Let school administrators craft tenure compromise

February 19, 2014

OPINION By SUPERINTENDENT CURT DUBOST, Ed.D.

A very important, potentially landmark lawsuit is now before Superior Court in Los Angeles involving teacher employment and evaluation in the State of California. The case, Vergara v. California, asserts that current teacher tenure (permanency), seniority, and transfer laws protect the continued employment of substandard and at times even seriously unprofessional teachers who are then disproportionately assigned to schools and classrooms with the neediest of children.

One expert witness in the case referred to this practice as the, “Dance of the Lemons,” where incompetent teachers are moved around and around from school to school. They assert this results in unequal educational opportunities for children in California based on the “luck of the

draw” as to which teacher kids are assigned. One specific catalyst for this litigation was a situation where one of the student plaintiff’s teachers thought to be substandard was replaced by an energetic, highly effective new teacher who than was laid off due to seniority during the budget crisis. The decidedly less effective but more senior teacher was then returned to the classroom due to the ” last hired first fired” rule under which schools must ignore performance in teacher retention decisions. The student rightfully felt cheated by being forced to have the apparently inferior permanent instructor rather than the clearly superior probationary teacher. This is also a concern of some parents who opt for charter schools such as Almond Acres here in San Miguel.

The tenure laws in question date back to the 1920’s, and the Vergara plaintiffs contend they protect substandard teachers at the expense of children. Its opponents assert instead that it unfairly demonizes teacher unions and blames a tiny fraction of teachers for most if not all of the problems in California schools. They point to the many abuses in the past that led to the existing laws and assert that tenure and seniority are important teacher rights that outweigh concerns about a very small minority of teachers who if truly inept or worse can and should be terminated using existing laws. They also point out that it was a school administrator, not a teacher or their union who granted tenure to an undeserving teacher, and that teachers and their unions shouldn’t be blamed for mistakes made by administrators and school boards. Once in permanent status, however, the union must defend the process, and represent the teacher who is accused or face charges of failure to defend their member’s rights.

As a long time school administrator, I understand both sides of the debate and hope for a decision that makes it “easier, but not easy” to fire the very few incompetent or worse truly unfit teachers. The existing laws create a situation where a district considering terminating a teacher faces a legal bill for the proceedings that can easily exceed $250,000. Even if the district chooses to expend that kind of time and money, the chances of success are likely 50-50 at best. Many districts therefore opt to try to reassign the teacher to a less problematic assignment, often as aforementioned to a lower performing school where parents are not as likely to complain, or negotiate a buyout of the teacher’s contract. Neither of these options is appealing, but they can make sense financially. Pursuing revocation of the teacher’s credential is often part of that process. All too often, however, the low-performing teacher remains in front of children doing a lousy job or costing the district a hefty salary to do nothing, or worse at the expense of children who deserve better. The lawsuit alleges this is particularly true in schools with high levels of poverty, hence the inequality basis for the suit.

Why do such laws exist? They were needed because districts all too often in the past fired teachers due to totally unfair, patently illegitimate reasons including political affiliation (and I don’t mean being a radical subversive), academic freedom such as in the Scopes “monkey trial”, criticizing the district, or as simple as not giving an “A” to a well connected student or not starting him or her on a school athletic team. Racial, gender, sexual identity or religious affiliation were other unfair considerations. These unfair practices are now separately illegal, however, apart from tenure protection, and hence are clearly no longer as needed as in the past. Firing a teacher simply because the district could then hire a less experienced replacement was also a common unfair practice in many smaller districts.

Conversely, what is the unfortunate situation now? The Vergara suit lists some very disturbing cases including data from the Los Angeles Unified School District from 2000 to 2010 that show only seven permanent teachers out of 33,000 were formally involved in the dismissal process. The average case lasted five years and cost $500,000 each. Ultimately, only four were fired. The suit identifies one who was not fired who had mockingly told an eighth grader returning to class from an attempted suicide to “carve deeper next time” and encouraged classmates to give him advice on more effective methods to try to kill himself. The suit also cites 98 as the percentage of probationary teachers who were granted permanency (tenure) in the LAUSD during that decade.

As we debate the merits of Common Core, decide how much to spend on iPads in classrooms, and try to keep class sizes low, it is indisputable that the performance of the instructor is the single most critical factor in the quality of instruction that a child receives. Would you rather have your child in a class with twenty kids, iPads for each child, a spiffy new room and a lousy teacher who was ineffective and uncaring? Alternatively, would you prefer thirty kids, no iPads and a highly competent, caring teacher? The answer most of us would give is the larger class with the better teacher, and maybe if we could dismiss more easily the few truly lousy teachers there would be more support for and less criticism of public schools. Perhaps we could then afford to pay the better teachers more and maintain the low class sizes and buy the iPads.

The impact of a terrific teacher is priceless and lasts for years. Children who have awesome teachers tend to love school and are well prepared to excel in future grades and thereafter. Conversely the detriment to a child from the very few, “grossly ineffective teachers” (as described in Vergara) is equally long lasting and negative. To use the numbers from the suit, seven of 33,000 is less than .02 percent. In my experience, maybe a maximum of three to five percent of all of the teachers with whom I’ve worked in forty years were unprofessional or ineffective to the point where I would have recommended their dismissal had the tenure laws been less onerous. In most cases, added support, peer assistance, career counseling, suspension without pay, early retirement options, cooperation from the union and the like are effective means of removal, but for a very small percentage, termination has to be a more possible outcome.

I believe a few relatively minor reforms are in order. We currently effectively grant tenure if we don’t formally elect not to do so by March 15 of the teacher’s second year. For most new teachers we are happy to have them and want them to stay. For these teachers, the current system works and March 15 of Year 2 is fine as is. For any about whom administration has any reservations whatsoever, however, the system forces the district to non re-elect them simply so they don’t become permanent and then virtually impossible at a later date to dismiss. There is a simple solution to this dilemma. If the law was permissive and allowed districts to grant permanency by March 15 of Year Two or keep the teacher in probationary status for up to five years the problem would be solved. If the new teacher felt abused by non re-election they could stay and convince the district they deserved tenure or seek employment elsewhere. Districts would be reluctant to abuse this flexibility in that no one wants to lose good teachers, especially after investing time and money in their training.

With regard to modifying tenure through the Vergara litigation, I would hope that rather than a judge prescribing reform it will instead be ordered for CTA and school administrators to have six months to meet and craft a compromise that I guarantee almost all teachers would applaud. The status quo is unacceptable and we must work together with our teachers’ unions to make it “easier but not easy” to fire a horrible teacher without compromising the rights of the vast majority of teachers who work hard for relatively low pay.

Curt Dubost, Ed.D. is the superintendent of San Miguel Joint Union School District.