Published Online: February 3, 2014
Published in Print: February 5, 2014, as Teachers' Job Protections Debated as California Trial Gets Underway

Teachers' Job Protections Debated in California Trial

Sixteen-year-old Raylene Monterroza, one of the plaintiffs in Vergara v. California, speaks at a briefing held on the first day of the trial in Los Angeles last week.
—Nancy Pastor for Education Week

When a teacher fails to meet even basic job duties yet remains in the classroom, is that the fault of byzantine laws governing teacher dismissal—or the failure of administrators to adhere to them?

That's just one of the questions that emerged here during the first week of testimony in a sweeping lawsuit in Los Angeles County Superior Court that is challenging key dimensions of teachers' job protections and drawing national notice as a potential harbinger of similar challenges elsewhere.

In Vergara v. California, filed in May 2012 on behalf of nine students and their families, the plaintiffs argue that five statutes governing teacher tenure, dismissal, and seniority in the Golden State violate students' equal-protection rights by making it too difficult to rid schools of "grossly ineffective" teachers. The suit names Gov. Jerry Brown, state Superintendent Tom Torlakson, and the state education department and school board as defendants.

All California pupils are at risk, the plaintiffs contend, but minority students and those living in poverty are in reality the hardest hit.

"These statutes work together in a kind of vicious cycle. The system harms students every day," Theodore J. Boutrous, a lawyer for the plaintiffs, said during his opening statement.

The trial is the latest volley in a nationwide effort to reshape the fundamentals of the teaching profession. All but a handful of states are working to institute teacher-evaluation systems that include consideration of student learning. Efforts to that end have been unsuccessful so far in California, one factor that prompted Students Matter, an advocacy group based in Menlo Park, Calif., to file the suit.

The state teachers' unions, which entered the suit as intervenors on the side of California in March of last year, have portrayed the case as an attempt by well-heeled noneducators to force controversial policies on the state.

Legal experts highlight the lawsuit's unusual tactic, which interprets access to good teaching—not merely funding and facilities—as part of the state constitutional right to an equitable education. That feature, coupled with the legal action's scope, makes it hard to predict the outcome, they say.

"I see this as a fascinating case that could only occur in California," said Perry A. Zirkel, a professor of educational leadership who specializes in school law at Lehigh University in Pennsylvania. "Unlike an issue like desegregation, which is literally black and white, this one is a mixed bag. The measure of inequality is nowhere near as blatant. It's not what the courts are very good at."

L.A. Superintendent Testifies

The specific California laws in question require that tenure be given by March 15 of a teacher's second year of employment, mandate that layoffs be made in nearly all cases in the order of reverse seniority, and establish a dismissal process for tenured teachers consisting of multiple hearings and appeals.

Expert Witnesses

Both the plaintiffs and defendants in Vergara v. California plan to call prominent researchers to weigh in on topics such as teacher evaluation.

FOR THE PLAINTIFFS

Thomas Kane
The Harvard University professor is among several economists whose use of statistical methods has uncovered large differences in learning among students taught by more and less effective teachers.

Arun Ramanathan
Mr. Ramanathan is the director of the advocacy group Education Trust-West. The group sponsored a 2012 paper using Los Angeles test data to show that poor, Latino, and black students were more likely to receive the lowest-performing teachers than higher-income, white, and Asian peers.

Raj Chetty
The Harvard economics professor has studied how students taught by more effective teachers have higher lifetime wages and are more likely to attend college.



FOR THE DEFENDANTS

Linda Darling-Hammond
A Stanford University education professor and chairwoman of the California Commission on Teacher Credentialing, Ms. Darling-Hammond opposes the use of test scores in teachers’ evaluations and is a proponent of performance tests for aspiring teachers.

Jesse Rothstein
A professor of public policy and economics at the University of California, Berkeley, Mr. Rothstein has raised concerns about the stability of value-added measures and their appropriateness as a part of teacher evaluations.

Susan Moore Johnson
The Harvard professor has written extensively about peer-assistance and -review programs, which unions say help weak teachers improve.




The state teachers' unions argue that the laws are crucial to recruiting and retaining a skilled teaching force. They also have pointed out links between Students Matter—launched in 2011 by David Welch, a scientist in fiber optics and an entrepreneur—and groups with a history of battling teachers' unions.

The case is being heard by Judge Rolf M. Treu without a jury. Even if his ruling favors the plaintiffs, immediate changes in law seem unlikely, as an appeal is certain. And a ruling could take a while; with more than 150 potential witnesses yet to take the stand, the trial itself could last more than a month.

Last week's court sessions were dominated by direct and cross examinations of John E. Deasy, the superintendent of the 651,000-student Los Angeles Unified School District. Mr. Deasy's testimony outlined the heart of the plaintiffs' case: Despite its efforts, the district has been unable to rid its classrooms of all its ineffective teachers, he said.

The state's rules for granting tenure do not allow enough time for principals to assess probationary teachers, offer remediation, and make an informed decision about whether to grant them tenure, Mr. Deasy said. Seniority rules favor even ineffective teachers during layoffs, he argued. Dismissals must be approved by the school board, then by an independent panel, he noted, and then face possible appeals in the court system.

Such cases can cost an average of $250,000 to $450,000, Mr. Deasy testified.

"When you have a finite budget, you have to make decisions about whether to invest to create greater supports for students" or continue pressing for dismissals, he said.

Rhetoric and Reality

During cross-examination, lawyers representing the state of California and the state teachers' unions spent hours trying to chip away at such arguments, showing that in "well managed" districts, the statutes don't prevent administrators from dismissing ineffective teachers.

Mr. Deasy's management of the LAUSD was exhibit A, as the defense documented how fewer Los Angeles teachers have been automatically granted tenure under his watch. They noted that he has recommended for dismissal greater numbers of teachers—99 in 2011-12 and 57 in 2012-13, up from 10 in 2009-10, the year before he became the district's superintendent.

At times, such arguments highlighted stark differences between legal positions and the real world of hard-knuckle politics: The unions' largest affiliate, United Teachers Los Angeles, has strongly opposed Mr. Deasy's plans to toughen tenure and evaluation policies.

Still, Mr. Deasy's efforts show that "the statutes are enforceable," said Laura Juran, a lawyer for the California Teachers Association, in an interview last week. "Whether the local association complains that the implementation is aggressive is not really relevant."

The state's attorneys general, meanwhile, sought to show that the Los Angeles district had not discriminated against poor or minority students by assigning them to weaker teachers. But Mr. Deasy said the layoff procedures forced his hand on at least one occasion.

"An unfortunate byproduct of following the law is the discrimination of a youth having to be placed in front of an ineffective teacher," Mr. Deasy said.

None of the nine students who joined in the lawsuit had testified yet as of late last week, but declarations filed with the court sketch out the particulars of their complaints.

Kate Elliott, now a senior in high school, says one of her middle school teachers showed YouTube videos and gave coloring assignments rather than teach. Beatriz Vergara and her sister Elizabeth allegedly faced a series of poor teachers, including one who slept in class and one who referred to his Latino students by the racist term "cholos."

Disturbing though those examples may be, lawyers for the unions plan to make the case that the nine plaintiffs don't have standing to sue on an equal-protection basis. Six of them are not disadvantaged; three are not students of color; and two are in a district "pilot" school, where most teacher-protection rules don't apply, said James M. Finberg, a lawyer with the San Francisco-based firm Altshuler Berzon, which is representing the CTA and the California Federation of Teachers.

Moreover, he said, they will show that some of the teachers named as ineffective are not, having received teaching awards and other honors.

"Plaintiffs will not be able to identify any specific instance in which the challenged statutes caused them to be assigned to any specific ineffective teacher, let alone a grossly ineffective teacher," Mr. Finberg said in his opening statement.

'Grossly Ineffective'

The very definition of a "grossly ineffective" teacher is being contested.

The plaintiffs are basing their case in part on research showing that students' achievement varies greatly depending on the teachers to whom they're assigned. Those studies hinge on a statistical method known as "value added," which aims to isolate the effect of each teacher on his or her students' standardized-test scores.

But that method has proved controversial as states and districts, prodded by federal incentives, adopted it in systems for evaluating individual teachers.

Many teachers contend the measures aren't fair and affect teaching in unproductive ways. The value-added method was recently labeled "a sham" by Randi Weingarten, the president of the American Federation of Teachers, the parent union of the California Federation of Teachers.

And Nimrod Elias, a California deputy attorney general, said in his opening statement that value-added measures were "methodologically flawed" and "limited in what they purport to show."

Both the plaintiffs and defendants in the Vergara trial have lined up competing expert witnesses to testify on whether the measures are valid—a fact that highlights the deep ideological divides on teacher quality even among scholarly researchers.

Raj Chetty, a Harvard University economics professor, took the stand late in the week to testify that students taught by teachers with low value-added scores were at risk of "substantial harm."

The scope of the Vergara lawsuit may be impressive, but that doesn't mean a victory will be easy, according to legal experts.

Prior education equity suits have addressed teacher quality only insofar as underfunding has harmed districts' ability to recruit and retain teachers, said David Sciarra, the executive director of the Newark, N.J.-based Education Law Center. Mr. Sciarra served as a counsel to the plaintiffs in New Jersey's landmark Abbott cases, which established mandatory pre-K programs, among other measures, for a subset of schools.

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No previous cases, he said, have concluded that teacher work rules by themselves have impeded staffing to such an extent that they undermine a state's constitutional guarantee of an equitable education.

"It's at best a serious stretch," he said of the lawsuit. "You may not like the work rules, or think they need to be reformed or improved, but there's no evidence that terms and conditions of employment of teachers are the deciding factor that would lead to systemic deprivation of resources."

Experts also are divided on whether the case could set a precedent for action in other states. Students Matter and its clients have made no secret of high hopes for the lawsuit's outcome.

"Even though we're focused on California constitutional provisions, we think it could provide a model for challenging the laws of other states that have the same arbitrary, unequal effects on rights of students," Mr. Boutrous said.

But Mr. Zirkel of Lehigh University is less sure.

"Practically," he said, "even if the state language is the same, there are always interpretations of the language."

Vol. 33, Issue 20, Pages 1,12-13

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