Vergara v. California: Tenure Decisions

Another state law at issue in California's Vergara case is the one that specifies the time between when a probationary teacher is hired and is awarded tenure.

(This is a bit of technical issue, but I have tried to keep discussion brief; also I have added some lighter moments with pictures of teachers we all remember from television and film.)

Teacher tenure is a fundamental feature of the American education system.  After proving herself or himself capable, the idea goes, a teacher receives an effective, permanent job guarantee.  (All states allow for the removal of ineffective teachers in theory, but in fact this almost never happens.)

The arguments for tenure are based on fairness.  Schools, like other work environments, have internal politics.  Factions form and battle each other.  Sometimes the most productive performer threatens the larger group and is pushed out.  A bad principal can reward friends and punish perceived enemies.

The belief is that tenure promotes harmony in a school, which benefits the students.

Cameron Tucker in Modern Family

Vergara v. California

California has one of the shortest teacher probation periods in the country -- until mid March of a new teacher's second year on the job, or after 16 months in the classroom.  This does not allow the evaluation of even two full years of student learning results under a probationary teacher's care.

Most states require probationary periods of three full years, and the trend seems to be for longer probations still.

Both sides in Vergara seem to agree that good teachers grow in the job and often do not hit their professional strides until they have been at it for five to seven years.

The Vergara lawyers brought in one former superintendent, Jonathan Richmond, who ran the Sacramento school district from 2009 to 2013.  He said the short probationary period did not allow a principal enough time to evaluate fully a teacher's in-classroom manner or to gather the impressions of other teachers and parents.

In Sacramento, Richmond said, "We had a number of inefficient or grossly inefficient teachers who had been given permanent status because of time limits under the statute."

On the other side, the defense called Jesse Rothstein, an economist at the University of California, Berkeley.  He made an economic case for the California tenure law.

 "Drawing out the decision longer...makes the job less attractive to potential teachers and so requires an offsetting increase in salary to hire the same number of teachers,"  Rothstein said.

This is the sort of position an economist would make, but I find it hard to credit.  If California extended the tenure period, where would the teachers go?  Few states offer better terms.  In fact, most arguments put forward by teacher unions in any situation (and California's two teacher unions have joined the state in this case), boil down to demands for more money, lots more money, with no promise of better results.  This is not so true of individual teachers.

Another defense witness, Stanford professor Linda Darling-Hammond said a shorter probationary period was long enough to identify ineffective teachers and get them out of classrooms, thus protecting students.

Edna Krabappel in The Simpsons

LAUSD History

In the past, the Los Angeles school district (LAUSD) seems to have been overly casual about tenure.  Only one percent of probationary teachers were denied tenure in any given year.

(I find this remarkable.  If I were an employer deciding how many of 100 employees deserved permanent job status, I'm pretty sure I would choose fewer than the top 99.

Many businesses -- which never offer permanent status to anyone -- routinely fire the lowest-performing three percent to 10 percent of their employees every single year.  And, when you think about it, teaching is a more important job than working for a big company.)

Since a new superintendent, John Deasy, arrived in 2011, Los Angeles has tightened up its tenure decisions. Now, about 50 percent of new teachers are asked to leave the district after one year or at the end of the pre-tenure period.

A big point:  It seems possible that LAUSD has replaced a too-lenient tenure posture (that had bad results for children) with an excess of caution that, paired with the state's brief tenure statute,  doesn't give new teachers much of chance.  

Sidney Poitier in To Sir, With Love

Tenure in New York City

In 2006, New York, like Los Angeles, awarded tenure to 99 percent of probationary teachers after three years in the classroom.  Any teacher rated "satisfactory" was given tenure in the city.

Then the system changed.  Probationary teachers were sorted into four categories:  highly effective, effective, developing or ineffective.  To achieve tenure, teachers had to be rated effective or highly effective for two consecutive years.

The district also reserved the right to defer tenure decisions on any teacher for an extra year or years.

In 2010, 89 percent of probationary teachers were tenured after 3 years on the job.  The percentage dropped to 58 percent in 2011 and 55 percent in 2012.

Most of the non-tenured teachers were deferred.

"It's not that they are bad," New York's mayor, Michael Bloomberg said.  "It's that they are not up to our standards yet."

As many as one third of the deferred-tenure teachers ultimately are dismissed.

Again, it seems as if a school district's wariness about tenure may be causing it to let go of promising new entrants in the teaching profession.

A seasoned teacher of my acquaintance says that today's education graduates are much better prepared than those in the past.  If many of them are dismissed early, where will school districts find the excellent teachers of the future?

Vergara v. California: Dismissing Bad Teachers

As we have discussed, Vergara v. California challenges the operations of the Los Angeles Unified School District (LAUSD), which, its plaintiffs claim, disadvantage poor and minority students.

According to the school district, black students in Los Angeles are 43 percent more likely than white students to be taught by a "grossly ineffective" teacher, i.e., one whose performance is in the bottom five percent of teacher rankings.  Hispanic students are 68 percent more likely than whites to have such teachers.

In the 10 years before Vergara was filed, a total of 91 teachers were fired in the entire state of California, most for "egregious" conduct.  Poor performance was a factor in only 19 of the firings.  California public schools employ about 300,000 teachers.

This averages to two people out of 300,000 let go for poor performance every year.

There are two possibilities here:  Either the state had the most phenomenally excellent teaching force in world history, or there was virtually no effort to identify poor teachers and get them out of classrooms.

I vote for No. 2.

The question in Vergara is whether state laws caused this to happen.  The Vergara plaintiffs say California laws have become teacher-friendly at the expense of students and that the processes and expenses of getting rid of poor teachers are so arduous that school districts didn't bother to make the effort.  The defense -- the state and the state's two teacher unions -- claim the problem was school district mismanagement.  They also say schools need more money.

John Deasy

The first witness called in the trial was LAUSD Superintendent John
Deasy, who took his job in 2011.

In the 2006-2007 school year, the LAUSD dismissed three teachers.  The district employed, and continues to employ, almost 30,000 teachers.

In the 2009-2010 school year, LAUSD initiated dismissal hearings for 10 teachers whom the district deemed grossly ineffective. Obviously, given the above numbers, most of those teachers were retained or resigned without taking their cases to court.

In Deasy's first full year on the job, 2011- 1012, the district recommended 99 teachers for dismissal hearings.  Another 122 teachers resigned after being notified they were being recommended for termination and before hearings were convened to examine their cases.

"Just because these 122 resigned doesn't mean that the district does not have poor performing teachers sitting in classrooms," Deasy said in cross-examination.  "The second issue is that this is the snapshot of that day.  They had been in classrooms for years."

In his first day of testimony, Deasy estimated that the cost of firing a teacher was $350,000 on average and, in some cases involving egregious conduct, more.  "That's six teachers that could have been brought in to reduce class size (at the $350,000)," he said.

Deasy's conclusion:  "When you follow the law, an unfortunate byproduct of following the law is, in my opinion, the discrimination of youth having to be placed in front of an ineffective teacher."

In cross-examination, the defense referred often to Deasy's increased action to identify poor teachers and move them out of the school district as evidence that the system was working.

"Well-run districts," said the lawyer for the teachers' unions, "are able to fire ineffective teachers."

Quantifying the Differences between Effective and Ineffective Teachers

Raj Chetty, another plaintiffs' witness, set out to quantify the effects bad teachers have on students and their futures.  Chetty is a Harvard economist and affiliated with the National Bureau of Economic Research.

Chetty admitted to being a big-data guy who tried "to bring a scientific approach to public policy decision-making."

Chetty and others data-mined the effects of teachers on 2.5 million New York children using extraordinarily detailed school data from the New York district, 18 million test results and IRS filings regarding student college placements from 1989 to 2009.  After a long, long discussion of methods, Chetty said there were significant differences in learning (he called it value-added) for students in average teachers' classrooms and those of the bottom five percent of teachers. He said students learned significantly, quantifiably less when taught by poor teachers.

Chetty said that, had he been asked before his research project began in 2009, whether he could have identified the differences with such clarity, "I would be skeptical..... (I would have thought it) would be hard to isolate the effectiveness of teachers.  I was wrong."

Chetty is an egghead.  We may think he is stretching his analysis too far, but remember that he examined classroom-by-classroom results and the college placements of New York students over a 20-year period.

Here is his conclusion:

"If we replace an ineffective teacher with a teacher of average quality (in all cases), the impacts would be on the same order as ending the financial crisis again and again and again, year after year.  It would be a dramatic effect on the American economy in the long run."

Let's note also that Chetty's research has been taken up and mentioned by the federal Department of Education and the Obama administration on several occasions.



Discussion


Diane Ravitch, America's esteemed education historian, has not been called to testify in the Vergara case.  But she has been for decades a zealous proponent of educational improvement.  In 2000, she was involved in the formation of the National Council on Teacher Quality (NCTQ), a conservative group.  At that point, she said, teacher training institutions "were too touchy-feely, too concerned about self-esteem and social justice and not concerned enough with basic skills and academics."

Since that time, there has been a huge shift in schools toward what Ravitch calls "data-driven assessment."  In 2012, Ravitch broke with the NCTQ in a column in the Washington Post, saying this:

"Now, to be candid, I am fed up with our nation's obsession with data-driven instruction....I fear that they are pushing data-worship and data-mania of a sort that will cause teaching to the test, narrowing of the curriculum and other negative behaviors (like cheating).  I don't think any of this will lead to the improvement of education.  It will lead to higher test scores, but it will undermine genuine education ... a love of learning, a readiness to immerse oneself in study of a subject, an engagement with ideas, a willingness to ask questions and to take risks.  I don't know how to assess the qualities I respect, but I feel certain that there is no standardized, data-driven instruction that will produce what I respect."

The Question

And so here we are.  Students are being evaluated on test scores, and teachers who do not deliver regular improvements in test scores are being found faulting.  These teachers are challenging whether they should be held to account for student failures on quite basic measures.  Students from poor and minority backgrounds are claiming a right to achieve at least this much.

Meanwhile, educational experts like Ravitch are urging us to set the bar much higher.

School lawsuit: Vergara v. California

Some of the basic tenets of our country's approach to education are under challenge in an interesting case winding up this week in a Los Angeles courtroom.

The plaintiffs are nine minority children enrolled in the Los Angeles Unified School District (LAUSD).  They are backed by a billionaire from Silicon Valley.

The defendants are the State of California and the two California teachers unions, the California Federation of Teachers and the California Teachers Association.  The unions are wealthy too.

At issue is whether five state laws regarding teacher employment have the result of consigning poor and minority students to classrooms staffed by ineffective teachers, violating the students' rights of equal protection under the California constitution.  (I discussed this more generally several days ago in The Dance of the Lemons.)

The judge in the case will issue his decision soon, but it certainly will not end the matter.  Each side has vowed to appeal if the ruling is not in its favor.

The case is important, and I believe it has not received the attention it deserves.  There is broad dissatisfaction with the results our public school districts are achieving compared with other countries' education systems.  We need a broad discussion of what should be done.

At local, state and national levels, we have been working on improving schools for many years.

The first big effort was to devote more money to education. Some people believe still more money is the answer.  To date, very substantial increases in educational funding have yet to yield even marginally better results.

The other approach has been to change standards for student achievement.  The current federal effort is called the "common core" curriculum.  The last one was "no child left behind."  In between we had a "race to the top." Other revisions have been attempted, often several times, in virtually every state.  Some years back, a friend said of the latest such program, "It's just another way to measure 70 percent."  He got it right.

I think of this every time some new top-down grand plan is adopted and we are supposed to expect better results.  It never seems to make a difference.  People want everything to be different but nothing substantive to change.  Our children are the poorer for it.

Education essentially is a personal transaction involving a teacher and students.  It requires respect, even love, between the two, as well as trust and agreement on the goals to be achieved.  This may sound trite, but it is not achieved easily.

Outside factors inevitably influence the educational transaction -- the support of parents for the schools, the mutual respect of school administrators and teachers and, most of all, the trust of each group that the others have the success of students as their single, over-riding goal.

It is this last element where school effectiveness breaks down.  I find it curious that it is seldom discussed in these terms.

Students are the plaintiffs in Vergara v. California, but the case is essentially a battle among the adults.


Next up:  three discussions of the major claims of the Vergara plaintiffs, the responses of their opponents and some context on the issues.

The Dance of the Lemons

You may have heard about the "Dance of the Lemons." It describes how the worst teachers (lemons) end up in public schools with the most low-income and minority students.

The term is an insult to the teaching profession, but anyone who has taught school or sent a child to school in a large metropolitan school district gets it:  Most teachers are fine and some are excellent, but there are bad teachers.

Here's how it works in large-city public school districts.

Some schools in large districts are in good (let's be honest, expensive) neighborhoods.  The parents are supportive and involved, the children are attentive and generally manageable and the classroom experience is efficient and gratifying.  Teachers naturally gravitate to these schools.

When a bad teacher (who doesn't advance student learning at an appropriate rate or who does not treat children with respect or doesn't motivate students) arrives at a good school, parents mobilize.  They let the principal know their displeasure, they complain to other teachers and, generally, they make the bad teacher so uncomfortable that he or she leaves the school.

Other schools in large districts (those in poorer or marginal neighborhoods with less sophisticated parents, often of minority backgrounds) are more challenging.  The children's home experiences are often chaotic. The parents are less likely to show up for parent-teacher conferences or to be able to evaluate the effectiveness of their kids' teachers.  The children are less focused and, frankly, harder to teach. Teaching at these schools is very demanding.  Experienced and highly competent teachers either burn out and leave the profession or transfer from these schools to "good" schools.

As the best teachers migrate to the "good" schools, more teaching openings arise at the "poorer" schools.  Newly hired teachers and the bad teachers driven out of the "good" schools end up in the "poorer" schools.  Since many new teachers leave the profession in their early years -- the job is intense and difficult in the best of situations, and many young teachers understand they cannot do it well -- there is generally much higher teacher turnover at "poorer" schools.  The bad teachers who have been pushed out of the "good" schools, protected by tenure, end up in the most challenging classrooms with less sophisticated,  undemanding parents.  These bad teachers often stay in these schools for the balance of their careers.

Word spreads when school performance declines.   Parents who can do so move to different neighborhoods or enroll their children in charter, magnet or private schools. People with younger children avoid the challenged school areas altogether.  Enrollments decline as the poor schools get worse, and some of the poor schools are closed or merged with others.  Parents in adjoining neighborhoods lose trust in their schools.

(In fact, student enrollment at large metropolitan school districts has been declining for many years.  This has spillover effects on property values, local businesses, job prospects for young people and petty and major crime.)

When school enrollments decline, so do the number of teaching jobs.  Usually the last hired are the first fired.  The new teachers at the "poorer" schools are let go, and the bad teachers stay put.

Rinse and repeat.  The process has hollowed out many metropolitan school districts, leaving them unattractive to parents in all but the most expensive neighborhoods and offering no good alternatives to families who cannot afford better alternatives for their children.

This recently has become the subject of a students' rights case in California.  More on this later.