By Tim Daly and Dan Weisberg
This post was originally published on the TNTP Blog.
This week’s landmark ruling in the Vergara vs. California case, which found California’s teacher tenure and layoff statutes unconstitutional, has sparked a lot of conversation about political winners and losers.
But California’s leaders need to confront a much more important question: If the ruling stands, how will they change the state’s laws and regulations to ensure that more students get the great teachers—and the great education—that they deserve?
Despite all the prophecies of doom during the trial, teachers need not fear this verdict. Everyone agrees that California’s children deserve an education that prepares them for success in college and life, and the state’s constitution guarantees it. Likewise, there is broad consensus that teachers should have reasonable and professional job protections. This case has always been about finding the right balance between the two.
Tuesday’s verdict essentially posited that the balance in California has swung so far toward job protection for teachers that it violates students’ constitutional right to a quality education. To date, constitutional rights in education have typically been viewed as promises of equitable school funding. The Vergara verdict has made history because it essentially says that access to a quality education is predicated on access to effective teachers. Throughout the trial, the plaintiffs exposed how California’s laws make it nearly impossible for schools to hire and keep outstanding teachers or dismiss teachers who simply aren’t up to the job.
These laws offer a near guarantee of lifetime employment to teachers after just 16 months in the classroom, no matter how well or poorly they do their jobs. They make it illegal for schools to keep their best teachers when layoffs become necessary. And they set up a Kafkaesque process for removing teachers who don’t help their students learn—one that can cost school districts hundreds of hours and hundreds of thousands of dollars just to dismiss a single ineffective teacher.
Now, a judge has ruled that these laws compromise the rights of students and are therefore unconstitutional. So how can the governor and the legislature fix things? As Judge Treu made clear, the answer is not to strip teachers of all due process rights—and nobody is contemplating that. Correcting the current imbalance requires four common-sense changes to state laws:
Give teachers a longer tryout: Teachers should become eligible for tenure—and the extra job protections that come with it—after four years or so, up from the current 16 months, which even the defense agreed was too short. This longer tryout period will give schools time to make a more informed decision about a teacher’s potential to be successful over the course of a long career. Four years is in line with the timeline adopted by many states (including Democratic-leaning states like New Jersey) and is consistent with research showing that a few years of performance information is a strong predictor of a teacher’s future performance.
Keep due process, but eliminate “uber due process”: Due process rights should protect teachers against egregious actions, like dismissal based on political beliefs, legal activities outside work, or teaching controversial but appropriate material. But when it comes to job performance, the law should give the benefit of the doubt to a teacher’s official performance evaluation. Teachers should be allowed to appeal their performance ratings if they believe the evaluation process wasn’t followed correctly, but they should not be allowed to appeal simply because they disagree with the result or the professional judgment of their principals.
The appeal process itself should be a meaningful check on arbitrary decisions, but not so burdensome that it protects the jobs of ineffective teachers. Hearings should last no more than one day and the entire process no more than 90 days.
Lower the stakes of dismissal: Being fired for poor performance (as opposed to serious misconduct) isn’t a career-ender for doctors, lawyers or accountants, and it shouldn’t be for teachers either. When it happens, teachers shouldn’t automatically lose their teaching license. A teacher who’s a bad fit for one school might be a great fit for another school.
Let schools protect their best teachers during layoffs: State law currently requires schools to make layoff decisions based only on years of service. In practice, this means schools often have to fire some of their best teachers even as they are forced to keep less effective teachers who happen to have served a year or two longer—a “lose-lose situation” according to the ruling. Instead, job performance—based on teachers’ official evaluation ratings—should be the primary factor in layoff decisions, with seniority used as a tiebreaker among teachers at the same performance level. This change would allow schools to hold on to more of their best teachers when layoffs become necessary.
These common-sense ideas would ensure that more of California’s students get to learn from great teachers. They would also respect and maintain important job protections for teachers, while acknowledging an important truth: Teachers aren’t the only ones in our educational system who deserve protection.
When a school dismisses a teacher unfairly, it’s a problem for that teacher. But when bureaucracy and outdated laws prevent a school from replacing an ineffective teacher or keeping an amazing one, it’s a problem for hundreds or even thousands of students over the course of many years. For many of those students, that one year with an ineffective teacher could mean the difference between going to college or dropping out of high school—a life-altering fork in the road.
California and other states across the country should respond by making the best interests of students the guiding principle behind their education policies. They need to find a better balance between what teachers deserve and what students need. That’s the real lesson of Vergara.
Tim Daly is President and Dan Weisberg is Executive Vice President & General Counsel at TNTP.