Seth Rosenblatt

Seth Rosenblatt

With all of the discussion around the Local Control Funding Formula (LCFF), the Common Core State Standards, and Smarter Balanced Assessments, we may be missing the biggest potential change to sweep California public education since Serrano v. Priest. This change could come from a small organization called Students Matter, which is targeting some very specific structural changes in California’s K-12 public education system. Founded by a Silicon Valley entrepreneur and inspired by the gross inequities that currently exist among public schools just in the San Francisco Bay Area, their first major initiative has resulted in the lawsuit Vergara v. California.

The Vergara case is premised on the legal theory that the California Constitution’s guarantee of students’ equal opportunity to quality education is incompatible with current laws (specifically five statutes in the California Education Code related to permanent employment, dismissal procedures, and seniority-based layoffs) that do not allow local school districts to manage their teaching staffs based on quality and effectiveness. The plaintiffs claim that because effective teachers are so crucial to ensuring students’ academic success, ignoring teacher effectiveness is tantamount to not giving all students a quality education. They further argue that such harm is borne disproportionately among minority and low-income students. The Vergara arguments hark back to those made by the plaintiffs in the Serrano case forty years ago, except that Serrano was focused more on financial resources.

Without debating the arguments of the case itself (and my goal is not to create such a debate in this forum) and not being an attorney, I would not attempt to handicap the lawsuit’s chance of success. However, there is no doubt that there is much dissatisfaction among school districts, school board members, administrators, and even many teachers around the myriad of human resource rules contained in the Ed Code. It is difficult to argue that the way teachers are evaluated (or not evaluated), how dismissal notices are handled, and “last in first out” rules are compatible with building a public education system in a 21st century design. And certainly many communities have stories where such regulations have disproportionately negatively affected those schools and students with the greatest needs. The lawsuit has created interesting alliances – for example, although the Los Angeles Unified School District was originally a defendant in the case (it’s since been dropped), Superintendent John Deasy is expected to testify for the plaintiffs. Students Matter believes it has an excellent chance at winning the case (scheduled to begin January 27, 2014) and says it has been collecting evidence and statements from board members, administrators, and teachers up and down the state that support their premise.

Regardless of whether one is supportive or not of Vergara, the immediate implications of its potential success would be staggering, and it would completely make moot all of the current discussions around Sacramento on this topic. Relationships between local school districts and their bargaining units would be forever altered, and school districts and teachers would have to quickly find a new paradigm for hiring, evaluating, and firing staff. However, the folks at Students Matter are quick to point out that Vergara would not eliminate due process protections that currently exist in California Government Code for all public employees, including teachers.

For me, the most fascinating aspect of the lawsuit – even more so than the immediate implications – would be its larger meaning. As I mentioned before, the premise is similar to that used in the Serrano case. One can certainly argue that the current system of funding public schools has hardly met the spirit of Serrano, and even LCFF doesn’t make that big a dent in fixing inequities. If Vergara is successful, it would open the door for some to re-litigate the principles of the Serrano case on a similar legal theory. Other groups or individuals could target, based on similar legal theories, many other aspects of the California Education Code that may also be viewed as incompatible with the guarantee of equal opportunity to quality education – everything from grade structures to school facilities to lack of universal preschool. The legal question will likely be whether the impact of such other regulations reaches a threshold, as stated by the California Supreme Court, of having “a real and appreciable impact” on children’s access to quality education. The education community could of course be proactive and not wait for a lawsuit – is it not time to dedicate a task force to identify the barriers in California’s Education Code that are preventing public schools from providing 21st-century learning environments?

I suspect very few school board members, administrators, and teachers (except maybe in the largest districts) are truly paying attention to this suit and to both its short-term and long-term implications. Again, regardless of one’s opinion on the matter, it is crucial that we follow these events closely.

Of course, it’s possible that Students Matter will be unsuccessful. Last month, the defendants in Vergara filed a motion for summary judgment of dismissal of the suit, and a hearing for this motion is scheduled for Dec. 13, with an actual trial in January if the motion is unsuccessful. Even if unsuccessful, the political implications of this effort may provide urgency for policymakers in Sacramento to find reasonable solutions around many of these issues. But if the suit is successful, we should definitely watch for the floodgates to open and for new dialog around many other education code regulations that most probably haven’t thought about for decades.

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Seth Rosenblatt is a member of the Governing Board of the San Carlos School District. He also serves as the president of the San Mateo County School Boards Association and sits on the Executive Committee of the Joint Venture Silicon Valley Sustainable Schools Task Force. He has two children in San Carlos public schools. He writes frequently on issues in public education, including in both regional and national publications as well as on his own blog.


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  1. navigio 2 years ago2 years ago

    The most recent attempt to have the lawsuit dismissed was rejected by a judge a few days ago. The trial is scheduled to start near the end of January.

  2. Paul 3 years ago3 years ago

    Hi, Navigio. I support randomization of layoffs because randomization is guaranteed never to reduce the overall quality of the teacher pool (stereotypical "good" and "bad" teachers -- if they exist -- are equally likely to be chosen) and because it neither privileges nor penalizes experience. How the existing, seniority-based rule affects the quality of the teacher pool is unknown. There are short-term effects, such as taking less-experienced (and potentially less effective) teachers out of the classroom. The … Read More

    Hi, Navigio.

    I support randomization of layoffs because randomization is guaranteed never to reduce the overall quality of the teacher pool (stereotypical “good” and “bad” teachers — if they exist — are equally likely to be chosen) and because it neither privileges nor penalizes experience.

    How the existing, seniority-based rule affects the quality of the teacher pool is unknown. There are short-term effects, such as taking less-experienced (and potentially less effective) teachers out of the classroom. The long-term effects, though, are the ones that worry me. Experienced teachers are spared, regardless of their effectiveness, and a great many young teachers never get a chance to gain experience, as they are forced out of the profession for economic reasons, during those crucial first five years — the years, studies day, when effectiveness rises rapidly with experience. Another effect of seniority-based layoff is that it discourages teachers from switching districts. LAUSD, OUSD, SFUSD and other districts with large numbers of “troubled” schools bank on that. Clearly, being forced to start from scratch if you want to relocate is not good for individual teachers. Whether it’s good for the system as a whole is hard to say, but I’d venture that any forced work is work that is less than optimal.

    Replies

    • navigio 3 years ago3 years ago

      Hi Paul. Actually, as a group, they are not equally likely to be chosen unless they happen to exist in equal proportion. To me support for a random process implies the belief that not only that experience plays no role, but (perhaps for the same reason) incoming teachers are of higher quality than existing one. I agree with you on the odd dynamics of district switching. I tend to like consistency, however, I have had district … Read More

      Hi Paul. Actually, as a group, they are not equally likely to be chosen unless they happen to exist in equal proportion. To me support for a random process implies the belief that not only that experience plays no role, but (perhaps for the same reason) incoming teachers are of higher quality than existing one.

      I agree with you on the odd dynamics of district switching. I tend to like consistency, however, I have had district leaders tell me they love turnover. Which is better is likely anecdotal.

  3. Paul 3 years ago3 years ago

    Navigio, here are two more justifications for your argument that disparities between districts cannot be due to laws that apply equally to all of them. First, some district-run urban schools have achieved excellent academic results even though all districts are bound by the Ed Code employment provisions that the lawsuit seeks to vacate. Second, some urban charters have had poor results, despite the fact that all charter schools are exempt from the employment provisions mentioned … Read More

    Navigio, here are two more justifications for your argument that disparities between districts cannot be due to laws that apply equally to all of them. First, some district-run urban schools have achieved excellent academic results even though all districts are bound by the Ed Code employment provisions that the lawsuit seeks to vacate. Second, some urban charters have had poor results, despite the fact that all charter schools are exempt from the employment provisions mentioned in the lawsuit.

    The one legal change I’d support — after providing sufficient funds to make layoffs an exceptional occurrence rather than an annual event and after tackling districts’ illegal, ongoing use of “temporary” teachers — would be to lay off by random number rather than by seniority.

    At the local level, it would also be wise for school district leaders and individual teachers to push for changes to an assignment and transfer provision present in many local collective bargaining agreements. Seniority should be supplanted by “programmatic needs” and “employee needs”. It’s important to note that this is a locally-negotiated issue, not dealt with by the Education Code.

    What I cannot accept is the lawsuit’s push to make all teachers at-will employees forever, as if this would somehow benefit students.

    Replies

    • navigio 3 years ago3 years ago

      It is interesting that you would support a random layoff procedure over a seniority-based one. If we assume that the majority of teachers are 'quality' ones, and that experience is a valuable contributor toward 'quality', then a random process would cause the layoffs of more quality teachers than even a strictly seniority-basd process would. The thing that a strictly seniority process cannot achieve is retention of extremely high quality, but young teachers. Of course, a … Read More

      It is interesting that you would support a random layoff procedure over a seniority-based one. If we assume that the majority of teachers are ‘quality’ ones, and that experience is a valuable contributor toward ‘quality’, then a random process would cause the layoffs of more quality teachers than even a strictly seniority-basd process would. The thing that a strictly seniority process cannot achieve is retention of extremely high quality, but young teachers. Of course, a random process could not either, but if we assume those are in the minority, then they would be less targeted using a random process. So perhaps the answer depends somewhat on how the teaching force is changing.
      One thing I’ve always been struck by is experienced teachers lamenting the loss of some new, young, clearly star teacher due to the seniority process (even though the alternative might mean the loss of their own job). Perhaps the only way to address that situation would be to allow a site-level override of seniority layoffs, though this clearly would be problematic in that it would reduce the pool to a site level. Allowing teachers to petition their bargaining unit in favor of that star teacher (and disfavor of some other, more experienced teacher) might also be an option.

  4. Paul 3 years ago3 years ago

    Seth, ask your assistant superintendent of human resources what fraction of your district's recently-hired teachers have been classified as "temporary" and what fraction, "probationary". Better yet, go through the last two or three years' individual teacher contracts (not the CBA) yourself, as the very question would make a smart school HR professional suspicious. A major thrust of the lawsuit is that school districts must decide whether to grant "permanent" status after only 18 months. If your … Read More

    Seth, ask your assistant superintendent of human resources what fraction of your district’s recently-hired teachers have been classified as “temporary” and what fraction, “probationary”. Better yet, go through the last two or three years’ individual teacher contracts (not the CBA) yourself, as the very question would make a smart school HR professional suspicious.

    A major thrust of the lawsuit is that school districts must decide whether to grant “permanent” status after only 18 months. If your district operates like most (as evidenced by the the SRI study from this spring), then use of “temporary” employment adds years to what is in fact already a two-year (less three-month) “probationary” period for teachers.

    Further, the assumptions (a) that “permanent” status makes it impossible to remove a teacher and (b) that removing an underperforming teacher is the only solution, are both false. The same Education Code that you, and the proponents of the lawsuit, assail, specifies grounds and procedures for removing a teacher. Short of that, as another commentator pointed out when the topic came up recently, the solutions that enlightened employers use to develop personnel are available to school and district administrators who care. There is PAR (does your district participate?), reassignment/transfer to a more appropriate grade, subject area or school (what does your CBA say?), employee assistance (does your district contract with an EA provider?), and professional development targeted to the needs of an individual teacher (what is your district’s process for ascertaining and tracking those needs, and your budget for individual training?).

    Even if you don’t support human resource practices that place some value on employees, and even if you believe, as the proponents of the lawsuit do, that teachers should remain at-will employees throughout their careers, you will find it impossible to force teachers to work in “difficult” schools. Study after study has demonstrated that teachers transfer to “nicer” schools, take jobs in other districts, or leave the profession altogether.

    A more fruitful judicial or legislative intervention would provide capital and operating resources to make low-income urban schools safe, inviting, and stable, and umbrella social services to narrow the gap between what those students get and what their high-income suburban counterparts have already received at home.

    Replies

    • navigio 3 years ago3 years ago

      And perhaps even more importantly, since the state doesn’t require it, I would love to see local boards of education pushing for their own districts to publish this kind of teacher status data. it’s kind of embarrassing that we don’t think this kind of stuff matters.

  5. el 3 years ago3 years ago

    If we cared about quality education, layoffs would be so rare that it wouldn’t matter what method we used to select teachers for layoffs.

    Layoffs are not about creating a quality workforce. Any situation where a district is pink-slipping hundreds (or thousands) of teachers is going to be destructive, regardless of the method of selection.

  6. navigio 3 years ago3 years ago

    I dont think its accurate to characterize the lawsuit as one about the guarantee of equal access to quality education as such a guarantee does not exist. Rather, the guarantee is only with respect to equality (which can be achieved by providing everyone an equally horrible education). The lawsuit seems to recognize this by claiming that most teachers are already providing a quality education. That said, I think the lawsuit has a critical flaw in that … Read More

    I dont think its accurate to characterize the lawsuit as one about the guarantee of equal access to quality education as such a guarantee does not exist. Rather, the guarantee is only with respect to equality (which can be achieved by providing everyone an equally horrible education). The lawsuit seems to recognize this by claiming that most teachers are already providing a quality education.

    That said, I think the lawsuit has a critical flaw in that it assumes there is a link between the laws in question and the disparity between districts. The fact is every district is subject to these laws so any disparity between them must be a result of something other than the laws. It seems like in order to make any case the plaintiffs will need to show that connection. This also raises the uncomfortable suggestion that the lawsuit should be targeting district leaders (or teachers directly) instead of state law.

    An additional concern is the lawsuit’s claim that the result of the laws is ‘arbitrary inequality’. This despite the fact that it also claims that disadvantaged students are disproportionately affected. While the arbitrariness approach seems valid (especially within individual schools), it seems an entirely different argument than that of a broad impact created by a state policy.

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