Recruitment & Retention

Despite Vergara Ruling, Teacher-Tenure Battles Set to Heat Up

By Brenda Iasevoli — August 29, 2016 4 min read

The California Supreme Court last week upheld an appellate decision rejecting key contentions in Vergara v. California, the much-watched suit that argued the state’s teacher-protection laws make it nearly impossible to fire “grossly ineffective” teachers and thus pose a direct harm to students. But while the ruling put an end to the case, it’s not likely to resolve the battles over teacher tenure and other teacher job protections in the state or elsewhere.

The Vergara lawyers’ strategy of casting tenure laws as a violation of students’ constitutional rights, which won support at the trial-court level but not on appeal, has already provided a blueprint for activists and politicians intent on chipping away at teacher protections in the courts and state legislatures. That could make it more difficult for teachers’ unions to put the focus back on what they see as the real problem in weeding out ineffective teachers—the more mundane issue of a lack of funding.

The latest ruling, largely seen as a win for the unions, won’t dampen the arguments that teacher protections are responsible for ineffective teachers, said Joshua Pechthalt, the president of the California Federation of Teachers: “The narrative is out there that bad teachers are the cause of all evil in public education. The people behind this lawsuit aren’t going to give up on this narrative any time soon.”

The nonprofit Students Matter, founded by Silicon Valley entrepreneur David F. Welch, filed the lawsuit on behalf of the plaintiffs and has vowed to continue the fight in the California legislature. But the effort won’t stop there. Pro-Vergara candidates for governor and state superintendent of schools will likely raise the issue of teacher protections again, said Pechthalt.

Students Matter may also pursue ballot initiatives challenging the 18-month time frame in which teachers gain tenure in California, as well as the “last-in, first-out” practice, under which the last teacher hired is the first fired during layoffs.

Vergara has also spawned similar lawsuits in Minnesota and New York that are still pending.

Focus on Evaluations

Other experts said that the California Supreme Court’s decision left the issue of teacher equity in the state’s schools largely unresolved.

Katharine Strunk, an associate professor of education and policy at the University of Southern California, said the court’s refusal to review the appellate court’s decision ultimately failed students.

“We have been trying for a long time to effect change in the legislature,” she said. “If we can’t effect change in the legislature, and we can’t effect change in the courts, I don’t see what other recourse these kids have.” Strunk said the next step might be for lawmakers, state education leaders, and the unions to work together to craft stronger teacher-evaluation criteria in the state.

“I don’t think having just a system that holds teachers accountable without providing support or just a system that provides support without holding teachers accountable is going to create the kind of change that we really need,” she said.

Students Matter also has an eye on the issue of evaluations. The group has filed a separate lawsuit, Doe v. Antioch, against 13 California districts that seeks to force the use of test scores in teacher evaluations.

Resource Questions

Teachers-union representatives generally don’t dispute the argument that bad teachers ultimately need to be cut loose. But they argue, as did the appellate-court ruling in Vergara, that teacher-protection laws do not in themselves create bad teachers.

Better-funded districts, they say, would have the resources to hire well-qualified teachers and observe beginning teachers in the classroom frequently before granting or denying tenure. Often, principals are stretched too thin, and don’t have the time to provide proper guidance and support for new teachers, they add.

Betty Olson-Jones, a 22-year veteran teacher from Oakland, Calif., who testified for the defense in Vergara, said she was only evaluated twice in her career, and never as a new teacher. “I used to beg my first principal to evaluate me, and he would say, ‘Oh, the parents love you! You’re fine.’ That’s not OK. Teachers need feedback.”

Olson-Jones’ comments echo one of the key contentions in the appellate court’s ruling in Vergara—that principals and district leaders play an important role in decisions about teachers’ careers.

Olson-Jones, who served as the president of her local union for six years, said that, when principals are able to do their jobs and document a teacher’s progress, or lack of it, an ineffective teacher can be counseled out of the profession in a timely manner.

Chris Ungar, the president of the California School Boards Association, which supported the plaintiffs in Vergara, lamented the lack of funding in the state to support systemic teacher-quality improvements and vowed to make it a top priority. “It’s not like you wake up in the morning and say, ‘I’m going to need to do an evaluation. Oh, and here it is.’ There needs to be professional development. All these things cost money,” he said.

Coverage of policy efforts to improve the teaching profession is supported by a grant from the Joyce Foundation, at www.joycefdn.org/Programs/Education. Education Week retains sole editorial control over the content of this coverage.
Coverage of policy efforts to improve the teaching profession is supported by a grant from the Joyce Foundation, at www.joycefdn.org/Programs/Education. Education Week retains sole editorial control over the content of this coverage.
A version of this article appeared in the August 31, 2016 edition of Education Week as Teacher-Tenure Battles Continue After Vergara

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