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California School Fiscal Services

Providing comprehensive business office and consulting services to K-12 traditional schools and charters



Did the Vergara decision go far enough? Author: Jackie McHaney

Posted on June 28, 2014 at 9:45 AM Comments comments (1006)

Happy Friday and 4 of July,

Did the Vergara decision go far enough to ensure equal access to a quality education for all students and to elevate the standards for the teaching profession or too far? By now, Vergara is a name most of us are familiar with. It is a case of first impression in California. Specifically a California judge, for the first time found certain fundamental certificated employment protections (i.e., tenure, due process protections related to discipline and dismissals, and “last-in, first-out” in RIFs) to disproportionately hurt poor students and students of color and thus found them to be unconstitutional. Superior Court Judge Rolf Treu wrote in his ruling, citing a claim that an ineffective teacher costs a student $1.4 million in lost earnings over a lifetime. “The evidence is compelling. Indeed, it shocks the conscience,” wrote Judge Treu, setting the stage for what will undoubtedly be a heated conversation at local, state and national levels.


Unions will undoubtedly fall back on the arguments that teachers are just being used as a scapegoat and that the source of the failures, if any, is derived from a lack of sufficient funding of education in the first place and by factors out of their control in the family and community setting. Unions may also argue that if the 2-year tenure system is responsible for the approximately 3% of grossly ineffective teachers we have in our system, then it should also be credited with the 97% rate of success in recruiting and retaining effective teachers.


School districts will undoubtedly argue that teachers are not being made a scapegoat because the laws at issue really only protect a very small minority of teachers who are harming children and who should not be in the classroom – they will never come into play with the 97% remaining effective teachers. Schools will also undoubtedly argue that current teacher employment protections even though they affect only about 3% of the working force, create a serious quality gap and that current teacher employment protections and seniority rules tie the hands of administrators and prevent them from hiring, firing, and assigning staff in a manner that best meet student needs for a large number of students.


I know an attorney that testified as an expert witness in the case and he recently provided me with some information about the 2700 “unsatisfactory” performance cases that went before the CTC Panel and he opined that it is actually 400 times easier to get an attorney disbarred, than it is to fire a teacher for unsatisfactory job performance – (not take a teacher’s license away, which is what happens in a debarment process). It is believed that it is actually easier to get a death penalty conviction than it is to fire a teacher for unsatisfactory job performance. Of the 2700 cases analyzed, in those instances where school districts did in fact do 2-4 years of documentation and remediation efforts and could document continuing problems still existing, only 62% of the time were school districts successful at removing the teacher from employment.


Although at first glance it may appear that the ruling will have no immediate effect in California because the court stayed implementation of the decision pending the outcome of the appeals process, I believe we will see the impacts long before the appeals process is exhausted. I would expect to see political and legislative activity in California and elsewhere on this issue. I strongly suspect that unions will seek a legislative solution that causes the least harm to the current statutory scheme rather than wait for the appeals process. We saw this happen in the LAUSD case in which the Superior Court judge ruled that student performance should be a part of a teacher evaluation and gave the parties time to work out what this would look like, or the court would rule and the parties would be left with the remedied fashioned by the court. LAUSD’s teachers union decided to negotiate in student performance as a factor in the evaluation process. Although opponents of the decision understand that if the appellate court reverses the decision, the statutes will remain in effect. They are also equally aware that if the appellate court concurs, there is no guarantee that these laws will be replaced by anything better for them. Tenure could be eliminated and layoffs could be left entirely to the discretion of principals. It is the unknown that will drive a legislative conversation in the near future.

Will the Vergara decision improve education in the classroom for all students? It is simply premature to tell.

Enjoy your holiday!