by Alice O’Brien, NEA General Counsel
Sixty years ago the U.S. Supreme Court issued its unanimous decision in Brown v. Board of Education overturning Plessy v. Ferguson and uprooting the deep roots of segregation in our society. The victory came after decades of legal work, by a small group of fierce civil rights advocates, paid little and subjected to threats and public denigration. Over the past two years, a team of corporate lawyers, retained and paid by multi-millionaires, have sought to cloak themselves in that rich legacy.
Their case, styled Vergara v. California, challenges the statutes that provide California teachers with their most basic employment protections – 1) the right to notice and an opportunity for a hearing before an impartial panel before an experienced teacher is terminated; and 2) the rule that layoffs for budget reasons proceed in qualification (credential) and seniority order unless the district has a special need to depart from that order. None of the challenged statutes determine a teacher’s class assignment or classify teachers or students in any respect; rather they each apply to all teachers in California across the board.
As an initial matter, the two month trial demonstrated that none of the nine student plaintiffs in the case had been harmed in any way, much less denied their fundamental right to an education under the California Constitution. Two of the plaintiffs go to charter schools, which are not subject to the challenged statutes and two more attend Los Angeles pilot schools in which teachers may be released at the end of each school year without regard to the challenged statutes. The remaining plaintiffs failed to prove that they had ever been assigned to a “grossly ineffective” teacher due to the challenged statutes, which is the term plaintiffs coined to describe the type of teachers whose assignment to a classroom could implicate students’ fundamental rights. In fact, many of their teachers that they sought to tar as grossly ineffective had stellar evaluations and one was recently selected as a teacher of the year.
Despite this basic failure of proof, the trial judge struck down all of the employment protections for all teachers in California. The judge applied strict scrutiny to the statutes, finding that some small fraction of teachers—on the order of 1-3 percent—are “grossly ineffective,” and that those teachers’ students have been deprived of their fundamental right to an education. Because, in the judge’s view, each statute could be improved in some respect (by extending teachers’ probationary period, stripping down dismissal rights, and reconfiguring layoff criteria), the judge concluded that none could survive strict scrutiny.
The trial court’s decision is a tentative one, which means the ruling is not yet final. But the fundamental logic of the decision is flawed and unlikely to survive appellate review. In the meantime, the money behind the lawsuit has unleashed a flood of media proclaiming Tuesday’s ruling a landmark civil rights victory that provides a template for improving our public schools. Nothing could be further from reality.
Eliminating basic employment protections for teachers will undermine, not improve, our public schools. These statutes—commonly referred to as teacher tenure—protect academic freedom, insulate teachers from political pressures and discrimination, and allow teachers to advocate for their students without fear of retaliation. The evidence at trial proved that teachers rely on these employment protections to do their jobs the best way they know how, advocating on behalf of their students against harmful canned curriculum mandates and teaching topics—like the study of Islam —that some parents may view as too controversial.
As one of the many school administrators who testified in favor of the statutes explained, these employment protections “allow[ ] teachers to try to connect with individual students in ways that sometimes vary from what are viewed as the norm. And it also protects teachers who are good teachers from arbitrary behavior on the part of principals who come in, who may have a very set view of how a school should run, and are not willing to look at the success of those teachers and make their judgments after that; and want them to conform in a certain way that really isn't appropriate in terms of student learning.”
Removing these employment protections is no victory for anyone who cares about classrooms as places of inquiry and intellectual challenge. Under Garcetti v. Ceballos and its progeny, courts are quick to conclude that public employee speech falls altogether outside First Amendment protections. Absent the protection of tenure statutes, teachers too often will not be protected from overreaching school administrators or community members offended by instruction in controversial subjects or that is offered in a new and challenging manner. These employment protections provide teachers with the modicum of protection they need to put their students’ needs first.
What is more, the loss of these employment protections will undermine schools’ ability to attract and retain top-notch teachers. While the Vergara plaintiffs focused on speeding the removal of a tiny fraction of bad teachers, the fact is that teachers are leaving the profession in droves. Some studies estimate that almost half of teachers now leave the profession within five years of entry. And high poverty, high needs schools often fare much worse. For example, at the Vergara trial there was testimony that of the 300 new teachers that started in the Oakland school district in 2003, 76 percent had left by 2008.
These numbers are staggering. But they have nothing whatsoever to do with the statutes challenged in Vergara. When asked the reason for this 76 percent turnover, the teacher witnesses at trial were blunt: “the conditions are very difficult, very high-poverty rate in Oakland, lack of support services. Oakland has very few counselors, nurses, one librarian left, high class size, … Children come with a lot of needs that aren't fulfilled, and teachers are expected to make up that difference and are agonized often by their inability to do so because they lack the support and the conditions to do so.” Another teacher offered a chilling account of “a back-to-school night where there was drive-by shooting 30 to 50 yards from behind my classroom. I remember talking with a mother at the time. And I was just about to say to the mom, ‘and your son has trouble paying attention,’ and seven to nine shots rang out.”
These shocking conditions in our high poverty/high needs schools stem from factors far beyond the four corners of any teacher’s classroom and will require action far beyond those four corners if they are ever to be remedied. The evidence at trial demonstrated that the needs of students and teachers in these schools are aligned. Improving learning conditions in these schools by investing in smaller class sizes, support services for students and strong administrative leadership also improves the ability of these schools to retain and attract experienced and effective teachers. Stripping teachers of their rights will not improve these schools.
Even on the narrow issue on which the Vergara plaintiffs staked their turf, the supposed difficulty of identifying and removing the tiny fraction of grossly ineffective teachers, the evidence does not show what the plaintiffs’ claim. School superintendents and leading national experts testified that school administrators can identify individuals who should not be teaching within their first year in the classroom, at a time when they can be non-renewed for any or no reason. Several school administrators testified that their practice was simply to non-renew teachers if they had any doubt as to the teacher’s capabilities. That may be problematic for other reasons, but it directly contradicts any notion that the California tenure system forces schools to keep bad teachers.
After teachers pass the two year probationary period, the trial evidence showed that there is an array of options to remedy performance problems. Peer assistance and review programs, in which accomplished teachers coach struggling teachers, are effective for many teachers. When such efforts fail, struggling teachers almost always resign rather than fight dismissal. Indeed, at trial the evidence showed that over the last three years the Los Angeles school district persuaded 786 ineffective teachers to leave without going through dismissal proceedings at all.
As to the role experience should play in budgetary layoffs, even the plaintiffs’ experts agreed that a teacher with three years of experience is, on average, more effective than a more junior teacher. Seniority provides an efficient, objective and fair way to order budget-based layoffs that results, on average, in the retention of more effective teachers.
This week’s decision is the first, not the final, decision in the Vergara litigation, which undoubtedly will go up the California court system. In the meantime, those who care about public education would do well to empower and listen to our teachers, rather than silence and denigrate them by stripping them of basic employment protections.