Teaching Profession Opinion

California Lawsuit Attacks Teacher Rights

By Anthony Cody — January 26, 2014 3 min read
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Back in 2005, California governor Arnold Schwarzenegger placed Proposition 74 on the ballot, which would have extended the length of time needed to earn tenure from two years to five. But this idea was rejected by a majority of voters.

However, California’s voters may be overruled by the courts, if reformers Eli Broad and David Welch have their way. These billionaires have funded a new non-profit called Students Matter to fight the battle. A lawsuit called Vergara v. State of California begins tomorrow. The plaintiffs claim that students are harmed when their teachers have due process and seniority protections.

The Students Matter web site explains:

The seniority-based layoff or "Last-In, First-Out" (LIFO) statute reduces teachers to faceless seniority numbers. The LIFO law forces administrators to let go of passionate and motivating newer teachers and keep ineffective teachers instead, just because they have seniority.

The lawsuit also contends that teachers gain permanent status too soon, and firing them is too difficult, resulting in poor instruction for children.

I have written about some of the complex problems we face in teacher evaluation. This is an area where our schools could do much better. I worked with a group called Accomplished California Teachers to write a report with concrete suggestions for improvement a few years ago. We recommended that teachers work closely with peers and those doing their evaluation to set goals, and work collaboratively to grow as professionals.

I worked in Oakland for many years, in schools where the biggest problem was not poor quality teaching, but a lack of stability. The default solution to high teacher turnover became much along the lines that this lawsuit suggests. Bring in “passionate, motivating newer teachers,” often from Teach For America, and let them turn things around. Unfortunately, since the vast majority of these teachers left after two or three years, this was not a model that could build lasting improvement. At my own school, we discovered that improvement occurred when we focused on keeping teachers, rather than getting rid of them, as I described here. Stability is a prerequisite for lasting improvement. 21st Century education reform is more predicated on disruption, however.

That is not to say that teachers should never be dismissed. But the Students Matter lawsuit is off base in this regard. Students Matter claims that

In the past 10 years in the entire state of California, only 91 teachers have been dismissed, and the vast majority of those dismissals were for egregious conduct. Only 19 dismissals were based, in whole or in part, on unsatisfactory performance.

This is highly misleading. I know, because I worked for two years as a consulting teacher with Oakland’s Peer Assistance and Review (PAR) program. In this job I worked directly with teachers who had been identified as needing improvement. Some of the teachers I worked with improved and restored their good standing. However, several each year did not improve, and were forced to leave. Rarely did this go through the legal process of dismissal, however. Far more often, these teachers took early retirement or simply resigned. The low numbers cited by Students Matter do not reflect the way that teachers are counseled out of the profession through the evaluation process or through programs like PAR.

Palo Alto teacher David Cohen was on this story last June, and wrote a thorough report on a talk he attended where the lawsuit was described. The California Teachers Association has taken a strong stand against this suit, and has written:

This lawsuit is baseless and meritless, and does nothing to address the real problems facing our schools. The problems we face with layoffs are not because of Education Code provisions or local collective bargaining agreements, but lack of funding. The real needs facing our students today are adequate resources, smaller class sizes, parental involvement and quality teacher training. Contrary to what the lawsuit claims, not one teacher in California has a job for life. In fact, teachers can be fired in the first two years for no reason at all. Current law ensures experienced teachers are not dismissed for arbitrary, unfair or unjustifiable reasons, and ensure that budget-based layoffs are implemented in an objective manner that is free of favoritism.

California teachers enjoy wide public support, as evidenced by the rejection of this sort of reform in 2005. Citizens have repeatedly voted to provide more funding and support to public schools. The state also has a governor, Jerry Brown, who has clear picture of the problems with test-based reforms, and the state legislature is controlled by a Democratic Party supermajority. Faced with these roadblocks, the corporate reformers are trying to do an end run around the voters, and the executive and legislative branches of state government as well. This will be a trial to watch.

Update, Jan 26, 6 pm EST: Larry Ferlazzo has assembled a nice collection of resources related to this case.

Update, Jan. 26, 7 pm EST: In a unanimous vote today, delegates of the CTA State Council of Education denounced the Vergara v. State of California lawsuit attacking educators’ professional and due process rights that’s being bankrolled by millionaires and corporate special interests. Details here.

Update, Jan. 27, 11:37 am EST: Some have suggested that the attack on seniority is actually aimed at reducing the length of teachers’ careers, in order to reduce pension costs. In that light, this post by Bruce Baker has some interesting information about teacher effectiveness and seniority.

Update, Jan. 27, 12:00 noon EST: David Cohen offers a new post this morning describing eight problems with the Vergara lawsuit.

What do you think? Is teacher seniority and due process keeping poor teachers on the job? Should we make it harder to earn permanent status and easier to be dismissed?

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