Vergara decision to drive reforms in teacher employment, Stanford experts say

By Clifton B. Parker

Raylene Monterroza, one of the student plaintiffs in Vergara v. State of California, takes questions from the media at a news conference in January. (Photo: AP Photo/Nick Ut)

A Los Angeles Superior Court judge ruled June 10 that California's teacher tenure laws deprive students of their constitutional right to an education. The closely watched case, Vergara v. State of California, could change the way teachers are hired and fired in the state and around the nation.

Stanford News Service spoke with William Koski, the Eric and Nancy Wright Professor of Clinical Education at Stanford Law School and director of the Youth and Education Law Project, and Eric Hanushek, the Paul and Jean Hanna Senior Fellow on Education Policy at the Hoover Institution, about the ramifications of the case. Both Koski and Hanusek are on the faculty of the Center for Education Policy Analysis at the Stanford Graduate School of Education, where they are also both professors by courtesy.

What impact will this ruling have on teacher tenure issues across the nation?

Koski: This is a significant decision because it's the first time a court has found certain fundamental teacher employment protections – time to tenure, due process protections and "last in, first out" reduction in force rules – unconstitutional because they violate students' fundamental right to an education. Although the ruling is based on provisions in the California Constitution and therefore limited in effect to California, the organization backing the plaintiffs, Students Matter, and others sympathetic to reform of teacher employment protections will seize on the theories advanced in the case and bring litigation in other states. Moreover, the litigation will stoke the already burning fires in many state legislatures to continue to reform teacher employment laws and collective bargaining rights. The irony, of course, is that the ruling will have no immediate effect in California because it will be stayed pending appeals.

Hanushek: This groundbreaking decision on teacher tenure turns the policy focus onto student outcomes and begins a process of reconsideration of whether existing laws, regulations and contracts are in the best interest of students. The Vergara ruling narrowly applies just to five California statutes that were ruled unconstitutional, but it will undoubtedly echo around the country. Courts and legislatures in other states will be prodded to pay more attention to the balance between teacher rights, pay and benefits and the quality of education provided in our schools.

How will this affect teachers unions and their leverage in representing teachers?

Hanushek: The teachers unions will undoubtedly fall back on the tired rhetoric that this is a "war on teachers." But there is no such war. These laws protect just a very small minority of teachers who are harming children and who should not be in the classroom. Indeed, protecting these grossly ineffective teachers seriously harms better teachers who are unfairly tarnished by association with unquestionably bad teachers. It is time for the teachers unions to join in focusing on the interests of students.

Why are education reformers trying to change teacher tenure laws in California and elsewhere?

Koski: Nearly everyone agrees that teachers are the most important school resource that affects student performance. It's also beyond dispute that there is a "teacher quality gap" in which schools with high percentages of low-income, African American and Latino students have less experienced and less qualified teachers than those schools with affluent and white students. There is heated disagreement, however, over the cause of that gap. Some would argue that schools require more resources to attract bright, young minds to the teaching profession. … For others, including the Vergara plaintiffs, the cause of the teacher quality gap are the teacher employment protections and seniority rules that tie the hands of administrators and prevent them from hiring, firing and assigning teachers to meet the needs of their students.

What is the position on this issue of the teachers unions? And the plaintiffs' position?

Koski: The teachers unions' position [can] be boiled down to a few points: One, there are many causes for the failure of certain students and schools, including the socioeconomic background of students and insufficient funding, but it is not these statutes that cause failure and violate the rights of students. Two, in law and in practice, these statutes allow plenty of discretion to hire, fire and assign teachers and therefore should not and do not leave "grossly ineffective" teachers in our schools. And three, these statutes actually improve the quality of the teaching force and encourage teachers to teach in tough assignments because they provide the job protections that attract teachers to the profession and allow them to take the risks that are necessary to improve our worst performing schools.

The plaintiffs' position is that these teacher employment protections conspire to tie the hands of administrators and thereby permit grossly ineffective teachers to remain in the classroom. Those grossly ineffective teachers are the cause of student failure and therefore have a real and appreciable impact on students' –particularly poor and minority students' – fundamental right to an education.

Will this ruling help improve education in the classroom?

Koski: That remains to be seen. It is not at all clear that simply providing more administrative discretion over personnel decisions will be enough to improve student learning. First, the rules might not be the cause or even a substantial contributing factor to the teacher quality gap and the fact that there are underperforming teachers. Second, it is not clear that administrators in low-resource schools – or anyone, for that matter – will have the time, information and capacity to exercise any newfound discretion to improve student learning. And, third, the theory that we can fire our way out of this problem assumes that there exists a robust bullpen of would-be teachers who want to enter underperforming classrooms.

Hanushek: While the vast majority of our teachers are doing an exceptional job, there is a small minority that is disproportionately harming both their students and the nation. The trial testimony presented research showing that each year that a grossly ineffective teacher continues in the classroom reduces the future earnings of the class by thousands of dollars by dramatically lowering the college chances and employment opportunities of students. This ruling implicitly calls on the legislature and the schools to put in place systems that give more time to making tenure decisions and that lessen the burden on removing a teacher who proves to be grossly ineffective.

The future economic well-being of the U.S. is entirely dependent on the skills of our population. Replacing the poorest performing 5 to 8 percent of teachers with an average teacher would, by my calculations, yield improved productivity and growth that amounts to trillions of dollars.

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