In the wake of yesterday’s court ruling challenging teachers’ tenure rights, old battle lines are being drawn. Or redrawn: the decision has produced the same lines and they are being drawn, or written, with the same chalk.
In Vergara v. California Judge Rolf M. Treu of Los Angeles Supreme Court sided with nine students from northern and southern California who sought to overturn state statutes governing the hiring and firing of public school teachers. Treu was moved by the plaintiffs’ argument that the process drove excellent teachers out and protected incompetent ones -- “placing a disproportionate burden on poor and minority students.”
“What comes next is nothing in the immediate future because the order has been stayed, but there is no doubt that there is going to be some ripple effects here in California and nationwide,” says William Koski, Director of Youth and Education Law Project at Stanford. “Even if this decision gets overturned on appeal it does create some momentum to file other litigation in other states where they have not had much luck in legislatures with reform of this type.”
In the battle for school reform, no caricature looms quite as large as the specter of the Rubber Room: the New York City Temporary Reassignment Center where, in a famous 2009 New Yorker piece by Stephen Brill, school teachers accused of misconduct collected salaries while playing cards and reading the newspaper. The Rubber Room is sort of the Welfare Queen of the school reform movement, a not-quite-mythical place where deadbeats go to soak up tax dollars.
On the other side of the battle line there is another pinata, this one bearing the likeness of Silicon Valley entrepreneur David Welch, who founded the nonprofit education reform group Student Matters -- and funded the over $3 million court case using Ted Olson (former Solicitor General of the United States, who along with David Boies successfully argued for gay marriage before the Supreme Court) as its lead counsel. Welch is a man of mystery. Until recently he had no background in education reform; he’s an electrical engineer with over 130 patents to his name; he gave over $500,000 to Michelle Rhee’s StudentsFirst, an education privatization lobby; and his three kids live in Atherton, which Forbes declared the richest zip code in the US, where millionaires’ have to walk across a mile of manicured lawn just to borrow a cup of Grey Poupon. No wonder teachers are suspicious.
“I think a lot gets lost in the caricatures of everybody,” says Koski, who along with students in the Law Project has represented hundreds of school kids and their families in matters of educational equity and school reform. “On the one hand you have the Silicon Valley corporate fat cat who funded this litigation -- that would be the Teachers Union perspective… On the other hand is the caricature of the slothful teacher in the rubber room – that’s a total caricature of the teachers I know, and absolutely not my experience with the vast majority of the teaching population. If clearer heads can prevail I think we can have a more productive conversation about how best to close the teacher quality gap.”
But “clearer heads” and “education reform” are seldom used in the same sentence. Jesse Rothstein, Associate Professor of Public Policy and Economics at UC Berkeley testified on behalf of the defense in Vergara v. California. “I think you have to see teachers’ tenure as part of a larger package -- how to hire and retain teachers,” he says. “Since World War II, teacher salaries have been declining, meanwhile the formerly captive labor force of women now have other options. There is more competition for potential teachers than there used to be. One of the things you can do to offset low pay is offer more job security and protection against arbitrary dismissal. Whether that’s a right trade-off is an empirical question.”
Average teacher salaries nationwide are about $50,000, according to Rothstein -- slightly higher in California -- and as part of an earlier compromise, the teachers’ union allowed pre-tenure teachers to be more easily dismissed while reducing tenure from three years to two. Working around that can be difficult. The San Jose Unified School District tried to increase their tenure to the old three-year bar but were denied by the state Board of Education. But Rothstein, who has also studied the question of teacher evaluation in public schools, says there is more appetite for compromise than either side sometimes recognizes. And that it has to happen on a local level.
“One thing you see in almost all districts is seniority-based priority in terms of deciding where you are going to teach within a district,” he explains. “The teachers with the most seniority tend not to teach in the poorest, highest-minority schools. Which means those schools are stuck with the least experienced teachers and higher rates of turnover. That’s not because of state law but because of district policies that create those assignment rules.”
In his decision -- that challenged the statute that teacher layoffs be based on seniority (“Last In, First Out”); the numerous steps needed to fire a state teacher; and the Permanent Employment Statute (ie, teacher tenure) -- Judge Treu estimated that as many as 3% of California’s teacher were “grossly ineffective.” While Rothstein isn’t sure how he came up with that number, he knows where he got the language.
“‘Grossly ineffective’ is a term of art that the plaintiff’s lawyer invented; I’ve never heard it used before this case,” he says. “California has over 200,000 teachers. There is no conceivable world in which we have no grossly ineffective teachers in our schools. No one builds cars in which there is no defect in 200,000 cars; there’s just no process that guarantees perfection... I don’t think we’re doing the best job we possibly could; I think there is lots of room to improve.”
Stanford’s Koski stands astride the battle line. “I’m at all ends of this because I represent kids in schools and I’ve seen a lot of bad administration decision making and teachers who are ineffective -- and then I’ve seen some teachers who are heroic,” he says. “My mom has been teaching special ed for 46 years, my dad teaches in an alternative school for kids who are disconnected from education, my brother is a principal – our family arguments are quite lively.” Maybe it’s because of that discourse that he can imagine several outcomes from yesterday’s decision, one more Kumbaya than the other.
“The hopeful scenario is that this will be a catalyst for bringing the two sides together – the so called reform side and the more traditional public school supporter, the Teachers Union side of things,” says Koski. “It would be good to have a meaningful conversation about what is the best way to attract and retain high quality teachers, particularly in low-income classrooms.
“My fear of course is that the opposite will happen, that this decision will further polarize what is already a super-heated debate. I’m not sure the day after [this decision] anybody is willing to come to the table and discuss this stuff.”