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California's Students Get Their Day in Court

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By Dan Weisberg

This post was originally published on the TNTP Blog.

California students are guaranteed a quality education by the state constitution. California teachers are guaranteed a host of protections under state law. Is it possible that those guarantees sometimes conflict with one another? And if they do, what’s the solution? These questions are before a judge as we speak. 

In Vergara v. California, nine students are challenging laws that shield ineffective teachers from dismissal, charging that they violate their right to an equal education. It is worth watching closely, since Vergara is as much about children’s rights as it is about education, and is poised to spark valuable and long-overdue debate across the country.

What do these students mean when they say poor teachers aren’t dismissed? Well, in the past 10 years, just 19 tenured teachers in the entire state of California have been terminated for performance. 

Vergara throws a spotlight on destructive staffing policies that are widely taken for granted as a permanent part of the education landscape: the near-impenetrable protections of tenure, dismissal procedures and “last-in, first-out” (LIFO) policies, though it is now clear that they are largely misguided and have a disproportionate impact on low-income students. In some ways, it mimics school-funding lawsuits in New Jersey and New York, which forced an examination of outmoded funding formulas that were short-changing high-poverty students and spurred funding increases for districts taking on the biggest challenges.

In watching video from the trial, my sense as an education lawyer is that the plaintiffs have a formidable case. California could be in for some seismic policy changes.

At issue in the litigation is first, California’s Permanent Employment Statute, which forces administrators to grant or deny permanent employment to teachers after just 18 months in the classroom—well before school leaders have time to meaningfully assess a teacher’s influence on student learning. The plaintiffs are also challenging the state’s byzantine dismissal process, which protects tenured teachers at an enormous cost of time and money, and its LIFO dismissal process, which punishes effective teachers by forcing schools to base layoff decisions solely on seniority—with no regard for a teacher’s performance in the classroom.

These backward policies disproportionately harm African American and Hispanic children in poverty. According to Students Matter, the non-profit spearheading the litigation, African American and Hispanic children in Los Angeles Unified School District are two to three times more likely to have a terribly ineffective teacher. Worse yet, the very students who need quality instruction most are 60 percent more likely to lose a teacher to layoffs than their white and Asian peers. This data squares with ample research on these policies, showing that effective teachers are seldom assigned to the schools that need them most.

Though these policies were well-intentioned attempts to ensure fairness for teachers, they are based on an outmoded, industrial approach to education where the central assumption was that one teacher was as good as any other. If true, seniority—rather than performance—is a fair and easy way to manage teachers. But it is not true: individual teacher performance varies widely with enormous impacts on students. As a result, these policies prevent even the worst-performing teachers from being exited while keeping the best performers from being retained, which is precisely why they have to be reformed and modernized. 

Any change would be a welcome development. But the fact that progress may come only after litigation reflects both the interest group politics at play and a failure of imagination and compromise in a state where more than 1 in 5 children live in poverty. Let’s be honest with ourselves: We have all lost when the only redress for low-income students is to sue the adults responsible for preparing them for college and careers. And litigation is a blunt tool—should they rule in favor of plaintiffs, the judges on the case will be more concerned with putting a stop to constitutional violations than with nuance, compromise or quality implementation of policy change. 

It didn’t have to be this way. 

Consider the meaningful, bipartisan compromises we’ve seen in states like Colorado, where multiple stakeholders collaborated to put student learning ahead of adult job security. Instead, California teachers’ unions and their allies have adopted a scorched earth approach, fighting to maintain these harmful policies as zealously as the National Rifle Association defends its positions on gun rights. Ironically, they now face the prospect of court-mandated changes far more sweeping than what may have been implemented through compromise at the local level. 

The lack of foresight may come back to bite them, not just in California, but in states where similar lawsuits are sure to follow. We should hope that the prospect of a ruling in favor of plaintiffs in Vergara—and multiple suits in other states pursuing the same theory—will cause the adults who make the rules to get serious about change.


Dan Weisberg is Executive Vice President, Performance Management and General Counsel at TNTP.

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