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As your editor, I must remind you that today’s ruling in Vergara v. California striking down Golden State laws granting near-lifetime employment to even the worst teachers won’t be the last word. You can expect that California Gov. Jerry Brown and Supt. Tom Torlakson, prodded by the affiliates of the National Education Association and American Federation of Teachers to whom they owe their allegiances, will appeal Superior Court Judge Rolf Treu’s ruling. NEA and AFT will also file their appeals; after all, as I noted in last week’s Rare column, the affiliates of the two unions (along with the national parents) have the most to lose from Treu’s decision.

wpid-threethoughslogoNor will the courts have the last word in this case. You should already suspect that the NEA affiliate, the California Teachers Association, and the AFT unit, the California Federation of Teachers, are working furiously with state legislative leaders on proposals to effectively keep traditional teacher compensation in place. Thanks to Vergara, the proposed laws couldn’t resemble what has been struck down, but still can be tailored to the liking of the two unions. Also expect NEA and AFT locals to pressure districts to ignore the ruling and continue the status quo as is; after all, the two unions are the biggest players in Golden State and local education politics, and will spend plenty against any school board member daring to advance systemic reform.

Meanwhile the NEA and AFT will do all they can to argue that Vergara ruling is somehow damaging to teachers. In the process, they will again conflate the generally high regard citizens in California and the nation have for teachers with their disdain for the two unions and their defense of failed policies and practices that hurt kids and teachers alike. AFT President Randi Weingarten already took to the offensive rhetorically when she wrote on Twitter that it was a “Sad day in Cali” and it was”not unexpected that lower court would find that for students to win, teachers have to lose.”

Simply put, reformers will still have to work hard to make Vergara a reality and not just a lot of paper. All that said, Judge Treu’s ruling is an important victory for our children, both in California and the nation as a whole. And it is time for school reformers to build upon today’s victory by using the courts to advance systemic reform for all kids.

By finding that California’s tenure and dismissal laws violate the state constitution’s equal protection clause by giving near-lifetime employment to laggard teachers whose incompetence harms student achievement, the Vergara ruling makes clear that traditionalist cannot claim that these failed policies and practices are constitutionally protected. The fact that tenure and teacher dismissal laws work together to “impose a disproportionate burden on poor and minority students” has long ago been proven by two decades of research as well as through reporting by outlets such as the Los Angeles Times. It is high time that the consequences of these failed policies and practices are acknowledged by those who write, execute, and interpret our laws. — and tossed into the ashbin of history.

In determining that the Golden State’s reverse-seniority (or last in-first out) layoff rules is little more than the “de facto separation of students from competent teachers” Treu rightfully notes that the rules effectively place districts and the state government in the “unfathomable and therefore constitutionally unsupportable” position of protecting laggards whose very presence in classrooms harm the constitutional rights of children to high-quality education.

At the same time, the Vergara ruling is also an important victory for both reform-minded school leaders and high-quality teachers.

For school leaders, the ruling is an acknowledgement of the manager’s rights that all district leaders possess. By abolishing near-lifetime employment and the state’s overly-burdensome teacher dismissal policies, Vergara allows school leaders to now make smarter hiring decisions. This includes the ability to terminate criminally abusive teachers such as notorious former Miramonte Elementary instructor Mark Berndt, who had to be paid $40,000 by L.A. Unified in exchange for dropping endless appeals of his termination. But in being given freedom to make smart decisions, districts can no longer blame state law for their failures to improve the quality of their teaching staffs.

This is particularly important because, as Treu points out in his ruling,  California’s process for granting near-lifetime employment to teachers (and that of other states) hinders the ability of districts to make smart hiring decisions. Because districts must inform newly-hired teachers about their tenure-granting decisions three months before they can finish evaluating their competence, they don’t have “nearly enough time” to make smart decisions. This results in laggards gaining near-lifetime employment — which makes it nearly impossible for districts to sack them. At the same time, it even leads to denial of tenure to struggling-but-improving teachers on the path to competence in their second year because districts don’t want to risk keeping them on the job.

As for high-quality teachers? The Vergara ruling puts an end to rules that have made it difficult for them to get proper rewards for their success in improving student achievement. This is especially true for younger high-quality teachers who are the ones most at risk under last in-first out layoff rules because they are the first to lose their jobs during reductions in force. Because Vergara now gives districts incentive to use student test score growth data in their hiring and firing decisions, high-quality teachers can now know that laggard counterparts will be sent packing, and that they won’t have to clean up after them by remediating students those instructors failed during previous school years.

In fact, all teachers benefit from Vergara. How? Because Judge Treu’s ruling allays the concerns teachers have about the possibility of unfair terminations by noting that state officials can simply apply the relatively “balanced” (for the public sector) approach to employee protections laid out by the state supreme court in its 1975 ruling in Skelly v. State Personnel Board. Even as districts gain the ability to make smarter personnel decisions, teachers still gain protection under state law from arbitrary and capricious moves.

The only losers in Vergara are traditionalists long-opposed to any kind of systemic reform. Especially the NEA and AFT, along with their Golden State affiliates. As I have noted, the two unions have long-benefited financially and politically from a grand bargain with teachers within their respective rank-and-file. In exchange for teachers filling up the NEA and AFT coffers (often by force), the two unions ensure that they attain near-lifetime employment and other benefits. But if the Vergara ruling survives appeal, the NEA and AFT affiliates can no longer guarantee any of that. Particularly for younger teachers long-skeptical of the value of the two unions in elevating their profession and miffed that they defend seniority-based privileges at their expense, there is essentially no reason to continue financing their operations.

The impact of Vergara extends beyond California’s borders. As with the Indiana Supreme Court’s ruling on the legality of school vouchers two years ago in Meredith v. Pence, the ruling offers reformers a road map to spur the much-needed transformation of American public education.

Like California, every state constitution have some form of Equal Protection Clause that effectively determine that the state government’s responsibility for education goes beyond providing all children with classrooms. This includes providing kids with high-quality teachers and curricula that prepares them for success as adults. Based solely on this clause, reformers can file suits demanding courts to strike down tenure laws and reverse-seniority layoff rules as unconstitutional because they effectively put states in the position of protecting laggard teachers in violation of their duty to kids.

There are also the rulings from funding equity torts similar to those cited by Treu in Vergara, which also hold that states are required to provide adequate, and ultimately, high-quality education to students attending traditional district schools. Given the similarities between school funding tort rulings in California and those in other states, reformers can easily craft a strong legal argument that tenure and teacher dismissal laws currently on the books lead to kids receiving inadequate and unequal education.

Then there is the fact that California’s own constitution requires the state to “promote intellectual, scientific, moral, and agricultural improvement”. This is a clause that found in 14 other state constitutions, according to a Dropout Nation analysis. Not only do California and other state governments have leeway in shaping public education, they are also responsible for ensuring that all kids are provided high-quality teaching and curricula. Even in states with constitutions that don’t have such broad language, state governments are both charged with structuring education as they see fit and obliged to provide all kids with high-quality teachers. Thanks to Vergara as well as the earlier Meredith ruling, reformers can argue that states cannot keep teacher quality laws on the books that run counter to their constitutional obligation.

Thanks to Vergara, reformers now have an important guide to using courts to spur systemic reform. And they should embrace it.

Over the past three years, Dropout Nation (along with activists such as Bruno Behrend) has explained how teacher quality reform activists and others can use the approach of filing torts similar to those undertaken with some success by adequacy and equity advocates. Parent Power activists such as the Connecticut Parents Union have been quick to utilize this approach in their efforts to end Zip Code Education policies that lead to parents facing prison time for daring to provide their kids with high-quality education, while Alice Callaghan and the parents of nine Southern California children (who, along with school reform group EdVoice), filed the Vergara suit have also taken to the courts for redress. The American Civil Liberties Union has also been active on this front, especially its Southern California unit, whose latest lawsuit, Cruz v. California, is similar to Vergara. But most reformers have yet to undertake such an approach. Thanks to Vergara and Parent Power activists within the school reform movement, reformers has no excuse for not using the courts to push for the transformation of public education.

By using the courts to take on policies and practices that have violated the constitutional rights of children — especially those from poor and minority backgrounds — to high-quality education, reformers are embracing the examples set by civil rights activists of the last century, who successfully challenged Jim Crow segregation laws that harmed an earlier generation of black and brown children. At the same time, by working through the courts, which are charged by federal and state constitutions with interpreting laws (and thus, rejecting legislation that violates the principles contained within them), reformers are also holding legislators accountable.

While some of my fellow conservative and libertarian reformers, like our movement conservative peers, will bristle at what they fear to be judicial activism, the reality is that judges are supposed to serve as a backstop against legislatures more-concerned with favoring their interests than with following the law and protecting the rights of children and families. [Of course, the fact that conservatives have been more than willing to pursue legal avenues when it suits them — including the sensible lawsuit in the Zelman case that led to the U.S. Supreme Court’s ruling protecting school choice — is one they conveniently ignore.]

We have a long way to go for the Vergara ruling to fully sustained as law by the courts. But the ruling will help spur reforms in California that will benefit our children along with good-and-great teachers. And reformers in other states, as well as at the national level, should be filing their own Vergara suits right now.

 

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