A Small Victory

Passion v.1.0
Creative Commons License Photo Credit: Fernando Herrera via Compfight

“Today we face the monsters that are at our door and bring the fight to them!” – Stacker Pentecost

Today heralded a landmark tentative ruling from Judge Rolf M. Treu in the case of Vegara et al. V. State of California. This case involves nine plaintiffs who are public school students that are bringing a complaint against the State of California. These students are challenging five components of the rather encyclopedic California Education Code (specifically 44929.21(b); 44934, 44938 (b) (1), 44944 (2), and 44955. Okay… those are a lot of numbers so what do they mean?

These California Ed Codes deal with three separate issues. 1. The “Permanent Employment Statutes”, 2. “Dismissal Statutes”, 3. “Last-In-First-Out [LIFO] Statute”. At the heart of this matter is the question of whether or not these statutes, which deal almost exclusively with tenure and teacher retention within the state of California, violate the state constitution. In the tentative ruling it was found that they do.

I’ll be the first to admit that I do not usually go out of my way to read a legal ruling, they tend to be bland and really hold little interest for me. However, it is clear that Judge Treu did not have any ineffective teachers when he was in school. His ruling is sound and the language he chooses to use throughout is engaging and quite dynamic. I do not often encounter a ruling in which words such as “paradigmatized”, “Gainsaid”, “Preponderance”, “über”, or “illusory” are used with eloquence and precision.

Judge Treu also manages to make very clear that his ruling is based solely upon the law and that it is not his place to enter into the realm of politics or legislation, he even goes so far as to quote Alexander Hamilton in the Federalist Paper 78! If you are an educator (even if you aren’t one from the state of California) I highly recommend you read the entire 16-page ruling. You will not be disappointed you can find it by clicking here.

As legal precedent Judge Treu cites Brown v. Board of Education, Serrano v. Priest, and Butt v. State of California. Where this ruling takes an interesting turn is that these cases all dealt with a “lack of equality of education based on the discrete facts raised therein.” Yet the court was faced, in this case with applying “… these constitutional principles to the quality of the educational experience.” It is a strong statement in that quality is finally being considered as a factor that has a very real impact upon the lives of students.

The plaintiffs clearly state that these three statutes directly result in the retention of “grossly ineffective teachers obtaining and retaining employment” which violates “their fundamental rights to equality of education by adversely affecting the quality of education they are afforded by the state.” Ultimately the judge found that the plaintiffs met their burden of proof on all issues presented and the state as well as the California Teachers Association and the California Federation of Teachers did not offer any evidence that the state has a compelling interest that justified the statues or that the “distinctions drawn by the law[s] are necessary to further [their] purpose.”

What is truly interesting is that repeatedly throughout the case and in the ruling we find that the plaintiffs and the defendants agree on key issues that stand in direct opposition to continuing the current statutes as they exist. Lets examine what both sides agree with:

  1. Competent teachers are critical and are the most important “component of success of a child’s in-school educational experience.”
  2. “grossly ineffective teachers undermine the ability of [a] child to succeed in school.”
  3. The current process for dismissal of a grossly ineffective teacher is “torturous” expensive, and time consuming almost to the point of impossibility of removal of the tenured teacher

I would like to only offer some highlights of this case because I really want you to read the entire ruling. What follows are some gems from the legal document.

The judge stated that the evidence of specific effects of grossly ineffective teachers upon students is compelling… and shocks the conscience (I am inclined to agree).

Some basic facts supported by research:

  1. “A single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.
  2. “Students taught in LAUSD by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.”
  3. “The extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250” within the state of California.
  4. LAUSD alone had approximately 350 grossly ineffective teachers it wished to dismiss at the time of trial but no dismissal process had been initiated.

Lets take a look at the three main statutes…

Round I: Permanent Employment Statute

It should be clear to anyone who even remotely glances at the Permanent Employment Statute [PES] that it is completely ridiculous. Reading Judge Treu’s ruling would be amusing if it weren’t for the seriousness of the impact the current Ed Code has upon thousands of student lives! Half the time you’re reading the decision you feel like he is specifically saying “USE COMMON SENSE HERE!.”  let us examine some of the problems with the PES statute.

PES is more commonly known by the informal phrase: “two year” statute. Basically, as it is understood promoting a teacher to tenured/permanent status takes place at the end of two years. Judge Treu is very clear that even this is “misnomer” because teachers need to be told on or before March 15 which is a full 2 – 3 months prior to a two year term if they will be reelected… which means that administrators must make that decision long before that time. Yet, and here is just one piece of ludicrous logic, the formal induction programs for a new teacher takes a full two years to complete (the FULL two years). Therefore, administrators are forced to make a decision to grant teacher tenure before an official evaluation of the teacher’s competence and ability through the induction program is complete! The insanity in this is mind-boggling! As judge Treu states, “a teacher reelected in March may not be recommended for credentialing after the close of the induction program in May, leaving the applicable district with a non-credentialed teacher with tenure.” On the flip side, to ensure that districts do not end up in this situation, many administrators are forced to deny approval for teachers if they have even the slightest doubt about their ability… despite the fact that they may have been found to be completely competent at the end of the induction program! Why would the state even attempt to defend this statute? Luckily judge Treu found this statute to be unconstitutional under the equal protection clause of the Constitution of California!

ROUND II: Dismissal Statutes

The plaintiffs argue that the process of removing a grossly ineffective teacher from the teaching profession is overly time consuming and expensive resulting in many teachers’ districts retaining these poorly performing teachers. How time consuming and expensive is this? Apparently the figures indicate that “It could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion under the current statutes.” This is nearly half a million dollars! For schools that are already facing sever budget constraints, one need not wonder why they haven’t pursued the removal of these teachers.

What I love most is that judge Treu does not state that teachers should be denied due process. He is very clear that they deserver a process. However the current state of affairs is what he terms “über due process.” I couldn’t agree more!

Judge Treu’s own words really bring home this issue: “There is no question that teachers should be afforded reasonable due process when their dismissals are sought. However… the current system… [is] so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.” – I couldn’t have said this better myself.

Based on these common-sense facts the court found the Dismissal Statutes unconstitutional under the equal protection clause of the Constitution of California.

Round III: LIFO (Last-In-First-Out)

I would like to start this section by stating I’d love to meet the genius who came up with this to ask what they could have possibly been thinking when they wrote this statute? Apparently this had some traction (thankfully not a majority) as ten states currently require seniority to be the sole factor in determining who is let go. It is shocking to think that this is indeed the reality. Completely compelling, effective teachers may be let go simply because they are newer than some who may be grossly ineffective. Don’t get me wrong, I know there are also grossly ineffective new teachers, but the current California statute does not even allow for a teacher’s ability to be considered! This statute basically states that the last-hired teacher is the “first statutorily-mandated first-fired one when lay-offs occur.”

I’m not even sure why the State would want to try to defend this practice. To do so would mean that the State would have to prove that there is a good reason to remove students from the best teachers and leave them with those who are not capable of being effective! Judge Treu is very clear that “The logic of this position is unfathomable and therefore constitutionally unsupportable.”

In the Legislatures Hands

I applaud Judge Treu for being extremely explicit in the role of the court throughout his entire decision. He was clear from the beginning that the court’s only job is to measure the statutes against the constitution. He closes by making some excellent points. Here is Judge Treu in his own words:

“… it is not the function of this court to dictate or even to advise the legislature as to how to replace the challenged statutes. All this court may do is apply constitutional principles of law to the challenged statutes as it has done here, and trust the legislature to fulfill its mandated duty to enact legislation on the issues herein discussed that passes constitutional muster, thus providing each child in this state with a basically equal opportunity to achieve a quality education.”

It is in your hands now Legislature. Its my hope that the State would take this decision and use it as a wake up call to begin real reform in getting and retaining quality educators in the field and removing those who have proven ineffective or unwilling to make necessary changes to help children learn and be successful in life. However, I sense that this will find its way to an appeal and the process will be further drawn out. How many more children must suffer because the adults in charge are unwilling to look at the harm that is being done to children on a daily basis all in the name of protecting entrenched, ineffective educators at the cost of those who would actually help students thrive?

Your Thoughts

As you can probably tell, I am a huge fan of this ruling! I also love the restrained biting criticism that can be read between the lines of Judge Treu’s decision. Sign me up… I am a fan of making changes to the current statutes of the California Ed Code. However, I know I’m not the only one with an opinion. You may have an opposite opinion. You may think I’m crazy for holding my view. I’d love to hear your thoughts. Maybe you live in one of the majority of states where statutes such as these do not exist…. Please share your unique perspective.

I look forward to reading your responses and having a wonderful open dialogue on the topic. You may click here to leave a comment if you so desire.