The teacher tenure, seniority and dismissal laws that the nonprofit organization Students Matter wants a judge to overturn are essential to create a “professional, stable workforce” and attract teachers into a profession with low pay and difficult conditions, a state deputy attorney general said Monday at the start of the much-anticipated Vergara v State of California trial. 

“Eliminating due process and job security could bring about unintended consequences when California is embarking on innovative efforts,” like the Local Control Funding Formula, to improve public schools, Deputy Attorney General Nimrod Elias told Los Angeles County Superior Court Judge Rolf Treu. The proceedings were streamed over the Internet by the Courtroom View Network.

In the lawsuit, nine students from Los Angeles Unified, Oakland Unified and three other districts are challenging longstanding legal protections that their attorneys say lead to hiring and keeping “grossly ineffective teachers.” The suit aims at five laws that the plaintiffs say interfere with districts’ ability to make effective decisions: statutes granting tenure or permanent status to probationary teachers after two years, mandating teacher layoffs based on years on the job and setting up a complex dismissal process that turns over appeals to an independent panel. Because disproportionate numbers of bad teachers end up teaching poor and minority children, the lawsuit says, the laws violate the state Constitution’s guarantee to all children of the opportunity for an equal education and should be thrown out.

Four hours of opening statements Monday revealed little common ground, with attorneys for the plaintiffs and for the defense agreeing only that, by the nature of a bell curve, some teachers will be more effective than others. There was no agreement, however, on how to identify those teachers; whether any of the nine plaintiffs actually had the worst teachers; whether the laws or bad managers led to hiring and retaining ineffective teachers; and whether the plaintiffs have overstated teachers’ impact on children, compared with factors like poverty and crowded classrooms.

“We are not saying we have all the answers,” said plaintiffs’ attorney Ted Boutrous. “We are not saying there are not other problems (in schools). We are not asking the court to create an evaluation system. We are not attempting to scapegoat teachers for racism and poverty.”

But, he said, the combination of the laws establishing tenure, ensuring layoffs primarily by seniority and creating an “arduous,” expensive dismissal process together “create a vicious cycle to harm students every day.” They “shackle” superintendents and principals from making the best employment decisions, and the results “scar students for years and sometimes for life.”

In response, defense attorneys said there was no evidence linking the statutes to the assignment of ineffective teachers to schools with the neediest students. They disputed the use of student test scores alone, through a “flawed” methodology called Valued Added Measures or VAM, to identify grossly ineffective teachers. And they said there was no evidence that the nine student plaintiffs had grossly ineffective teachers.

The students, some of whom are now high school students, are expected to appear as witnesses. Beatriz Vergara, for whom the lawsuit is named, will testify that her Los Angeles Unified teachers fell asleep in class and called her fellow Hispanic students the derogatory gang term “chollo.”

But the defense will call to the stand  teachers whom the plaintiffs identified as ineffective to refute those characterizations. One of those teachers, Christine McLaughlin, a seventh grade English teacher at Pasadena Unified, was selected teacher of the year in Los Angeles County last year. Defense attorney James Finberg, representing the California Teachers Association and California Federation of Teachers, played video testimonial in which students praised her as an inspiring and caring teacher.

Deputy Attorney General Elias acknowledged that some high-poverty schools do have problems retaining teachers, who move to other schools when they can. But these schools are often “in dangerous areas with difficult working conditions” and a small applicant pool. Throwing out these laws “is not going to break that cycle,” he said. “There is no evidence that the laws force districts” to assign teachers to these schools.

The trial, expected to last at least a month, will pit dueling experts. Those for the plaintiffs will include Raj Chetty, a professor of economics at Harvard, whom Boutrous said will present research showing that grossly ineffective teachers – roughly 5 to 10 percent of teachers – create “irreparable harm” for students. Poor teachers lower students’ odds of graduating and getting into a good college, and raise the odds that students will become pregnant, and, over a lifetime, earn less money and save less for retirement, Boutrous said the research will show. Extensive research of more than a million Los Angeles Unified students over seven years by Harvard School of Education Professor Thomas Kane will establish the loss of a half-year learning for students in a classroom with a grossly ineffective teacher, as measured by test scores, Boutrous said. And that loss compounds for every additional ineffective teacher a students is afflicted with, he said.

But the blame is not the laws but how they’re enforced, Finberg said. Most districts effectively dismiss teachers and make wise decisions in hiring them.

“Good district management is needed for well-run schools,” he said.

 Summary of the arguments

In their opening statements, attorneys outlined the evidence they will present on the laws in question in coming weeks. (To see the slides that Ted Boutrous presented in his opening statement, go here.)

Tenure law

In California, probationary teachers are at-will employees who can be fired without cause but who are entitled to permanent status or tenure, with due process protections, after two years.

Plaintiffs: California is an “outlier,” one of only a handful of states with such a short probationary period, Boutrous said. To bring a recommendation of tenure to the school board and meet legal notification requirements, the decision on whether to give tenure must be made by January of the second year, after only 16 months on the job. Such a short time leads to hurried judgments and mistakes.

Defense: Administrators largely agree that they have more than enough time to identify grossly ineffective teachers, “the worst of the worst,” Elias said. “They will testify that they will err on the side of caution,” denying permanent status “if they have any doubts about it.”

The nine plaintiffs, including Beatriz Vergara, who brought suit against the state. This  slide, without names, was shown in opening arguments Monday in the case. Some of the students attended the session.

The nine plaintiffs, including Beatriz Vergara, who brought suit against the state. This slide, without names, was shown in court in opening arguments Monday. Some of the students attended the session.

Dismissal statutes

Plaintiffs: California has “a broken system,” Boutrous said, with a “byzantine series of hurdles” leading to a right of appeal before a three-person panel that takes control of employment decisions away from districts. Superintendents will testify that they lack the resources to go through the arduous process of firing grossly ineffective teachers, he said. Instead, they adopt workarounds: they pay off teachers through settlements; transfer them to other schools, where they become another principal’s problem; or send them to “rubber rooms,” where they are paid not to teach. Even 62 percent of teachers surveyed agreed that students would be better off if ineffective teachers were dismissed, according to economist Eric Hanushek, who will testify.

Defense: Tenure is not a guaranteed job for life, said Finberg, representing the teachers unions. Due-process protections insure that districts’ decisions will not be made arbitrarily, and protect teachers from cronyism, favoritism or punishments for teaching content, such as evolution, that some school board members don’t like. The small number of formal dismissals is deceiving. In 80 percent of the 530 dismissal actions filed between 2008-12, teachers reached a settlement or abandoned the challenge. And in most cases that go the full route, the districts have won, Elias said.

Layoffs by seniority

State law protects veteran teachers, although there are exceptions for less experienced teachers who have specialized training and who teach in areas where teachers are in short supply, such as special education and high school science.

Plaintiffs: The “last in, first out” statute creates “an irrational system, firing some of the brightest and most enthusiastic teachers while retaining” the worst, Boutrous said. As was proven in the Reed case in Los Angeles Unified, the LIFO statute, as it is known, has decimated the staff at low-income schools schools where newer teachers were disproportionately assigned. A study by an expert witness, Daniel Goldhaber, a research professor at the University of Washington, found that only 16 percent of teachers laid off by seniority would be laid off based on an effectiveness-based system, Boutrous said.

Defense: There is a positive correlation between experience and effectiveness and so “in the aggregate,” more effective teachers are retained than laid off through seniority. And reductions in force should have nothing to do with teacher performance. It is not intended to be “a safety net for districts that have not dealt with ineffective teachers,” Elias said. Without this seniority protection, districts will let go their more expensive teachers, he said.


Filed under: Evaluations, Featured, Preparation, Reporting & Analysis, Research and Reports, Teacher Tenure, Teacher Unions, Teachers and Admin

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  1. Jann GT says:

    I wonder who will be willing to teach with no job security and very low pay. My daughter-in-law who holds only a BA makes more in her first year as a lab tech for an oil refinery than I do as a veteran teacher with several credentials and advanced degrees.

    While I don’t think that I would suffer under this change because of my teaching work, I do believe that an administrator might want to save a bit of money a replace a veteran teacher with someone who only costs half of my salary. Tenure protects me from that kind of corruption.

    In no way would I recommend any young person enter the field of education–though I have loved the challenge of working with unique individuals and trying to share a love and skill with literacy. The pain of being a teacher in a society which does not value education or teachers is not for the meek. Thank goodness that youth are ever so much more interesting and kind than the adults in my culture.

  2. This is a historic and important case that has taken years to come forward: it’s past time to deal with the issues being presented. The plaintiffs are not demons: they are public school parents and students with concerns common to every tax-paying parent and public school student in the State of California.

    The caveat to avoid unintended negative consequences for teachers’ well-being is disingenuous and self-serving. We need to change existing teacher tenure rules to a longer probationary period. We need to remove ironclad last-hired-first-fired regulations to sustain excellence and allow staffing flexibility. We need to eliminate lengthy, cumbersome and stacked administrative hearings for teacher dismissals. These positive changes will improve our public schools and actually enhance the status of our teachers.

    Unintended negative consequences? We have lived for at least 40 years with the unintended negative consequences of existing skewed regulations, to the detriment of California public education. It is unfortunate that comments raised here today apparently are true-blue California Teachers Association (CTA) voices. As the richest most powerful lobby in Sacramento bar none, CTA representatives are vigilant defenders of status quo official union truth, but substantive change is needed. I hope it happens as a result of this case.

    1. CarolineSF says:

      Why is it unfortunate that teachers would speak up against being demonized? Wouldn’t that be expected? (Though I don’t believe most people speaking up here are teachers; I’m not, though my husband is, and my mother and mother-in-law are retired teachers.)

      1. Ann says:

        methinks they are mostly teachers…..no one is being “demonized”.

  3. CarolineSF says:

    In my kids’ high school, a new teacher proved to be very problematic. The principal announced that that teacher wouldn’t be returning after his second teaching year.

    A forceful and vocal, albeit clueless, parent started to gather support for mounting a protest AGAINST letting the teacher go, a “Save Mr. Doe” petition.

    Just to show how complicated it is.

    For the record, I was the one who definitively dissuaded the parent from pursuing the plan to protest.

  4. el says:

    If I could make the rule by fiat, I would keep the two year probationary period and I would also streamline the removal process. I would keep layoffs as seniority based.

    Here are my reasons:

    1. If a teacher is ineffective, two years (18 months) is a good period of time to come to that conclusion, that the teacher either is going to keep improving or should be replaced. In the first year, you’re still thinking of the good qualities in the interview and hoping those will come out. By the start of the second, you know if that’s likely or possible. Extending this period simply means that administrators will take longer to remove the teachers that aren’t working out, to the detriment of kids and to the process. Three or four years is actually long enough to lose track of who is probationary if it’s not top of mind for the administrator, especially in a school with a lot of turnover. It is my opinion, based on my particular observations, that lengthening the period would have the effect of lowering the bar for who becomes permanent.

    2. It is completely possible to remove a tenured teacher who is not working out, and there are methods other than the dismissal process. (The advent of the ACA, actually, may help a lot with older teachers who used to hang on past their retirement eligibility to keep health insurance for their younger spouses.) But, it is certainly cumbersome for everyone if the teacher elects to fight. We can ensure that everyone gets a fair hearing while also making it less time consuming and less expensive for everyone. At the end of the day, if the district really doesn’t want that teacher and has followed the law and process for dismissal, it doesn’t really benefit anyone (even the teacher) for the CPC to force the district to take the teacher back.

    3. Layoffs are always destructive and painful. We should avoid having them at all. When they do happen, choosing by seniority is at least clear to everyone. Districts could choose to alter this by making seniority per school or per region, so that all schools share the pain evenly. In any case, there are less destructive solutions to the issue of some schools losing more of their teachers than others.

  5. Manuel says:

    Sorry, I can’t help but point out that Slide 28 repeats the canard that the administrative panel is weighted in favor of teachers by insisting that both position (other than the Administrative Law Judge) must be teachers. In fact, one is a certificated person who is chosen by the district. True, most administrators maintain their teaching credential current, but that doesn’t make them automatically be in favor of the accused teacher.

    But we have discussed this before…

  6. Chetty and co-authors are economists. They are not experts in education or measurement in education (psychometrics). Most responsible researchers outside of economics (and many in that field as well) have said to the limited extent VAM may have uses in understanding something about teaching and learning, it’s not ready or appropriate for use in actual high stakes decisions. It does not follow that schools can or should attempt to identify effective teachers by the means Chetty used. Any policy or legal advice he might offer would seem to be based on observations about what happens to numbers if you change some of the variables in the equation. Changing people and systems is a different matter.

  7. Manuel says:

    John, which bell curve are you referring to in the article? The one describing the perceived ability of teachers or the one describing the students scores that form the basis of VAM?

    1. John Fensterwald says:

      Actually, I now have the link to the slides that the plaintiffs attorney, Ted Boutrous. presented in his opening statement. The slide you refer to was prepared by economist Eric Hanushek, who will testify in the case. It is #11.

      1. Manuel says:

        Thank you, John, for keeping an eye on Student Matters’ web site.

        According to Slide 11, the graph seems to state that teachers to the right of -1 standard deviation are deemed effective. But the graph does not identify what the units of the horizontal axis are (the vertical is expected to be the number of teachers at that “score”). What is being measured that defines that effectiveness is not mentioned in the slide. However, the slide does identify the source of the information as being Hanushek’s paper on “The Economic Value of Higher Teacher Quality.”

        I’ve found a copy of the paper and this graph is not included. What I did find is the following:

        The basic approach to estimating teacher effectiveness begins with a model of student achievement (A)
        for student i in grade g as a function of lagged achievement, a fixed effect for each teacher (delta_j), and other factors (X) that might affect performance as in:
        (2) A_it = (1 – theta)A_it-1 + delta_j + beta X_j + nu_it

        I recognize this equation as a variant of VAM where A_it is the “score” in a given test and the rest the coefficients needed to relate the score in the prior time-period (A_it-1) that then get adjusted to get the resulting matrix to be “solvable.” I can only assume that the delta_j, which is supposed to be teacher’s effectiveness value, is what is being plotted in the graph. The next question would be which district provided the scores used to grade these teachers which then ended up in this graph. Looking for that primary source proves to be a futile task because the citation simply has a table of estimates again produced by yet another VAM study. I punt.

        Anyway, measuring teacher effectiveness this way is, to me, nuts because the method is nothing else but an exercise in fitting into a relationship factors that have little to do with each other. Labor economists who do this for a living (like UCB’s Rothstein, himself one of the reference of another reference) have criticized this approach as unstable from year to year and so “noisy” as to be totally unreliable.

        Given this, I find the reliance of one researcher’s poorly documented ideas as fundamental to the validity of this case to be a grotesque manipulation of a tenuous application of mathematics. As they say in certain parts of the world, just because the monkey is dressed in silk finery does not change the fact that it is still a monkey.

        God help us all if this case is won by the plaintiffs.

  8. el says:

    “Those for the plaintiffs will include Raj Chetty, a professor of economics at Harvard, whom Boutrous said will present research showing that grossly ineffective teachers – roughly 5 to 10 percent of teachers – create “irreparable harm” for students. Poor teachers lower students’ odds of graduating and getting into a good college, and raise the odds of students getting pregnant, and, over a lifetime, earning less money and saving less for retirement, Boutrous said the research will show.”

    I suspect being a foster kid is a lot lot worse than having a poor teacher.

    What about living in a neighborhood with a grossly ineffective police department? I bet that has all those same effects.

    I’ve seen that research. I think that the way it is cited by people grossly overstates the actual correlation. Just as an example, I think it turns out that putting kids in preschool has more positive effect than their bad teacher has as a negative effect.

  9. el says:

    navigio, as a practical matter, the non-reelect has to go out by March 15 IIRC. As I understand it, administrators are taught that it is bad practice to surprise a staff member with one – they should know it is coming. Thus, a scenario might be that the teacher was kind of on the bubble at the end of the first semester but the principal thinks there’s the possibility for improvement. At the end of the academic year, doubts are in place and before the next academic year begins, a pretty clear plan would be laid out. Generally by December or so said administrator is going to have a pretty clear idea of whether or not that staff member will be allowed to stay on.

    Even these new teachers have a year-to-year contract unless it was set up as a more temporary position.

    1. Manuel says:

      el, isn’t that a change caused by the requirement that pink slips go out by March 15, especially now that lay-offs have been triggered?

      I don’t recall that this was the case, say, 20 years ago…

  10. navigio says:

    I noticed deasy said tenure is granted after 18 months. But ed code says only on the 3rd consecutive yearly contract is a district required to grant permanent status. Why did he say 18 months?

    1. Manuel says:

      He is playing possum.

      18 months is two 9-month periods.

      School is 180 instruction days, which works out to about 36 weeks.

      A month is roughly 4 weeks.

      Hence, two 9-months-periods with 4-weeks on each “month” is the amount of time a teacher spends on probation before being granted tenure.

      It wouldn’t have the same impact as saying two years (24 months!), would it?

      No, the poor administrator only has 18 months to make a very important decision. How could s/he be expected to do a good job in such a short period?

      It’s all about spin, don’t you know?

      1. Manuel says:

        Well, how about that? I am wrong in this cynical interpretation.

        An explanation (a talking point?) is found in slide 21 of the plaintiffs’ attorney opening remarks. (see post by John below for link to slides.)

        But it still boils down to the same thing: the poor administrators cannot figure out if a teacher will be effective or not over the time they are doing the evaluation.

        This can, of course, be turned around: what if the administrator does a lousy job in observations and deems a perfectly good teacher as a lousy one? It could happen, no? Wouldn’t that be grounds for someone to appeal the decision to not grant “tenure?”

        1. Ann says:

          “They will testify that they will err on the side of caution,” denying permanent status “if they have any doubts about it.”

          It can and does happen. First year teachers poorly trained in our ed schools have a steep learning curve in an actual classroom. Having to make this judgement, which denies a teacher permanently from attaining tenure(at least in our district), half way through the second year is wrongheaded and culls some very promising educators.