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Vergara Identified a Few Real Problems, But It's Completely Wrong About the Solutions

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Judge Rolf Treu ruled in favor of Students Matter in Vergara v. California, deeming teacher permanent status (commonly called "tenure"), due process protections for teachers with permanent status, and seniority-based layoffs unconstitutional. Treu's opinion unfortunately reflects a misunderstanding of education research and teacher employment law's effects. His decision also erodes labor protections without increasing the likelihood of an excellent education for students in low-income communities.

Reformer excitement about the ruling demonstrates how successfully the plaintiffs have conflated teacher employment law with the existence of ineffective teachers. Informed advocates for low-income students and communities, on the other hand, are deeply disappointed because both ethical considerations and a thorough analysis of the case indicate the error in Treu's findings.

The California Teachers Association (CTA) plans to appeal the decision and higher courts will hopefully see through the plaintiffs' weak case. No matter the appeal's outcome, Treu's opinion raises two issues considerably more significant for low-income students than teacher dismissal and layoff procedures:

1) Teacher evaluation and support practices: Treu wrote that 18+ months of employment is not "nearly enough time for an informed decision to be made regarding the decision of tenure," arguing that administrator fear of permanent status deprives "teachers of an adequate opportunity to establish their competence." He wants "to have the tenure decision made after" California teachers finish BTSA, an induction program teachers must complete to clear their credentials, and he suggests a timeline of three to five years.

Treu is correct that some ineffective teachers are currently retained and some good teachers are currently dismissed under California's system, but he's wrong about the primary reason why. Instead, inadequate approaches to teacher evaluation and a lack of quality teacher support have long hindered the development and retention of excellent teachers. Nearly two years is far longer than a supervisor should need to evaluate teacher performance and potential for growth if evaluation systems provide frequent opportunities for meaningful feedback and support about specific teacher practices.

Unions and many reform organizations actually agree about the goals of teacher evaluation. The New Teacher Project (TNTP), for example, believes that "the core purpose of evaluation must be maximizing teacher growth and effectiveness, not just documenting poor performance as a prelude to dismissal." Similarly, CTA believes that "the purpose of an effective teacher development and evaluation system is to inform, instruct and improve teaching and learning; to provide educators with meaningful feedback on areas of strength and where improvement is needed; and to ensure fair and evidence-based employment decisions." Though reformer support for the use of standardized test score results as a percentage of teacher evaluations may decrease teaching quality and detract from student learning, TNTP and CTA also agree about many areas in which evaluation practices need improvement: the training administrators receive on how to give meaningful feedback, the quality of professional growth plans and professional development opportunities, and the frequency and length of classroom observations.

Extending new teachers' probationary periods indefinitely will not address the underlying causes of the problem Treu identifies. In fact, the argument that two years isn't "nearly enough time" implicitly grants license for administrative incompetence and practices that inadequately address new teachers' professional needs. Education stakeholders committed to developing and identifying great new teachers should instead pour their time, money, and energy into aligning evaluation and support systems with their goals. San Jose Unified School District (SJUSD) and the San Jose Teachers Association (SJTA), for example, have invested in administrator training, evaluative consulting teachers with content-area teaching expertise, evaluation documents that more accurately define effective teaching and require narrative feedback, a Teacher Quality Panel consisting of both teacher and administrator members, and non-evaluative instructional coaching support.

2) School funding: Treu's ruling erroneously considers Vergara v. California part of a historical record of education-related court cases including Brown v. Board of Education, Serrano v. Priest, and Butt v. California. These three cases, unlike Vergara, dealt with undebatable and direct inequities in access to educational opportunity for low-income and minority students: segregated schools (Brown), inequitable access to school funding (Serrano), and inequitable access to a full school year (Butt). Treu fails to note that, despite the Serrano case and the advent of California's new Local Control Funding Formula (LCFF), major inequities in education funding persist in California today.

In 2012-2013, for example, SJUSD received approximately $9,000 per pupil in revenue. During the same year, Palo Alto Unified School District (PAUSD) received about 60% more money per pupil, approximately $14,500. While California guarantees a certain amount of annual funding called a "revenue limit" to every school district in the state, some districts, like PAUSD, bring in property tax revenues that exceed the revenue limit. These "basic aid" districts keep their excess property tax revenue and often pass parcel taxes that further increase the funding discrepancy between lower-income districts and their higher-income basic aid counterparts.

More funding is not a panacea for low-income schools - how districts spend their money determines its return -- but research is clear that funding matters a great deal. Politicians who cut education-related spending for poor communities often cite a 33-year-old study by Eric Hanushek to oppose equitable school funding, yet even Hanushek himself cautiously supports it. Asked in a 2006 interview if "it's a good idea to give very high-poverty districts more funding per pupil than an average district," Hanushek responded: "I think so. I think you have to provide extra resources and help for kids who start at a lower point because of their backgrounds." It's impossible to support educational equity and justify the funding discrepancy between SJUSD and PAUSD.

One of the most important provisions of the LCFF -- the supplemental funding it provides to districts that serve high numbers of English language learners, students from low-income families, and students from foster homes -- moves California in the right direction. However, basic aid districts that have long been able to afford better resources for students will continue to exist. Based on the case history Treu cites, one could construct a very strong case that the existence of basic aid districts violates the Equal Protection Clause of the Fourteenth Amendment and the California Constitution. Advocates for low-income students could also make an indirect equal protection case about Proposition 13's effect on school funding disparities. Unlike Vergara v. California, these cases could continue the tradition of Brown, Serrano, and Butt by remedying a clear instance of educational inequity.

Treu's ruling also invites an analysis of the definition of appropriate due process. The judge asserts that "[t]here is no question that teachers should be afforded reasonable due process when their dismissals are sought," but he claims that current protections for teachers with permanent status constitute "uber due process." Treu proposes replacing teacher dismissal law with the rights guaranteed by the decision in Skelly v. State Personnel Board; because of Skelly, permanent employees facing dismissal must receive "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline."

In essence, Skelly rights ensure that employers treat permanent employees with some semblance of courtesy and respect. While Treu asserts that due process considerations are "entirely legitimate," however, he forgets to mention that probationary teachers do not have Skelly rights; in California, probationary teachers can be non-reelected (fired) without cause. Treu's argument is completely contradictory given current law -- he simultaneously contends that he believes in the concept of due process and that districts should be able to deprive people of it for three to five years.

Labor organizations support Skelly's basic protections for all employees because of the extensive history of inappropriate employer practices and a belief in treating people fairly. Due process protections should also include a requirement that administrators adequately support permanent teachers before attempting to dismiss them. A support-first mindset is not only the most ethical approach, but it's also important because, as Jack Schneider explains, "you don't put... effective teacher[s] in every classroom by holding... sword[s] over their heads. You do it by putting tools in their hands." Advocates for workers rights support streamlined dismissal processes for employees who are unwilling or unable to improve; the defendants in Vergara just know that society and schools benefit when employers are required to treat their employees like human beings.

Judge Treu accurately identifies a few key issues in his decision: administrators may struggle to identify quality teaching in fewer than two years, layoffs may deprive schools and students of stellar teachers, and teacher employment law may fail to grant teachers an appropriate amount of due process. Unfortunately, Vergara v. California neither improves teacher evaluation and support practices nor rectifies the funding inequities that lead to layoffs and resource cutbacks in districts that serve low-income students. The decision also ignores the complete lack of due process afforded to probationary teachers and fails to deliver a thoughtful recommendation about how to empower teachers to grow professionally. Informed, honest student advocates who care more about "providing each child... with a basically equal opportunity to receive a quality education" than about destroying organized labor should therefore hope that an appeals court will reverse Treu's decision. In the meantime, they should begin work on reforms more likely to improve opportunities for low-income students.

This post originally appeared on 34justice.