If you or I are doing a bad job, we can generally be fired. Certain procedures might have to be followed; a cause might have to be proved. But most of us work with the incentive that if we do a bad enough job, we’ll be let go.
It’s different for public school teachers in California (and for many teachers elsewhere). If they can manage to not utterly disgrace themselves in the first year and a half of working, they get locked in to “permanent employment” status.
If their performance later becomes so disgraceful that the "permanent employment" status could be overridden, the process of trying to firing them is so annoying, expensive, and time consuming that their bosses often don’t bother. And when teachers have to be laid off for financial reasons, it doesn’t matter how good they are, they’ll get canned before someone who has any seniority over them, no matter how bad these other teachers are, due to the state’s “last in, first out” (LIFO) rules for teachers.
These policies make it difficult and expensive to fire teachers and make the teacher body as a whole in California public schools of lower quality than it would otherwise be. Do those problems with quality and expense constitute a violation of California students’ constitutional rights to an education? Court proceedings in California Superior Court in Los Angeles County, in the case of Vergara v. California, may settle that question.
Nine public school students, with the support of the educational rights activist group Students Matter (funded by optical telecommunications systems millionaire David Welch) filed suit in May 2012 against California and several of its educational agencies. As the students’ lawyers stated in a court filing opposed to the defendants’ (failed) motion for summary judgment, the rules they are challenging “prevent California’s school districts from providing even a minimally acceptable education to some of California’s most vulnerable students because they effectively prohibit school districts from prioritizing, or meaningfully considering, the interests of their students when making critical teacher employment decisions.”
And this next part is important: “As a direct result…school districts are forced to place failing teachers—those who are often well known to be either unable or unwilling to perform their jobs in even a minimally satisfactory manner—in classrooms where they perform miserably year after year in teaching California’s students. Students taught by these grossly ineffective teachers are missing out on half or more of the learning that students taught by average teachers receive in a school year, leaving them far behind their peers and placing the quality of the rest of their lives in jeopardy.”
The student-plaintiffs range in age from eight to 17, including boys and girls, white, black, and Hispanic. Most of them expressed in declarations to the court either bad experiences with bad teachers and/or having great teachers pushed out for lack of seniority. While the plaintiffs did not choose to sue any teachers unions, two of them, the California Teachers Association (CTA) and the California Federation of Teachers, pushed their way into the case as “intervenors,” claiming their interests were at stake.
In the past decade, the plaintiffs said in a press release, only 91 teachers have been successfully dismissed in the state, and most of those were for “egregious conduct,” with only 19 booted for unsatisfactory educational performance. This would make California’s teachers a miraculously effective and competent set of workers if the numbers reflected reality rather than their extraordinary political power. They’ve scuttled past attempts to institute databases that would help monitor student academic performances and link it to teachers’ performances, and even attempts to make it easier to fire teachers accused of sexual abuse.
After three failed attempts to get the Vergara case killed on the part of the defendants, the trial began last week in front of Judge Rolf Michael Treu, who will decide the case without a jury. (Whichever side loses will undoubtedly appeal up to the California Supreme Court.) Among the lawyers for the students is the team that helped overthrow California’s ban on same sex marriage at the federal Supreme Court in Hollingworth v. Perry, former U.S. Solicitor General Theodore Olson and Theodore Boutros.
The hiring and firing rules for teachers are a result of some unparalleled political power; while teachers unions have complained about the suit being funded by a politically interested millionaire, the CTA is the biggest, richest political force in the state, spending in the ‘00s more than $211 million on political giving and lobbying—nearly twice the amount of the nearest competitor in political influence, the Service Employees International Union.
Marcellus McRae, one of the trial lawyers for the students, points out that not all teachers love these rules. The plaintiff’s lawyers have teachers as well as administrators on deck, and many teachers would be glad to see this case succeed in “elevating quality for teaching across the board. No one wants bad teachers.”
McRae thinks there is no way the teachers’ employment perks can survive the judicial scrutiny they deserve, which would require the state to prove they serve a compelling state interest and do so in the most narrowly tailored way. Given that many other states manage to have reasonably successful school systems with far looser requirements for tenure or firing bad teachers, he thinks the state can’t prove California’s particular policies are necessary to treat teachers fairly, retain them, or give them due process.
McRae insists they are not trying to legislate from the bench, as teachers unions have complained. “The relief we are seeking is to have the existing statutes declared unconstitutional,” he says. “We are not asking courts to play the role of legislature and write solutions; those have to come about through the involvement of all the stakeholders and the legislature.”
John Deasy, the superintendent of the L.A. Unified School District, has testified for the plaintiffs in the trial, lamenting an average cost of $350,000 and an occasional time period of 10 years to get rid of a crummy teacher. The result, Deasy says, does indeed damage students’ ability to get an equal or quality education.
“It is my experience,” he said, “that this statute does not provide for the timely dismissal of teachers who are incompetent, who are unable to teach. And that is fundamentally what protects the quality of public schools, is having highly competent, and highly effective teachers in front of students every single day.” Less than 1 percent of LAUSD’s workforce were either successfully fired or resigned while facing dismissal procedures during the last school year.