Callaghan: California teacher tenure ruling has less impact here

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It was natural for people who follow education policy and politics to use sweeping, even apocalyptic language in reaction to a California legal decision last week. The decision in Vergara v. California found a trio of that state’s teacher-protection laws unconstitutional after plaintiffs proved that leaving “grossly ineffective teachers” in place has a disproportional impact on poor and minority students.

The commentary leading up to the ruling set the stage.

“The Most Important Court Case You’ve Never Heard Of,” was the headline on a Daily Beast column by education reform advocate Campbell Brown.

“The Most Dangerous Lawsuit You Probably Haven’t Heard Of,” is how a Daily Kos column by Dante Atkins described the same litigation from the opposite perspective.

Both agreed that a successful lawsuit could have implications far outside California. That’s because equal protection and equal access to good schools are protected by most state constitutions. In Brown v. Board of Education, the U.S. Supreme Court protected them under the U.S. Constitution. And the advocacy group that brought the suit said it plans to take similar litigation nationwide.

So yeah, a big deal. But it might not be as big a deal as the reactions seem to indicate. California Superior Court Judge Rolf Treu laid out fairly simple fixes to the three unconstitutional laws that are already in place in a majority of states. Current law in Washington has already been changed to make it easier to fire ineffective teachers and to lessen the role of seniority in layoffs, reassignments and rehires.

Treu found that the effects of the three California laws — teacher tenure, teacher dismissal procedures, and strict seniority in personnel decisions — denied some students access to good schools and therefore violated the state constitution.

The dismissal process in California is so expensive and time-consuming, the judge found, that districts often leave poor-performing teachers in place rather than try to fire them. The state’s own experts said Los Angeles alone had 350 “grossly ineffective” teachers it wished to dismiss.

Another trial expert testified that students spending a single year in a classroom with a grossly ineffective teacher in Los Angeles lose 9.54 months of learning compared with students who have an average teacher. Treu termed the evidence “compelling. Indeed, it shocks the conscience.”

Finally, Treu found that strict seniority in personnel decisions — last in, first out — also harmed students because it leads to situations in which gifted-but-junior teachers are let go while grossly ineffective teachers with more seniority stay.

Changes in Washington

Union leaders would be right to bemoan a decision that seemed to end tenure, remove due process rights in firing, and end the use of seniority. But Treu doesn’t do that. How about granting tenure after five years, or even three, the judge suggested. Why not use the dismissal process already in place for school employees who aren’t teachers? And couldn’t the state say seniority can be one factor — but not the only factor — in layoffs and rehires?

Over the last five years — mostly in an attempt to win federal Race to The Top money and maintain its No Child Left Behind waiver — the Washington Legislature has changed tenure rules, made it easier to dismiss teachers who repeatedly receive poor evaluations, and said seniority can’t be the only factor in personnel decisions. That’s why a Vergara challenge wouldn’t bring the same result here.

The ruling does, however, pressure districts and teacher unions to not thwart these reforms in contract negotiations. Doing so could open them to district-by-district Vergara challenges.

The McCleary decision was about adequacy of funding for education. This ruling opens the door to constitutional challenges to how it is spent and to practices that inequitably distribute resources — including the best teachers — based on race or ZIP code.