In Vergara v. California, lawyers for the plaintiffs argued that the state's teacher tenure system hurts poor, minority students because they are more likely to end up with "grossly ineffective" teachers. The case focused on three areas: tenure, cumbersome dismissal policies and seniority-based layoffs. Los Angeles Superior Court Judge Rolf M. Treu ruled that several relevant state laws violated students' right to an education as spelled out in California's Constitution. Teachers unions have appealed.
The Vergara ruling is already reverberating across the country. Earlier this week, a handful of parents in New York filed suit in state court, making largely the same arguments as the Vergara plaintiffs. And it's clear that the tenure critics who are mounting these challenges have broader ambitions.
Among those critics is Michelle Rhee, founder of StudentsFirst. After resigning as Washington, D.C., schools chancellor under a cloud of controversy, she embarked on a campaign to challenge tenure and seniority laws. Her group played a supporting role in both the California and New York challenges, and is now considering action in several other states.
Besides New York and California, which states do you think are ripe for a challenge?
There are probably conversations going on in four to five states right now, thinking about this and trying to figure out if it's relevant for their state whether there's a litigation strategy. That's our sense of it, being on the ground. Some states across the country have begun to make changes at the district level or legislatively, but in many states, the litigation strategy and going through the courts is a different way to [make the changes].
Minnesota, Connecticut, New Jersey and New York are on that list?
Yes they are. There's talk in Tennessee as well.
In order for you to challenge teacher tenure and seniority in a state, your organization has said that you need to find states whose constitutions spell out their obligation to provide a sound education. Why is that?
Well, because the reason this case has been successful in California is because the California Constitution articulates a certain level of education that needs to be provided to every child. If you look at states across the country, [some] states have very, very strong language about the quality and equity kids deserve. [Some] say you have to provide an education to kids but don't really speak about quality. Then there's a middle group. So the states that are likely to be most successful with litigation [challenging tenure and seniority], are ones like Minnesota, which have a very, very high standard articulated in their constitution
Are you involved in the New York lawsuit?
We partnered with Campbell Brown [head of the Partnership for Educational Justice], helping to identify the plaintiffs, and are 100 percent supportive. Of all the in-school factors that impact students' achievement, teachers are the No. 1 factor. And when we have nonsensical laws that give people a job for life regardless of performance, people more and more see that as problematic and want to see changes.
The National Education Association and American Federation of Teachers have vowed to oppose what they call "Vergara-like" lawsuits. They say that the Vergara ruling was not about protecting students but about attacking teachers and their due process rights.
If you read what the judge said, that's absolutely incorrect. Everybody agrees, due process rights are absolutely critical. Nobody is arguing that we get rid of due process. What we're saying is that layoffs should not be done by seniority alone, that quality should be taken into account. And we're saying that, for egregiously incompetent teachers, the dismissal process should be more streamlined. We can solve these problems together. I mean, it was not an easy fight in Washington, D.C. [where Rhee spent three years as schools chancellor]. Ultimately, we signed a contract with the union that addressed a lot of these issues, and the American Federation of Teachers signed off on it. So we have a precedent to be able to do this. [In D.C.] we are now retaining the most highly effective teachers at much higher rates.
Union leaders say they're not opposed to shortening the time it takes to fire a bad teacher or lengthening the time it takes to get tenure, but they say that these policies are not hurting kids. Other factors are to blame, like poverty, broken homes, inadequate school funding.
The unions are absolutely right. There are other issues that go into why our nation's schools are not performing well. There are many other factors. Vergara did not say [tenure/seniority] were the only factors and, therefore, if we fix it we will solve the problem. The judge simply said there are currently laws and policies in place that, if you look at the data, clearly these laws disproportionately impact poor, minority kids negatively, and we should fix or remove those policies.
Legal experts I've spoken with say that, down the road, Vergara-like cases could expose governors and state legislatures because they're the ones who approve and pass the laws and policies that are under attack.
Looking at those governors and legislatures and saying, "Here's what the data says, what are you going to do about it?" — I think that's a good thing. So, if a governor or legislature decided [tenure and seniority issues] are a problem in their state and we're going to take it on by passing legislation, I think that's the ideal. Or they could be forced by the courts. They are going to mandate that legislature move on this. If I'm a politician, I don't want to be pinned into a corner by the courts. That doesn't make much sense.