(Correction: A previous version of this post incorrectly cited a Los Angeles Times editorial. The article cited was not a Times editorial but an opinion piece written by an outsider writer and published in the Times.)
An important trial is under way in California that is ostensibly about one thing — protecting students — but is really about attacking teachers unions and the due process rights for teachers. This post about what is really going on with Vergara v. California was written by Ben Spielberg, a Teach For America alum and current math instructional coach in San Jose Unified School District. He also serves on the Executive Board of the San Jose Teachers Association. Ben co-founded 34justice.com and blogs about a variety of social justice issues, where you can read more of his work about the deeply misguided Vergara lawsuit. He has a bachelors degree in Mathematical and Computational Sciences from Stanford University and has written several articles about education research and policy.
By Ben Spielberg
Vergara v. California, a lawsuit challenging three components of teacher employment law in California’s Ed Code that began on Jan. 27, has garnered considerable media attention. The plaintiffs’ legal team contends that due process rights for teachers, a cumbersome teacher dismissal process, and seniority-based layoffs violate the Equal Protection Clause of the Fourteenth Amendment. They argue that, as a result of teacher employment policies, poor and minority students learn from a disproportionately large number of “grossly ineffective” teachers. These ineffective teachers ostensibly cause education’s observed “opportunity gap” between low-income, predominantly minority students and their higher-income, mostly white peers.
Despite the plaintiffs’ claims, this lawsuit unfortunately does not address the needs of low-income students.
First, the anti-union and anti-social welfare backgrounds of the people behind Vergara v. California both suggest the lawsuit is primarily intended to dismantle labor laws. Second, ethics and empirical research suggest a focus on teacher evaluation and support has more potential to improve instruction and benefit students than a focus on dismissal. Third, while the challenged statutes should be improved, they offer important protections for both students and teachers, protections that more responsible reforms can preserve.
Most arguments against teacher employment laws either make faulty assumptions or severely mischaracterize the laws’ impact. Yet Vergara proponents have been especially successful at conflating teacher employment law with the existence of horrible teachers when the existence of horrible teachers has no relevance to this case.
California Ed Code provides the following procedure for the immediate suspension and quick dismissal of any teacher exhibiting egregious behavior:
44939. Upon the filing of written charges…charging a permanent employee of the district with immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, [or] with willful refusal to perform regular assignments without reasonable cause…the governing board may…immediately suspend the employee from his duties and give notice to him of his suspension, and that 30 days after service of the notice, he will be dismissed, unless he demands a hearing. If the permanent employee is suspended…he may within 10 days after service upon him of notice of such suspension file with the governing board a verified denial, in writing, of the charges. In such event the permanent employee who demands a hearing within the 30-day period shall continue to be paid his regular salary during the period of suspension and until the entry of the decision of the Commission on Professional Competence, if and during such time as he furnishes to the school district a suitable bond, or other security acceptable to the governing board, as a guarantee that the employee will repay to the school district the amount of salary so paid to him during the period of suspension in case the decision of the Commission on Professional Competence is that he shall be dismissed. If it is determined that the employee may not be dismissed, the school board shall reimburse the employee for the cost of the bond.
Beatriz Vergara, one of the students after whom Vergara v. California is named, testified that one of her 7th grade teachers made racist remarks about Latino students and that another 7th grade teacher routinely called female students “stick figure” and “whore.” Such verbal abuse is deplorable, should constitute unprofessional and “immoral conduct,” and falls within Section 44939 of Ed Code. Vergara also testified that her 6th grade math teacher slept during class, behavior that is also completely unacceptable, should constitute “willful refusal to perform regular assignments,” and also falls within Section 44939 of Ed Code.
Her testimony, while upsetting, has no relationship with the challenged statutes in this case; competent, knowledgeable administrators could and should have suspended these teachers immediately and then, if the charges were legitimate, had the teachers dismissed. Neither permanent status nor dismissal law (nor any teachers union) condones verbal abuse, physical abuse, sleeping on the job, or any other form of gross negligence or misconduct.
Teachers who don’t commit misconduct can still be ineffective teachers. For the plaintiffs to have an Equal Protection case, however, the challenged statutes would need to directly cause more ineffective teaching at low-income schools than high-income schools.
Yet very little evidence, if any, suggests that teacher quality at low-income schools is worse than teacher quality at high-income schools. Most studies of teacher effectiveness rely on a statistical approach known as value added modeling, an approach that attempts to quantify a teacher’s contribution to student test scores. Value-added models have serious limitations and are unstable, meaning they have a high margin of error. For example, a recent study compared teacher value-added scores on two different tests taken by the exact same students and found that only about one-third of the teachers in a given quintile of performance on one value-added measure scored in the same quintile on the other test. Even if value-added modeling could perfectly indicate teacher effectiveness, the plaintiffs’ own expert witnesses have acknowledged in their research that “the quality of teaching…does not differ substantially across schools.” Anecdotally, I’ve observed a similar distribution of teacher quality in the low-income schools at which I currently work and the expensive private school I attended for middle and high school.
Even if evidence suggested that teacher quality in low-income schools is worse on average than teacher quality in high-income schools (it doesn’t), permanent status, dismissal, and seniority-based layoff procedures apply equally in schools that serve high-income populations. While layoffs are probably less likely to occur in California’s basic aid (richer) districts, one could make a much stronger Equal Protection case about the reductions in staffing,resource cutbacks, and furlough days poorer districts experience as a result of budget cuts than one could build about the order in which teachers are laid off. Permanent status and dismissal laws affect rich and poor communities in exactly the same way. That it would even be possible for the statutes challenged in Vergara v. California to cause a difference in teacher quality between low- and high-income schools is questionable.
Since proponents of Vergara can’t legitimately tie the challenged statutes to student harm, they resort to equating defense of due process with support of incompetence. For example, a recent opinion piece in the Los Angeles Times by Larry Sand, a former public school teacher and president of the nonprofit California Teachers Empowerment Network, notes that a majority of teachers believe at least one colleague with permanent status “should be dismissed for poor performance.” This fact is irrelevant to the effect of permanent status; ask any group of professionals in a large workplace whether someone at the workplace should be dismissed for poor performance and a high percentage will respond in the affirmative. Articles like this one argue that permanent status causes poor performance despite a complete lack of evidence in support of this claim.
Teachers who work with poor and minority students every day are often their most credible advocates. Teachers unions believe deeply that poor and minority students deserve access to an excellent education and abhor teacher misconduct and negligence as much as anyone else. They also believe students benefit when teachers are treated with respect. The defendants in Vergara v. California therefore oppose both ineffective teaching and deceptive lawsuits that erroneously link it to due process protections.