Top Story: 6/30/14

Vergara: The System Works

By Peter Meyer | Hal Kwalwasser had it right when he pointed out, in a recent IdeaLab Policy Briefing (Was There Just an Earthquake in Education in California?), that the June 10 California court decision throwing out teacher tenure and seniority laws in the Golden State was not as groundshaking as “the commentariat” believed. “One side forsees nirvana,” he wrote, “the other black death.”

And Kwalwasser, the former General Counsel for the Los Angeles United School District who went on to write a terrific book (that I helped to edit), Renewal: Remaking America’s Schools for the Twenty-First Century (2012), is also right to suggest that even if the structure of tenure and seniority is radically altered, “getting a sterling teacher corps in place in South L.A. will prove to be a challenge.”

No, the sky has not fallen, nor will it, as a result of Vergara; nor will South L.A. and other ghettos of education dysfunction be transformed into shining education cities on the hill over night.  But that certainly doesn’t mean that Los Angeles Superior Court judge Rolf Treu’s forceful opinion isn’t important to the task of rehabilitating our troubled public education system.  In fact, what I found remarkable in reading dozens of commentaries about the decision, handed down on June 10, was how clear-headed the decision itself was.

The significance of Vergara, as with any court decision, is that it summarizes the evidence of a long-simmering dispute and attempts a resolution based on high-minded ideals (in this case, those found in a state constitution).  In this ruling, Judge Treu, the justice in the current crosshairs, clearly signaled the need for a major education system course-correction, at least in California.

Treu also seemed to appreciate the role he and his Court were playing in the national debate over teacher union rights and responsibilities. “This Court… is not unmindful of the current intense political debate over issues of education,” he writes. And he is well aware that his decision “will and should result in political discourse.”

Not only did Treu begin his short, 16-page decision with a quotation from Brown v. Board of Education, the watershed 1954 United States Supreme Court decision that declared “separate but equal” education unconstitutional, he also ended the decision quoting Alexander Hamilton in Federalist Paper 78: “’there is no liberty if the power of judges be not separated from the legislative and executive powers.’”

Indeed, what matters most is that Vergara v California has already changed the national conversation about teachers. Part of the importance of Vergara is to remind us that reason has a place in a democracy – and that reason, in the form of a written judicial “decision,” counts.

James Madison, the ostensible father of the federal constitution and author of our mercilessly confounding tripartite governance structure, would be pleased at the amount of discussion that has followed Judge Treu’s text. I have appended a reading list at the end of this essay for those who want a taste of the post-Vergara debate. What follows here is a close reading of the remarkable decision itself.

Tentative Decision

The most complex part of Treu’s decision is in the title of the case itself: “Tentative decision.”  And at the end, in the sentence just after Treu finds, in no uncertain terms, “all Challenged Statutes…unconstitutional.” There he declares “all injunctions…stayed pending appellate review.”


Such a declaration left commentators perplexed, even as it allowed all sides to declare a victory.  Despite the clarity of his argument and the definitiveness of his conclusions – that the plaintiffs “met their burden of proof on all issues presented,” that “there are a significant number of grossly ineffective teachers currently active in California classrooms,” that those teachers have “a direct, real, appreciable, and negative impact on a significant number of California students,” that the teacher tenure and dismissal statutes “impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students,” that the dismissal statutes are “so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory,” that “the logic of [last-in-first-out statutes] is unfathomable and therefore constitutionally unsupportable” – despite all that, Treu concluded that the decision was “tentative.”

In fact, as some commentators have suggested, the statutes in question were so blatantly misshapen that the Judge was just giving California Governor Jerry Brown and his legislature the opportunity to right the glaring wrongs – and fix the statutes – before the decision was even appealed.

This suggests that Judge Treu respected not only the limits of the judiciary and the role of the legislature, but also the wisdom of the people to correct an injustice when it is served up to them in stark terms.

Common Sense and Evidence

As Rick Hess of the American Enterprise Institute put it in a USA Today editorial, “Treu’s decision was supported by the evidence as well as common sense.”

Treu first sets out the three principles which will guide his analysis of the case brought by Ms. Vergara and the other eight students:

  • Education is an important state responsibility.  As mentioned, he began his decision quoting from the Supreme Court’s watershed civil rights decision outlawing segregated schools in Brown v. Board of Education.  But he quotes one of Brown’s most ennobling paragraphs about the importance of education – “perhaps the most important function of state and local governments” – as “a right which must be made available to all on equal terms.”
  • Equity standards apply as much to “the quality of the educational experience” as to education funding, the more traditional manner in which courts have intervened in educational disputes.
  • The California State Constitution requires “due process” and “equal protection.”

The question then was whether the “Challenged Statutes,” as Treu writes, “result in grossly ineffective teachers obtaining and retaining permanent employment,” whether “these teachers are disproportionately situated in schools serving predominately low-income and minority students,” and whether those statutes “violate [plaintiffs’] fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state.”

From an evidentiary point of view, Treu’s most important finding is that “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” and that “grossly ineffective teachers substantially undermine the ability of that child to succeed in school.”  He even cites a defense exhibit stating that “a growing body of research confirms that the quality of teaching is what matters most for the students’ development and learning in schools.”

Whatever else matters, it was clear, says Treu, that teachers, who are the subject of this suit, matter.

Treu also quotes one of the defendant’s own experts who estimated that one to three percent of California teachers, that is between 2,750 and 8,250 teachers, were “grossly ineffective,” a number that means “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.”

The Permanent Employee Statute

The first law challenged by the plaintiffs was #44929.21(b), called the “Permanent Employment Statute,” aka tenure. Tenure has long been a hot-button issue in education policy disputes, and the plaintiffs’ attack on tenure is the primary reason the Vergara case was so closely followed. Treu found that California’s two-year time frame for evaluating a teacher’s competence did “not provide nearly enough time for an informed decision” about a teacher’s qualifications, but that “conversely,” he saw “startling evidence” that such time constraints prevented teachers “an adequate opportunity to establish their competence” and thus deprived “students of potentially competent teachers.”

Thus, Treu concluded, “both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged” by the statute.

Still, as many commentators would note, Treu was not taking on the raison d’etre  of tenure, but the unusually short period of time administrators had to make the decision. And Treu himself called attention to the data: California was only one of five states that had a tenure decision period of two years or less; 32 had a three-year period, and nine had four or five years.

Could this mean that a rewrite of the statute would satisfy Treu’s constitutional objections?

Dismissal Statutes

Compounding the problem that California’s tenure law posed for picking competent teachers were the hoops administrators had to jump through to fire bad ones – or, as is the term d’art in the decision, teachers who are “grossly ineffective.”

The California Dismissal Statutes (numbers 44934, 44938(b)(1), and 44944), wrote Treu, were so cumbersome and expensive – evidence was presented, he wrote, suggesting “it could take anywhere from two to almost ten years and cost $50,000 to $450,000” to conclude a dismissal case – that districts didn’t even try to dismiss bad teachers, making “illusory” the idea of firing even “a grossly ineffective teacher.”

The judge was sympathetic with due process concerns at the heart of tenure, but he concluded that California’s laws granted “uber due process.”

Last In First Out

Adding to the problem created by the “torturous” dismissal law was the one (#44955) that mandated that the most recently hired teachers were the first ones let go during layoff periods (“Last in, first out,” or “LIFO”) — with “no exception or waiver,” observed Treu.  He concludes:

Distilled to its basics, the State Defendants’/Intervenors’ position requires them to defend the proposition that the state has a compelling interest in the de facto separation of students from competent teachers, and a like interest in the de facto retention of incompetent ones. The logic of this position is unfathomable and therefore constitutionally unsupportable.

Despite Treu’s wickedly straightforward dismissal of the dismissal statutes, he seemed to leave a door open on LIFO, as he had done with tenure, by suggesting that California’s statutes were more intolerable than similar laws in other states. Twenty states, he wrote, allowed seniority to be considered in firing decisions “among other factors”; 18 states and the District of Columbia left layoff criteria to district discretion; and two states actually forbade consideration of seniority as a layoff factor.

If LIFO weren’t a strait jacket, would it be acceptable?

The Impact on Low Income and Minority Students

Finally, after constructing a case showing the remarkable advantages tenured and senior teachers were given, by law, Treu turned his attention to “the specific effect” this had on students.  “The evidence,” he wrote, in one of his most quoted statements, “is compelling. Indeed, it shocks the conscience.” Then,

Based on a massive study, Dr. [Raj] Chetty [a professor of economics at Harvard] testified that a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.  Based on a 4 year study, Dr. [Thomas] Kane [also a Harvard economist] testified that students in [Los Angeles Unified School District] who are taught be a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.

As mentioned above, Treu found “no dispute” that there were “a significant number of grossly ineffective teachers currently active in California classrooms” and that those teachers “impose a disproportionate burden on poor and minority students.”   And in a final verbal slap at the dismissal statutes, he wrote that “the churning (aka `Dance of the Lemons’) of teachers caused by the lack of effective dismissal statutes and LIFO affects high-poverty and minority students disproportionately….. All Challenged Statutes are found unconstitutional….”

Despite the limitations Treu himself imposed on the decision, it is not surprising that it created such a stir among educators, and elation for some. “QUINTUPLE STOP THE PRESSES!!!!” e-blasted Democrats for Education Reform champion Whitney Tilson, just hours after the decision was released.  “A grand slam win for students!”

In more measured terms, the argument is that even if the reformers don’t win the next round, they have achieved a significant moral victory. “Public schools are constitutionally empowered to educate our next generation,” Stanford education economist Eric Hanushek wrote, “but they often stray from that path to over-emphasize the rights, pay, and benefits of their employees.”

That point was made – and made forcefully – by Judge Treu.  What happens next is anyone’s guess, but it is clear that a hitherto relatively obscure judge and a 16-page decision have, effectively, let the tenure genie out of the bottle, and changed the debate forever.


The Decision

Was there just an earthquake in California?

Hal Kwalwasser

Vergara: Advocacy Group to Challenge Tenure in NYS

Wall Street Journal

Rick Hess on Vergara

Ed Week’s “Reading List”: Vergara,  Ed Tech, and Gates

Ed Week’s Steve Sawchuck on Vergara

Vergara’s Shaky Significance

David Bloomfield

Taking on Teacher Tenure Backfires

Ten Things to Know about Vergara

A NYT forum

Diane Ravitch on Vergara


This was the first alert, followed by a Whitney Tilson e-blast: QUINTUPLE STOP THE PRESSES!!!!

Links to lots of news coverage (thanks to Whitney Tilson)

Huge Loss for Teachers Unions in California Case, Stephanie Simon, Politico,

Judge Rules Calif. Teacher Tenure Laws Unconstitutional


California’s tenure protections for public school teachers were ruled unconstitutional Tuesday by a judge presiding in a lawsuit brought by nine students.

California Teacher Tenure Laws Ruled Unconstitutional

A Los Angeles Superior Court judge ruled Tuesday that teacher tenure laws deprive students of their constitutional right to an education, a decision that hands teachers’ unions a major defeat in a landmark case that overturns several California laws that govern the way teachers are hired and fired.

California judge rules teacher protections unconstitutional

A long-awaited verdict in the Vergara vs. California trial over the future of teacher tenure has finally come down.

Calif. court rules teacher tenure creates unequal conditions | The Washington Post

A Los Angeles Superior Court judge ruled Tuesday that tenure, seniority and other job protections for teachers have created unequal conditions in public schools and deprive poor children of the best teachers.

California Teacher Tenure Found to Violate Student Rights | Bloomberg

California’s teacher tenure statutes are unconstitutional and shouldn’t be enforced, a judge said in a preliminary decision handing a victory to a group of students in the broadest legal challenge to date against laws that guarantee public school teachers’ jobs.

Judge: Key Job Protection Laws for California Teachers Are Unconstitutional | NBC Los Angeles

A judge issued a tentative ruling Tuesday that found California’s public school teacher tenure laws unconstitutional

State Judge Strikes Down California’s Tenure, Dismissal Laws | Education Week

California’s teacher-tenure and -dismissal laws unfairly saddle disadvantaged students with weaker teachers, infringing on those students’ right under the state constitution to an equitable education, a state superior court judge ruled June 10.

California judge strikes down teacher protections in landmark case | PBS News Hour

Los Angeles Superior Court Judge Rolf Treu struck down multiple California laws providing job protections for the state’s public school teachers, calling them unconstitutional, reports KPCC in Los Angeles.

Key teacher job protections violate California’s constitution, judge rules | Los Angeles Times

An L.A. County Superior Court judge ruled Tuesday that key job protections for California teachers violate

Statement from Arne Duncan

LA School Report

Official press release from Students Matter

First Story from the New York Times

There is no war on teachers

Eric Hanushek

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