Beyond Vergara

Larry Sand
President of the California Teachers Empowerment Network

Last year, Los Angeles Superior Court Judge Rolf Treu ruled that California’s archaic seniority, tenure, and dismissal statutes were unconstitutional, adding that the evidence submitted by the plaintiffs “shocks the conscience.” The state and two teachers unions, the California Teachers Association and the California Federation of Teachers, are appealing Treu’s decision in Vergara v. California. Should the judgment survive the appeals process, legislators would need to pass new laws to fill the void. But Republican lawmakers aren’t waiting for a decision, which won’t come down for months—or possibly years.

On March 4, the 28-member Assembly Republican Caucus introduced a half-dozen bills to overhaul the way California’s teachers are hired, assessed, and dismissed. Assembly Bill 1047 by minority leader and Modesto Republican Kristin Olsen, for example, would update the Stull Act, California’s four-decade-old teacher evaluation law that school districts have largely ignored. Olsen’s bill would require that teachers have annual evaluations, replacing an antiquated pass-fail system with four new categories: highly effective, effective, minimally effective, and ineffective. AB 1248 by Oceanside Republican Rocky Chavez would extend a teacher’s probationary period from two years to three before awarding permanent status, and would make tenure contingent upon positive evaluations. Other bills would repeal the “last in, first out” system that puts seniority before teacher effectiveness and require school districts to submit detailed reports on teacher training and local school expenditures.

The Republican bills are in line with a set of “policy pillars” by Students Matter, the group behind the Vergara lawsuit. Most of the suggestions are vast improvements over the laws currently on the books. The tenure pillar, for example, says, “Permanent status should be able to be rescinded if a teacher receives multiple evaluations showing an ineffective rating.” That’s a sound idea—though if permanence can be rescinded, why call it permanence at all? As for the state’s onerous dismissal statutes, the legislature took a positive first step last year with AB 215, which expedites the process of firing a teacher found guilty of “egregious and immoral conduct.” Students Matter recommends “explicitly including ineffectiveness as grounds for dismissal and mirroring for teachers the same dismissal process established for classified employees.” The teachers unions steadfastly oppose the idea, but it’s past time for public education to join the rest of the civilized working world, weeding out not only criminals but also employees who don’t get the job done. As Hoover Institution scholar Eric Hanushek points out, if schools cut the bottom-performing 5 percent to 7 percent of teachers—a common practice in the private sector—our education system could rival that of highly ranked Finland. If California adopted Hanushek’s idea, about 18,000 teachers in California would be let go. But they’re not going anywhere any time soon, which means about 450,000 kids are getting an inferior education year after year.

When it comes to seniority, Students Matter suggests, “student learning [should] be the preponderant criterion in layoff decisions.” The current “last in, first out” system of picking winners and losers is an awful way to run a school system. Length of time on the job should never be the sole determinant for keeping that job. Nobody in his right mind would choose a surgeon who has been maiming his patients for 20 years over a gifted surgeon with ten years’ experience. In the real world, Dr. Quack’s clientele would dry up, his medical license would be revoked, and he would be looking for a new line of work. Why should teachers be treated any differently?

The answer, of course, is that the teachers unions say so. The unions stopped using “permanence” not long ago and now employ the more reasonable-sounding “due process” in defense of their most inept members. California’s existing dismissal statutes are weighted so heavily in favor of the unions that just two “permanent” teachers per year on average lose their jobs due to incompetence. That’s two teachers out of roughly 300,000 public school teachers statewide. In my nearly 30 years in the classroom, there were always at least two teachers at my school alone who deserved to be shown the door. Even to attempt to fire a teacher is an expensive proposition. Between 2000 and 2010, the Los Angeles Unified School District spent $3.5 million trying to pink-slip seven teachers (out of more than 30,000) for poor classroom performance. Of those, only four were let go.

The challenge for Republican legislators is they are currently a virtually powerless minority in a body dominated by Democrats and their union patrons. The CTA wasted no time denouncing the proposed legislation. “These bills are ill-conceived and premature,” said union spokesman Frank Wells. Republicans believe, however, that time is of the essence and that they can attract at least a few Democratic votes for their reforms. As Olsen explained to an interviewer, “We have seen throughout history that cases can take years to resolve in courts. Systemic problems have been failing kids for years. We need to take action now and hope Democrats will become partners.” But as former state senator Gloria Romero told me, “Ultimately, the resolution of the Vergara case will rest with the same body that enacted these unconstitutional statutes. It is not only unlikely, but extremely improbable that legislators dependent on CTA money to fuel their reelection campaigns will enact comprehensive reforms.”

So what will it take? Perhaps hordes of angry parents descending on the capital, brandishing lanterns and pitchforks. Short of that, how about a flood of letters and e-mails to lawmakers, imploring them to do right by the children of California? Only when enough good people get involved and fight the destructive agenda of the teachers unions will public education make a great leap forward in the Golden State.

Originally published in City Journal.

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