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The Case That Could Blow Up Teacher Tenure

The toxic debate over hiring and firing teachers in San Diego Unified has reverberated for years. But a case being deliberated in Los Angeles could set off a mushroom cloud that will envelop school districts across the state.

The toxic debate over hiring and firing teachers in San Diego Unified has reverberated for years.

Union-won teacher protections mean school districts that want to dismiss an ineffective or even dangerous educator face a dizzying legal web that can cost hundreds of thousands to navigate. Even then, efforts to send a teacher packing might not work.

For the most part, calls to reform the system have rung hollow. Any significant change would mean a change to state laws.

Vergara v. California, a case being deliberated in Los Angeles County Superior Court, would do just that. And if the plaintiffs succeed, the impact could set off a mushroom cloud that will envelop school districts across the state and beyond.

Driving the lawsuit is Students Matter, a group founded by Silicon Valley business mogul David F. Welch. The group recruited students from several California school districts to be the public face of its case.

A cast of heavy-hitting attorneys, which includes the lawyer who helped defeat the state’s ban on same-sex marriage, argue that current protections keep ineffective teachers in public schools and violate students’ constitutional rights to an education.

Plaintiffs say these policies have the most disparate impact on schools that serve black or Latino students, as bottom-rung teachers are more likely to end up at high-poverty schools.

Their objectives are straightforward, but ambitious: Increase the time it takes teachers to earn tenure, revamp dismissal policies so it’s easier to get rid of the lemons and strike last-in-first-out policies that favor seniority over quality.

Attorneys for the California Teachers Association joined the state in its defense, as the ruling will impact their members directly. They argue that teacher protections are a benefit – like health care – that helps attract and retain quality employees to a challenging and humbly paid profession.

Let’s take a look at each prong of the case within the context of San Diego Unified.

Tenure

Union leaders don’t like to call it tenure. That’s a word reserved for college professors who’ve got academic freedom – not those in the trenches of K-12 public schools, teachers union President Bill Freeman told VOSD in the past. Union leaders prefer “permanent status.”

Regardless of what we call it, here’s how it looks in San Diego Unified. Once they’re hired, rookie teachers have to make it through a two-year probationary period, during which they can be dismissed for pretty much any reason.

But because the district has to tell teachers by mid-March whether they’ll be invited back for the next school year, the trial period is actually shorter than two years. In the past, the district hasn’t been particularly aggressive in the number of probationary teachers it sends away – only about 1 percent wasn’t given tenure.

“With such little time, you don’t even have enough information to actually consider whether they’re an effective teacher,” said Nancy Waymack, a managing director for the reform-advocacy group National Council on Teacher Quality.

California requires one of the shortest probationary periods for teachers in the county, she said. Most states wait until teachers have been around three or more years until they’re offered permanent status.

Other states have upped the bar by requiring that measures like test scores or student surveys be included in teacher evaluations. And while some California districts like Los Angeles Unified embraced “value added metrics,” a way of gauging teacher effectiveness by measuring student improvement, San Diego Unified just uses principal observations.

“In general, California is a lot further behind in make changes to teacher policies,” said Waymack. “They’re way behind the curve in rating effectiveness.”

‘Who Are the “Grossly Ineffective” Teachers?’

Some of the most famous cases have come out of Los Angeles Unified: There was the teacher who mocked a boy after he tried to commit suicide, jibing him to cut deeper the next time. There was one who stashed porn and cocaine vials in his desk. Both contested their dismissals – and won.

Once a teacher is granted tenure, it’s very difficult to fire him or her.

Protections for tenured teachers extend beyond what’s given other public employees. For example, teachers get warnings and time to improve before being fired, and can take their case to a panel and appeal it if they disagree with a ruling.

Those protections can be clipped if a teacher is accused of something egregious or criminal – like coming to school drunk, or molesting a student. But the dismissal process can be so byzantine and costly that it’s impractical to try to fire a teacher for being “ineffective.”

In their closing brief, attorneys for the state and California Teachers Association wrote: “Who are the ‘grossly ineffective’ teachers? How is that term defined? … Plaintiffs have not answered any of these questions.”

Of course, that’s also a convenient point for the union to make: It hasn’t agreed to test scores or other measures as a factor in teacher evaluations.

Last in, First out

When layoffs happen, the youngest teachers are the first to go. This might mean that a more veteran teacher, even if he or she has accrued complaints from parents and doesn’t bolster student test scores, gets to keep the job while a younger teacher walks.

Striking that protection, plaintiffs argue, would mean that the district hangs onto which teachers it sees fit, instead of reducing employees to faceless numbers.

They say these rules disproportionately impact black and Latino students, because less experienced teachers are more likely to end up in schools with higher rates of student poverty and are the first to go when teachers are laid-off.

But lawyers from the California Teachers Association argue that “well-run” districts like San Diego Unified have been able to sidestep the worst impacts of layoffs by using discretion. For example, if a younger teacher is credentialed in special education, that teacher might bump out a longer-tenured teacher without the extra certificate.

And the spirit of collaboration that San Diego Unified teachers showed when they agreed to extra furlough days and delayed paid raises, they argue, would be undercut by removing teacher protections that promote teamwork and sacrifice.

What’s Next

Lawyers from both sides handed in their post-trial briefs on April 10, and the judge has until July to make a decision. An appeal is likely either way.

In the meantime, the teachers union and San Diego Unified are sidling up to the bargaining table.

The district hasn’t given exact details about what they’ll be seeking, but if you look closely at the contract proposal it recently sent the union, you’ll see hints of some of the same reforms Vergara plaintiffs are calling for.

In addition to revamping teacher evaluations to include student and parent feedback, San Diego Unified wants more wiggle room for where it decides to place teachers.

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