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Vergara v. California: Do state laws protect teacher jobs over students?

The case of Vergara v. California takes up whether five state laws make it too hard to fire poor teachers. Students say their education is suffering. Teachers unions say the need is more resources.

A high-profile trial, opening this week in the California Superior Court for Los Angeles County, could set a precedent for school districts across the country that are dealing with ineffective teachers.

Tuesday is the second day of testimony in Vergara v.California, originally filed in May 2012 on behalf of nine public school students from across the state. At issue are five state laws that plaintiffs say make it so difficult to remove ineffective teachers from public school classrooms that many children, especially black and Hispanic students, are cheated of a basic education.

These include a tenure law that evaluates a teacher’s fitness for permanent employment after only 18 months on the job, costly and long procedures for dismissal, and a “last in, first out” mandate to make decisions about layoffs and reassignment solely on the basis of seniority.

Plaintiffs say that because the California Supreme Court has long recognized that equal opportunity is a fundamental right guaranteed by the state constitution, the five regulations are unconstitutional.

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Defendants say that if you take away teachers’ job security, districts will need to pay much more to recruit and retain high-quality teachers.

Witnesses include Gov. Jerry Brown (D), state Superintendent of Public Instruction Tom Torlakson, as well as the presidents of California’s largest public school unions. Los AngelesUnified Superintendent John Deasy, who testified on opening day, continue in cross examination Tuesday.

“Equality in education isn’t a privilege limited to the wealthy few, it’s a right that must be protected for everyone,” said Marcellus McRae, lead co-counsel for the plaintiffs, in a statement. “We have amassed mountains of evidence showing just how harmful these laws are to students.”

One L.A. Unified School District study, for example, shows that black students are 43 percent more likely than white students to be taught by teachers in the bottom 5 percentile of effectiveness and that Hispanic students are 68 percent more likely.

The suit is being financed by Students Matter, owned by Silicon Valley entrepreneur David Welch, who is an advocate for public charter schools. The California Teachers Association is paying for defense lawyers.

“Having teachers who believed in me and cared whether I learned made all the difference in the world,” said Raylene Monterroza, a high school junior from Pomona, Calif., in comments to the press after opening statements on Monday. “But when I had teachers who seemed like they didn’t want to be there, I had to find a way out.”

Senior Kate Elliott, also speaking to the press, said there were times when her teachers had students “color and watch YouTube videos” and were so detached that learning was very difficult. Another junior, Brandon DeBose Jr., said the system “needs to change.”

The combined effect of the five laws costs school districts hundreds of thousands of dollars through years of legal procedures to remove teachers who are hindering academic development, said plaintiff lawyer McRae.

Asked how much it costs the LAUSD to dismiss a grossly ineffective teacher, Superintendent Deasy testified, as seen on Courtroom View Network (CVN), said “between $250,000 and $450,000.” Asked if that is a deterrent in dismissing teachers, he said, “It is my opinion that it is.”

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Because the termination process requires years of documentation, it not only is costly but it also seldom works – 91 teachers have been dismissed over 10 years in the entire state. Of those dismissals, 19 were based on unsatisfactory performance, while the vast majority were for egregious conduct.

In response, the defense said that getting rid of the five statutes would not improve education in California.

“If the statutes were the cause of ineffective teachers, then eliminating them, such as charter schools have done, should have led to all charter schools  performing better than traditional public [schools],” said defense lawyer Jim Finberg, in his opening statement. “In fact, in many California charter schools perform worse than traditional public schools.”

The trial – expected to last about 20 days – is being closely watched by other states, legal analysts say.

“A successful challenge to these teacher tenure regulations could lead to other efforts around the country, just as public employee unions are being criticized in other contexts,” says Michael Moreland, vice dean and professor of law at Villanova School of Law.

But some watching the trial closely say the plaintiffs have an uphill battle proving their case. One reason is that it’s very difficult to define what is an effective teacher.

“The situation in California is fraught with intransigence on both sides, in part because there are currently few, if any, clear and demonstrably valid operational definitions of what constitutes good teaching,” says Len Shyles, professor of communication at Villanova University in Villanova, Pa.

One reason interested parties may be reluctant to spell out operational guidelines is “because they are afraid to be held to public account,” he adds. “It is a fear object for stakeholders, including both administrators and teachers, many of whom may be justifiably wary of a system being used to punish perceived enemies and settle scores among individuals who feel they have been wronged, etc.”

Professor Shyles and others say it’s also difficult to demonstrate that poor educational outcomes are mainly a teacher’s fault. In fact, much of what happens in a classroom that appears to result in quality education is a result of things beyond the teacher’s control, such as a well-managed school and actively involved parents, they say.

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“What [the plaintiffs] are claiming is very difficult to prove,” says Sarah Hill, a professor of politics at California State University at Fullerton. “I think they are going about it the wrong way and missing the bigger picture … which is lack of funding.”