Monday, April 28, 2014

Vergara v. California: the Case That Could Blow Up Teacher Tenure (But who cares? Without a good teacher evaluation system, it won't make much difference.)

Judge Rolf Treu must issue a ruling on the case by early July. Source: Courtroom View Network

See all posts on Vergara v. California.

The main problem with the current system is that principal evaluations are a joke. Principals rarely observe teachers, perhaps because school politics is so influential that principals are not likely to criticize a powerful teacher or defend a politically-unconnected teacher. Observations should be done by outsiders.

Get rid of tenure or keep it--but if you want good teachers you need to evaluate them in a meaningful way.

See: How about we try to make better use of both effective and (currently) ineffective teachers?

The Case That Could Blow Up Teacher Tenure
By: Mario Koran
Voice of San Diego
April 28, 2014

The toxic debate over hiring and firing teachers in San Diego Unified has reverberated for years.

Union-won teacher protections mean school districts that want to dismiss an ineffective or even dangerous educator face a dizzying legal web that can cost hundreds of thousands to navigate. Even then, efforts to send a teacher packing might not work.

For the most part, calls to reform the system have rung hollow. Any significant change would mean a change to state laws.

Vergara v. California, a case being deliberated in Los Angeles County Superior Court, would do just that. And if the plaintiffs succeed, the impact could set off a mushroom cloud that will envelop school districts across the state and beyond.

Driving the lawsuit is Students Matter, a group founded by Silicon Valley business mogul David F. Welch. The group recruited students from several California school districts to be the public face of its case.

A cast of heavy-hitting attorneys, which includes the lawyer who helped defeat the state’s ban on same-sex marriage, argue that current protections keep ineffective teachers in public schools and violate students’ constitutional rights to an education.

Plaintiffs say these policies have the most disparate impact on schools that serve black or Latino students, as bottom-rung teachers are more likely to end up at high-poverty schools.

Their objectives are straightforward, but ambitious: Increase the time it takes teachers to earn tenure, revamp dismissal policies so it’s easier to get rid of the lemons and strike last-in-first-out policies that favor seniority over quality.

Attorneys for the California Teachers Association joined the state in its defense, as the ruling will impact their members directly. They argue that teacher protections are a benefit – like health care – that helps attract and retain quality employees to a challenging and humbly paid profession.

Let’s take a look at each prong of the case within the context of San Diego Unified.


Union leaders don’t like to call it tenure. That’s a word reserved for college professors who’ve got academic freedom – not those in the trenches of K-12 public schools, teachers union President Bill Freeman told VOSD in the past. Union leaders prefer “permanent status.”

Regardless of what we call it, here’s how it looks in San Diego Unified. Once they’re hired, rookie teachers have to make it through a two-year probationary period, during which they can be dismissed for pretty much any reason.

But because the district has to tell teachers by mid-March whether they’ll be invited back for the next school year, the trial period is actually shorter than two years. In the past, the district hasn’t been particularly aggressive in the number of probationary teachers it sends away – only about 1 percent wasn’t given tenure.

“With such little time, you don’t even have enough information to actually consider whether they’re an effective teacher,” said Nancy Waymack, a managing director for the reform-advocacy group National Council on Teacher Quality.

California requires one of the shortest probationary periods for teachers in the county, she said. Most states wait until teachers have been around three or more years until they’re offered permanent status.

Other states have upped the bar by requiring that measures like test scores or student surveys be included in teacher evaluations. And while some California districts like Los Angeles Unified embraced “value added metrics,” a way of gauging teacher effectiveness by measuring student improvement, San Diego Unified just uses principal observations.

“In general, California is a lot further behind in make changes to teacher policies,” said Waymack. “They’re way behind the curve in rating effectiveness.” ‘Who Are the “Grossly Ineffective” Teachers?’

Some of the most famous cases have come out of Los Angeles Unified: There was the teacher who mocked a boy after he tried to commit suicide, jibing him to cut deeper the next time. There was one who stashed porn and cocaine vials in his desk. Both contested their dismissals – and won.

Once a teacher is granted tenure, it’s very difficult to fire him or her.

Protections for tenured teachers extend beyond what’s given other public employees. For example, teachers get warnings and time to improve before being fired, and can take their case to a panel and appeal it if they disagree with a ruling.

Those protections can be clipped if a teacher is accused of something egregious or criminal – like coming to school drunk, or molesting a student. But the dismissal process can be so byzantine and costly that it’s impractical to try to fire a teacher for being “ineffective.”

In their closing brief, attorneys for the state and California Teachers Association wrote: “Who are the ‘grossly ineffective’ teachers? How is that term defined? … Plaintiffs have not answered any of these questions.”

Of course, that’s also a convenient point for the union to make: It hasn’t agreed to test scores or other measures as a factor in teacher evaluations.

Last in, First out

When layoffs happen, the youngest teachers are the first to go. This might mean that a more veteran teacher, even if he or she has accrued complaints from parents and doesn’t bolster student test scores, gets to keep the job while a younger teacher walks.

Striking that protection, plaintiffs argue, would mean that the district hangs onto which teachers it sees fit, instead of reducing employees to faceless numbers.

They say these rules disproportionately impact black and Latino students, because less experienced teachers are more likely to end up in schools with higher rates of student poverty and are the first to go when teachers are laid-off.

But lawyers from the California Teachers Association argue that “well-run” districts like San Diego Unified have been able to sidestep the worst impacts of layoffs by using discretion. For example, if a younger teacher is credentialed in special education, that teacher might bump out a longer-tenured teacher without the extra certificate.

And the spirit of collaboration that San Diego Unified teachers showed when they agreed to extra furlough days and delayed paid raises, they argue, would be undercut by removing teacher protections that promote teamwork and sacrifice.

What’s Next

Lawyers from both sides handed in their post-trial briefs on April 10, and the judge has until July to make a decision. An appeal is likely either way.

In the meantime, the teachers union and San Diego Unified are sidling up to the bargaining table.

The district hasn’t given exact details about what they’ll be seeking, but if you look closely at the contract proposal it recently sent the union, you’ll see hints of some of the same reforms Vergara plaintiffs are calling for.

In addition to revamping teacher evaluations to include student and parent feedback, San Diego Unified wants more wiggle room for where it decides to place teachers.


Maura Larkins' note: The story above seems to be somewhat impacted by the fact that Voice of San Diego is a "community partner" (I think that means having one or more major donors in common) of UPforEd, a group that says on its website:

We can help change the story...Students Matter, a national non-profit organization dedicated to sponsoring impact litigation to promote access to quality public education, has filed a lawsuit, Vergara v. California, challenging outdated and potentially harmful state laws that keep ineffective teachers in schools, allow great teachers to be laid off, and could jeopardize the future of our students.

It seems that of the seven current VOSD Community Partners, some partners might have donors in common with VOSD, and others might simply be donors themselves. It would be nice if VOSD explained on its site exactly what this means. The other partners are:

American Medical Response
UC San Diego Extension
Hughes Marino
California Western School of Law
La Jolla Playhouse



The teachers know who should not be there, an initial step would be for the school staff to have a retention secret vote conducted by the principal for those in their probationary period. Those folks not making the cut are invited to leave…
jim dodd

Maura Larkins [response to Jim Dodd]

Jim Dodd's comment is a beautiful illustration of my point about school politics. He states:

"The teachers know who should not be there, an initial step would be for the school staff to have a retention secret vote conducted by the principal for those in their probationary period. Those folks not making the cut are invited to leave."

In my experience, the teachers do NOT know how other teachers teach. They believe that their friends are good teachers and that their targets are bad teachers. I think it would be nice if teachers spent time in each others' classrooms so that teachers would know the truth.

It's hilarious that teacher union officials are very tuned in to gossip, but they don't want test scores to be considered. Test scores would be much more reliable than "secret votes" by teachers. Teacher cliques would have an enormous impact on such voting. All members of the clique would know ahead of time exactly how they should vote.

Using my own experience as a guide, here is what would happen: the probationary teachers who are good politicians would become part of the ruling teachers clique, and would be supported no matter how poor their teaching skills might be. If a probationary teacher exhibited independence from the clique, which, by the way, would likely consist of mostly mediocre teachers, he or she would be targeted for elimination.

Maura Larkins' note: Here is an earlier comment by Jim Dodd that appeared 9 days ago.

I know from past experience with San Diego Unified and other districts that the teachers know who should be let go, so why not ask them to nominate the bottom 10% to be replaced each year? Bill & Melinda Gates say that replacing the bottom 10% of teachers is a strategy that will absolutely work (from studies at their Foundation). But since the teachers unions are organized to protect the worst teachers, I don't expect the union will be happy with this proposal…jim dodd

Maura Larkins' response:

I looked up the Gates Foundation paper Empowering Effective Teachers.

I did not find anything about firing the bottom 10% of teachers.

I did, however, find some statements that seem reasonable and designed to help improve public education:

One barrier to major systems change is the
lack of robust, multidimensional measures
of teacher effectiveness.

The contribution of teachers to student
learning and outcomes is widely recognized.
A teacher’s effectiveness has more
impact on student learning than any other
factor under the control of school systems,
including class size, school size, and the
quality of after-school programs.

In a study of Los Angeles schools, the
difference between the performance of a
student assigned to a top-quartile teacher
rather than a bottom-quartile teacher
averaged 10 percentile points on a
standardized math test.

Researchers studying high schools in North
Carolina found that having a class with a
strong teacher had an impact 14 times greater
than having a class with five fewer students.


I believe that ineffective teachers who are not abusive to kids could be paid less and should work under a master teacher rather than being fired. Firing the lowest 10% of teachers would simply mean that one-tenth of teachers (a small percentage) would probably be replaced with average, mediocre teachers. That would leave the vast majority of students in the hands of mediocre teachers.


But how many new teachers are hired on the probationary basis? Last time layoff notices went out, the "last in" teacher at my school had been there 8 years! All the newer teachers had been hired on temporary, 1-year contracts. We had a newer teacher who was ready to quit the profession because she didn't want the instability of year-to-year contracts. I don't know if she did or not, but she was extremely frustrated.

Ideally, tenure enables quality teachers to dig in deep with the subject matter, as opposed to stressing over test scores and keeping a principal happy. Also, the popular teachers are not always the most competent ones. Just saying.

Maura Larkins' response:
Your words are very reasonable; I very much agree with your last point.

Dennis Schamp
Maura - what outsiders would you choose? Parents? While I support parents working with us and supporting their students, I personally would not want one conducting my evaluation, unless they can prove to me they have some sort of teaching background. Without that, they really don't have the background to tell me how to do my job better. I would not presume to evaluate my doctor, or my neighborhood police officer for the same reason. Plus, what's to keep them from tanking an evaluation because their student is not doing well in my class - and they choose to blame me rather than look at their own child's performance.

Ditto with the district's other thought on having students contribute to teacher evaluations.

I would be very open to having a more realistic evaluation system. But there isn't one. Yet.

Maura Larkins
I agree that parents from the same school could not be relied upon to be unbiased. And I agree that you can't just send a parent into a classroom to do an evaluation. But you might have them check for certain specific things, such as interactions with students, ability to engage students, and simply record what's going on. I think all evaluators should come from a different district. I would expect that most evaluators would be teachers. Young teachers could learn a lot at the same time that they'd be recording their observations. Experienced teachers could give more nuanced feedback.Edit (in 4999393 minutes)

Dennis Schamp
And if the way I interact with my students is not what a parent expects, then...what? I'm ineffective? No - I would push against any parent evaluation of teachers, no matter if a casual observation or a formal one. Without full knowledge of what goes on in a classroom, parents are not qualified to tell me if I'm a good teacher or not. I would not appreciate having an outsider taking notes on everything I do, then using those notes to report back to my administrators. If that observer does not have educational training, credentials, or the like, then they are not qualified to evaluate my performance. Period.

Maura Larkins
May I explain further before you put a period at the end of your rejection of my idea? I think I failed to explain that I would NOT want parents to EVALUATE, but merely track simple facts such as HOW OFTEN a teacher interacted with students (as opposed to sitting at his or her desk correcting papers). I should also clarify that I was thinking of academic interactions, not discipline. Teachers and students should be speaking, writing on white boards (or laptops), drawing charts. Teachers should be moving around the classroom (and students should be allowed to move once in a while, too!) One of the problems in education is that some students are ignored. Simple, factual observations by unbiased individuals could track this. The observers might be parents, but parenthood wouldn't be a requirement.

Dennis Schamp
Maura - I must still disagree with this plan. How often I interact with my students during a lesson or class project depends upon the level of interaction they need from me. The push from Common Core is to provide the students with instruction, then leave them to their own designs, with guidance and direction from me, rather than 2 hours of lecture and note-taking. Even before CC, our district curriculum was moving towards less-structured instructional environment. If I choose to sit for a moment and review notes/papers/lessons/etc, am I suddenly going to be seen as ineffective by this parental observer? The notion that I walk the floor for the full 115 minutes of my class is absurd. There are times when the students are working on group or individual projects in the class...after they have received explicit and direct instruction, front loading, scaffolding, and then given time for a Q&A session. I may not check in again with them for (horrors) 15 minutes or so. Would the parent observer then determine that I am not engaging my students and decide I am not an effective teacher? Or would they understand that students also need to be responsible for their own education?

And no - I would not have time to stop and explain all of my plans/reasons/methods/etc. to this parent observer. That would take away from the educational time.

I have no problem with a parent or guardian coming in as a guest to informally observe and watch the class work. But I draw the line at having that parent tell me if I'm effective.

Maura Larkins
I appreciate that you are being specific about the types of behaviors teachers should engage in. This is the type of discussion that is needed to create a template for what observers should be looking for. I agree that the notion that you walk the floor for the full 115 minutes of your class is absurd. Surely you did not understand me to say that? Also, I tried to make clear that I would want non-professional observers to make simple factual observations, NOT value judgments. I would not expect you to explain ANYTHING to a non-professional observer, but I think that teacher interviews by professionals would make sense as part of the evaluation process. If your experience is like mine, you never had a principal ask you what you had learned from your years of experience and what you were doing in your classroom.

Maura Larkins

I'm curious about a couple of things.

1. If you were the evaluator, what would you expect a teacher to be doing during the time that the students were left "to their own designs"-- if that teacher wanted to be rated as highly effective rather than average or below average?

2. Are you saying that Common Core expects teachers to have NO interactions at all with any students during the time that students are left "to their own designs"?

ScrippsDad 39

Hey Guys - I think a major component of an evaluation is being lost here. You want to focus on the teachers interactions with students, and, when they do and how much they do for all the reasons is good to evaluate and understand.

BUT - please note that an evaluator can also look at how engaged students are regardless of what they are doing and what the teacher is doing. If the teacher is not directly working with students and students are doing projects, reading, etc... it can certainly be noted about how involved they are or engaged in that activity. So, an observer is not just observing the teacher, but, students and a classroom. If students are not engaged in these group or individual projects, I would say that that is a criteria for effective teaching.

I have been involved in an evaluation process and the criteria for evaluation are many and comprehensive and based on a scale system for statistical review. The viewing is done multiple times over various times so not a once only effort to avoid "bad days", etc... The evaluation criteria cover a broad spectrum of topics, instruction, engagement, etc... AND, both admin and teachers vetted this out and agreed to implement it. The observer is noted so it can be looked at and reviewed from the perspective of the observer which could be (will be) a parent, peer, or Principal or more.

I think it very important to understand how and what criteria is used to evaluate to avoid these one stop one time evaluations on "teachers". Evaluating teachers is not just how they interact with students, but, how they engage and manage students, run their classrooms, etc... and this can be evaluated regardless of the teachers disposition at any one time or specifically any individual or class engagement of a teacher directly to students.

when you go back over a years worth of this type of evaluation, it is clearly shown areas of success, areas that need improvement, etc... and provides a quality feedback mechanism to help teachers better perform.

It's tool to improve, not a vehicle for determination of continued employment.

Maura Larkins

You make an excellent point, Scripps Dad, in noting that we can observe the effects of a teacher's long-term involvement with students by looking at how engaged the students seem to be from the moment they walk into the classroom. And of course, there are still more things to observe that we haven't mentioned here.

The evaluation system your school is using sounds wonderful. Are you talking about SDUSD? Are you able to tell us the name of this evaluation process?

It's tool to improve, not a vehicle for determination of continued employment.

Maura Larkins

To Scripps dad:

I also agree with you on some more points:

1) An extended period of time with lots of observations is needed to make an evaluation legitimate;

2) Evaluations should be a "tool to improve, not a vehicle for determination of continued employment."

And I'd like to add another use for evaluations.


We know that some teachers are educational geniuses, truly gifted. And others are more restricted in their pedagogical repertoires.

Also, there are differences in emotional intelligence. Some teachers might be great at making most students buckle down, but at the same time they might actually be setting other students back quite a bit because of extreme rigidity and cruelty. Some teachers help students simply by being kind and respectful, even if those teachers aren't particularly brilliant.

We need to utilize teachers effectively. Evaluations could help determine which teachers could be given more responsibility by being assigned as master teachers. Master teachers could come in and give a few lessons each week to supplement the work of regular teachers who might be terrific at classroom management and follow-through on lessons, but don't have the necessary spark to get students deeply engaged.

I think we could attract super teachers with extra pay, but the regular teachers are perfectly capable of doing most required tasks for less pay.

No comments: