BY HANK REICHMAN
Yesterday the California Supreme Court let stand an appellate court ruling in the teacher tenure case, Vergara v. California, bringing to a close an effort by so-called school reformers to challenge tenure and other rights of K-12 teachers protected by state law. The Vergara litigation was closely watched across the country as a test of whether courts would invalidate rules that protect teachers on the argument that they violate the rights of students by protecting the employment of under-performing teachers in poor and minority schools.
“When teachers feel protected, they can stand up for their students,” said Eric Heins, president of the state’s largest teachers’ union, the California Teachers Association. “It’s a good day for students and for educators.”
In a separate 4-3 vote yesterday, the Supreme Court also refused to take up the issue of school funding in California, which ranks near the bottom of the states in educational spending and test scores. Teachers’ groups and school district officials argued that state education spending was so low that it violated the California Constitution’s guarantee of a public education, and required the courts to step in, as courts in many other states have done. But the justices denied review of an appellate court decision that said the Constitution does not give students the right to an education of any particular level of quality or funding.
Chief Justice Tani Cantil-Sakauye and Justices Kathryn Mickle Werdegar, Carol Corrigan and Leondra Kruger voted against Supreme Court review. Justices Goodwin Liu, Mariano-Florentino Cuéllar and Ming Chin said the court should have taken up both cases, one short of the majority needed for review.
Attorneys pursuing the case on behalf of nine students, including Beatriz Vergara, argued that tenure and other job protections caused such harm to students that the rules violated their constitutional rights. Making it easier to fire bad teachers, the attorneys said, would not only improve academic performance, but would narrow the achievement gap that separates white, Asian and wealthier students from their lower-income, black and Latino peers.
The lawsuit challenged five statutes that in combination, it argued, violated the constitutional rights of students. These laws grant the protections of tenure to teachers after two years on the job. They stipulate that teacher layoffs, when they occur, must be based primarily on seniority. And they set up a dismissal process for instructors that is more lengthy and difficult than for many other state employees.
Superior Court Judge Rolf M. Treu in 2014 threw out the job protections, saying that the damage to students “shocks the conscience.” But in April, a three-judge court of appeal panel reversed Treu’s decision and rejected the plaintiffs’ claims and said it was up to the Legislature to set education policy, including the regulations in question. The AAUP joined an amicus brief supporting the appeal by the state of California contesting Judge Treu’s ruling.
Yesterday’s high court decision was about whether justices would hear arguments and weigh in. The state Supreme Court’s four-member majority did not issue an opinion, which isn’t required for a case that won’t get review. Three justices wanted to hear the case, however, and two of them issued dissenting statements saying important issues of law were at stake. The majority, however, accepted the logic of Division Two Presiding Justice Roger W. Boren, who wrote in April for the court of appeal: “The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea.’”
“The challenged statutes do not inevitably lead to the assignment of more inexperienced teachers to schools serving poor and minority students,” Presiding Justice Roger Boren said in the 3-0 ruling. Some teachers protected by the laws may turn out to be ineffective, Boren said, but school officials determine where those teachers are assigned, and overturning the laws would not affect their decisions or the quality of education at needy schools.
The appeals panel did not challenge evidence that many students are ill served in California public schools. But the judges said the laws being questioned were not necessarily responsible.
Nearly every state grants tenure to teachers, but California is one of only five that provide the protections after two years. Most states have a three-year probation period, and some have four or five years. In a pair of unusually lengthy and detailed dissents from the court’s decision not to review, Liu and Cuéllar said there was strong evidence that the two-year period for tenure assessment, and the time and expense needed to fire tenured teachers, result in protections for weak instructors who inflict lasting harm on their students.
The justices also said the court should have taken up the case that charged that California’s paltry level of financing for public education violates students’ constitutional rights. The plaintiffs in that case — including the San Francisco and Alameda school districts, seven other local districts, the California Teachers Association and the State PTA — said California trails virtually every other state in per-pupil spending, school staffing and test scores, a status it has held since shortly after the Proposition 13 property tax cut of 1978. They argued that the California Constitution, which since 1879 has required a public school system that encourages “the promotion of intellectual … improvement,” gave students a right to an education of at least some minimal level of quality.
Six days after the appellate ruling on tenure, the First District Court of Appeal in San Francisco rejected their arguments, ruling 2-1 that the California Constitution does not require the state to fund schools at any particular level, regardless of the impact on education.
The group Students Matter, founded by Silicon Valley entrepreneur David Welch, which funded the Vergara lawsuit and recruited the nine student plaintiffs, said it will continue to push for legislative change in Sacramento. It also is pressing its reform agenda on other fronts. In another lawsuit, the group is trying to force several school systems to use standardized test scores in teacher evaluations.
Student Matters has access to a network of philanthropists and foundations willing to bankroll its business-inspired vision of education reform. According to a 2014 report,
Welch and his nonprofit play a special role among a group of other nonprofits and personalities whose legal actions, school board campaigns, op-eds and overlapping advisory boards suggest a highly synchronized movement devoted to taking control of public education. The David and Heidi Welch Foundation, for example, has given to NewSchools Venture Fund, where Welch has been an “investment partner” and which invests in both charter schools and the cyber-charter industry, and has been linked to the $9 billion-per-year textbook and testing behemoth Pearson. Welch has also supported Michelle Rhee’s education-privatizing lobby StudentsFirst, most recently with a $550,000 bequest in 2012.
Nationally, Vergara-like legal challenges are being pursued in New York and Minnesota. Neither appears close to resolution.
Randi Weingarten, president of the American Federation of Teachers (AFT), said the Vergara case distracted from real problems and potential fixes. Schools, she said, need smaller classes, an influx of new teachers and more generous, secure funding. The backers of Vergara, she said, make it harder to promote effective change “because they pretend there are simple silver-bullet solutions — that you can fire, threaten or sanction your way to helping children succeed.”
Opponents of the Vergara suit could also take heart from the results of a recent study, which found that “highly unionized districts actually fire more bad teachers.” That’s what Eunice Han, who joins the economics faculty at the University of Utah this fall, says. Han, who earned a Ph.D in economics from Harvard, is the author of a February 2016 study, “The Myth of Unions’ Overprotection of Bad Teachers: Evidence from the District-Teacher Matched Panel Data on Teacher Turnover,” published by EduShyster, an online site run by Jennifer Berkshire, a freelance journalist and public education advocate who worked for six years editing a newspaper for the AFT in Massachusetts.
According to Han’s analysis, “data confirms that, compared to districts with weak unionism, districts with strong unionism dismiss more low-quality teachers and retain more high-quality teachers. The empirical analysis shows that this dynamic of teacher turnover in highly unionized districts raises average teacher quality and improves student achievement.”
Critics claim that teachers unions overprotect the job security of ineffective teachers and that this practice is detrimental to educational outcomes. At first, this claim appears legitimate because teachers unions may seek to protect the job security of teachers, as any other workers associations will. However, the job security of public school teachers is addressed through the tenure system in most states, and tenured teachers are not easily dismissed, regardless of their union status. The economic intuition that is overlooked in teacher dismissal is that school districts have a strong motivation to dismiss low-quality teachers if they must pay the higher salaries that unions demand. Particularly, during the probationary period, districts will carefully evaluate new teachers’ performances, as they must pay even higher wages once these teachers receive tenure. Therefore, it is essential to clarify whether unionized teachers can better secure their jobs than non-unionized teachers when their performance is below standard.
Han’s study is quite sophisticated and complex (it includes a lot of equations that to a humanist like me were quite intimidating), but Han summed up her argument accessibly in an interview with EduShyster, reprinted by Valerie Strauss in the Washington Post in July:
It’s pretty simple, really. By demanding higher salaries for teachers, unions give school districts a strong incentive to dismiss ineffective teachers before they get tenure. Highly unionized districts dismiss more bad teachers because it costs more to keep them. Using three different kinds of survey data from the National Center for Education Statistics, I confirmed that unionized districts dismiss more low-quality teachers than those with weak unions or no unions. Unionized districts also retain more high-quality teachers relative to district with weak unionism. No matter how and when I measured unionism I found that unions lowered teacher attrition. This is important because many studies have found that higher-quality teachers have a greater chance of leaving the profession. Since unionized districts dismiss more bad teachers while keeping more good teachers, we should expect to observe higher teacher quality in highly unionized districts than less-unionized districts — and this is exactly what I found. Highly unionized districts have more qualified teachers compared to districts with weak unionism.
Han’s study “benefited” from a “natural experiment” conducted by four states, which in 2010-11 severely limited collective bargaining rights for K-12 teachers. As she told EduShyster,
Indiana, Idaho, Tennessee and Wisconsin all changed their laws in 2010-2011, dramatically restricting the collective bargaining power of public-school teachers. After that, I was able to compare what happened in states where teachers’ bargaining rights were limited to states where there was no change. If you believe the argument that teachers unions protect bad teachers, we should have seen teacher quality rise in those states after the laws changed. Instead I found that the opposite happened. The new laws restricting bargaining rights in those four states reduced teacher salaries by about 9 percent. That’s a huge number. A 9 percent drop in teachers’ salaries is unheard of. Lower salaries mean that districts have less incentive to sort out better teachers, lowering the dismissal rate of underperforming teachers, which is what you saw happen in the those four states. Lower salaries also encouraged high-quality teachers to leave the teaching sector, which contributed to a decrease of teacher quality.
Han’s study also reached some conclusions about the impact of teacher unions on student dropout rates. She found that
unions reduce the dropout rates of districts. This is where my study differs from some earlier ones that found that unionism either had no impact or had a negative effect on the dropout rate. I define unionism more broadly than those earlier studies. It’s not just collective bargaining that matters; it’s the union density of teachers in a district that’s important. Union density measures the strength of the union, because even when teachers can’t engage in collective bargaining they can use their collective “voice” to influence the educational system. What I found was that union density significantly decreased the high-school dropout rate, even in districts without collective bargaining agreements. This is important because, as the research of [Harvard University’s] Raj Chetty and others has found, the upward mobility of an area is higher when the dropout rate is lower. So, when unions, via high union density, reduce the dropout rate, they improve the educational attainment as well as the welfare of all children in the area.
Han concludes her EduShyster interview: “I hope that people open their eyes to these results and move beyond their prejudice. I used to share that prejudice before I did this study. Obviously, if people can accept the findings of my paper, the direct policy implication is that we should be promoting union-friendly environments.”