Last Updated: June 27, 2014
This article appeared in the June 2014 Rural Policy Matters.
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The ruling in the California lawsuit that challenged teacher tenure has garnered massive media attention this month, most of it — on both sides — declaring the imminent end of or mortal threat to job protections for public school teachers.
That declaration is not exactly the ruling. But the fact that it the near totality of the media spin, reveals a lot about the politics of teacher policy.
Vergara v. California challenged several aspects of the state’s teacher employment laws. In his opinion, Judge Rolf Treu accepted testimony that a single year with a grossly ineffective teacher had huge costs to students both in terms of learning loss and lifetime earnings. He also accepted testimony that dismissing ineffective teachers in California requires excessive costs and time.
But the ruling itself is rather narrow, and Treu stayed its implementation until the appeals process has been completed. Specifically, Treu ruled that California’s practice of awarding tenure after two successful years on the job is too soon; that its procedures for dismissing teachers too complex; and that its last-in-first-out (LIFO) rules during teacher layoffs insufficiently weigh other factors.
However, the ruling does not abolish tenure; it finds that more time is needed before it should be awarded. In particular, Treu notes that the timing of several aspects of the current tenure-granting decision process essentially force the decision well before the end of the second year of teacing and the completion of the state's two year induction program.
Neither does the ruling do away with job protections; it clearly endorses due process and affirms California’s laws ensuring due process for public employees. Treu writes: "There is no question that teachers should be afforded reasonable due process wen their dismissals are sought. However, based on the evidence before this Court, it finds the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory."
Finally, the ruling does not end seniority as a factor in layoff decisions. Rrather it finds that the statute "contains no exception or waiver based on teacher effectiveness" and that other factors should also be considered.
The legislature could address all of these issues, protect tenure for the state’s teachers, and render appeals of the ruling moot.
An equity argument
The constitutional challenge brought by Vergara relates to the state’s equity clause. On behalf of nine students, lawyers argued that the challenged aspects of teacher employment law has a disproportionate impact on low-income and minority students.
A number of state education clauses include an equity provision that guarantees relatively similar educational opportunity for all students. Many education finance lawsuits, often brought by rural plaintiffs, have argued that state funding systems fail to provide enough money to enable rural districts to offer equitable opportunities to their students.
Teacher equity has played a part in several rural finance cases. In both Arkansas and Tennessee, plaintiffs argued that underfunding contributed to low rural teacher salaries and made it more difficult for rural districts to recruit and retain teachers.
Vergara, however, does not make a finance argument. Instead, it claims the challenged provisions "result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominately low-income and minority students," thus violating the state's equal protection clause.
In support of the ruling, Treu quotes a 2007 report from the California Department of Education. "Unfortunately, the most vulnerable students, those attending high-poverty, low-performing schools, are thus far more likely than their wealtheir peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators. Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequalities."
Treu finds that "churning" of teachers caused by lack of effective dismissal statutes and LIFO layoff rules "affect high-poverty and minority students disproportionately."
Many studies have found that schools with high proportions of low-income and minority students are more likely than other schools to have teachers who are inexperienced or teaching out of their field of certification. Studies have also demonstrated that these schools typically have higher rates of teacher turnover, with higher proportions of teachers leaving the profession altogether or moving to more affluent schools with higher salaries and easier working conditions.
There is also evidence that more experienced teachers tend to be assigned within schools and districts to higher level/higher performing classrooms.
Treu did not cite, one way or the other, evidence about the distribution of tenured California teachers among high and low-poverty schools and classrooms. Nor did he mention other factors affecting teacher placement, things like district assignment policies and parental advocacy that influence where teachers known to be effective actually work.
Parsing the politics
In recent years a number of states, most of which have Republican-controlled legislatures, have enacted measures to scale back tenure for teachers. Florida ended tenure for all newly hired teachers in 2011. Kansas significantly curtailed teacher employment protections and the Idaho legislature, in 2011, abolished tenure. Last year the North Carolina legislature passed a law revoking tenure for all teachers by 2018.
Other states have made it harder to earn tenure or easier to lose it, usually by extending the time it takes to receive the status and/or tying tenure to student test scores.
Student testing, a major component of the Bush administration's No Child Left Behind law (which remains federal education law) received a boost from the Obama administration through its efforts to push states to link teacher evaluations to student test scores. The policy assumption has been that student tests are an adequate measure of teachers.
But idea that student test scores indicate teacher quality has been challenged on a number of fronts. The American Statistical Association issued a statement on the matter urging caution and noting that most testing-based teacher evaluation models measure correlation rather than causation and that "teachers account for about 1% to 14% of the variability in test scores." Strong evidence suggests that out-of-school family and community factors like income level and family educational background have much stronger effects on student test scores.
Yet this policy backdrop — student test scores determine teacher evaluations — looms large in the aftermath of Vergara, even though the ruling itself does not specifically address testing.
As with testing, public opinion about tenure does not fall neatly along party lines. A public referendum in 2012 in heavily Republican Idaho restored tenure right to teachers, and North Carolina's provisions removing tenure from teachers who had already earned it were ruled an unconstitutional taking of a property right. A move in Alaska to extend the time it takes for teachers to earn tenure was resisted, with strong influence from rural Alaskans concerned such a move would make it harder for rural schools to attract and keep teachers.
Some of the most significant alignments in reaction to the Vergara ruling are in how reactions match other aspects of “school reform,” a phrase that has increasingly come to connote school choice, charter school expansion, privatization, test-based teacher evaluations, and elimination of job protections for teachers.
Notable reformers and reform groups have lauded the decision while teacher organizations and public sector interests have tended to label it as an assault on public education and on employees who need protections from the political whims of supervisors and politicians to do their work well.
Vergara was brought by the non-profit Students Matter, which has gotten much publicity because of its founding by Silicon Valley multi-millionaire Dave Welch. The organization defines its mission as “sponsoring impact litigation to promote access to quality public education.”
Students Matter has also attracted attention for Vergara's high profile lawyers, Theodore Boudrous and Theodore Olson. Boudrous represented George W. Bush before the Supreme Court in the Florida re-count case in 2000, and Olson, a U.S. solicitor general in the George W. Bush administration, argued the Supreme Court case overturning Proposition 8, California’s gay marriage ban in 2013.
After the ruling plaintiff lawyers predictably claimed victory for California most oppressed students, alleging among other things that without the ruling even Teachers-of-the-Year could be laid off under LIFO rules in favor of weaker teachers with more time in the system. The California Teachers Association (CTA) predictably proclaimed they will appeal and called the decision "deeply flawed."
But Vergara is not about the logic of the case itself. CTA has backed bills to streamline the teacher dismissal process. And, Diane Ravitch, former proponent of charters and testing turned outspoken critic of such measures, pointed out on her blog that a teacher named by one of Vergara’s student plaintiffs as ineffective was Pasadena’s Teacher of the Year.
Vergara and its media coverage are about the logic of the politics. In the end, Vergara is likely to be less about the ruling itself, whose directives are relatively easy to address with solutions that allow both sides to claim victory. It's much more about who controls the media message. That's important in a nationwide fight that's ramping up around all things public education.
It’s also an important precursor to other tenure battles. A case modeled on Vergara has already been filed in New York. There has been some talk of a referendum in 2016 asking California voters to end tenure.
By some estimations Vergara was intended largely as a platfor, a California-sized platform for shaping a message that weak teachers are the primary reason many American students are struggling and that tenure is keeping weak teachers in schools. (See this Education Week blog for a take on the "bad teacher" rhetorical device.)
Vergara was framed as a civil rights case. There is little question that access to high quality teaching is a civil rights issue and that low-income students and students of color are far less likely that other students to have that access.
But the Vergara ruling does little to forge a convincing argument that making teachers’ jobs less secure and — by extension — more tied to student test scores will drive teachers to the schools where working conditions are difficult, supports are limited, and the out-of-school circumstances of students are known to depress their test scores.
Insecure employment, especially when linked to student test performance, seems destined to drive teachers to schools with good working conditions and supports, schools where students enjoy out-of-school circumstances that inflate their scores.
The civil rights messages the media should be framing are messages about what it will take to equalize opportunity — in and out of schools — and what it will take to draw, support, and keep teachers in all kind of schools.
Blogs and opinion pieces:
Read more from the June 2014 Rural Policy Matters.