SFGate. June 11, 2014.
A Los Angeles Superior Court judge threw out California's teacher tenure laws Tuesday, calling them unconstitutional and declaring in a landmark ruling that public school students and their teachers are cheated by the state's system of hiring and firing instructors.
Judge Rolf Treu said the evidence he heard in Vergara vs. California supported the plaintiffs' contention that firing bad teachers can take "two to almost 10 years and cost $50,000 to $450,000 or more."
Treu called that noteworthy because the number of "grossly ineffective teachers" employed in California ranges from "2,750 to 8,250," or 1 to 3 percent of teachers and that their negative impact on students "shocks the conscience."
He said he heard compelling evidence that the worst teachers cause students to lose more than nine months of education each year, compared with average teachers.
Yet firing them is "complex, time consuming and expensive," the judge said. The lawsuit was filed against the state on behalf of nine students in May 2012 by Students Matter, a nonprofit founded by David Welch, a Silicon Valley entrepreneur.
'Reverse this decision'
The state's teachers unions later joined as co-defendants, and Tuesday their lawyers dismissed the ruling as just the beginning of a long legal battle.
"I am confident that the Court of Appeal will reverse this decision," said James Finberg, lead attorney for both the California Teachers Association and the California Federation of Teachers. "Having the security that you won't be fired without cause is one of the things that makes teaching an attractive profession."
"The interests of teachers and students are fundamentally served" when teachers are confident they won't be fired "at the whim and caprice" of employers. It's also an issue of academic freedom, he said.
For example, teachers who face criticism for teaching about Islam or global warming - unpopular subjects with some groups - would be at greater risk of being fired without current protections, Finberg said.
3 main issues
The case dealt with three main issues:
-- The requirement that teacher layoffs be based on seniority, known as the "Last-In, First-Out" statute.
-- The numerous steps required to fire a teacher.
-- Teacher tenure, called the Permanent Employment Statute.
California is one of five states that give tenure in two years or less. Forty-one states grant tenure in three to five years.
The judge found that California grants permanent employment too soon and said students and teachers are "unfairly, unnecessarily" disadvantaged by the system.
He said the dismissal statutes result in a "tortuous process" for firing teachers compared with that of other school employees. And he said the layoff system - in which the last-hired teacher is let go "no matter how gifted the newer teacher, and no matter how grossly ineffective the senior teacher" - is a "lose-lose situation."
Treu's crucial conclusion was that the tenure and seniority laws affect "students' fundamental right to equality of education" and "impose a disproportionate burden on poor and minority students."
Finberg said the judge's argument overlooks the fact that laws that make it tough to fire teachers preserve academic freedom.
"The statutes say you can only (fire) for cause, and you go through a process, and a decision is made by an independent panel. Nobody, including the California Teachers Association, wants truly ineffective teaching."
Jesse Rothstein, a public policy and economics professor at UC Berkeley who testified for the defense, said the trade-off of stripping such protections would force schools to pay higher salaries to teachers.
Yet education advocates across the country - including U.S. Education Secretary Arne Duncan - applauded the ruling that is expected to inspire similar lawsuits in other states.
"For students in California and every other state, equal opportunities for learning must include the equal opportunity to be taught by a great teacher," Duncan said in a statement. "The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students.
"Today's court decision is a mandate to fix these problems."
In California, however, Gov. Jerry Brown, Attorney General Kamala Harris and Superintendent of Public Instruction Tom Torlakson were resoundingly silent on the ruling opposed by the teachers unions - the largest and most powerful lobbying group in the state.
California's complicated process for firing teachers was thrust into the spotlight two years ago, when Los Angeles Unified School District paid school teacher Mark Berndt $40,000 in back pay and legal fees to quickly dismiss him and avoid a lengthy appeals process. Berndt was arrested for lewd acts that included spoon-feeding students his semen. He was sentenced to 25 years in prison after pleading no contest to the charges last year.
In the wake of the Los Angeles case, California lawmakers attempted to change teacher tenure rules to make it easier to fire teachers for egregious misconduct, but many of the bills were met with strict opposition from the California Teachers Association andDemocrats supported by the union.
'Civil rights victory'
"Today's ruling is perhaps the biggest civil rights victory in recent memory," said Assembly Republican Leader Connie Conway of Tulare. "It has been a partisan issue in the past."
On Monday, the state Senate unanimously passed a bill by Assemblywoman Joan Buchanan, D-Alamo, to create a separate and streamlined hearing process for teachers accused of egregious misconduct. It was Buchanan's second attempt at the bill after a version was vetoed last year by the governor.