Teacher-tenure ruling’s local effects limited

The phrase “public school teacher” conjures myriad conflicting images and memories, depending on our personal experiences.
We may remember fondly a teacher who inspired us to reach for our goals. Or, we may roll our eyes, thinking of overpaid, underworked public employees who view themselves as untouchable. For this subset, the general complaint is that teachers purchase their jobs, figuratively anyway, after a relatively short probationary period, and they can’t be displaced once they earn tenure.
In June, however, California Superior Court Judge Rolf Treu struck down California’s teacher-tenure system in a decision that has been widely hailed and criticized.
In Vergara v. State of California, Treu ruled that California laws that protect tenured teachers from dismissal deny students equal protection of the law under the constitution of California. The plaintiffs in the case were a group of California students; the defendants included the state of California and the Los Angeles Unified School District.
According to Treu, several California statutes significantly inhibit the ability of California school departments to dismiss ineffective teachers. The judge found that high-poverty, minority students disproportionately experience this backlog of bad teachers.
The challenged laws “impose real and appreciable impact on students’ fundamental right to equality of education” and they violate the state’s constitutional obligation to provide “a basically equal opportunity to achieve a quality education,” the judge decided.
Prior to Treu’s ruling, California’s Permanent Employment Statute required school administrators to decide on tenure for a new teacher after just 18 months – by March 15 of the teacher’s second year. Treu found this time period insufficient to determine whether a newly minted teacher has what it takes to be proficient. Once tenure is granted, the judge noted that incompetent teachers benefit from a tangle of laws that elongate the dismissal process to such an extent that dismissal is both extremely difficult and extremely costly. (John Deasy, formerly the superintendent of Coventry Public Schools and currently the superintendent of the Los Angeles Unified School District testified that a dismissal action can cost from $250,000-$450,000).
School districts give up in lieu of devoting resources to what, in the end, is a losing battle. Finally, a “last in, first out” statute requires school districts to let go of the newest teachers first, regardless of the quality of their teaching practice, when reductions in student enrollment necessitate layoffs.
Vergara is expected to generate a series of copycat cases across the country. A lawsuit has already been filed in New York and the legal team behind Vergara said it may bring lawsuits in several other states.
What does all of this mean for public education in Rhode Island? First, it’s important to remember that Treu is a Superior Court judge, which means his decision is only the first step of what promises to be a lengthy appellate process in California. It is certainly possible that California’s appellate courts will overturn his decision.
Second, his decision was based on the constitution of California, under which education is a fundamental right, meaning any law affecting education must protect all citizens equally – this is where we get the term “equal protection.”
Conversely, education is not a fundamental right under the U.S. Constitution, and the R.I. Supreme Court has found that education is not a fundamental right under the state constitution. Plaintiffs would face a much stiffer challenge in Rhode Island if they pursued a case like Vergara. Third, although Rhode Island also recognizes teacher tenure (three years, as opposed to California’s two-year statute), it is not the absolute right here that it appears to be in California. Rhode Island school districts can dismiss tenured teachers for “good and just cause.”
Fourth, the R.I. Department of Education has made a significant commitment to improving teacher quality in the last decade, including giving school departments more authority to dismiss poor-performing, tenured teachers.
Rhode Island school districts already have the power to dismiss poor performers, a power Treu found lacking for California school districts. It’s not easy to dismiss a teacher in Rhode Island; nor should it be.
But if a school department follows the process with fidelity, the dismissal of poor performers can be accomplished, and for orders of magnitude less than the $450,000 that it may take in California.
It requires the administrative team to track teacher performance – just as supervisors in other professions must track their employees’ performance. It further requires administrators to confront poor performers, rather than just pass them from school to school within the district.
And, ultimately, it requires a school committee to trust its administrative team and to devote resources to weeding out poor performers, including to the legal process that invariably results because of a teachers union’s challenge to the dismissal of one of its members. •


Steve Adams is a partner at Barton Gilman LLP in Providence.

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