“Strict scrutiny” of Vergara ruling a setback for California teachers

Yesterday, California Superior Court Judge Rolf Treu handed down a ruling in the education policy lawsuit commonly referred to as the Vergara case. People I know who were closer to the case were not surprised that the judge ruled in favor of the plaintiffs, finding unconstitutional certain parts of the California Education Code pertaining to teacher rights. The case was brought by an advocacy organization called Students Matter, formed just for this purpose – litigating education policy changes they felt they couldn’t achieve via legislation. I’m going to attempt a moderate and reasoned interpretation of the ruling, but my feelings are less moderate when it comes to organizations that invoke children and students in their name, but fight for policies that do so little to help children. Because students do matter, but the money and power organized here are not really helping students. They have decided on a political battle transferred to the courtroom. I’m suspicious of wealthy and powerful individuals and groups whose advocacy for children leads to “reforms” that won’t cost a cent, but will weaken labor.

Students matter – but apparently, California’s shamefully inadequate funding levels don’t. That’s the status quo they accept; teacher protections are apparently the status quo to fight. In many funding categories, California is at or near the bottom of the state rankings. Students Matter has done nothing that will put a needed book or computer in a school. Not one wifi hotspot. Not one more librarian, nurse, or counselor. Not one more paintbrush or musical instrument. Not one hour of instructional aide support for students or professional development for teachers. They don’t have any apparent interest in the more glaring inadequacies that their considerable wealth and PR savvy could help. But forming a non-profit organization for litigation purposes and calling it “Lawsuits Matter” wouldn’t be as catchy. Their arguments regarding education problems and policy were flawed and unconvincing. Their standing in the case may be legal, but has the look of opportunism, with some incredible wealth and some powerful connections to education “reform” and charter school interests permeating the organization.

Venting done. On to the decision.

It seems to me crucial parts of the trial came before it started. (And if I get any part of the legal analysis or terminology incorrect, I welcome feedback). Questions about the plaintiffs’ standing and their ability to prove any harm were dismissed. In fact, the burden of proof practically switched from plaintiffs to defendants when Judge Rolf Treu ruled that the case would proceed under the judicial review principle of “strict scrutiny.” By this standard, where the constitutional rights of a protected class may be abridged, it is essentially up to the defense to prove that a law serves a compelling state interest in the narrowest possible way. Judge Treu describes his role as follows:

This Court is asked to directly assess how the Challenged Statutes affect the educational experience. It must decide whether the Challenged Statutes cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular, in violation of the equal protection clause of the California Constitution.

So, we can all agree in that California students need consistently high quality teachers, and that harm is done when incompetent teachers retain their jobs. We can agree that teachers with less experience and lower qualifications are disproportionately concentrated in schools serving poorer communities and students. But since the plaintiffs don’t have to show any actual, direct harm caused to individuals by these laws, it seems to become a battle of anecdote vs. anecdote, and researcher vs. researcher. And the strict scrutiny burden falls on the defense.

Sure enough, when Judge Treu’s ruling addresses evidence of “the specific effect of grossly ineffective teachers on students” he does not then mention any of the plaintiffs, or any of the relevant schools or districts. He cites research done by economists (outside of California). Treu says “The evidence is compelling. Indeed, it shocks the conscience.” First he cites the testimony of Dr. Raj Chetty, whose major study of testing data and various personal data for former students found correlations which, extrapolated by several decades, suggest (in Treu’s words) “a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” Of course, divided by 30 students over 45 years of earnings, that would mean a little over $1,000 per year, or a little over $20 per week (48 weeks) per person. Hmmm. When you look at it that way, the conscience isn’t quite as shocked. (And that’s assuming the study proves what it claims to prove. For more details and critical views of that study, see this compilation of sources by Larry Ferlazzo). Treu also cites testimony by Dr. Tom Kane that students “taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.” The proxy for competence is presumably test scores, and the proxy for learning is also presumably test scores, so the cause/effect issues here would seem to be at issue; indeed, Jesse Rothstein’s research found testing data can produce “evidence” that 5th grade teachers appeared to influence their students’ test scores from 3rd grade. In other words, if you don’t have randomized samples, you can’t assume that teachers have equivalent groups of students. But you have to admire the confidence exhibited in those significant digits: yes, the effect has been measured down to a hundredth of a month, down to the hour.

If only Californians’ consciences were shocked by the fact that we have an economy greater than that of most countries, and concentrations of wealth that boggle the mind – with extreme poverty and grossly inadequate school funding. But, moving on, here are the specific elements of yesterday’s ruling.

The first challenged statute was California’s requirement that new teachers should be selected for permanent status (commonly but imprecisely called “tenure”) after two years. Treu cited testimony from both sides to suggest that the two-year period (actually, less, since notification must occur on or before March 15 of the second year) serves both students and teachers poorly – students because an undeserving teacher may be “reelected” and teachers because they may be released if there’s any doubt, even in situations where one more year might serve the teachers well. Applying strict scrutiny, Treu found that the logical possibility of harm to students is enough to compel the defense to show the need for a two-year period. The judge pointed out that most states with similar laws use longer periods of time, typically three years, some 4-5 years. He also noted from the testimony that it seems illogical to make a permanent status decision in a time-period shorter than the new teacher induction program.

Without agreeing with the reasoning used by the plaintiffs, or the remedy of simply throwing out the law, I would say this is the weak link for the defense case. I helped write a teacher evaluation policy report – with a dozen other teachers – in which we also advocated for a three years rather than two for this decision. However, we were talking about a set of interrelated changes that should be taken together, modifying teacher induction and evaluation. We certainly didn’t advocate making this change in isolation, or without a deliberative process. One local union recently requested (but didn’t receive) a waiver from the state to work with district administrators to craft a new induction and evaluation system that included a three-year probationary stage.

Regarding the steps and procedures involved in teacher dismissal, Judge Treu says the defense must meet strict scrutiny to prove why teacher dismissal must involve “über due process” and he points out that if education code in this area is stricken, teachers will be treated like other public sector employees, who do have due process rights. I’m not sure teachers are well-served by alarmist social media messages suggesting Treu’s ruling would leave us without due process. At the same time, I think there are compelling reasons that teaching is different from other public sector employment, necessitating some special consideration in dismissal procedures. However, Treu’s discussion of the evidence in this area seems particularly selective; he says that the current system is so complex and expensive that “dismissal of a grossly ineffective teacher [is] illusory.” The word “illusory” suggests that it just doesn’t happen – when in fact, it does happen.  LAUSD Superintendent John Deasy, a witness for the plaintiffs, even testified about the fact that greater attention to ineffective teaching in LAUSD has led to more teachers being dismissed. (A former superintendent, called by the defense, also testified regarding the fact that ineffective teachers often choose to leave rather than engage in the full dismissal process). I’m entirely open to the idea that the process could be improved, and in fact, CTA has worked with legislators, key stakeholders, and education advocacy groups around certain dismissal procedures quite recently. But I do to take issue with “illusory” and question Treu’s vision in that regard. And keep in mind, no evidence was cited (nor is there any I’ve read about) to suggest that any of the plaintiffs endured a teacher who would have been fired if not for these burdensome laws; under strict scrutiny, it seems that’s not necessary – but it would be more compelling.

I think the greatest weakness in Treu’s ruling concerns seniority as the deciding factor in layoffs. He writes that “last-in-first-out” policies (LIFO) are “unfathomable”– because the state would have to show a compelling interest for keeping students away from better, junior teachers, and instead, place them in the classrooms of a hypothetical “senior/incompetent” teacher. Treu’s argument is framed on the assumption that a school is employing a teacher identified as “incompetent,” and not merely less effective, or in need of support. That seems to me a flimsy premise upon which to engage in such hypotheticals about layoffs. If a teacher has been officially deemed incompetent, that should be the end of it – why would that person still be employed? But I have a feeling this hypothetical is about the senior teacher who might be incompetent, or has a reputation as such – and I don’t think education code should work that way. It might even be a teacher who’s in the middle of the dismissal process – but the difference between the middle and the end is the difference between maybe and definitely. While Treu offers supporting studies and testimony elsewhere in his ruling, this section refers to neither research nor trial evidence. He merely engages in a thought exercise, and then compares California’s statute to laws in other states, where for the most part, seniority is less binding than it is in California. The outside observer cannot infer how he concludes that the elimination of LIFO would help California students in general, nor is there evidence that it would help anyone specific, such as any plaintiff in this case.

This is the issue I’m most concerned about. Seniority is a rational basis for handling layoffs – the recent prevalence of which should be entered as evidence in a more appropriate lawsuit, regarding California’s failure to meet constitutional obligations concerning public education. Seniority serves a compelling state interest by providing a bulwark against politically or fiscally motivated layoffs, and by fostering the necessary collaboration to help schools thrive. (Note: there are already some legal exceptions to seniority as the sole criterion in layoffs. I think there’s reason to discuss ways of shielding certain schools in a district while adhering to seniority in other schools; however, see these InterACT blog posts by Martha Infante for some idea how complicated that can become). Eliminating LIFO opens the door to evaluations that favor less expensive teachers, and provides a potential end-around for administrators to avoid due process. Furthermore, it creates competition in place of collaboration; if layoffs are looming, there’s a perverse incentive to protect oneself at the expense of others. Admittedly, I’m engaging in my own thought experiment here, but with careers, pensions, and health care coverage at stake, teachers would have reasons to look out for themselves first, rather than put much effort into supporting others.

Judge Treu’s ruling closes by invoking Alexander Hamilton on the topic of separation of powers; he reminds us that judging and legislating are separate functions, and that the legislature must remedy what the court finds unconstitutional. Therefore, with years of appeals ahead, and then a legislative process to follow, I think it’s too soon for teachers or unions to begin talk of disaster. Mine is an admittedly amateur reading, but it would seem possible to under this ruling to pass constitutional muster with laws that make the following changes:

• Permanent status awarded in third year rather than second year
• Streamlined (not eliminated) due process laws
• Seniority used as one factor rather than the sole factor in layoffs

Don’t get me wrong: just on principle, I’d rather see the whole case rejected on appeal. But if the ruling, or parts of it, should stand several years from now, then teachers still have room to advocate for a strong profession. Let’s stay informed and engaged. Stay vigilant, even adversarial as necessary – but calm.

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Some other links you might want to check out:

KQED-FM “Forum” will discusses the Vergara ruling (Wednesday, June 11, 9-10 a.m.)

EdSource Today

California Teachers Association response

Diane Ravitch blog post (contains NEA and AFT reactions)

Charles Kerchner and David Menefee-Libey – in EdWeek blog “On California”

Two posts by Benjamin Riley (Quick reaction…, and Additional Thoughts…)