A wealthy Silicon Valley entrepreneur and nine students have joined in a lawsuit challenging teacher tenure, saying the practice in California is a civil rights violation because the worst teachers end up instructing minority students.
Opening arguments began last week in Los Angeles in the case of Vergara v. California. The lawsuit was spearheaded by David Welch, a 53-year-old telecom mogul, who wants accountability from the state's education system.
According to the lawsuit, "the hiring and continued employment of grossly ineffective teachers in the California public school system is the direct result of the continued enforcement of five California statutes that confer permanent employment on California teachers." The laws "force school administrators to grant new teachers 'permanent employment' after only 18 months on the job."
Those ineffective teachers "are disproportionately situated in schools that serve predominantly low-income and minority students," the complaint charges.
This inequity, the lawsuit claims, is a violation of civil rights, as schools in affluent and middle-class neighborhoods keep the best and brightest teachers, and those lesser-skilled or underperforming educators get shifted to the very neighborhoods and schools that really need the best teachers.
Joining Welch and his nonprofit group Students Matter are nine students, including lead plaintiff Beatriz Vergara, 14, who claim they have suffered at the hands of bad teachers who were able to teach them only because of tenure, not because they were qualified or effective.
Welch's high-powered legal team in the suit who filed against Democratic Gov. Jerry Brown, the California Teachers Association, and the California Federation of Teachers, includes Ted Olson, the former U.S. Solicitor General, and Theodore Boutrous, who argued the challenge to California's gay marriage ban before the Supreme Court.
Some experts view the civil rights argument in the case as questionable.
"I have my doubts that this lawsuit will be successful because I think it's kind of a stretch to say it's violating the civil rights of the students, but there is no doubt [it is] because of these tenure rules that the educations these students are getting are so bad," says Hans von Spakovsky, a senior legal fellow at the Heritage Foundation in Washington, D.C.
"Tenure rules are as bad as civil service rules for federal employees — it's virtually impossible to fire someone in the federal government no matter how incompetent they are, and tenure rules all over the country have made it extremely difficult to fire bad teachers," von Spakovsky told Newsmax.
That difficulty, due in no small part to union contract protections, was illustrated by filmmaker Davis Guggenheim in his groundbreaking 2010 documentary "Waiting for Superman," who described the process comically as the "dance of the lemons."
Instead of a poorly performing teacher being dismissed, that "lemon" teacher with tenure is transferred from school to school in a practice that protects a job but often sets another classroom up for failure.
In the Los Angeles Unified School District, about 20,000 out of 34,000 teacher jobs are tenure-protected, according to an investigation by LA Weekly.
In the 2005-2006 school year, just six Los Angeles public school teachers lost their jobs. Now, under new Superintendent John Deasy, who took over in 2011, 99 teachers were fired and another 122 were talked into resigning in the 2011-2012 school year.
In court testimony last week in the tenure trial, Deasy said the cost to get rid of a "grossly ineffective teacher" can amount to millions of dollars in a time-consuming process.
Deasy said the school district sometimes seeks settlement agreements as a method of teacher removal, calling them more cost effective than a drawn out investigation. Such settlement payments are a part the system's budget, he testified.
He also acknowledged that the "last-in, first-out" provisions can make it difficult to keep the best teachers in schools.
"I do not believe it's in the best interest of students whatsoever," Deasy testified, according to laschoolreport.com.
"I have been very clear at indicating that the decision about who should be in front of students should be the most effective teacher and that this statute prohibits that from being a consideration at all. So by virtue of that, it can't be good for students."
By contrast, the lawsuit alleges, the district makes decisions on keeping educators permanently rather quickly, not allowing time to determine if the newest employees have the skills to be effective.
As the complaint notes: "Several studies have shown that it is not possible to determine a teacher's long-term effectiveness with any degree of confidence during the first three years of teaching. In addition, teacher performance reviews used to determine whether a teacher should receive permanent employment do not consider student test data, student work, or any other indication whether the teacher's students are actually learning.
"Nonetheless, within 18 months, California offers more than 98 percent of new teachers the full benefits of permanent employment," the lawsuit said.
Teacher tenure, which continues by law in many states, has been around for more than 100 years, with an estimated 2.3 million teachers tenured to date around the country.
The goal initially was to protect teachers from firing for certain issues including pregnancy, race, and stances on issues such as politics, as well as arbitrary issues such as a teacher's appearance.
While the early goals were laudable, critics of teacher tenure say it has been abused, keeping many educators in the system who are underperforming and tossing out others who may be newer, better educated, and talented but who fall prey to the antiquated "last-in, first-out" hiring rules put in place through labor contracts that protect seniority.
While the California trial continues, Welch continues his own education reform efforts to rally groups in other places who might be interested in pursuing legal remedies to teacher tenure laws.
Among those lending their support to the cause is former D.C. schools chancellor Michelle Rhee, who now runs her own education group, StudentsFirst.
Rhee abolished tenure for the D.C. schools in 2009, ruffling feathers by firing underperforming teachers. Her nonprofit education policy group, based in Sacramento, Calif., supports removing tenure provisions in state laws.
"Tenure in K-12 education today means that teachers (and in many cases principals) are granted a 'job for life' after a relatively short time in the classroom — usually without any serious attempt to evaluate the teacher's effectiveness," according to a policy statement on Rhee's website.
"In most states, tenure is essentially automatic after two or three years, barring criminal or extreme misconduct. Once granted, the rules and regulations accompanying tenure or permanent contracts make removing even the most unmotivated and ineffective teachers nearly impossible," it reads.
More than 15 states have moved on the issue of tenure in recent years, some eliminating the word in teacher contracts and others extending probationary periods for new teachers before they can be considered for tenure-track jobs, according to data from the Education Commission of the States in Denver.
In 2013, North Carolina ended its teacher tenure program, offering its best teachers four-year contracts while others got one-year and two-year offers. Previous to its reforms, teachers had to spend just five years in the classroom before becoming eligible for tenure consideration.
Von Spakovsky of the Heritage Foundation says one possible way to change tenure law in California, outside the courts, would be through voter referendum.
"I suspect that if you could fund a big enough effort to get a referendum on the ballot to do what the Legislature there won't do, you could probably convince voters to vote for that," he said. "This legal attempt in California is clearly due to the fact that the folks who want to change the rules don't have the political clout there to do it," he noted, citing the Democratic super-majority status in the statehouse.
"Democrats are entirely supported by unions, and especially teacher unions, so it's pretty clear that the plaintiffs in this case are frustrated because they are not able to get a political solution that has happened in other places," von Spakovsky said.
He cited the state of Wisconsin, where Gov. Scott Walker's push back on state unions, while initially unpopular and divisive, "has saved school districts an enormous amount of money."
"The governor there is more popular than ever because local school boards have saved so much money that was eaten up by unions and all the special benefits they enjoyed," he said.
"Most people work in jobs where they know that they are employees at will and can be fired if they don't perform well in their jobs. And I think most people around the country don't think it's fair that teachers have this virtual job guarantee — that they can't be fired if they are bad."
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