News Column

California Teachers Union Vows to Appeal Tenure Ruling

June 11, 2014

Melody Petersen and Jessica Terrell, The Orange County Register

June 11--A Los Angeles judge ruled Tuesday that state laws protecting public school teachers from being fired are unconstitutional because they are harming students, especially those who are poor.

In a 16-page ruling, Superior Court Judge Rolf Michael Treu struck down five California statutes that give teachers tenure after just two school years and make it so difficult to fire a bad teacher that in many cases districts don't try.

The ruling was a blow to the two labor unions who represent California's 300,000 teachers. The unions, who vowed to appeal the ruling, have long counted on their power in Sacramento to defeat legislative attempts aimed at weakening the job-protection rules.

"We believe very strongly that we will prevail on appeal," said Glenn Rothner, an attorney for the unions, at a news conference held outside the courthouse Tuesday morning.

The case, which was brought on behalf of nine students, is expected to have ramifications across the nation.

The lawsuit was paid for by David Welch, a wealthy Silicon Valley entrepreneur, who says he is using "impact litigation" to improve access to quality public education. Welch has spent millions of dollars on a heavyweight legal team -- the same lawyers who defeated Proposition 8, the state's voter-approved ban on gay marriage.

In recent years, research has shown that teacher quality is a key factor to students' success and an increasing number of states have moved to make it easier to dismiss ineffective teachers.

California laws, however, continue to offer some of the strongest protections for teachers in the nation.

Over the course of a two-month trial of the case Vergara v. California, the student plaintiffs testified how they were harmed and held back in their studies after they were trapped in classrooms with "grossly ineffective" instructors.

Their lawyers supported the students' stories with testimony from current and former superintendents who said that it can take as long as 10 years and cost more than $450,000 in legal expenses to fire a bad teacher.

In his opinion, Treu said the evidence showing how ineffective teachers can harm students was compelling. "Indeed, it shocks the conscience," he wrote.

The judge pointed to testimony by Raj Chetty, a Harvard economics professor, who estimated that sitting in a classroom with an ineffective teacher for a year will cost a student $50,000 in lifetime earnings. The students' lawyers also presented a study at Los Angeles Unified that found a teacher in the bottom 5percent in teaching competence would cause students to lose between 9 and 10 months of learning.

During the trial, lawyers for the teachers unions and from the state Attorney General's Office argued that the job protections were needed to help schools recruit the best teachers and ensure that those with the most experience were not laid off when schools need to reduce staff.

The teachers say they are being blamed for California students' dismal national ranking on tests in math and reading when the real issues holding back children are poverty and the state's failure to properly fund its schools.

The teachers unions do not deny that a bad teacher can hurt students. But the unions argued that the number of ineffective teachers is extremely small and that well-managed districts can fire those teachers under the current law.

Joshua Pechthalt, the president of the California Federation of Teachers, said after Tuesday's news conference that Welch would be better off using his money to combat poverty because it would have a more lasting effect on what happens in schools.

"To focus on a small group of teachers who are under-performing really does a disservice to hardworking teachers," Pechthalt said.

The job protection laws

California is one of only five states that grants teachers tenure after two years or less in the classroom. Thirty-two states have a three-year period, according to the lawsuit, and nine states give tenure after four or five years. Four states have no tenure system at all.

Another California law requires that schools lay off teachers according to their seniority. The law requires that those teachers with the fewest years on the job be laid off first.

Lawyers for the students showed how that law was forcing school administrators to lay off talented young teachers while keeping those who could not teach, but had more years of experience.

Treu said that there was substantial evidence that the laws were disproportionately affecting poor and minority students. He pointed out that the state's education department, which was a defendant in the case, had detailed in its own documents how students in poor districts were more likely to have an ineffective teacher.

Several superintendents who testified in court blamed this on what they called "the dance of the lemons" -- a description of how administrators often send tenured teachers with bad reviews to schools in poor neighborhoods.

For example, Mark Douglas, assistant superintendent at Fullerton School District, had testified about how principals were "moving people of less skill, poor performance" to schools in "the south of town," where there were more low-income families.

Beatriz Vergara, 15, the lead plaintiff, had testified about her hopes of being a nurse -- a significant goal in her neighborhood in Pacoima where few residents have a college degree. She said she felt that three teachers at her Los Angeles Unified middle school had caused her "lost opportunity."

Vergara had described how her seventh-grade history teacher had let the class do whatever they wanted.

"Some students would be smoking marijuana in the back of the table; he didn't even mind. You could leave class if you want to," she said in court. "He would, like, just be on his laptop; he didn't teach us."

She added, "He would call us stupid and tell us that we're going to clean houses for a living."

Response to judge's ruling

The lawsuit was defended by the state Attorney General's Office. Nick Pacilio, a spokesman for the attorney general, said state lawyers were reviewing the tentative ruling and consulting with other officials, including Gov. Jerry Brown, on whether to appeal.

Both sides have 15 days to file objections to the ruling.

The decision prompted responses from advocates for teachers and reformers of public education from across the state and nation.

Harold Acord, president of the Moreno Valley Educators Association, which represents 1,600 teachers, said the decision "ignores all the research that shows that experience is a key factor in effective teaching."

And Susan Mercer, president of the Santa Ana Educators Association, called the lawsuit "just another attempt to try to dismantle public education.

"For us the main concern is not having due process," Mercer said. "We are the advocates of the children and many times we say things the administration doesn't really like. ... It is very discouraging because it ties teachers' hands with fear."

Congressman Mark Takano, a Riverside Democrat who is a former high school teacher, said the decision "goes too far.

"There's a lot of presumption of new teachers outperforming senior teachers," he said, but most new teachers need time to develop their craft.

The group behind the lawsuit

Welch, his lawyers and the public relations staff of Students Matter, a group he founded to bring the lawsuit, held their own news conference outside the Los Angeles courthouse on Tuesday.

At the event, one of his lawyers said the group was considering filing similar lawsuits in other states.

"Currently our team is exploring all options," said Marcellus McRae, a lawyer from Gibson, Dunn & Crutcher, who had helped argue the case. "We are looking at a number of different places."

Financial statements for Students Matter show the group had spent more than $2 million on the litigation through the end of 2012. Welch declined Tuesday to say how much more he has spent.

Teacher union officials have repeatedly criticized Welch, saying he was spending his money to change public education -- a subject he knew little about. And that criticism continued on Tuesday.

"No wealthy benefactor with an extreme agenda will detour us from our path to reclaim the promise of public education," said Randi Weingarten, the president of the American Federation of Teachers, in a statement Tuesday.

Welch, the father of three children, lashed back at the unions at his news conference, where he appeared with one of the student plaintiffs.

"Over the past two years the defenders of the status quo have resorted to a variety of strategies designed to cast me and those who have joined this lawsuit in a negative light," Welch said. "So let me be clear about what motivated me.

"I believe in and have experienced the impact of great educators," he said. "And I believe in the children of our state. But I also believe our public education system is failing those children and has stopped putting the children's needs as a priority."

Staff writers Fermin Leal and Dayna Straehley contributed to this report.

Contact the writer: mpetersen@ocregister.com

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(c)2014 The Orange County Register (Santa Ana, Calif.)

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Original headline: Teachers unions vow to appeal tenure ruling



Source: (c)2014 The Orange County Register (Santa Ana, Calif.)


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