Could Vergara Happen Here? (Part 1)

/ 16 June 2014 / Shawna

Michael Diedrich, Education Fellow, Minnesota 2020, June 16, 2014 –

With Judge Rolf Treu of California ruling that state’s teacher tenure system unconstitutional, there’s been a lot of discussion about what the case might mean in Minnesota and around the country. Today I’ll be taking a look at what exactly the California ruling has to say. Tomorrow, I’ll dig into what it means for Minnesota.

As a refresher, Vergara v. California was brought by nine students, backed in a serious way by Silicon Valley entrepreneur David Welch and Students Matter, the organization he set up for the purpose of this court fight. Students Matter put up the money for a powerful legal team and aggressive PR strategy in support of the case.

At the heart of the case were five state statutes: one [4492.21(b)] about how tenure is granted, three [44934, 44938(b)(1), and 44944] about how to dismiss tenured teachers, and one [44955] about the use of last-in-first-out (LIFO) seniority policies in teacher layoffs. The plaintiffs argued that these statutes, as they are currently written and implemented, violate the California state constitution’s equal protection clause.

Specifically, the California constitution establishes that it is the state’s responsibility to ensure that there are public schools, and it’s equal protection clause holds that the benefits and protections of the law (including those about the constitutionally-required schools) extend to all citizens.

The ruling then establishes that there exist grossly ineffective teachers in California, that the effects of grossly ineffective teachers on students are bad, and that students of color are more likely to be served by grossly ineffective teachers. Some of this comes from market-reformers’ greatest hits (the “bad teachers cost $1.4 million per classroom in lifetime earnings” study, an estimate of how many “months” of learning students lose with bad teachers). Cleverly, though, much of it is based on evidence supplied by the defense (that is, the state agencies/officials and unions intervening on their behalf). For example, one of the witnesses for the defense estimated that roughly 1-3% of California teachers are grossly ineffective. This figure is cited multiple times in the ruling, with an interesting backstory and context recently discussed in Slate.

The jump from the determination that “the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students” to the conclusion that the five tenure-related statutes “impose a real and appreciable impact on students’ fundamental right to equality of education” and “impose a disproportionate burden on poor and minority students” is where some may find issue with the ruling. For example, the ruling gives no consideration to whether states without these laws are any better at removing grossly ineffective teachers.

So let’s see what the ruling says about each of these statutes.

As a general trend, even when finding that the particular statutes are unconstitutional, the ruling does not, in general, ban the granting of tenure, the guarantee of due process for tenured teachers, or even the use of seniority in layoffs.

With respect to the process of granting tenure, the ruling primarily criticizes the current statute’s use of a two-year window for granting tenure, with the tenure decision made by mid-March of a teacher’s second year. (For those who are curious, Minnesota has a three-year tenure requirement. More on that tomorrow.) The ruling cites defense witnesses who agreed that a three- to five-year period would be more appropriate, and notes that 41 states have tenure periods that are three years or more in length. However, the ruling does not find that the granting of tenure is unconstitutional, only that the current statute’s process is.

Similarly, when analyzing due process, the ruling agrees that there is no problem with requiring that tenured teachers be notified that they will be dismissed, be presented with reasons for that dismissal, be able to review the evidence supporting those reasons, and be allowed to respond to those charges, with access to appeals processes at least in the courts. Instead, the particular process currently established in three California statutes is ruled to be too long and expensive (with estimates ranging from two to ten years and $50,000 to $450,000). Presumably, an alternative approach to due process would be constitutional.

Finally, we reach the LIFO discussion. Here, the ruling clearly finds that requiring seniority be the sole factor in layoffs is problematic. However, it does appear that a system that allowed for the use of seniority along with other factors would be permissible. (Minnesota’s default system is similar to California’s, although some districts have modified their layoff plans.)This is the area where the ruling is at its least flexible, but even so, there is still breathing room for the use of seniority (just not the sole use of it). One does wonder if a more rigorous system of screening for and removing ineffective teachers outside the layoff process would convert this issue to one solely of fairness to workers instead of a quality control mechanism.

Much of the explanation for how these laws impact the number and distribution of grossly ineffective teachers is left either theoretical or implicit, with hypothetical or, in some cases, anecdotal explanations being used to justify the connection. This leap of reasoning will likely be contested in appeals, although it has grounds in historical “disparate impact” rulings that don’t require the direct linkage of specific statutes to specific unequal outcomes.

So what does all this mean for Minnesota? Are we likely to find ourselves on the list of states facing similar lawsuits? I’ll explore this more tomorrow, with a comparison of Minnesota’s constitutional requirements and tenure-related statutes to those in California.