I was originally going to write a lengthy blog post on the Judge’s decision in the Vergara case concerning teacher tenure and job rights vs. student rights to a quality education. But June in Paris makes one less interested in lofty policy debates and more interested in trying out that new boulangerie that supposedly has the best pain tradition in the neighborhood.

I will thus make just a few observations and claims that hopefully shed more light than heat on this important ruling:

  1. The decision is not anti-teacher or anti-union.  As the New York Times and Washington Post editorials both said – hardly right-wing papers – this decision is about student rights that are easily trumped by adult interests. Even those who opposed the decision saw the value of it for similar rights-based cases.  As happened in Brown vs. Board, we need to be reminded that teacher interests and student interests do not always coincide 100%. The issue here is thus not about bashing good intentions and the hard work of teachers; the issue is about conflicting rights. Such conflicts are inevitable in a democratic society. What the Judge condemns here is the unacceptable effect of current tenure and work rules on all students, and the disproportionate effect of such policies on poor and minority students. (That’s why it is odd and a bit telling to me that many so-called liberals opposed the decision on ‘teacher rights’ grounds). He finds that current work rules impede the rights of students to have access to an “equal and quality education.” [PS: Newark Star-Ledger, also a liberal-leaning paper made the same arguments.]
  1. The leadership of a school matters, and a prime role of leaders is to hire, promote, demote, and dismiss on the basis of competence, not seniority. It is in the interests of students for an administration to work to keep good, less experienced teachers; and to be able to move along more experienced weaker teachers. The Judge was particularly adamant about the harm to education in a “Last hired, First Fired” policy because it hurt both students and teachers. Worse, when weaker teachers move around in an urban district, many go to schools that serve less fortunate children.

Indeed, Debbie Meier, one of my heroes and a model progressive educator, insisted on this right to hire and retain the most competent teachers before she agreed to head the Central Park East schools in Harlem. With the help of her District Superintendent, Tony Alvarado, they made a deal with the union to waive seniority rights so that veteran teachers could not jump over younger teachers in the ranked list of potential hires at CPE nor come in and bounce them from existing positions. In my first-hand experience, the powerlessness of many urban Principals to make personnel decisions is a major factor in the lack of effectiveness of urban schools

  1. The time period for determining tenure in LAUSD is woefully short. It is a crucial fact in this case that in LAUSD the period in which tenure is earned amounts to a mere 18 months – far less time than in most districts in America. Even the defense acknowledged that the period was too short. [ADDED: The Judge did not eradicate tenure nor say it should be eradicated – as many critics of the ruling have suggested – in favor of student rights: See the quote from the ruling at the bottom of this post]
  1. Due process for teachers is not threatened by this decision. Read the decision: the Judge makes clear that there is and must be such due process, and he charged the legislature with addressing the competing rights more equitably. The problem in urban schools is that dismissal of any teacher is almost unheard of for mere teaching incompetence, given the inordinate hassle involved. A defense witness in fact agreed that it is “extremely rare” for a teacher to be dismissed over teaching ability, given the time, expense, and documentation required by current laws.

Furthermore, the Judge notes that certified school employees and civil service workers in other jobs currently have due process rights although they lack tenure (including the ability to contest decisions and go through a multi-stage appeal process). As the data reveals, the typical dismissal rate in civil services jobs and non-teacher jobs within schools is between 7 and 9% – on average for dismissal rates in private as well as other public sectors. In school faculty cases, it is under 1%.  The claim that due process will be sacrificed by the end of tenure is countered by the situation in all private schools and charter schools in which there are only year-to-year contracts for every teacher, regardless of years of service. The % of teachers dismissed from such schools is in line with the figures cited above, so the fear seems misplaced.

The data from Toledo’s highly-touted peer review process suggests that this hunch is pretty solid since 7% of non-tenured teachers get dismissed, (even though there are constant complaints by parents and admins. that weak tenured teachers are not seriously reviewed.)

Truly “incompetent” teaching is indeed rare. But that’s because the definition of “incompetent” has such a low bar in education: it has come to mean not merely ineffective teaching but highly unprofessional behavior in addition. It is thus extremely rare, in my 30 years in school reform work, to hear of a merely unskilled and ineffective veteran teacher let go. I thus thought it was a bit disingenuous of David Berliner to argue for the defense that the % of inadequately competent teachers is likely between 1% and 3%. Those numbers derive from the very cultures, obstacles to dismissal, and inadequate definition of “incompetence” currently in place.

  1. The lack of a quality education in urban high schools is particularly egregious. I have personally worked in high schools in Trenton, Camden, Newark, Toledo, and New York over multiple days over the past 30 years. So, I have personally witnessed (and my staff have witnessed) a fair amount of unprofessional and incompetent behavior by teachers. This includes reading newspapers at their desks while students fill out worksheets, yelling sarcastically at kids for minor slip-ups, facilitating mere student read-alouds of texts in round-robin style for entire periods in English classes, lecturing for entire periods with no student interaction in History classes, never asking a higher-order question over the span of a week, etc. The situation in Trenton was so depressing, I told the then-HS Principal that some kids came to me to plead for help in getting rid of bad teachers. Her hands were of course tied. I would thus say that it is reasonable to suggest that the % of inadequately competent teachers in urban high schools is at least 10% – 15%.

The sad irony is that the kids in upper grades in urban High Schools have elected to stay in school and not drop out. Many of them are (still) there because they want an education. I was constantly puzzled by the bitter complaints about students at Trenton High School by some faculty. I was in the building once a week for a semester and sat in on a dozen or so classes regularly. I never once saw behavior that was any different than behavior in a suburban school.

Our student survey results echo the fact that most high school students want to learn but are often bored or put off by common school and teacher practices.  Alas, student survey data is rarely solicited on a regular basis in urban high schools, and such data is typically the confidential property of teachers, if collected at all; not even supervisors can have access to it. Illinois is one state that has just begun obtaining (and disseminating publicly) specific data from students, parents, and teachers about climate; more states should follow Illinois’ lead.

  1. I have personally been beholden to absurd policies that protect union habits at the expense of kids. In one year-long intensive project in a large urban district in which we did UbD training, none of my staff was allowed to enter a classroom unannounced in many schools. None of my staff was allowed to take any notes while sitting in classes. Supervision in many schools is nonexistent, in terms of the ability to suggest and expect improvement because the union building rep. was the key decision-maker on supervision.  A telling fact: the head of the union came and announced at the start of our extra UbD workshops that no teacher had to attend or remain if they didn’t wish to. (Fortunately, almost all did so). At every turn, he fought our year-long effort, in spite of the fact that many teachers greatly valued the work and the most enthusiastic ones saw test score gains at year’s end. (He claimed in public meetings with the Board that our positive survey data was rigged.)
  2. The issue of “incompetent” teachers and whether tenure per se is a key reform lever is thus a red herring. Students are entitled to a quality education. This implies to me that continual improvement of teaching by teachers is expected and can be demanded, not just that rules concerning placement and tenure need changing. So to negate the importance of tenure per se in improving school misses the point. Good schools get better; good teachers get better. Incentives and opportunities exist in good schools to ensure that improvement is not just limited to the self-motivated teachers.

Indeed, given the California laws and this court case, the deeper issue moving forward in protecting both student and teacher rights is our need to better define a quality education from a legal standpoint. Arguing over the % of teachers who are truly horrible misses the point. Only the most myopic union member or oblivious rah-rah defender of all teachers would claim that only a tiny number of teachers are less engaging and ineffective than they might and should be. If supervision were more robust; and if reprimands, warnings, and probation had more teeth, then merely ineffective teachers would have far more incentive to improve.

Please do not write and say I am anti-teacher, a stooge for billionaire corporatists, a naïve lackey for those who would destroy public education, a scab-like union-buster, etc., etc. I won’t even bother to publish it. Furthermore, it is detrimental to our shared interest in improving public schools to make such baseless and ad hominem attacks. Rather, if you disagree with any of these claims made above, engage with me on the ruling, the data, and the impacts of the decision – i.e. with evidence and arguments, as the Common Core Standards put it.

I guess I ended up writing more than a few observations :). Must have been that second café creme and the croissant almande.

PS: An interesting article about how tightened tenure decision-making in NY led to an increase in departures of marginal teachers bears on the issues. The article also underscores how administrators can be nudged by central office to be more assertive in marginal cases, even within current tenure decision frameworks.

PPS: A disturbing report from Jay Matthews about other ills of urban schools.


FOLLOW-UP COMMENT: Perspective is a funny thing. Every commenter who disagreed with me seemed to think I am against tenure and unions. I never said I was against tenure and I never said I am against unions. I am against what the Judge is against: policies and politics that hurt kids, sometimes the result of adults getting their way at the expense of kids.

Others who disagreed with me think the problem is all due to poor administrators and that I failed to note THAT problem. I never said administrators were great. Indeed, I hinted at the grim reality: the job of Principal in an urban school is so thankless and powerless, the quality is likely to be poorer than we might like. But oddly, many of my critics who bashed heavy-handed and idiotic Principals don’t seem to acknowledge the irony in their own reports – namely, that such Principals, by their own accounts, are often far more quickly moved or dismissed than ineffective teachers – which supports the Judge’s point. An oddity among many teachers in such settings is that they are often as disrespectful of admins as they wish others were not similarly disrespectful of them.

Urban educational reform is a systems problem: there is no villain and no single root cause. Leadership matters as does a culture of continuous improvement, backed by smart hiring, assertive supervision, and incentives and opportunities to grow and learn as an educator. Without even mentioning a robust curriculum ands assessment system combined with a highly-personalized education in which kids are known well and treated right. What this decision does is remind us that the learners comes first, and the system conditions just mentioned are necessary to support learners and learning.

FOLLOWUP Comment #2. The Judge did not abolish tenure or say that tenure should be abolished! I have now read and responded to more than a dozen comments from readers, and I have read other bloggers and writers who responded to the Vergara decision. I have to say that many of the arguments against the decision are based on a faulty premise that makes their case seem stronger than it really is. Most commenters against the decision say that the ruling is about overthrowing teacher tenure, and such a move would have terrible consequences for public education.

But the Judge nowhere says that tenure per se is against the educational right of children to equal quality educations nor does the ruling refer to tenure in general. This is specific to LAUSD.  In fact, he says that the current short term and casual approach to tenure decision in LAUSD is harmful to teachers as well as students! Here is the key section of the ruling:

“The Permanent Employment Statute does not provide nearly enough time for an informed decision to be made regarding the decision of tenure (critical for both students and teachers). As a result, teachers are being reelected who would not have been had more time been provided for the process. Conversely, startling evidence was presented that in some districts, including LAUSD, the time constraint results in non-reelection based on “any doubt, thus depriving l)teachers of an adequate opportunity to establish their competence, and 2) students of potentially competent teachers. This Court finds that both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statute.”

Nor does the Judge say due process is threatened here. Again it is specific to LAUSD:

State Defendants/Intervenors did not carry their burden that the procedures dictated by the Dismissal Statutes survive strict scrutiny. There is no question that teachers should be afforded reasonable due process when their dismissals are sought. However, based on the evidence before this Court, it finds the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.

Fine, we can disagree about the merits of the Judge’s reasoning and reading of relevant case law. But to consistently misrepresent the Judgment (or fail to distinguish the Judgment from one’s fears) is irresponsible.