In June, a trial court ruled that California’s procedures on teacher tenure and dismissal violated the state constitution because they disproportionately exposed low-income and minority students to “grossly ineffective” teachers.

The decision “broke new legal ground, setting off controversial, intense debate around the country,” said TC President Susan Fuhrman at a conference in Milbank Chapel in early December hosted by the College’s Department of Education Policy and Social Analysis (EPSA). Fuhrman called the event “the first non-partisan, scholarly discussion” of Vergara and its implications.

On the one side are those such as Michelle Rhee, the former Washington, D.C. school chancellor who argue that tenure stands in the way of school improvement by making it difficult or impossible to fire ineffective teachers. Opponents, such as the United Federation of Teachers, argue that  Vergara and similar cases are flawed on the merits – not least, they say, because there is no clear link between tenure and teacher quality – and serve as a Trojan horse for eliminating job protection, weakening unions and privatizing school systems.

The battle is now playing out in New York State, where two separately-brought teacher tenure suits are being considered together by a Staten Island court. One is Wright v. State of New York which claims that New York statutes on teacher tenure and dismissal violate the state’s constitutional guarantee of a “sound basic education.” Its backers include Campbell Brown, the former CNN personality, whose Partnership for Educational Justice helped bring the suit. A similar case, Davids v. State of New York, was filed by members of the New York City Parents Union. 

View the videos of Courts, Teachers, and Student Rights conference

“Despite these high-visibility cases,” said TC’s Michael Rebell, Professor of Law and Educational Practice, “it’s too soon to declare the existence of a movement against teacher tenure.” None of the cases may prevail, Rebell said -- even the Vergara decision itself, which even some proponents believe was poorly written by the judge, and which may yet be reversed on appeal. “At the same time, the constitutional basis cited by plaintiffs in California were very different that those in New York,” Rebell said. “California is one of very few states that give “special scrutiny” to the possibility of school discrimination on the basis of poverty, a position that certainly bolstered the California court’s ruling in June. New York has no such constitutional precedent – and, to make matters even more complicated, the two plaintiff organizations that have been joined by the courts have often feuded."

Still, Rebell acknowledged, the debate over teacher tenure has already shifted. “There’s been a lot of publicity before there’s a final decision from even one state court,” he said. “That publicity is leading to discussion and may already be leading to policy changes.” 

The TC conference replicated that discussion in microcosm, beginning with a debate between Devora Allon, an attorney with the law firm Kirkland & Ellis, which is representing the plaintiff in the Wright case, and Richard Casagrande, general counsel of the New York State Union of Teachers (NYSUT).

“I think it’s uncontroversial to say that there are ineffective teachers in New York classrooms,” said Allon. “The question is the cause.” Charging the state with “systemic failure,” she cited three sets of statutes that “obstruct administrators from fixing the problem because they make it nearly impossible to discipline or dismiss an ineffective teacher.”

First, Allon said, tenure decisions come too soon – after three years in principle, but in practice after just two years’ worth of evaluations that are only “a formality.” Second, disciplinary procedures are too complicated and time-consuming, deterring administrators from taking action. Third, she said, are the so-called “last in, first out” layoff rules that protect seniority, “leaving ineffective teachers in the classroom.” 

Casagrande countered that the Wright plaintiffs base their case on incorrect facts and skewed data. Tenure, he argued, comes after a probation period that can be extended to four years or longer. Disciplinary procedures, which he said are built around crucial notions of due process, are common, much simpler and faster than the plaintiffs claim, and frequently teachers end up leaving – not necessarily because they are fired, but often as a result of being “counseled out” to resign. “Tenure doesn’t protect bad teachers; it protects good teachers,” he said, arguing that the institution of tenure is “essential to attract and retain good teachers” and to protect free expression, including a teacher’s ability to stand up for his or her students.

Casagrande argued that this wave of cases is part of a “nationwide attack on workers’ rights” and removes the focus from the real impediments to quality education, such as funding cuts that perpetuate school and district-wide inequality. 

Allon, and later in the day Mona Davids, the first named plaintiff in the other New York case, emphasized that, as Allon put it, “We are not seeking to abolish tenure, nor deprive teachers of due process.” 

But Casagrande noted that, in fact, Campbell Brown’s group has  publicly criticized teacher tenure. “Read the [Wright] complaint,” he said. “They’re asking to strike down statutes that, if invalidated, would leave teachers without due process protection.” Once these rules are invalidated, it would fall to state governments to write new ones, with no guarantee that tenure or other teacher protections would survive.

Meanwhile, other speakers at the conference debated what existing research shows about how much teaching and learning are influenced by such factors as tenure laws and whether the legal system is an appropriate venue to debate the tenure question. 

Eric Hanushek, of Stanford University’s Hoover Institution, believes the courts must take on teacher tenure, because – he said – teacher effectiveness is the paramount factor in improving education by global standards. Hanushek presented data he said shows that a class of 35 students taught for one year by a teacher in the 75^th percentile for quality would earn the current equivalent of $430,000 per year more than if they were taught for the same period by a teacher of average quality.  

“Paying attention to the effectiveness of teachers makes sense, because it has real effects on students’ lives,” Hanushek said. He added that the U.S. economy would gain many trillions of dollars in total present value if school quality were brought up to the levels of other countries such as Canada or Finland.

Susan Moore Johnson, of Harvard’s Graduate School of Education, agreed that teacher effectiveness is a key issue – and indeed, she said, that “on average, students in high-poverty, high-minority schools are more likely to be taught by ineffective teachers.”

But blaming that on statutes that protect teachers through tenure or disciplinary procedures is the wrong focus, she argued. The bigger issue, Johnson said, is whether school management is of sufficient quality to produce a positive working environment. Too often, she said, school administrators do not put enough effort into tenure decisions and fail to properly evaluate and dismiss teachers even by the standards that already exist.

Those who do, she said, get a better teaching corps as a result. “Many administrators who evaluate teachers and document poor performance succeed in dismissing those teachers or encouraging them to resign.” Moreover, Johnson said, effective use of peer assistance and review (PAR) systems generally leads the best teachers to stay and the worst ones to leave. By contrast, she argued, measures such as longer pre-tenure probation or ending seniority-based layoffs would backfire, sending teachers a signal that they are expendable, with no effect on administrative quality. She predicted that if Vergara is upheld, “effective teachers will leave or avoid their schools.”

“These cases raise questions about democracy,” said Jeffrey Henig, Professor of Political Science and Education, and EPSA Chair.  “When do we turn to courts, versus messy pluralist politics, legislative lobbying and bargaining and electoral muscle? Right now, we’re seeing a shift in strategies -- what political scientists call ‘venue shopping’ for arenas where achieving victory appears more likely. The plaintiffs are hoping the courts will provide a more immediate and sharply defined response than they could get from electoral politics and the advocacy arena.”

The resort to courts in shaping social policy is fair game in the American political system, of course, with a rich history of jurisprudence – school desegregation comes to mind – in which courts have forced changes that political majorities and elected officials opposed. “We wouldn’t need a constitution at all if the framers had always counted on majorities to do the right thing,” said Jay Heubert, TC Professor of Law and Education and one of the conference’s organizers. “We need constitutions and courts to address situations where the political branches get badly off track.”

The question raised by Vergara is whether there are “principled ways to determine when judicial intervention in educational policy-making is proper, and when it is not,” Heubert said, and if so, how the tenure, dismissal and layoff statutes that these new cases challenge stand up to this scrutiny.

On these fundamental questions, the debate is wide open. Political scientist Joshua Dunn, of the University of Colorado-Colorado Springs, argued against a legal remedy for teacher quality on the grounds that there simply is not enough information for the courts to productively use. “We don’t really know how teachers become effective,” he said, adding that in that context, the nature of court proceedings – the winner-take-all ground rules and the focus on a single narrow set of legal arguments -- become impediments. Vergara itself illustrates the problem: “There was a lot of slippage between quality and equality in [the judge’s] opinion,” Dunn said. “Is the issue equal protection or the right to a particular quality of teacher? Equally bad teachers would not violate equal protection.”

Kevin Welner, of the University of Colorado Boulder Schoolof Education, took the opposite view. While he agreed that the Vergara decision might not survive appeal, he said the overall move toward litigating teacher effectiveness in the courts will have a “silver lining.” The national and state-level political process is so log-jammed, he said, that courts are possibly the only venue in which plaintiffs on any side of an education issue are likely to see action on their grievances.

 “Given the train wreck of a political system that we have, we should be prepared to accept the bad with the good of judicial review,” he said.

Davids, one of the New York tenure case plaintiffs, agreed. “If we don’t take it through the courts, it’s impossible for us to have a seat at the education policy table.” 

Rebell, whose work in establishing that many state constitutions guarantee students a “sound, basic education” gave rise to many successful school finance lawsuits, notably one concluded in 2006 in New York State, has mixed feelings about the teacher tenure suits.

“I don’t think the area of challenges to teacher tenure and dismissal laws is an appropriate one for courts to get into,” he said. Unlike school financing cases, he said, there are insufficiently clear legislated standards against which to measure whether schools are complying, and “we don’t know if the tenure statutes are the prime cause” of ineffective teaching. “It gets into the weeds of education policy,” he adds, and – perhaps most important – the potential return on the effort is unlikely to justify the cost of working through the legal system. The number of ineffective teachers likely to be weeded out on the basis of tenure is minuscule, he suggests, compared with potential improvements to the teaching profession that could be wrought by improving salaries and working conditions.  

“I think there may be a constitutional right [in New York] for students to have an effective teacher, but we have to develop the concept a lot more,” he said. “If there is a right, it goes well beyond tenure, and to retention, supports, salaries, etc. It’s a larger-scale issue. We have to think through if there are manageable standards where a court can intervene. I hope that will be the ultimate legacy of Vergara.”   --By Siddhartha Mitter

Published Tuesday, Dec. 16, 2014