When politics fails, reformers turn to the courts. California’s Democrat-controlled state legislature has resisted reforms that threaten teacher-union power. Now two class-action lawsuits could undo the state’s longstanding seniority and tenure rules. On Tuesday, a Los Angeles Superior Court judge heard arguments from attorneys representing six families who say the nation’s second-largest school district has ignored the 40-year-old Stull Act, which requires the use of student performance in teacher evaluations. If successful, the lawsuit, filed last November, would require every school district in the Golden State to establish its own method of evaluating teachers—but all would need to use evidence of student learning based on standardized tests, just as 23 other states currently do.

A second lawsuit, filed last month on behalf of eight students from around the state, claims provisions of California’s education code—rigid tenure rules, a seniority-based firing system that ignores teacher quality, and a “due-process” system that makes it all but impossible to remove incompetent or criminal teachers—violate student rights. “As a result of these arbitrary distinctions” in hiring and firing, the complaint reads, “children of substantially equal age, aptitude, motivation, and ability do not have substantially equal access to education. Because education is a fundamental interest under the California Constitution, the statutes that dictate this unequal, arbitrary result violate the equal protection provisions of the California Constitution.”

Students Matter, a nonprofit founded by Silicon Valley entrepreneur David Welch, filed the second lawsuit. The student plaintiffs attend school in four districts, though the complaint targets only two—Los Angeles Unified and Alum Rock Elementary Unified in San Jose. Other named defendants include California governor Jerry Brown, Superintendent of Public Instruction Tom Torlakson, the state of California, the state board of education, and the state department of education. Students Matter is determined to ensure “that the policies embodied in the California Code of Education place the interests of students first and promote the goal of having an effective teacher in every classroom.” To that end, the group has joined forces with some heavy hitters in the education-reform world, including Michelle Rhee’s Students First, Democrats for Education Reform, Parent Revolution, and the New Schools Venture Fund. The lead lawyers handling the case are Ted Boutrous (from law giant Gibson, Dunn and Crutcher) and Ted Olsen, U.S. solicitor general under George W. Bush.

The Students Matter lawsuit doesn’t ask the court to devise specific policy solutions. Ultimately, those decisions should be left to local districts—as they are in 33 other states. Currently, California schools don’t take teacher effectiveness into account when making layoff decisions. The newest hires are the first to go, and senior teachers have their pick of schools. Struggling inner-city schools end up suffering the most, as the lawsuit states: “One recent study showed that a school in the highest poverty quartile is 65 percent more likely to have a teacher laid off than a school in the lowest poverty quartile. As a result of seniority-based layoffs, the highest poverty schools in California are likely to lose 30 percent more teachers than wealthier schools. The disproportionate number of vacancies in those schools are then filled by transferring lower performing teachers, including grossly ineffective teachers, from other schools.”

Last year, Los Angeles Superior Court judge William Highberger ruled that “last in/first out” imposes a disparate impact on schools in high-poverty neighborhoods. Highberger’s decision in Reed v. California, which the ACLU litigated, exempted 45 schools from layoffs (and had the unintended effect of exacerbating layoffs in other Los Angeles schools). The Reed case may not have been the “landmark decision” some reformers claimed or hoped, but it set a precedent.

Other states in recent years have overhauled teacher-tenure rules, requiring instructors to spend more years in the classroom before receiving what amounts to a lifetime job. California is one of only six states where a teacher may earn “permanent status” in less than three years. In fact, the actual timeline narrows to 18 months because the law requires that schools notify teachers by March 15 of their second year of employment whether they’ll receive tenure—and more than 98 percent do. Getting rid of a tenured teacher is almost impossible. As Troy Senik noted in the Spring 2012 issue of City Journal, “A tiny 0.03 percent of California teachers are dismissed after three or more years on the job. In the past decade, the LAUSD—home to 33,000 teachers—has dismissed only four. Even when teachers are fired, it’s seldom because of their classroom performance.” In 2009, the Los Angeles Times reported that only 20 percent of teacher dismissals in the state had anything to do with competence. The great majority of the fired teachers had been involved with obscene acts and other forms of criminality.

It’s no wonder that only a tiny fraction of teachers is ever fired for cause. The dismissal process is a Kafkaesque exercise. All government workers have protections that private-sector employees lack, but “due process” for teachers is in a class by itself. The Students First lawsuit includes a chart showing the lengthy and costly labyrinth that a school district must navigate to fire a tenured teacher for underperformance or criminal behavior.

Of course, it shouldn’t require multiple lawsuits to end such an onerous and unjust system, but too many in positions of power have a vested interest in maintaining the status quo. In California, the teacher unions’ gravy train runs unimpeded. That will change only if teachers are treated as professionals and not interchangeable widgets. School boards, which all too often function like old boys’ and girls’ clubs, must stand up to their local teachers’ unions during contract talks and install meaningful teacher-evaluation systems. School administrators, meanwhile, will need to go beyond superficial “drive-by” evaluations, which are frequently nothing more than paperwork-driven formalities. Their evaluations should ensure that the best teachers keep their jobs and the bottom performers are shown the door. Principals need to know that if they don’t accurately assess teachers, they could be out of a job. In short, all the players must be held accountable and the focus shifted from the needs of self-serving adults to those of children.

Thus far, the unions have had little to say about the Students Matter lawsuit, and the California School Board Association has kept mum. California Teachers Association president Dean Vogel simply casts the blame elsewhere. “The debate about teacher tenure and dismissal is being driven by the state’s economic crisis, which has drained education funding and resulted in waves of layoffs,” he said. That’s a cop-out. The struggle for sane teacher contracts long predates the economic crisis. It’s been driven all along by those who actually care about how children are educated—and too often mis-educated—in the Golden State.


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