Attorneys give final arguments in Vergara suit challenging laws for teacher hiring, firing
Mar 28, 2014 | By John Fensterwald | 40 Comments
The future of tenure and other laws governing how teachers are hired and fired in California is now in the hands of Judge Rolf Treu.
Attorneys in Vergara v. California made their final pitches Thursday in Los Angeles County Superior Court. The four hours of closing arguments paralleled opening statements two months to the day and 52 witnesses ago, with diametrically different views on whether teachers’ workplace protections harm many – or any – of the state’s most vulnerable schoolchildren.
The lawsuit was filed on behalf of Beatriz Vergara of Los Angeles and eight other students in five California school districts by Silicon Valley businessman David Welch. He started the nonprofit Students Matter to file and promote the case and hired a high-profile team of lawyers, led by Theodore Olson and Theodore Boutrous. They challenged three statutes laying out the teacher dismissal process, two laws establishing tenure – the due process guarantees given teachers after two years on the job – and layoffs by seniority, known as LIFO for the “last in, first out” process.
The state’s two teachers unions have characterized Vergara as part of a larger, ideological effort by wealthy individuals like Welch to undermine unions, scapegoat teachers and divert attention from systemic issues like inadequate school funding and poverty.
But in his closing argument, live streamed by the Courtroom View Network, Boutrous said the lawsuit has the right focus. “Teachers have the most important impact” in a school – that is not disputed, he said. “We would love to solve all of the problems and difficulties in our school system, but we focused on something that can be changed” – laws he asserts are damaging to children.
“We know grossly ineffective teachers harm students; they haunt them for the rest of their lives,” he said.
the evidence of two expert witnesses in the case. Thomas Kane, an education and economics professor at the Harvard Graduate School of Education, presented data showing that a student taught by a teacher in the bottom 5 percent of effectiveness – what plaintiffs categorize as “grossly ineffective teachers” – would fall nine months behind in English and nearly a year in math, compared with students taught by an average teacher. Raj Chetty, another Harvard economics professor, crunched test score data on 2 million students over two decades and concluded that replacing the worst-performing 5 percent of teachers would increase college admissions, lower pregnancy rates and raise average lifetime income per student by $50,000. Boutrous cited the findings as proof of the ongoing human costs of keeping the worst-performing teachers.
But defense attorney Susan Carson, a supervising deputy state attorney general, said the data is “not effective or credible.” Both Kane and Chetty used a “value added methodology,” called VAM, which defense experts said is unreliable, to identify worst-performing teachers. And defense witnesses argued that multiple measures – observations, portfolios of student work and local assessments, not test scores alone – should be used to evaluate teachers. “None of our administrators testified that they used or needed to use VAM,” Carson said.
While agreeing that there may be a small percentage of grossly ineffective teachers in California, the two sides disagreed on the central issue of the case – whether the challenged laws were at fault and whether striking them down would be wise.
Boutrous and co-plaintiffs attorney Marcellus McRae, who also spoke during closing arguments, argued yes. The state’s teacher protection laws perpetuate a cycle of saddling classrooms with the worst teachers. They are concentrated in low-income schools, they said, disproportionately denying those students their constitutional right of an equal opportunity to an education.
“Have we not had enough of short-shafting poor people and minorities?” McRae asked. “This abomination must stop; there is no debate. They (ineffective teachers) are unequally distributed.” Because there’s clear harm and a violation of the constitutional rights of low-income children, plaintiffs argued, the burden falls on the state to prove the laws serve a valid purpose and there are no better alternatives. “Instead, the defense has been doing gymnastics to justify an irrational system,” Boutrous said.
But Carson and James Finberg, an attorney for the California Teachers Association and California Federation of Teachers, which joined the defense, said that teacher protections such as tenure provide job security. Striking down the laws would “remove a factor creating a stable job force,” Finberg said. And they said there was no evidence that the nine students had suffered appreciable harm and that the laws had anything to do with how teachers are assigned to schools or why more experienced teachers transfer to more affluent areas. They cited defense witness Linda Darling-Hammond, a Stanford University education professor, who testified that poor schools with adequate resources and effective principals will draw and keep effective teachers.
Laws together compound harm
Boutrous and McRae said the five laws act in tandem, causing “symbiotic harm” for students.
They said the current tenure law, which grants permanent status to teachers after two years on the job, doesn’t provide enough time – closer to 16 months in reality, according to witnesses – for administrators to make informed decisions. Because teachers improve over several years, less time involves a “crap shoot” that is not good enough for children, McRae said, especially when there are alternatives, like a probation period of three to five years, which most states have adopted.
But as with most aspects of the case, dueling superintendents disagreed. Principals and administrators for the defense said they were able to judge who would be effective within 18 months or less. It wouldn’t make a difference to give mismanaged districts – Finberg repeatedly cited Oakland Unified as one – more time.
Boutrous said that once hired, the state’s 17-step “arduous, Byzantine dismissal statutes make it costly and time-consuming beyond belief” to fire teachers that “all would agree are grossly ineffective.” McRae said the independent Commission on Teacher Competence, which hears appeals of dismissed teachers, fires an average of 2 out of 277,000 teachers each year.
That percentage is “so small you would need a subatomic microscope to see it,” McRae said.
Persuading teachers to agree to a financial settlement or to resign or transfer to another school are not adequate solutions, McRae said, adding, “A workaround is an admission of an ineffective statute.” Superintendents testifying for the plaintiffs, who included Los Angeles Unified Superintendent John Deasy, and former superintendents Tony Smith of Oakland Unified and Jonathan Raymond of Sacramento City Unified, said costs, time and energy were factors in deciding whether to move ahead with dismissals, and they’d have pursued more if the laws were less onerous.
Superintendents for the defense testified that they have avoided costly dismissal proceedings. Finberg pointed out that numerous witnesses testified that when evaluations are done by well-trained administrators, teachers resign, retire or settle for small amounts, such health care coverage for a few months. That’s why McRae’s statistic is deceiving, he said.
Anticipating the defense’s argument, McRae said the claim that dismissal laws don’t pose a problem in well-managed districts is “callous.”
“Children can’t control whether they live in a well-managed district,” and the state Supreme Court has ruled that the state cannot leave it to districts to enforce a constitutional obligation to equal opportunity, he said. The court said to the state, “Stop it, just stop it. Do not abrogate your responsibility,” McRae
said, calling it “an embarrassment for any state, let alone this state, to take this position” and ignore bad laws.
There was no common ground on layoff laws. Finberg said basing layoffs on seniority is objective and fair. The alternative, UC Berkeley economics and public policy professor Jesse Rothstein testified, is an expensive, subjective and a divisive process of rating the effectiveness of every teacher each year. Boutrous said LIFO discourages teachers from entering teaching by preserving the worst teachers at the expense of some of the best. California is one of 10 states that require layoffs by seniority, he said; in 20 states, seniority cannot be the sole factor, while in two states, it cannot be considered at all. Local districts set their own rules in 19 states, according to the plaintiffs’ closing presentation.
Judge Treu can choose to strike down none, all, or some of the laws. He will have 90 days after final briefs are filed April 10 to sort through the conflicting testimony and constitutional issues before issuing a ruling. Both sides already have said they would appeal if they lose.
John Fensterwald covers education policy. Contact him and follow him on Twitter @jfenster. Sign up here for a no-cost online subscription to EdSource Today for reports from the largest education reporting team in California.
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