” on the providing of “equal education” in California?

I just see the notion of this number—without critical analysis and attribution from the evidence in the decision—to be troubling. I recall that my fellow administrators—in our small school with only about 60 teachers—could not even agree on which teachers were “grossly ineffective,” or the ones we would seek to terminate if we had that power. Truthfully, it could be higher than 8,000, or it could be lower, but the point again is that until we take our evaluation system seriously nobody really knows, certainly not the so-called experts from the university schools of education who testified at the trial. It has to be more than “I know it when I see it.”

            So, bottom line: the case cannot survive the appeals process. But that is years away, and in the meantime, as I said many pages ago, people who care about education in our state:

1.    Let’s pay teachers more and raise their cognitive demand and train both new and experienced teachers to collaborate in their craft and to assist in evaluation of their colleagues.

2.    Let’s hire more administrators, pay them a bit more, and train them to work with teachers on a world class evaluation system, and give them more flexibility in making employment decisions. This would mean eliminating seniority as the basis for laying off teachers. Also we must make tenure more difficult to achieve, but by increasing the time required as well as the ways to achieve it: no collaboration, no tenure.

3.    We must—and the courts could help here, but it is still up to the legislature—allow administrators to really be able to move to terminate unsatisfactory teachers. Right now—as we have seen in the news—teachers have to commit a serious felony (not even a minor felony) to feel at risk of losing their jobs. That level of job security hurts the image of the teacher and it means those unsatisfactory teachers are teaching our kids. That is wrong.