What This Recent Court Decision Means for the Future of Teacher Tenure

A California trial court last week levelled a blow at laws that ensure teacher tenure and due process. Following a pitched battle between major education-reform interests and teachers unions, Judge Rolf M. Treu ruled that five statutes dealing with teachers’ job protections in the state discriminate against poor and minority children.

The one to three percent of teachers estimated to be “grossly ineffective” cluster in high-poverty schools, Judge Treu argued, resulting in a harm to students that “shocks the conscience.” The scathing 16-page decision, Vergara v. California, invokes Brown v. Board of Education in its condemnation of tenure statutes, due-process laws that impose costly burdens on districts firing teachers, and “last-in, first-out” layoff policies that protect senior teachers.

It’s a high-profile victory for the Silicon Valley mogul who spearheaded and bankrolled the suit, David Welch, as well as the education reform movement that sees teachers’ job protections as the prime obstacles to educational equity. “A lot of people who care about education reform will talk this week about how Vergara will positively affect educational outcomes for public school children,” wrote former DC schools chancellor Michelle Rhee, whose advocacy group Students First carries the standard in the fight to abolish tenure.

Though its long-term impacts remain unclear (particularly since it is only a preliminary ruling), Vergara has already thrown the education world into a tizzy. The decision will likely catalyze similar efforts in the 46 states that grant teacher tenure, while putting unions further on their heels. Meanwhile the ruling delighted Secretary of Education Arne Duncan, whose Race to the Top legislation has already led dozens of states to hobble tenure policies.

But there are two considerations that seem to be lacking in the case and its surrounding discussion: first, what really drives educational inequality? And second, what policies get good teachers into the classroom to begin with?

Vergara seems like a diversion from the real issues,” says Dr. Kevin Dr. Welner, professor of education and head of the National Education Policy Center, a University of Colorado, Boulder group that receives some union funding. “It attacks teachers and teacher unions instead of addressing the root of opportunity gaps.”

Research has consistently found that at least half of the variation in educational outcomes correlates with childhood poverty and family background. In the past half-century of diverging American fortunes, educational inequality has tracked more closely with rising income inequality than any other factor.  

Tellingly, the two legal precedents Judge Treu cites to uphold his reasoning deal directly with income-based inequalities in school funding, yet he’s silent on existing resource disparities in California schools. (He’s also mum on the more recent resource-equity suit, Williams v. California, which also deployed the much-quoted “shocks the conscience” line.)

The forces behind such litigation, says Dr. Welner, “attack teachers and teachers unions instead of addressing opportunity gaps that exist in vulnerable communities.” But California’s school finance ills have been extensively litigated (to only modest success), and a judge can’t easily rule poverty unconstitutional. So where do we go from here?  

Dead Wood?

As those on all sides have pointed out, the laws governing tenure in California probably do warrant some scrutiny. California principals make tenure decisions about 18 months into a teacher’s career, before a novice teacher’s two-year pilot period has formally concluded. That brief timeline, Dana Goldstein points out in The Atlantic, diverges from the national average (tenure decisions at 3.1 years) and even differs from what teachers on average find reasonable (over 5 years).

“There are some virtues to the litigation,” says Penn Graduate School of Education professor Richard Dr. Ingersoll, who has written dozens of studies on teacher staffing and turnover.  “There are some bad teachers and, yes, there are some barriers to getting rid of dead wood. But they’ve exaggerated the whole thing out of proportion.”

To Dr. Ingersoll, the working conditions that attract or repel qualified teachers far outweigh the need to eliminate ineffective teachers. “Their assumption is that the problem with schools is teachers,” he says. “But it’s not so much about getting better people for the job as getting better jobs for the people.” As the most academically successful countries in the world indicate, elevating the teaching profession – through job protections, respectable pay and workplace autonomy – attracts the best educators.

A former high school teacher, Dr. Ingersoll has taken special interest in teacher turnover. As in any profession, teachers desire stable, well-paying jobs. “Being able to get rid of a few bad apples won’t fix the larger structural problem,” he says. The Vergara court estimated (roughly) that between one and three percent of California teachers were grossly ineffective. But at the most disadvantaged schools, up to a quarter of teachers leave annually, Dr. Ingersoll’s research suggests, which inflicts its own set of damages on the student population.

Excessive teacher turnover harms student learning and development, especially for kids inured to the sight of teachers filing in and out every year. The advent of fast-track, limited-commitment programs like Teach for America has exacerbated teacher churn in high-needs schools, which average 50 percent higher turnover rates than their affluent neighbors.

Dr. Ingersoll recalls being brought in to testify in a different lawsuit two years ago in Los Angeles concerning the same seniority-based dismissal policies now imperiled by Vergara. Last-in-first-out layoffs were imminent, and the district wanted to exempt certain schools with disproportionately junior staffs. But at some of these schools, Ingersoll found, as many as 30 percent of teachers were leaving every year of their own accord. “Why are these places losing teachers like a sieve?” he remembers asking the court. “It’s the same thing [as Vergara] – they’re not really getting at the root problem.”

In short, the teacher accountability movement has made neither the profession more rewarding, nor the teaching (and learning) conditions more stable – the very factors that attract good teachers and get them to stay. In fact, it’s doing precisely the opposite.

What's Next?

To be sure, the evidence presented in Vergara was thin gruel – none of the plaintiffs, for instance, could causally connect their “bad” teachers to the tenure statutes at issue (pg 5-6), and one of the “grossly ineffective” educators cited was a substitute employed at will. Still, the judge’s expansive reasoning could hold the door open to advance progressive educational priorities.

Dr. Welner, who has extensively researched education rights litigation, recently wrote of potential “silver linings” to Vergara on Valerie Strauss’s Washington Post blog. “An approach like that used by the Vergara judge,” Dr. Welner wrote, “could put California courts in a very different role – as a guarantor of educational equality – than we have thus far seen in the United States.”  

Though Judge Treu’s equal-protection rationale has typically applied only to funding disputes, if upheld it opens up any number of school policies to equal-protection arguments, so long as they can be shown to “violate [students’] fundamental right to equality of education.” (N.B.: such a lower-court state decision doesn’t set a precedent nationally.)

“California is already a more favorable environment for this kind of challenge,” Dr. Welner says. “It could lead to more court cases if there are people willing to take up these problems.” Could a similar case be brought to challenge school closure policies, which invariably fall on students of color and low-income communities? Or the loss of music and arts classes among black and Latino students in the standardized testing age?

On this front, Dr. Ingersoll singles out high-stakes testing policies, which tend to weigh inordinately on high-needs schools fending off the sanctions of No Child Left Behind. “We’ve found that the more disadvantaged, particularly urban schools have centralized curriculum, teaching to the test, et cetera,” he says – policies that erode teachers’ discretion and autonomy.

“That’s a huge gripe,” Dr. Ingersoll says. “It’s the largest factor behind the high turnover rate in math teachers now: lack of say in the classroom.” With top-down curricula coming to define the urban classroom, increasing numbers of dedicated educators are packing it in for less restrictive teaching environments. “It gets back to the real source of the problem,” says Dr. Ingersoll. “Firing a few bad teachers won’t fix it.”

The kinds of equity-minded cases that could be brought following Vergara stretch “as far as your imagination could carry you,” says Dr. Welner – though he says he’d be surprised to see the reasoning held up in an appellate court more likely to make a narrow ruling.

Still, free-market education reform proponents have already taken note. In USA Today, Frederick Hess of the conservative American Enterprise Institute warned that “courts have a long history of failing to weigh costs and benefits and imposing requirements that prove bureaucratic and unworkable.” Though he celebrates Vergara, he cautioned that “courts can seem an easy, appealing shortcut.”

Hess’s equivocating highlights the fraught politics of civil rights and education. Under the banner of equity, policy changes over the last two decades have meant that teachers in the neediest classrooms grow younger, whiter and more precariously employed with each passing year.

As a former high school teacher, Dr. Ingersoll can’t help but see the irony here. “Now [that I’m a professor] I teach older kids who are better behaved – and I’m paid more,” he laughs. “Which seems sort of ass-backwards from a societal viewpoint.”


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