Vergara v. California: What's at stake as teacher tenure case goes back to court

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A state appellate court will hear oral arguments Thursday in Vergara v. California, a blockbuster legal case that questions whether laws that have protected California teachers' jobs for decades are also leaving the state's vulnerable students in the charge of "grossly ineffective" educators.

It's the beginning of the second round of a high-stakes and highly-politicized battle between teachers unions — both in California and nationally — and advocates who believe teachers' job security should be more closely linked with students' academic performance.

Need a refresher on the case? Here's what you need to know:

What are the job protections for teachers the Vergara plaintiffs want struck down?

In June 2014, following an eight-week trial, Los Angeles County Superior Court Judge Rolf Treu's struck down the California laws establishing what teachers unions consider three lynchpins of teacher's job security:

  • 'Permanent employment.' California law requires school districts to offer tenure protections to teachers by mid-March of their second year on the job. In his ruling, Treu agreed with the plaintiffs who filed Vergara and said this two-year window was too short. He wrote that it forces school administrators to offer permanent employment to teachers who would not have received it if the district had more time to review their performance.
  • Teacher dismissal process. After a teacher receives tenure, Treu ruled it's "nearly impossible" to dismiss that teacher — even when evidence accumulates that they're not effective. The process, Treu wrote, is “so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory."
  • 'Last In, First Out.' When budget cuts force layoffs in schools, state law dictates that schools must cut the most junior teachers first. "No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher," Treu wrote, "the junior gifted one … is separated from [students]."

The Vergara plaintiffs — nine California public school students who filed the case with the aid of a non-profit group called Students Matter — said these job protections force school districts to keep bad teachers on their payroll and in the classroom.

The plaintiffs argued these "grossly ineffective" educators disproportionately wind up teaching low-income or minority students. Treu said that violated these students' Constitutional rights to an equal education and struck down the job protections — which, he ruled, caused the disparity.

Who determined which teachers are "grossly ineffective" in this trial?

This has been a point of contentious debate, both in the trial and outside the courtroom. The plaintiffs pointed to evidence from "value-added models" — statistical formulas that factor in students' test scores from year to year and calculate how much impact a teacher had on that score.

Teachers unions, who have joined state officials as defendants in the case, have said the use of value-added metrics is an "incomplete measure of teacher effectiveness."

"As a data point, it can be informative," wrote Michael Powell, a spokesperson for the nation's second largest teachers union, the American Federation of Teachers. "As a high-stakes measure used to sort, rank and evaluate teachers, it has been debunked."

The plaintiffs contended that the model, while "predictable, reliable and accurate," is just one of many possible ways to measure teacher quality — they needed to pick one for the purposes of the trial.

How do we know these "grossly ineffective" teachers are harming poor and minority kids more than middle-class or white kids?

There are two answers to this question. The unions and the state's answer: we don't know this for sure, writing in their brief that Treu's ruling "did not identify any direct, logical connection” between teacher job protections and harms to low-income students.

But the plaintiffs say studies bear out their contention. At trial, they presented a study by Harvard economist Thomas Kane that found African-American students in Los Angeles Unified schools were 43 percent more likely than white students to have an ineffective teacher leading their classroom; Latino students were 68 percent more likely. A separate study found low-income students were twice as likely to have ineffective teachers than their middle- and upper-class peers.

Plaintiffs say this happens because school principals will try to transfer ineffective teachers out of their buildings. Schools serving high numbers of low-income and minority students wind up with high concentrations of these ineffective teachers, the plaintiffs say, because they're less-desirable places to teach.

But if this is the case, the unions argue school administrators — and not state laws that protect teacher jobs — are at fault.

What are Thursday's oral arguments likely to focus on?

For starters, the three-judge panel and lawyers for both sides will have to grapple over whether the courts are the right place for this argument at all.

Bill Koski, a Stanford Law professor who directs the school's Youth and Education Law Project, said California lawmakers had to balance teachers' due process rights with the rights of students in creating these teacher job protections. The appellate court will have to decide whether the plaintiffs are right to argue these job protections cause these inequities, and if so, whether it's the court's job to intervene.

Here's how Koski frames that choice: "Is this just a policy decision that's not appropriate for the courts to be wading into? … You can also bet that the plaintiffs are going to make a big deal that, 'Hey, the data show grossly ineffective teachers hurt kids, and the courts— you oughta step in. This is your constitutional obligation to stop this.'"

What's at stake here?

Treu "stayed" his ruling so that higher courts could weigh in, but if the appellate court upholds it, the impact will be felt in every California school. The case has also taken on national importance; an advocacy group in New York has filed a very similar case making similar claims against that state's teacher protection laws.

Joshua Pechthalt, vice president of the California Federation of Teachers, sees the case as the beginning of a push to tie teacher evaluations to student test scores.

"Frankly, I think the judge was trying to push an agenda," the union executive said on KPCC's AirTalk. "Tying teacher evaluations to test scores is bad on so many levels, and parents are really tired of it."

Recent studies suggest California suffers from a teacher shortage, which Pechtalt highlighted as evidence the profession needs strong job protections. But Steve Barr, who advocates for the creation of a residency program to attract teachers into the profession, told AirTalk that some of these job protections are counterproductive to the idea of bringing new talent into schools.

"If you have last-hired, first-fired [job protections] and you train 100,000 teachers over the next ten years — which is what we're proposing — what happens when we have a downturn? Are they the first ones [schools lay off] after we made this investment?" asked Barr, the founder of Green Dot Charter Schools.

What's next in the case?

After Thursday's arguments, the appellate court has 90 days to issue a ruling. Whichever side prevails, Koski anticipates the case will end up being appealed to the California Supreme Court.

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