CA Teacher Tenure Laws Unconstitutional, Judge Rules

LOS ANGELES (CN) - In a blow to teachers' unions, a state judge ruled Tuesday that California unconstitutionally rewards "grossly ineffective" teachers with tenure.

Los Angeles Superior Court Judge Rolf Treu found that five statutes in California's education code adversely affect the education of poor and minority students.

Two years ago, the law firm Gibson, Dunn & Crutcher signed on to represent eight California public students targeting teacher tenure, in Vergara v. California. The case went to trial this year, with the students claiming that the state's education system violates the equal protection provision of the California Constitution.

At issue were state education laws that students said unfairly gave teachers permanent employment, prevented removal of grossly ineffective teachers from classrooms, and during economic downturns required layoffs of teachers based on seniority rather than on their ability to teach.

Under those laws, poor and minority schools end up with a disproportionate amount of "lemon" teachers, who secure tenure in as little as 16 months, the students argued.

California and the teacher's union defending the case argued that extending the probationary period would chip away at a benefit that attracts quality teachers and protects them from the whims of officials and administrators.

"We believe the judge fell victim to the anti-union, anti-teacher rhetoric and one of American's finest corporate law firms that set out to scapegoat teachers for the real problems that exist in public education," Joshua Pechthalt, president of the California Federation of Teachers, told The New York Times on Tuesday. "There are real problems in our schools, but this decision in no way helps us move the ball forward."

But in his 16-page ruling, Treu found the evidence of the negative impact of ineffective teachers "compelling."

"Indeed, it shocks the conscience," he wrote.

Citing expert witness testimony, he noted that "a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom," and that a teacher in the bottom 5 percent causes students to lose 9.54 months of learning time per year compared with average teachers.

Treu said both students and teachers are "disadvantaged" by a law that grants tenure to teachers in less than two years.

"The California 'two year' statute is a misnomer to begin with," he wrote. "The evidence established that the decision not to reelect must be formally communicated to the teacher on or before March 15 of the second year of the teacher's employment. This deadline already eliminates 2-3 months of the two year period."

He added: "In order to meet the March 15 deadline, reelection recommendations must be placed before the appropriate deciding authority well in advance of March 15, so that in effect, the decision whether or not to reelect must be made even earlier. Bizarrely, the beneficial effects of the induction program for new teachers, which lasts an entire two school years and runs concurrently with the Permanent Employment Statute, cannot be evaluated before the time the reelection decision has to be made. Thus, 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."

The students further argued that it's nearly impossible to dismiss an ineffective tenured teacher; it can take between two and 10 years, and cost anywhere from $50,000 to $450,000.

Treu agreed that the state's dismissal process is "torturous," and found it "to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory."

The judge also struck down as unconstitutional the last-in, first-out statute that allows poorly performing teachers to stay in their jobs simply because they've been around longer.

"The logic of this position is unfathomable and therefore constitutionally unsupportable," Treu wrote.

He said the challenged statutes disproportionately affect poor and minority students, whose learning process is destabilized by the "churning" of teachers in what he dubbed the "Dance of the Lemons."

Though Treu found all five statutes unconstitutional, he stayed the injunctions pending appellate review.

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