Ripple effect expected across the nation

 I wrote this article on June 11, 2014, the day after the Los Angeles decision that received a great deal of press here in California where I live.  As expected there has been a ripple effect across the nation with 2 cases in NY today. The California case is now being referred to as, “the landmark court decision handed down in June by California state Judge Rolf Treu in the case Vergara v. California. He decided that California’s tenure rules impacted how teachers were hired and fired in a disproportionate manner, and this ultimately affected how poor students and minority students performed, thus depriving them of their right to an equal education under state law.”

My earlier article.

On June 10, 2014, Los Angeles Superior Court Judge Rolf Treu issued a tentative decision to strike down job protection for teachers in California. The decision, in Beatriz Vergara, et.al. v. the State of California, et.al. and California Teachers Association, et.al. (Vergara), although tentative, will likely put an end to teacher tenure as we know it. We expect, after the legal wrangling is concluded, that the Vergara case will stand as a landmark educational decision much like the desegregation case, Brown v. The Board of Education, some 60 years ago.

In its June 10, 2014, tentative ruling, the Los Angeles Superior Court considered whether current education status (which now allow for teacher tenure and dismissal) are affecting student learning negatively. Judge Treu ruled that students assigned to an incompetent teacher were most often minority and low income and that teacher incompetency violate the California Constitution’s guarantee that all children receive “basic equality of educational opportunity.”   In his ruling, Judge Treu likened his finding to the Brown vs the Board of Education case writing, “The evidence is compelling. Indeed, it shocks the conscience.”

If we were writing a persuasive essay, the topic sentence for the nine students in the Vergara case might be “State Statutes Permit Too Many Grossly Incompetent Teachers To Remain In Classrooms Across The State And As A Result Put Students Months Or Years Behind Their Peers In Math And Reading.”

In Judge Treu’s tentative decision he said, “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

His ruling found specifically that the 5 California Statutes governing the hiring and firing of teachers unconstitutional.   His 16-page opinion on the 5 laws can be found here.

The five statutes under review are:

Government Code Section 44929.21 (b) (“Permanent Employment Statute”);

Government Code Sections 44938 (b) (1) and (2) and 44944 (collectively “Dismissal Statues”)l and Government Code Section 44955 (“Last-in-First- Out (LIFO)”); which are known as the “Challenged Statues” for the purposes of the Vergara case and ruling.

Plaintiffs claimed that the Challenge Statues resulted in ineffective teachers obtaining and retaining permanent employment and that these teachers disproportionately serve in schools with predominately low-income and minority students.   They further claimed that the Challenge Statutes in effect violate fundamental rights to an equal education by adversely affecting the quality of education afforded by the state, according to Plaintiffs in the case.

As a result of this claim, the court was asked to evaluate how the Challenge Statutes affect the educational experience. The judge was to decide if exposure to the Challenge Statutes cause “potential and/or unreasonable exposure of grossly ineffective teachers to all California student in general and to minority and /or low-income students in particular which would be a violation of the equal protection clause of the California Constitution.

Evidence was presented citing the effect of grossly ineffective teachers. Researcher Dr. Chetty testified stating he found that in a single year a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.   Another expert witness for the plaintiffs, Dr. Kane, testified that LAUSD students who were taught by a teacher in the bottom 5% of competence lost 9.5 months of learning in a single year based on a 4-year study.

A State of California (defendant) expert testified that 1-3% of the teacher in California are grossly ineffective resulting in teacher ranges of 2,750-8,250 teachers. As a result of this information, the court ruled that grossly ineffective teacher have a direct, real, appreciable, and negative impact on a significant number of California students.

Statute 1 Permanent Employment Statute

The California “two-year” statute is not enough time for an informed decision to be made regarding the decision of tenure (critical for both teachers and students).

The Court ruled that both students and teachers are unfairly and unnecessarily disadvantaged by the current Permanent Employment Statute.

Statutes 2-4   Dismissal Statutes

Evidence was presented stating that it took anywhere between 2-10 years at a cost of $50,000 to $450,000 or more to reach a conclusion for termination under the Dismissal Statutes and as a result, it is rarely done.

A defense witness, Dr. Johnson testified that dismissals are “extremely rare” because California administrators believe it to be “impossible” to dismiss a tenured teacher under the current system.

The Court ruled that based on the evidence presented the “current system required by the Dismissal Statutes to be so complex, time-consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory”.

Statute 5- Last–in-First-Out

The Court ruled that this statute contains no exception or waiver based on teacher effectiveness.   The example that the last hired teacher would be statutorily mandated first fired when layoffs occur did not take into account the differences in educational experience between gifted junior teachers and the grossly ineffective senior teacher (with tenure) on students. As a result, the Court found the LIFO Statute unconstitutional under the equal protection clause of the Constitution of California.

In concluding its holding on the LIFO statute, the Court found all the Challenged Statutes unconstitutional citing the Department of Education’s document “Evaluating Progress Toward Equitable Distribution of Effective Educators (July 2007)”. This document stated, “