06/19/2014 09:27 am ET | Updated Aug 19, 2014

But Aren't California's Tenure Policies Unreasonable? Answering Vergara Questions


Students Matter, the group that organized and funded the Vergara litigation, wants us to shift our reform attention to teacher tenure. The litigation is the centerpiece of a larger campaign to challenge "the laws handcuffing schools from doing what's best for kids when it comes to teachers."

I did not take Students Matter up on that invitation when I wrote a post-verdict piece last week, arguing that the Vergara decision may end up having a silver lining. I focused instead on the potential for the decision to provide new litigation pathways. I explained that the reasoning used by the court and the evidentiary base it relied upon, if allowed to stand on appeal, would open the door for California to become very fertile ground for education rights litigation.

But I now want turn to the five questions I've been asked most over the past week, including the one the Students Matter campaign most wants us to be asking: Aren't the California tenure policies in fact unreasonable?

Here are the four other questions:
1. If this "silver lining" is really likely to happen, why not just let the Vergara backers stumble into the trap? Why would you point it out to them?
2. Is there a way that the appellate courts in California might affirm the trial court judge's decision but still avoid creating precedent that would help future plaintiffs?
3. The judge's arguments look convincing to me. Why did you describe the court's analysis as "neither deep nor convincing"?
4. Are you sure we should really welcome an era of judges as a primary force for education reform?

I'll address these in order.

Aren't the California tenure policies in fact unreasonable?

This is the main Students Matter question, and it's often accompanied by another question: Aren't there teachers in classrooms who are very weak -- or worse?

That second question is the easy one to answer. As a researcher, I have watched uncomfortably and sadly as teachers with low expectations of their students failed to challenge or support some or all students in their classrooms. I have interviewed teachers who were clearly burnt out and who would be best off moving to the next stage of their lives. My first book, called Legal Rights, Local Wrongs, discusses such teachers -- as well as remarkable teachers who would clearly be preferable under any circumstances.

Yet to note the variance in quality among teachers is to merely state the obvious and the inevitable. We could all make the same statements about whatever type of workplace we find ourselves in. Does Judge Treu, who issued the Vergara decision, not see this same sort of variation among his Superior Court colleagues and among the attorneys who appear before him? The variation itself is proof of almost nothing; it's the causal question -- the link between tenure and the continued employment of what Treu calls "grossly ineffective teachers" -- that is key to the legal and the policy questions. So next inquiry should be how best to understand the issue and how to design a sound policy to further what I hope would be a universal goal: the highest-quality teaching possible.

Vergara focuses intensely on one part of this picture: how to forcibly remove the weakest teachers. It fails to focus on:
1. How to attract stronger teachers.
2. How to develop stronger teachers.
3. How to retain stronger teachers.
4. How to convince weaker teachers who are not developing to voluntarily leave. (The importance of this factor, relative to firing, is stressed by Gene Glass on his blog.)

These issues implicate questions of working conditions, of providing professional resources and supports for teachers, and of teacher labor markets. This is why it's important to heed the California Supreme Court's counsel that the situation should be viewed "as a whole." Looking at just the "firing" issues in isolation screens out the complete picture.

In lieu of a detailed discussion here, I encourage readers to take a look at the New York Times piece by Jesse Rothstein, which focuses on the teacher labor market issue. Similarly, regarding teacher working conditions, which have been repeatedly identified in research as more important for teacher retention than even salary, I commend readers to an Atlantic magazine article from Dana Goldstein, as well as her interview on MSNBC.

But the challenge comes back: Even given that the ability to fire weak teachers is only a small part of the picture, isn't it still important to get that part right? For me, there's a two-part answer: one concerns the policy question, while the other concerns the legal/Vergara question. On the policy question, I think we should all be very open to considering ways to improve all three areas that the court considered (the length of time before a tenure decision, the nature of due process procedures, and the nature of seniority provisions that concern layoffs). But acknowledging the value of considering possible improvements to a set of laws is very different than holding those laws unconstitutional. The Vergara court fully bought into an extreme interpretation and application of value-added growth models, building a skyscraper on a foundation of a few toothpicks.

That said, the Vergara case's intentional, "Bread and Circuses" distraction shouldn't deter us from pursuing sensible ways to improve teaching quality. There is, for instance, a systemically inequitable distribution of our best teachers, whether we define "best" by their experience level, by their amount of preparation and education, or by the level of supports provided teachers in the school. These inequitable distributions are likely caused by many factors, but the key one, I think, is working conditions.

Consider the effect on teaching quality if schools with the greatest need for excellent teachers are also the most criticized by the media and the public, the most disrupted and unsafe, the most likely to have a transient staff (principals and other teachers), and the schools with the weakest supports (e.g., common planning time and strong professional development). Consider the effect if they have the most poorly maintained buildings, the largest class sizes, the most transient students, and the most tenuous status under accountability laws (e.g., are the most likely to be threatened with a "turnaround").

One effect is that teaching jobs at these schools are generally perceived as less attractive. The most marketable teachers -- those with the opportunities to leave -- are the ones who disproportionately do so. Teachers want to be successful, which requires good working (and learning) conditions. Firing teachers will do nothing to make those schools more attractive, and nothing in the Vergara lawsuit helps to improve those working conditions. Policy makers would be wise, before acting, to ask a principal at such a school what the benefit is of firing a struggling teacher and then hiring an even less experienced, and probably no more qualified, replacement.

I fear that nothing will be gained from changes to tenure laws unless the powerful and well-funded forces backing Vergara work just as hard to remove the awful conditions and the corresponding awful incentives that encourage teachers to avoid schools with the greatest need. But I'm not holding my breath. Yes, the Vergara plaintiff team has used lots of civil rights rhetoric, and the court leads its ruling with a quote from Brown v. Board. But if this is about civil rights, it's through a funhouse mirror. If this were an actual civil rights case, the vast majority of the people now celebrating would be recoiling in horror, and most of the people now recoiling in horror would be celebrating.

In this sense, I very much agree with the words of Dennis Van Roekel of the National Education Association, addressed to those promoting the Vergara lawsuit: "If you did truly care, you would look at the more than half of public-school children who live in poverty and wage your crusades against the inequity in our economy. If you truly cared, you would look at the deteriorating conditions in schools across this country and aim your fire at politicians who have starved our schools of the resources to succeed and then punished them for their failures."

So when asked if the California tenure policies are unreasonable, I think the best response is that any unreasonable or even merely problematic elements should be improved--but teachers, unions, and all supporters of public education should demand that Students Matter and others pointing to the supposed harms of tenure step up and dedicate themselves to closing the many, many truly unreasonable and awful opportunity gaps.

Now, here are my responses to the other four questions:

If this "silver lining" really likely to happen, why not just let the Vergara backers stumble into the trap? Why would you point it out to them?

The plaintiffs' legal team is far too sharp not to have thought this through. In fact, I've now come across three other statements of some variation on my theme, all in venues that the plaintiff team is more likely to read regularly: Forbes, Education Next, and Rick Hess's blog in Education Week. While none of these articles include the level of detail that I did, the issue is clearly bouncing around in the "right" circles.

Is there a way that the appellate courts in California might affirm the trial court judge's decision but still avoid creating precedent that would help future plaintiffs?

At the very least, I would expect that an appellate court determined to uphold the decision to strike down the statutes as unconstitutional would tinker around the edges--looking for ways to weaken the precedential import of the decision.

When I was first asked this question, my mind immediately went to Bush v. Gore, in which the U.S. Supreme Court handed the 2000 election to Gov. Bush, applying equal protection principles to hold that it is unconstitutional to use different standards to count votes from different counties. The Court's decision included the caution, "Our consideration is limited to the present circumstances," which was widely understood as saying, "Don't cite this case as precedent." And in the years since, the Court itself has not cited the case (other than in a recent dissent from Justice Thomas).

But the ploy hasn't been completely successful: the Obama campaign used the Bush v. Gore decision "to fight back against the GOP's voter suppression laws" in the 2012 election, and several other courts have cited to the case.

Accordingly, the most obvious maneuver for an appellate court that wanted to reach the same decision without setting forth an easier route for future plaintiffs would focus on the legal standard or rule to be applied. In my earlier piece, I explained that the Vergara court had purported to apply a rule arising out of a case called Thomas K. Butt v. State of California. But the actual rule used by Judge Treu was only part of the Butt rule, and this modification made it substantially easier for Treu to find in favor of the plaintiffs. Specifically, the California Supreme Court in Butt set forth a standard whereby a policy or practice would be unconstitutional if it had "real and appreciable [harmful] impact" on the students' education because, "viewed as a whole," the policy or practice fell "fundamentally below" the prevailing statewide standard. Judge Treu applied only the first part, asking if the challenged statutes did real and appreciable harm (for a further discussion of these legal issues, see the discussion below, in response to the next question).

An appellate court might therefore restore the complete Butt precedent--applying the full legal standard--but nonetheless conclude that the factual record developed through the Vergara trial suffices to support a finding that each of the five statutes being struck down does in fact result in schooling that, when viewed as a whole, falls "fundamentally below prevailing statewide standards." Such a decision would leave in place the existing legal rule, but it would also leave behind confusing guidance for future courts for the simple reason (also discussed below) that Judge Treu's opinion provides very little solid evidence to support such a conclusion.

This point about the nature of the statutes and the evidence is crucial: it would suggest to future courts that it really doesn't take much for a statute to have resulted in unconstitutional schooling. This is the argument I set forth in my earlier piece: if these tenure-related statutes are so shockingly damaging to students, then it's easy to see a long line of state and district policies impatiently waiting for the gallows.

The judge's arguments look convincing to me. Why did you describe the court's analysis as "neither deep nor convincing"?

First, I should note that the "Tentative Decision" issued by the court is not the end of the process at the trial court level. For instance, the court will probably sign onto a Statement of Decision, drafted by the plaintiffs' attorneys, which may set forth more detailed factual findings. But having said that, the written decision issued by the court is the only document we can currently respond to. In a case such as this, which is grounded in multiple days of conflicting testimony, which is challenging the constitutionality of state statutes, and which is implicating important policy questions, I would expect the court itself to write up a detailed decision with findings of fact and conclusions of law in support of the judgment.

Instead, the court's "Tentative Decision" begins with this disclaimer:
The parties may rest assured that this Court carefully considered each and every point of contention proffered and the evidence supportive thereof. The fact that not every party's argument is discussed in detail below should not be taken to mean such argument was not considered.

In a solid "findings of fact" section, I would look for the judge to present a comprehensive summary of the testimony, explaining why he found the plaintiffs' evidence to be so much more convincing than the defendant's evidence. Instead, the factual presentation reads more like a newspaper commentary: designed to be compelling at the expense of being comprehensive.

But it's the "conclusions of law" section (or lack thereof) that is most astounding. After a rhetorical nod to Brown v. Board of Education, the court briefly cites the Serrano school-funding cases and then seizes on some key wording from the T. K. Butt case, as I discussed in my last piece. That's basically it. The court never offers any meaningful analysis of how or why the Serrano and Butt precedents (both of which are about funding) can be applied to these facts. As Jesse Rothstein pointed out in the New York Times, funding cases (and desegregation cases) are qualitatively different from cases that involve more nuanced and multi-part policy decisions: "Few would suggest that too much integration or too much funding hurts disadvantaged students. By contrast, decisions about firing teachers are inherently about trade-offs: It is important to dismiss ineffective teachers, but also to attract and retain effective teachers."

Nor did the Vergara court ever explain why it used the "real and appreciable impact" language in isolation. As noted above, the California Supreme Court inn Butt applied the "real and appreciable impact" standard, but that wasn't the end of its analysis: it found that the truncated school year at issue (140 days) had a "real and appreciable impact" on the students' education because, "viewed as a whole," it fell "fundamentally below" the prevailing statewide standard of 175-180 days of instruction per year.

Applying that full analysis, Judge Treu should have asked whether each of these five statutes had a "real and appreciable impact" on students' education because they resulted in schooling that, when viewed as a whole, falls "fundamentally below prevailing statewide standards."

Notably, Judge Treu's decision has now faced criticism from a law professor who helped write the brief in the T. K. Butt case (Stuart Biegel), as well as the attorney who was counsel of record and presented the Butt case at oral argument (Michael Hersher).

Are you sure we should really welcome an era of judges as a primary force for education reform?

The job of a court is to interpret and apply statutes and constitutional provisions. Without the courts, legal protections would have no meaning--those with power, including legislatures and governors, would be able to flaunt the law with impunity. The equal protection clause of the 14th Amendment, for example, was of little use for its intended beneficiaries for 86 years, until the Supreme Court applied it in a meaningful way in the Brown v. Board decision.

Ideally we would never need a court to invalidate a law because legislatures would not pass unconstitutional laws and governors would not sign them. Yet when that does happen, courts should "make" (change) the law. The way courts do this is to declare the law unconstitutional and therefore unenforceable, and then to kick the ball back to the legislature with a directive to pass a revised, constitutional law.

Are most judges well-suited to be "making" laws about education? The only fair answer is no. But then, are most legislators well-suited to be enforcing constitutional provisions that protect education rights? Our system is based on trade-offs. If we care enough about enforcing these provisions, then we must be willing to accept the drawbacks of judges making decisions that complicate education policy. The alternative is what we have: a system that is largely ineffective at interrupting the cycle of intergenerational poverty linked to our persistent opportunity gaps.