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However tentative they are and no matter many appeals the Vergara ruling provokes, Judge Rolf Treu has collected a series of observations that will frame and color the debate over teacher effectiveness for many years to come.
For years, we have watched and curated a debate about teacher quality and the protections that make it difficult to dismiss ineffective educators.
The 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:
Nobody disputed this, Treu wrote.
“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.
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.”
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.
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.
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.