Was There Just an Earthquake in Education in California?

BY HAROLD KWALWASSER | The recent decision of the Los Angeles Superior Court in Vergara v. California held two statutes of the California Education Code to be unconstitutional under California law: the teacher tenure and the teacher seniority provisions.  The commentariat has been abuzz.  One side foresees nirvana, the other the black death.  Could either forecast live up to expectations?

No.  Not likely on either count.  I suggest we slow down a bit and take a realistic look at what the decision portends, and, more importantly, what it is likely to do for the kids in poor neighborhoods whom it is supposed to help.

The crux of the decision is that the net effect of both laws is to keep in place incompetent teachers while arbitrarily dismissing good ones, thus denying disadvantaged children an education that is equal in quality to that which non-disadvantaged students in the state enjoy.

Let’s look at all this with a steadily widening lens, starting with a narrow focus on the two statutes in question.  First, there is tenure.  It was created in the early 20th century to give civil service-like protections to teachers back when there weren’t many such protections on the books.  These well-intentioned rules have grown so complicated, however, that it is an expensive and time-consuming process to invoke them, and, as a consequence, principals rarely do.

I know a bit about the problem: I served as the General Counsel of the Los Angeles Unified School District from 2000 – 2003.  When I got there, I told my colleagues that I would dedicate a special team to support their efforts to fire incompetent teachers.  Despite this pledge, however, the unit was never heavily employed, and over time it disbanded.

What happened here? The district certainly had the legal team to follow through with the firing process. That wasn’t the problem. Our problem, rather, was this: most of our principals did not really know what good teaching looked like and were unaccustomed to observing and documenting teachers’ deficiencies. Back then, even if the tenure rules had been more flexible, the system would not have generated many cases – let alone successful ones. This state of affairs remains the case and will persist until principals themselves become radically transformed.

Conversely, wherever we find principals who are smart instructional leaders, tenure cases can stick – even under the old rules.  There are districts all over the country where that has been the norm for decades.  But such principals have never been the norm nationally.

The bottom line is that, without a smart person (or persons) evaluating teachers, insisting that they improve their skills, and washing out those who don’t based on a solid evaluation, no tenure policy or lack thereof will materially alter the overall quality of teachers who stand in front of your local classrooms.

That is not to say that loosening or eliminating tenure rules is a bad idea.  The amount of bureaucracy involved in reaching a tenure decision or overturning it makes the pursuit of truth costly and time consuming.  It is simply an embarrassment in which no organization should engage.

The great questions are what relief the plaintiffs will seek, and what the courts or the legislature will do in response.  This is always the challenge in civil rights litigation that involves education.  Courts are lousy places from which to try to influence institutional behavior.  When I was in Los Angeles, I observed regularly that court-ordered injunctions simply failed to win for children any of the benefits that had driven the plaintiffs to sue in the first place.  It remains to be seen whether Vergara will produce anything different.

Which leads us to the second question: seniority.  As I noted above, in the old days teachers were not presumed to have many skills.  They were all presumed to be teaching similarly – and they were teaching on their own.

Now, with the current drive to individualize instruction, the entire dynamic has changed.  Not only is teacher competence far more important than ever before, but also there is real pressure for a group of teachers, say the four who teach fourth grade, to work together.  It is no longer one teacher, one classroom, and one method of teaching.  Now, the ideal is to mix and match, pairing the right teacher for the right student for one thing and a different teacher for something else.  Everyone works together and improves together, taking part in collaborative professional learning communities.

It is vitally important to build and retain quality teams.  Lopping people off simply because of their age and with no regard for quality is no way to run a high-performing team.  The effect is not limited to the class that new teacher taught; it affects every teacher and every student.

However, like tenure, merely eliminating seniority will not necessarily do much for schools.  One of the consent decrees I oversaw while in L.A., the Rodriguez decision, attacked the practice of budgeting the same amount for all teachers, regardless of what they actually got paid.  In other words, before the lawsuit, the budget for teachers in a tony part of Westside L.A. where teachers averaged twenty years on the job looked, on the books, about the same as the cost of the faculty at a South LA school, where, because of high turnover, teachers averaged perhaps no more than five years in the profession.  The actual facts, of course, were far different.  The Rodriguez decision’s salary cap-like rule should have had the effect of driving older teachers out of some of those Westside schools and pushed them to teach in South L.A., but the actual impact was far less than we might have expected.

What destroys instruction in low-income schools is a toxic stew of causes, only one of which is the churn created by seniority.  In fact, as long as the school district is not suffering from a budget disaster, the impact of seniority is relatively slight.  Even with seniority eliminated, getting a sterling teacher corps in place in South L.A. will prove to be a challenge.

Like tenure, seniority has more downsides than upsides, but its elimination, too, is likely oversold.  If we want good schools, eliminating a statute or two won’t work.  We need systemic change where the entire approach to education and instruction is turned upside down.


Hal Kwalwasser is the former General Counsel of the Los Angeles Unified School District and author of  “Renewal: Remaking America’s Schools for the 21st Century.”  He now writes and consults on education policy.

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