For years, we have watched and curated a debate about teacher quality and the protections that make it difficult to dismiss ineffective educators.

Scott Lewis on Politics LogoThe debate got the most comprehensive hearing possible in the landmark Vergara v. California case that challenged teacher tenure and seniority protections locked into California law. The defense called 27 witnesses to support current rules — including San Diego’s own schools trustee, Richard Barrera.

Today Los Angeles Superior Court Judge Rolf Treu published his initial conclusion. However tentative they are and no matter how many appeals they provoke, Treu has collected a series of observations that will frame and color this debate for many years to come.

They are devastating. Treu cataloged all of the points on which the defense and plaintiffs agree, and the effect is one of the most persuasive pieces of prose to date on the issue.

Here are Treu’s most striking observations:

First, teachers matter.

Nobody disputed this, Treu wrote.

We Stand Up for You. Will You Stand Up for Us?

“All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience.”

The question here is about ineffective teachers.

“All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school,” Treu wrote.

There are thousands of ineffective teachers in California.

Teachers unions and the state called David Berliner, a professor of education at Arizona State University, as they defended the teacher protections in California law.

But the judge used Berliner’s own observation to make a brutal point that thousands of grossly ineffective teachers are currently working in California classrooms.

Berliner estimated that 1-3 percent of teachers in California are grossly ineffective. With roughly 275,000 active teachers in this state, the number of “grossly ineffective” teachers ranges from 2,750 to 8,250.

“Considering the effect of grossly ineffective teachers on students, as indicated above, it therefore cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said teachers hold their positions.”

Grossly ineffective teachers can’t be fired.

In 2010, our Emily Alpert wrote a fantastic explainer of teacher tenure in San Diego. The teachers’ union president had said to a packed house watching a debate that teacher tenure didn’t exist.

He was right — about the word. Here, it is called “permanent status” and dismissing teachers who have it can cost hundreds of thousands of dollars and take as long as a decade, Treu wrote. Even the defense in the Vergara case acknowledged that dismissals are extremely rare because districts see them as impossible to pull off.

Treu wrote that we need to put to rest the illusion that we can fire even grossly ineffective teachers.

“There is no question that teachers should be afforded reasonable due process when their dismissals are sought. However, based on the evidence before this Court, it finds the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

If you really want to dig deep, here’s a summary of all the research on the challenge of dismissing chronically ineffective teachers.

The California Teachers Association, in its own response to Treu’s decision, did not dispute that ineffective teachers should be fired.

The union pointed to Los Angeles schools Superintendent John Deasy. Deasy, who was called by the plaintiffs, claimed in his testimony that he had been able to increase teacher dismissals dramatically and only about half of teachers made it through their introductory probationary period.

The judge had a lot to say about that probationary period.

The two-year probationary period is bunk.

Teachers unions often point to the fact that new teachers don’t get permanent status immediately. They have a two-year introductory period in which they can be dismissed or encouraged to leave.

But Treu wrote that he took away several other conclusions that throw that assumption into doubt.

• First, it’s not actually two years. The district has to decide by March 15 of his or her second year whether to ask the teacher to return.

• That means the “induction program” for new teachers isn’t even complete by that time. So you effectively get permanent status before you even finish your credentials. There’s no time to evaluate a teacher after the induction period before a decision has to be made.

• Even State Superintendent Tom Torlakson, supported heavily by the teachers unions, thinks this should change.

• Two of the defense’s witnesses, Berliner and UC Berkeley’s Jesse Rothstein, agreed that three to five years would be better time frame to judge a new teacher. California is only one of five states with a period of two years or less.

Last in-first out layoffs hurt the poorest schools (Yes, we did know that).

Teachers are placed in schools based on what they want and how many years they’ve worked. So, for instance, if La Jolla-area schools have openings, then the teachers who want them are rated only on how long they’ve worked for the district. That’s it.

An effort to change this, by the way, was supported by La Jolla’s teachers but rejected by their union.

This means that nice schools, like those in La Jolla, often have the most senior teachers. And schools in poorer areas have younger teachers.

So, when layoffs occur, poorer schools are affected more.

Again, this point is not disputed. The best response that San Diego’s own school trustee and union leader, Barrera, could come up with is that we just shouldn’t ever lay teachers off. And he’s convinced himself that we have not.

Treu’s prose was particularly powerful on this point.

“No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one, who all parties agree is creating a positive atmosphere for his/her students, is separated from them and a senior, grossly ineffective one, who all parities agree is harming the students entrusted to her/him is left in place.”

California is one of only 10 states that consider only seniority in layoff decisions.

The churning and lack of effective dismissal statutes, he writes, have a disproportionate and negative effect on high-poverty and minority students.

And, Treu concluded, that violates their rights to an equal education.

    This article relates to: Education, News, Politics, Scott Lewis on Politics, Share, Teacher Tenure

    Written by Scott Lewis

    Scott Lewis oversees Voice of San Diego’s operations, website and daily functions as Editor in Chief. He also writes about local politics, where he frequently breaks news and goes back and forth with local political figures. Contact Scott at or 619.325.0527, and follow him on Twitter at @vosdscott.

    John H Borja
    John H Borja subscriber

    The huge disparities in education weren't even mentioned. Granted we all went through a very difficult financial crisis. Well, that crisis is over. But, even since, at least, 2000, children have been inadequately served State wide. Teachers and parents have to beg for worthy field trips. Let me just qualify "worthy field trips".  Getting the entire 3rd grade to visit Horton Plaza to ogle the architectural diversity on display there cannot be justified, unless, you ARE prospective architects. The books that school districts need to purchase are 50 to 70% overpriced. All these guys do is cut a paste whatever is the concept or standard dujour and plug it in, no brainer.  Field trips are 50% overpriced because SCHOOL districts charge too much. Local and private companies charge too much as well, but are cheaper, and just as safe. Schools in California spent billions on new fangled technology that would have been very appropriate to doctorate students at MIT....not kindergarten. And all of this last at huge taxpayer expense with no quantifiable way to evaluate whether any of that would adequately serve students. Business guys sell stuff. That's what they do. They don't care if support is needed or whether anything they sell will serve students. I just went to the Office Depot guy to fix my worm riddled computer. He asked me why I was bothering. I told him with my savings I could get a shiny new one in just 5 years. He said by that time whatever you were thinking would be outdated. Hmmm. So, the stuff school districts bought even 3 years ago is....already outdated. I went to the Common Core trainings. I told them that the tests they are telling all school districts to prepare for are based on a non-user friendly pc mentality. I'm thinking the idiots at Microsoft.

    I told them that if they are not swiping and touching and whatever else APPLE does, the kids will become frustrated and not do well next year. Another boondogle and disconnect and a huge loss of money. I'm ok with online testing. But by the time kindergarteners get to this stupid test, they'll be asking the tech dude or dudette ....what is this? Money, money,!!!!! ...out the window. The huge deficit gap is with second language learners. If the teacher has to handle 35 students, the second language will not be dented. And the Koch Brothers are just fine with this. That keeps these kids in the underclass and willing employees at $5 an hour.  ....slavery. Is that the fault of teachers? Is that the fault of bad teachers?  Who gets the real blame?  Do you really want to blame teachers?  Teachers cannot make up for the utter incompetencies of horrible, horrible business management. Teachers cannot be blamed for getting a full range of kids who need specialized services. There are NO normal kids anymore. And lockstep disciplinary tactics in the classroom do not necessarily produce positive results. We are not China. Kids there that don't "fit the mold", misbehave, or are members of a family contrary to the political figures in the community are thrown out of school That doesn't happen here, nor would I advocate for that ...ever. But, teachers need specialists to help with children with  behaviors that take awayfrom learning for themselves and to other children. They do not, necessarily, comply with "special ed" legalities. A teacher that has been in the "business" for more than 10 years can easily handle 90 % of the problems in a classroom of 20:1. But in aclassroom of 35:1 the problems are not just magnified, but geometrically advanced and small group instruction because nearly impossible. Competence or inadequate facilities, you take your choice, as  a taxpayer. The Koch Brothers want to blame teachers. I blame inadequate funding and support. Ok, I will admit, as in any organization, that certain employees are in need of help. It is difficult for anyone to admit that one may need help before the situation becomes less than great.  We need to be human. Teachers are very much like air traffic controllers . There come a time when overload is overload and being on "point" is too stressful. Is it stress or is it incompetence. It has taken nearly 45 years for the DOD and the VA to adequately recognize PTSD. "Ahhhh, that's just in the imagination of the soldier". It has taken 45 years to adequately address the issues of Agent Orange. What, are you un-American? Really? You oil civilians and frontline military personnel and you call the observance of fact as un-American?  Teachers need help. And, calling them horrible, terrible, and no good does NO one any good. 

    Chris Brewster
    Chris Brewster subscribermember

    The reaction of people (and VOSD staff) to lower court rulings is often intriguing. If the ruling comports with their personal beliefs, it is heralded as truth (or at least particularly compelling argument) from an objective source. If the ruling contradicts their point of view, it is meaningless, as it will inevitably be appealed and overturned, for a superior court judge is at the bottom of the judicial stack.
    As an example, the Berliner quote, which the judge and Mr. Lewis have featured as part of the ruling has already been refuted by Mr. Berliner, who says it has no factual basis. Here’s what a Slate journalist wrote about that:
    Moreover, the Slate writer interviewed a law professor who asserted that the ruling involved poor legal reasoning and noted, “If 97 to 99 percent of California teachers are effective, you don’t take away basic, hard-won rights from everybody. You focus on strengthening the process for addressing the teachers who are not effective, through strong professional development programs, and, if necessary, a procedure that makes it easier to let go of ineffective teachers.” Indeed, what large private company would not be pretty happy if at any given time 98% of their employees were either competent or very competent?

    Bill Bradshaw
    Bill Bradshaw subscribermember

    You might add another bullet to your excellent summary:  Judges can matter too!  I don't know Judge Treu's background or track record, but he must know he'll be under the microscope like no judge since the O.J. trial.  It takes courage to speak truth to power, and there are few things more powerful than the public employee unions in this state, particularly those representing teachers.  

    Stand by for a total circus on this ruling, lasting several years at the least. 

    ChristopherYanov subscribermember

    It would be interesting to know how many teachers in San Diego Unified live north of Interstate 8 and how many live south of Interstate 8.  On one hand, teachers may choose to work at a school with the most convenient commute (my dad did).  On another hand, how many schools south of 8 have a majority of teachers who truly understand what it's like to live in the neighborhood(s) where their students reside because the teachers actually live there themselves?

    John H Borja
    John H Borja subscriber

    The number one issue in any organization is the management.  The head dog dictates the mood and industry of the underlings. The principal of a school can make or break faculty cohesiveness and teamwork. There are teachers that have an entire career without a supportive administrator and staff. Even from the beginning, many teachers tell new teachers to gird themselves from the often capricious, insensitive, and inconsistent remarks of a prinicipal doing a "drive by"(a check off system to make sure all see the administrator once in awhile). "I noticed that child was not paying attention to your lesson".  To yourself you grit your teeth and quietly seethe , " Did you not get the last of five reports I sent you about this child's inattentiveness?" And then teachers have to grin and bear that their twenty point list of imperatives has been ignored. Sir, we need the headphones replaced. I put in a work order 5 times. How long does it take to ride to Radiio Shack for headphones so that the kids can do the software on the computer? After many years teachers go through the motions in total frustration. And, to put salt on an already open wound, the principal asks you an absolutely inane question about the new teaching techniques regarding the "Common Core".

    At once, teachers are required to be prepared intellectually and well read about best practices and have to be near stupid to respond to intellectually inept questions by the principal. "This parent is complaining about the homework". 

    "They say the homework is too hard." Are you following the proscribed curriculum? REALLY! REALLY! Sometimes, as a teacher you just want to scream. Sir/ma'am, this homework, you say very diplomatically, comes right out of the curriculum. And you want to say, sir/ma'am are YOU not familiar with the curriculum you demand I use? How about a little support from admin., yes? no?  The point? The point may be that the system drives a few to what some may call incompetence. In some cases what is today incompetence was actually the teacher ground down to the point that after too many struggles to get what her/his students needed the teacher just gives up. And, that is sad. There are few positive and supportive and non-consequential mentoring services for teachers. Once they are peg as "underperforming" they don't leave that categorization and are given classes that are so difficult to manage that they leave of their own volition or an incident happens. There is so much more to what the public perceives and what actually goes on. It is vitally important that your child get the instruction he/she needs. It is also vitally important that your child get your support at home. You are not walking into WalMart and choosing Tide and expecting a clean wash immediately. That is not what education nor parenting is about. It is, at least, a 12 year struggle that does not end or begin in any one grade. And allow me just one added variable: a second language. Oops, did I go too far?

    Bill Bradshaw
    Bill Bradshaw subscribermember

    @John H Borja 
    Mr. Borja, I assume by your remarks that you are, or at least were, a teacher in the public school system.  Sounds like you’ve hit upon the real problem:  ALL the school principals, not 1-3% of the teachers, are total incompetents who simply turn the crank and do nothing to help educate the kids.  Maybe, but how does that square with the fact that the district, last year, chose to promote one of those principals to superintendent, and the move was met with great joy by most people in the district?  Or was it?

    DDunn subscriber

    General agreement with comment:

    Let's please dismiss the notion that the "poorer" schools are filled with ineffective teachers. More often than not, there is where you'll find the most dedicated and strongest teachers. As well, the "nicer" schools often get their teachers through the "buddy" system. Sorry, but true - and classrooms with well supported parents and "educational access" are often the goal of new teachers - to get north of 8 as soon as possible.

    Now, for some real answers, look to district administration - here is where all the movin' and shakin' takes place - and rarely are any of them actual teachers.


    Donald Kimball
    Donald Kimball subscribermember

    @DDunn I think the poorer schools are filled with ineffective teachers was part of the convoluted legal argument required to declare tenure unconstitutional. I find that many long standing unfair statutes have to be attacked at right angles.

    John Blanco
    John Blanco subscribermember

    I don't think the article was saying this, but rather that poorer schools are more adversely affected by the existence of ineffective teachers everywhere. Because bad teachers who reach senior status get to choose where they go (oftentimes to high performing schools), and younger, good teachers end up in a bad situation and being perpetually threatened by pink slips because of a 1.5 year probationary status, the good teachers can't get into the system while some bad teachers are guaranteed tenure. I agree that we shouldn't throw out the baby with the bathwater -- if 98% of CA teachers are effective, why not protect their tenure? -- but anyone who has ever had a child in a school with an incompetent teacher knows how frustrating it is to have that child's access to a good education effectively blocked and frustrated. No matter how much people complain, the school will simply say there's absolutely nothing it can do!

    Kelly Abbott
    Kelly Abbott moderator memberadministrator

    Thanks for explaining, @Scott Lewis 

    It's so demoralizing to be a part of an organization that does not get rid of low-performers. Good morale is important to organizational success. We will not feel like our schools are winning until we improve morale. 

    Maura Larkins
    Maura Larkins subscriber

    @Allen Hemphill And yet, oddly, we don't often hear demands from good teachers for an effective, objective evaluation system.  The current system is based more on politics than on observation and documentation.  It seems that good teachers are similar to bad teachers in one respect:  they are equally loath to give up the very human institution of school politics.   And of course, administrators also like the politics.  They're not anxious to have impartial observers come in and evaluate teachers, either.   I am hoping that things will change now, at least for the teachers union. Perhaps the Vergara decision will motivate CTA to start protecting good teachers since it looks like CTA will no longer be able to protect bad teachers.

    Maura Larkins
    Maura Larkins subscriber

    @Allen Hemphill

    I think the union may decide to rethink its intransigence on the issue of objective evaluations.  The Vergara decision is a big deal.

    The union is probably going to have to accept that the worst teachers should not longer play exactly the same role as the best teachers.  Ineffective and mediocre teachers should have less responsibility and less pay.

    Also, your average principal, who, in most cases used to be a mediocre teacher, should have less responsibility than the most effective teachers for making decisions about instruction.  Principals have plenty of other responsibilities.  Few of them are equipped to serve as true instructional leaders.

    The Vergara decision will do very little good unless the current model of school leadership is changed.  In my experience, the best principals were the ones who did the least harm.The bad ones can do enormous harm.  I hope Vergara will not simply give more arbitrary power to principals.This situation cries out for objective teacher evaluations.

    Allen Hemphill
    Allen Hemphill subscribermember

    I have long believed that good teachers hate being part of a system where poor teachers are tolerated.

    Allen Hemphill
    Allen Hemphill subscribermember

    No chance. The union attitude is that bad teachers pay dues also.

    -P subscriber

    Another curious thing, and it obviously has no jurisdiction here, but a judge in North Carolina has ruled that a law eliminating teacher tenure violates bother their state and federal constitutions. Quoting from an article about it "Judge Hobgood ruled that this legislation violated the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause.  The State failed to produce any evidence indicating that the repeal of career status was necessary to accomplish any public purpose.  In contrast, Patterson Harkavy produced the affidavits of school administrators who consistently discussed how career status was not a barrier to removing bad teachers, but instead helped schools attract and retain good teachers despite their low salaries."

    I'll be curious to see how the appeals to the California case work out. Didn't Judge Treu issue an immediate stay on his ruling until all the appeals have finished?

    Mark Giffin
    Mark Giffin subscribermember

    "the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

    It is complicated because it is to the advantage of the unions and education bureaucracy to be so.

    This is a big ruling but is only a first step.

    Mark Giffin
    Mark Giffin subscribermember

    @-P @Mark Giffin 

    More variables than just seniority and contracts no doubt but the issue is the ruling and breaking the strangle hold of the unions. The dysfunction the seniority system In its most basic form..............Is the education system about the kids or the adults?

    -P subscriber

    @Derek Hofmann I wish that was the dumbest thing that ALEC has done.

    -P subscriber

    @Mark Giffin I think both sides can safely answer that they are attempting to act in the students' best interests, and they can both easily point out how the other side is proposing or acting in ways that are detrimental to the students. Yes, good young teachers can be let go because they don't have seniority, but, absent the seniority rule,  it is also easy to imagine administrators wanting to let go good senior teachers because the new ones are so much less expensive.

    Allen Hemphill
    Allen Hemphill subscribermember

    Look at where the US Department of Education, (Google "National Report Card") and you will see that almost every one of those states rank with or above California.

    -P subscriber

    @Allen Hemphill  I'll give you that. On the other hand, none of them are near the top. While all of the states at the top are teacher union states, there's are large number at the bottom that are teacher union states, too.  None of the anti-teacher union states are in the top third. There doesn't seem to be a one to one correspondence with spending money per student, either. While most of the states that spend a lot for schools are ranked highly, not all of them are, and, while most who don't spend much are ranked near the bottom, not all of them are.

    Allen Hemphill
    Allen Hemphill subscribermember is not unions, per se. Massachusetts has a teacher union and they rank #1.

    It is not the fault of "unions" but rather California teacher unions!

    Derek Hofmann
    Derek Hofmann subscribermember

    @-P It appears ALEC thinks a D is better than a D+.

    -P subscriber

    @Allen Hemphill OK, now you got me curious.  I don't have an answer for this, but maybe you do. What do you think the teachers' union in MA is doing right that the CA union isn't? There's a state law in MA, not just a contract, that grants teachers tenure (or, more accurately, a due process procedure prior to removal, similar to the one in place in CA). In 2013 the MA legislature started chipping away at policies regarding teacher seniority - once a teacher has tenure there, seniority is no longer a determining factor when layoffs occur. I think  in MA seniority still is a major factor when it comes to promotions, etc.