Lowly Superior Court rulings rarely make national news headlines. Then again, Superior Court rulings rarely mash so many political hot buttons at once.
Consider then yesterday’s mercury-raising ruling out of Los Angeles County—simultaneously touching on union power, public school reform, and the constitutional rights of the state’s children—and it’s no wonder that the decision already is being called a “game changer” by supporters and an “attack on teachers” by opponents.
In the case of Vergara v. State of California, Judge Rolf M. Treu spiritedly held that five state statutes which govern the hiring and firing of public school teachers in California violate the constitutional rights of the state’s students. If upheld on appeal, it could signal the end of teacher tenure as we know it in the most populated state in the nation.
The ruling spared neither words nor lofty legal analogy (the ruling invokes Brown v. Board of Education in the first sentence and concludes with a nod to Alexander Hamilton). Treu found that the five provisions—which establish the process by which a teacher is fired (he labeled it “tortuous”), limit the amount of time a teacher-in-training must wait before being hired permanently (without “legally cognizable reason”), and maintain seniority-based privilege during cutbacks (“unfathomable” and “unsupportable”)—impose “a real and appreciable impact” on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.
The California Teachers Association and the California Federation of Teachers, the two unions that attempted to defend state law in the case, argue that such job security is necessary to attract young talent to an often-thankless profession, and that teachers are being blamed for problems caused by underfunding and entrenched poverty.
This is “yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools.”
“Let’s be clear: This lawsuit was never about helping students, but is yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education,” Dennis Van Roekel, president of the National Education Association, a teachers’ organization, said in a statement. “Research shows experience enhances teacher effectiveness and increases student productivity at all grade levels, and that ultimately contributes to better outcomes for students. Yet, today’s ruling hurts students and serves only to undermine the ability of school districts to recruit and retain high quality teachers.
Both in content and in tone, the decision is a major victory for the plaintiffs: nine California public school students who filed suit two years ago with the sponsorship of Students Matter, a non-profit founded by Silicon Valley fiber optics mogul David Welch. According to Welch and his allies, the offending statutes serve only to protect incompetent teachers from losing their jobs at the expense of their talented, junior counterparts—and students.
U.S. Secretary of Education Arne Duncan has issued a cautiously supportive statement, calling the ruling “an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students’ rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve.”
But safeguarding the rights of students while also preserving teacher job security may prove to be a fine line. And a blurry one, at that. Seniority-preference may strike some as arbitrary, but at the very least, it is unambiguous. If each and every student is guaranteed the right to receive instruction from a good teacher, the problematic question is how we justly sort the good from the bad.
UC Berkeley economist Jesse Rothstein testified for the defense in the Vergara case to make exactly this point.
“Teaching is like any other occupation. There are plenty of things that teachers do that just aren’t measurable. There’s no button you can push which spits out a number that tells you, “This is a good teacher, this is a bad teacher.’ What makes teaching different from other occupations, is that we keep trying,” he says.
The ‘dance of the lemons’ theory: School districts, unwilling or unable to engage in the judge called the “tortuous” process of firing an incompetent teacher, simply passes these lemons from school to school.
These various attempts take the form of “value-added models”—methods of measuring teacher performance that compare test data before and after a teacher has instructed a class in order to estimate the “educational value” a teacher bestows upon students. Value-added modeling has been deployed in the school districts of Chicago, New York, and most famously, in Washington D.C. under the auspices of controversial former public school chancellor Michelle Rhee.
But year-to-year test results can reflect all sorts of things that have nothing to do with teacher competence, Rothstein contends. In classrooms with students who are disproportionately low-income, don’t speak English as a native language, have absent or disengaged parents, or suffer from learning or developmental disabilities, a value-added model would more likely judge a teacher to be of relatively low value.
This in part provides an alternative explanation for the so-called “dance of the lemons” theory offered by the plaintiffs. The premise: School districts, unwilling or unable to engage in what Judge Treu called the years-long “tortuous” process of firing an incompetent teacher, simply passes these lemons from school to school. Inevitably, they settle at the failing schools most desperate for staff, where they poorly serve their already desperately underserved students.
Furthermore, tying teacher assessment to exam scores encourages teaching to the test, at best—and at worst, outright cheating, says Rothstein.
“No one is trying to do this with accountants or lawyers or doctors. Instead, you have managers who spend time evaluating them. It’s a time-consuming and expensive process,” he says, noting that he didn’t testify about the specifics of any existing or proposed statutes. But he does maintain that classroom observations would be the best method of evaluation. “Historically, we don’t do that a lot with teachers and when we do, it’s maybe once or twice a year.”
Ben Austin labels the argument against value-added models a “straw man.” A 1991 Cal graduate, Austin is a Students Matter advisory board member and a founder of the education reform organization Parent Revolution.
“Our public education system is failing our children because it has stopped putting their needs and their success above all else.”
“There is no serious reformer I know who has proposed using student test score data for more than 30 or 40 percent of the total evaluation,” he says. “Other parts are parent evaluation, student evaluation, peer evaluation, principal evaluation. So I completely agree that evaluation has to be holistic.”
Austin lives in West Los Angeles, where he says his oldest daughter attends a well-resourced public elementary school. “What this has done for the first time in history is create a legal North Star that all of us have to follow. It enshrines the idea that schools in South Los Angeles and East Los Angeles, schools that are majority low income kids or majority children of color or undocumented children, all should have educators that are just as high-performing as the educators at my daughter’s school.”
The fact that Austin served as Deputy Mayor of blue Los Angeles—where he helped launch universal preschool, all after working stints inside the DNC and the Clinton White House—illustrates just how complicated education politics can be. In challenging one of the state’s largest and more predictably Democratic interest groups, the case cleaves the party’s union-backing base from more market-friendly technocrats and charter school activists who would prefer a bit of capitalistic dynamism introduced into what they characterize as a sclerotic and byzantine public school system.
“Our public education system is failing our children because it has stopped putting their needs and their success above all else,” Welch said in a statement. “This case was designed to change that—to ask ‘How do the rules that govern our education system advance the best interests of California’s children?’ Today we have our answer—and we’ve been challenged to do better.”
Odds are this case is far from resolved. The ruling is stayed, the teachers’ unions vow to appeal, and many observers expect it will ultimately be decided by the state Supreme Court.