After "Vergara": HGSE Experts Weigh In

A California judge’s recent ruling that the state’s teacher protection laws are unconstitutional breathed new life into a national conversation about the future of the hiring and firing of teachers. In the Vergara v. California trial, nine students argued that the laws protected ineffective teachers, who were assigned to work with low-income, minority children. We asked Dean James Ryan, as well as Professors Susan Moore Johnson and Thomas Kane, both of whom testified in the case, to answer a few questions about the ruling.

What was your reaction to the Vergara ruling?

Ryan: The judge issued a surprisingly strong opinion, and a surprisingly broad one. Essentially, the judge agreed with the basic principle that inequalities in educational opportunity violate the state constitution. That’s a fairly broad principle, which could encompass more than the employment statutes at issue in this case. That said, it’s far too early to know what impact this case will have in California or elsewhere. It will be appealed, and the decision will be stayed — have no legal impact — until those appeals are concluded. In the meantime, I would expect to see political and legislative activity in California and elsewhere on this issue, and I have no doubt that similar suits will be filed in other states, based on their respective state constitutions.  If school finance litigation — which is based on the same state constitutional provisions regarding education that were relied on in the Vergara case — is any guide, this will take a long time to play out in California and in other states.

Johnson: Many who followed the Vergara case predicted that the Judge would rule in favor of the plaintiffs. Still I was surprised how sweeping the decision was. Having read much of the testimony, I expected the Judge to explain in some detail how each of the five statutes led to the students being assigned to “grossly ineffective” teachers.  However, the ruling was more rhetorical than reasoned, a passionate restatement of the plaintiffs’ positions, with little meaningful evidence to support it.  As I participated in the trial, I was struck by how utterly ineffective the adversarial process was for making educational policy, and the decision only reinforced that view. Despite the ruling finding all five statutes unconstitutional, nothing will change while the case is on appeal. If the appellate court reverses the decision, the statutes will remain in effect. However, if the appellate court concurs, there is no guarantee that these laws will be replaced by anything, let alone anything better. Tenure could be eliminated and layoffs could be left entirely to the discretion of principals. Some think that’s a good thing; I don’t.

An attorney for the plaintiffs was quoted in Politico as saying that they intended to try the case “in the court of public opinion.”  In fact, that seems to be their playbook. Those who funded and promoted the case have promised to put these issues to a vote in CA and to initiate similar court challenges in other states.  In response, the state and national unions surely will mobilize to hold their ground. It would take thoughtful, deliberate, and collaborative work to sensibly revise or replace the current statutes, but that seems nearly impossible with the sides so polarized.

Kane: Individual teachers have large and lasting impacts on the lives of children. The negative impact of an ineffective teacher is as large and lasting as the positive impact of a great teacher. It makes no sense to make tenure automatic after 18 months on the job. And it is indefensible for schools to be forced to lay-off great young teachers to make space for ineffective teachers with more seniority. Such laws are not in the interest of students, and hurt disadvantaged minority students disproportionately. I welcome the judge’s ruling.

How does this ruling have the potential to impact teachers and teacher unions going forward?

Ryan: The case has sparked an important conversation about teacher tenure, last-in-first-out employment rules, and the cost and time associated with procedures for dismissing ineffective teachers.  But that conversation is by no means ended by this decision.

Johnson:  Although testimony in the case focused on “grossly ineffective” teachers, many competent and skilled teachers will likely feel its effects.  Several of the plaintiff’s expert witnesses testified extensively about the potential of value-added ratings to assess teachers’ effectiveness.  This ruling could accelerate the use of standardized tests and value-added ratings in routine — but high-stakes — personnel decisions. To do so would violate the recommendations of virtually all scholars who have reviewed the use of value-added methods. Alternatively, if principals gain the authority to decide which teachers will stay or go at any point in their career, many effective teachers may decide that public school teaching is not for them. Students — especially those in high-poverty, high-minority schools — will suffer their loss.

This decision will also further undermine public confidence in teachers unions. Although some unions oppose sensible reforms with knee-jerk predictability, they are not the norm and they are not the future. Many union leaders have worked collaboratively in local districts and state legislatures to adopt and implement creative and effective reforms. A career ladder in Baltimore has totally replaced the standardized salary scale. Peer assistance and review programs in many districts nationwide — including several in California — rely on expert teachers to assist struggling teachers and recommend dismissal for those who do not improve. This decision may convince some teachers that unions are passé, but I expect many more teachers will move toward their union because they feel unfairly blamed by the public and apprehensive about the prospect of losing reasonable protections.

Kane: Teachers, administrators, students, and parents all have an interest in ensuring that the tenure review process is as thorough and fair as possible. That’s the common ground. I hope that teachers’ representatives and administrators will work together to develop rigorous standards for young teachers seeking tenure after their first few years on the job.

The more difficult questions are regarding strict seniority-based layoffs and the number of steps required to provide due process for tenured teachers. The resolution to both these issues must involve a fair process for recognizing ineffective and negligent teaching. If such a system were in place, and teachers could be assured that they would not be subject to the whim of an administrator then answers could be found.

Therefore, the central issue for tenure review as well as for last-in-first-out layoff rules and unreasonable due process rules is a fair and transparent process for identifying quality teaching. School districts around the country are finally beginning to invest in systems for providing feedback to teachers. We need to build a common vocabulary for describing and building effective practice. We have a lot of work to do to build equitable and fair systems, which provide teachers with the information they need to improve, as well as to help administrators make responsible personnel decisions. Yet that is where we will find answers to the difficult issues raised in the Vergara case.

What are your thoughts on the ruling and predictions for the future of teacher tenure?