June 12, 2014

California Judge Rules “No!” on Tenure: Chalk One Up For The Kids!

by Hal Gershowitz

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It finally happened. Common sense prevailed when Los Angeles Country Superior Court Judge Rolf Treu ruled, in a decision with far reaching implications, that tenure for public school teachers along with the doctrine of “Last in-First out” is unconstitutional.  Judge Treu who enjoys a reputation for being a no-nonsense jurist who is fair, deliberative and very studious with respect to the cases over which he presides, will, no doubt, be accused of being one of those right-wing judges about which the left likes to complain (yes, we think the right also likes to complain about left wing judges).

Already, National Education Association (NEA) President Dennis Van Roekel has ridiculed the ruling calling it deeply “flawed” and portrayed it (no surprise) as little more than an attack on teachers by conservative groups. Shamefully, NEA’s Roekel belittled the suit, playing the left’s class-warfare card, saying, “Let’s be clear: This lawsuit was never about helping students, but is yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education.”

Ironically, the current suit challenging tenure was funded and brought by 9 Los Angeles County public school students backed by Silicon Valley activists, many of whom also support charter schools, renewable energy, gay marriage and many other generally progressive priorities. Just a few years ago, Judge Treu ruled in favor of the American Civil Liberties Union and against the very conservative Judicial Watch in a contentious case involving immigration law enforcement.

Secretary of Education Arne Duncan immediately hailed Judge Treu’s tenure decision, saying “My hope is that today’s decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift…Every state, every school district needs to have that kind of conversation.”

In short, it was a good day for long overdue public-school reform, and a bad day for featherbedding at the expense of students.

Judge Treu leaned heavily on the US Supreme Court’s 1954 rationale in Brown versus the Board of Education that ended school segregation in the United States by driving the proverbial sword between the shoulders of the infamous Separate-but-Equal Doctrine that had prevailed for so long in America.

In a 16-page ruling, Treu struck down three state laws as unconstitutional. The laws grant tenure to teachers after two years, require layoffs by seniority, and call for a complex and lengthy process before a teacher can be fired.  “There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,” Judge Treu wrote, agreeing with the plaintiffs’ claim that the challenged statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students. Judge Treu said the plaintiffs’ equal-protection claims validly stated that the statutes violated their fundamental rights to equality of education.

In California, teachers can become eligible for lifetime tenure in as few as 18 months, and if they haven’t been fired in 24 months they are home free – for life! The short window for hiring and firing a teacher is barely enough time for a school administrator to have completed an initial evaluation of a teacher. Even worse, firing a teacher, can be a decade long procedure with costs running as much as $450,000.  As is true in other states where public-school tenure prevails, teachers are rarely fired.  To add insult to injury, younger, more recently hired teachers are always the first to be fired (last in-first out) in deference to older teachers whenever budget constraints necessitate the paring of staff.

Judge Treu has a reputation for taking time to review the arguments advanced by both sides, and in this case, found the plaintiff’s case far more compelling.  He clearly concluded that the plaintiffs nailed their case, noting that the current system hurts the disadvantaged the most: “Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students, he wrote.”  He went on to opine, “Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.”

Vergara v. California, as the suit will be memorialized, was filed in 2012. The State of California and the California Teachers Association, the state branch of the NEA, were the defendants. California employs an estimated 275,000 active teachers serving 6 million students.

Judge Treu determined that evidence presented in the case, put the number of highly inferior teachers at 2,750 to 8,250, leading him to write in his decision, that this has a “direct, real, appreciable and negative impact” on California students. Los Angeles Unified School District Superintendent John Deasy testified during the trial that it can take over two years on average to fire an incompetent tenured teacher and sometimes as long as 10. The cost of doing so, he said, can run anywhere from $250,000 to $450,000.

Moreover, because of cumbersome dismissal procedures, in 10 years only 91 of California’s teachers, who now number 285,000, have been fired, most for inappropriate conduct. And, the plaintiffs noted, that only 19 were dismissed for unsatisfactory performance.

“With today’s rulings we can rectify a catastrophe,” Deasy added.  He spoke of capitalizing on the Vergara ruling to institute further reforms.

The law was on our side and the evidence was overwhelming,” Marcellus McRae, a trial attorney for the plaintiffs told the Los Angeles Times.  “Whatever happens, we can’t go backward. The time of defending the status quo and business as usual — those days are over. We have to re-create a system that focuses on placing children’s interests at the forefront.”

In practice, tenure rules result in teachers being paid by length of service rather than merit. It is a self-perpetuating system; the longer a teacher holds on, the more he or she will be paid.  Over time, more and more of the budget for education goes to the entrenched and, too often, poorly performing teachers.  There is no semblance of a meritocracy in unionized American education.

As one think-tank observed: “What makes the California lawsuit fascinating is that it employs a classic liberal legal strategy. The plaintiffs show (1) current tenure rules make it nearly impossible for schools to fire chronically ineffective teachers, (2) having a chronically ineffective teacher imposes irreparable harm on a child in the form of lost wages, and (3) chronically ineffective teachers are disproportionately concentrated in schools with high numbers of minorities students. The third point turns the case into an equal protection violation.”

Opponents of reform shy away from even trying to seriously justify tenure, arguing instead that the reform movement is being financed by Silicon Valley millionaires (three cheers for the millionaires). True enough.  But that same ridiculous accusation would also negate such causes as green energy and gay marriage. One outraged defender of tenure argues “these forces are seeking to strip teachers of fundamental protections, using the patronizing argument that children must come first.” Well, an argument that the interests of young students should supersede those of adult employees who are hired to educate them seems, to us, to have considerable merit.

Make no mistake about it; this decision has the pulse of reformers quickening all over the land. “It will encourage reformers and families in other states to file similar suits to end similar laws on the books,” said RiShawn Biddle, editor of the website Dropout Nation. Kara Kerwin, president of the nonprofit Center for Education Reform, agreed, calling it a “monumental affirmation.”

Education reformers have been mounting a spirited fight to force states and school districts to make it easier to fire the worst teachers.  Students Matter, the Silicon Valley group formed to support the case in California developed an ingenious strategy when they shifted the fight from the legislature (over which the teachers’ unions have great clout) into the courts.

Judge Treu in citing Brown v. Board of Education ruled that all students are entitled to equal education, and said the current situation discriminates against minority and low-income students in placing ineffective teachers in their schools.

“This court finds that plaintiffs have met their burden of proof on all issues presented,” he wrote. At another point in the decision he wrote, “there is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms.”

“It’s powerful,” said Theodore Boutrous Jr., the plaintiffs’ attorney who presented the case in court. “It’s a landmark decision that can change the face of education in California and nationally.” Courts around the country will look at their own statutes to see how they can be changed, he said. “This is going to be a huge template for what’s wrong with education. It will impact the national education referendum going on right now.”

Judge Treu cited evidence presented during trial that a single year with a grossly ineffective teacher costs a classroom of students $1.4 million in lifetime earnings.

As anticipated, the California NEA affiliate immediately announced plans to appeal the decision. Judge Treu stayed implementation of the ruling pending appeal.

The California Attorney General’s office was somewhat more circumspect, saying it was reviewing the ruling. Nick Pacilio, a spokesman for Attorney General Kamala Harris, said he could not immediately say if the state would appeal.

We won’t dwell on the mountains of data that tell us how poorly we are doing compared to other industrialized nations.  And we certainly recognize that there are superb public schools in America.  But we can’t afford to take much comfort in the fact that we have great schools here and there in America. Especially when here and there is so frequently confined to areas with high property taxes (high income) which contribute substantially to school budgets.

We have allowed too much of public education in America to become a monument to mediocrity, if not failure.  It seemed hopeless until a group of Los Angeles County public-school students, backed by a group of Silicon Valley innovators who know something about what it will take to succeed in the global information age into which today’s students will, hopefully, graduate, stepped up and filed suit.  Judge Treu’s ruling validated their long and successful struggle.

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2 responses to “California Judge Rules “No!” on Tenure: Chalk One Up For The Kids!”

  1. Judy says:

    Sweet victory!

  2. Albert Silverman says:

    A good beginning for children in California. My hope is this can spread to the colleges and universities.

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