Tag Archives: LIFO

by | February 21, 2014 · 8:09 am

Student Advocates Oppose Both Bad Teaching and Bad Lawsuit

Note: A version of this piece originally appeared in Valerie Strauss’s column in The Washington Post.

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Vergara v. California, a lawsuit challenging three components of teacher employment law in California’s Ed Code that began on January 27, has garnered considerable media attention.  The plaintiffs’ legal team contends that due process rights for teachers, a cumbersome teacher dismissal process, and seniority-based layoffs violate the Equal Protection Clause of the Fourteenth Amendment.  They argue that, as a result of teacher employment policies, poor and minority students learn from a disproportionately large number of “grossly ineffective” teachers.  These ineffective teachers ostensibly cause education’s observed “opportunity gap” between low-income, predominantly minority students and their higher-income, mostly-white peers.

Despite the plaintiffs’ claims, this lawsuit unfortunately does not address the needs of low-income students.  First, the anti-union and anti-social welfare backgrounds of the people behind Vergara v. California both suggest the lawsuit is primarily intended to dismantle labor laws.  Second, ethics and empirical research suggest a focus on teacher evaluation and support has more potential to improve instruction and benefit students than a focus on dismissal.  Third, while the challenged statutes should be improved, they offer important protections for both students and teachers, protections that more responsible reforms can preserve.

Most arguments against teacher employment laws either make faulty assumptions or severely mischaracterize the laws’ impact.  Yet Vergara proponents have been especially successful at conflating teacher employment law with the existence of horrible teachers when the existence of horrible teachers has no relevance to this case.

California Ed Code provides the following procedure for the immediate suspension and quick dismissal of any teacher exhibiting egregious behavior:

44939.  Upon the filing of written charges…charging a permanent employee of the district with immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, [or] with willful refusal to perform regular assignments without reasonable cause…the governing board may…immediately suspend the employee from his duties and give notice to him of his suspension, and that 30 days after service of the notice, he will be dismissed, unless he demands a hearing.    If the permanent employee is suspended…he may within 10 days after service upon him of notice of such suspension file with the governing board a verified denial, in writing, of the charges. In such event the permanent employee who demands a hearing within the 30-day period shall continue to be paid his regular salary during the period of suspension and until the entry of the decision of the Commission on Professional Competence, if and during such time as he furnishes to the school district a suitable bond, or other security acceptable to the governing board, as a guarantee that the employee will repay to the school district the amount of salary so paid to him during the period of suspension in case the decision of the Commission on Professional Competence is that he shall be dismissed. If it is determined that the employee may not be dismissed, the school board shall reimburse the employee for the cost of the bond.

Beatriz Vergara, one of the students after whom Vergara v. California is named, testified that one of her 7th grade teachers made racist remarks about Latino students and that another 7th grade teacher routinely called female students “stick figure” and “whore.”  Such verbal abuse is deplorable, should constitute unprofessional and “immoral conduct,” and falls within Section 44939 of Ed Code.  Vergara also testified that her 6th grade math teacher slept during class, behavior that is also completely unacceptable, should constitute “willful refusal to perform regular assignments,” and also falls within Section 44939 of Ed Code.  Her testimony, while upsetting, has no relationship with the challenged statutes in this case; competent, knowledgeable administrators could and should have suspended these teachers immediately and then, if the charges were legitimate, had the teachers dismissed.  Neither permanent status nor dismissal law (nor any teachers union) condones verbal abuse, physical abuse, sleeping on the job, or any other form of gross negligence or misconduct.

Teachers who don’t commit misconduct can still be ineffective teachers.  For the plaintiffs to have an Equal Protection case, however, the challenged statutes would need to directly cause more ineffective teaching at low-income schools than high-income schools.

Yet very little evidence, if any, suggests that teacher quality at low-income schools is worse than teacher quality at high-income schools.  Most studies of teacher effectiveness rely on a statistical approach known as value added modeling, an approach that attempts to quantify a teacher’s contribution to student test scores.  Value-added models have serious limitations and are unstable, meaning they have a high margin of error.  For example, a recent study compared teacher value-added scores on two different tests taken by the exact same students and found that only about one-third of the teachers in a given quintile of performance on one value-added measure scored in the same quintile on the other test.  Even if value-added modeling could perfectly indicate teacher effectiveness, the plaintiffs’ own expert witnesses have acknowledged in their research that “the quality of teaching…does not differ substantially across schools.”  Anecdotally, I’ve observed a similar distribution of teacher quality in the low-income schools at which I currently work and the expensive private school I attended for middle and high school.

Even if evidence suggested that teacher quality in low-income schools is worse on average than teacher quality in high-income schools (it doesn’t), permanent status, dismissal, and seniority-based layoff procedures apply equally in schools that serve high-income populations.  While layoffs are probably less likely to occur in California’s basic aid (richer) districts, one could make a much stronger Equal Protection case about the reductions in staffing, resource cutbacks, and furlough days poorer districts experience as a result of budget cuts than one could build about the order in which teachers are laid off.  Permanent status and dismissal laws affect rich and poor communities in exactly the same way.  That it would even be possible for the statutes challenged in Vergara v. California to cause a difference in teacher quality between low- and high-income schools is questionable.

Since proponents of Vergara can’t legitimately tie the challenged statutes to student harm, they resort to equating defense of due process with support of incompetence.  For example, a recent opinion piece in the LA Times notes that a majority of teachers believe at least one colleague with permanent status “should be dismissed for poor performance.”  This fact is irrelevant to the effect of permanent status; ask any group of professionals in a large workplace whether someone at the workplace should be dismissed for poor performance and a high percentage will respond in the affirmative.  Articles like this one argue that permanent status causes poor performance despite a complete lack of evidence in support of this claim.

Teachers who work with poor and minority students every day are often their most credible advocates.  Teachers unions believe deeply that poor and minority students deserve access to an excellent education and abhor teacher misconduct and negligence as much as anyone else.  They also believe students benefit when teachers are treated with respect.  The defendants in Vergara v. California therefore oppose both ineffective teaching and deceptive lawsuits that erroneously link it to due process protections.

Correction (2/24/14): The opinion piece referenced in this post was written by an outside writer and published in the Times, but was originally referred to incorrectly as an editorial.

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by | February 9, 2014 · 2:07 pm

Students Matter. Teachers Do, Too.

Imagine reading the following statement on a website:

We think it’s simple: reward…passionate, [successful students] and hold those accountable who are failing… [S]triking down the following laws…will create an opportunity for lawmakers, teachers, administrators and community leaders to design a system that’s good for teachers and students…

  • [Law 1: As long as they have attended school for at least eighteen months, this law gives students accused of wrongdoing the opportunity to hear what they did wrong and try to correct their behavior before being expelled. It] forces [teachers and] administrators to…grant [due process rights to students facing an expulsion]…before [teachers and] administrators are able to assess whether a [student] will be [successful] long-term.

  • [Law 2: Though this law allows districts to quickly expel students who commit serious offenses, it requires districts and schools to prove that other expulsions are warranted]. The process for [expelling] a single [unsuccessful student] involves a borderline infinite number of steps, requires years of documentation…and still, rarely ever works. In the past…year…in the entire state of California, only [8,562 students] have been [expelled], and the vast majority of those [expulsions] were for egregious conduct.

  • [Law 3: This law dictates the order in which schools facing economic pressure should expel students.  The] law forces [teachers] to [expel successful students] and keep [unsuccessful students] instead, just because they [are older].

The arguments for striking down these laws would disgust most of us.  Shouldn’t we assume all students want to learn and avoid expelling them if at all possible?  Law 1 doesn’t go far enough – students should have due process rights preventing unwarranted expulsion from the first time they set foot in a school, as it is our duty to provide them with a public education.  Likewise, it is perfectly reasonable for the student expulsion process in Law 2 to require well-documented proof of the reason for expulsion.  Expulsion should always be a last resort, and the burden of proof for an expulsion should fall not on the student, but on the teacher and school.  Finally, while Law 3 is ridiculous, the premise of the complaint with Law 3 misses the point entirely: isn’t the real problem with the law the idea that we would expel students for economic reasons?  Shouldn’t we only ever expel students if they create an unsafe learning environment for other students on campus?

Most of us would conclude not only that the people who wrote the arguments above had no compassion, but that they also did not believe in educational equity.  If they believed in educational equity, they would focus on supporting unsuccessful students instead of expelling them.  If they believed in educational equity, they would ask how the adults in charge could help unsuccessful students improve their performance.  If they believed in educational equity, they would divert their energy away from expelling a small minority of students and towards creating systems that address the needs of most children.  There is a small element of truth to what they say – the expulsion process described in Law 2 seems unnecessarily cumbersome, and in the terrible situation in which factors out of our control would force us to expel certain students, using age as our expulsion criterion seems like a stupid approach.  But the overarching paradigm of this critique runs counter both to our values and a logical analysis of the stated goal (“design a system that’s good for teachers and students”).

Though recent movements have increased the documentation required of a school wishing to expel a student for a nonviolent offense, the process described in Law 2 is exaggerated.  Law 3 doesn’t actually exist, and we fortunately have a better law than Law 1 (all students facing expulsion have due process rights no matter how long they’ve been in school).  An examination of these arguments is still instructive, however, because the opinions they reflect aren’t entirely hypothetical – they’re just marshaled against teachers rather than students.  Much of the text above comes directly from the website of Students Matter, the organization behind Vergara v. California.  Here’s the original:

We think it’s simple: reward and retain passionate, motivating, effective teachers and hold those accountable who are failing our children. By striking down the following laws, Vergara v. California will create an opportunity for lawmakers, teachers, administrators and community leaders to design a system that’s good for teachers and students. Because when it comes to educating our kids, there should only be winners.

  • Permanent Employment Statute: The permanent employment law forces administrators to either grant or deny permanent employment to teachers after only 18 months—before new teachers even complete their beginner teacher programs and before administrators are able to assess whether a teacher will be effective long-term.

  • Dismissal Statutes: The process for dismissing a single ineffective teacher involves a borderline infinite number of steps, requires years of documentation, costs hundreds of thousands of dollars and still, rarely ever works. In the past 10 years in the entire state of California, only 91 teachers have been dismissed, and the vast majority of those dismissals were for egregious conduct. Only 19 dismissals were based, in whole or in part, on unsatisfactory performance.

  • “Last-In, First-Out” Layoff Statute: The LIFO law reduces teachers to faceless seniority numbers. The LIFO law forces administrators to let go of passionate and motivating newer teachers and keep ineffective teachers instead, just because they have seniority.

I discussed the plethora of problems with this lawsuit in my last post, not the least of which are the inaccurate characterizations of the laws above and the plaintiffs’ clear anti-labor agenda.  Equally troubling to me, however, is the discrepancy between our vision for the classroom and the Students Matter vision for the world in which the classroom resides. Teachers and students are different – we should be more patient with kids than with adults – but they aren’t different enough to warrant such a drastic discrepancy in how we treat them.  An intense focus on teacher employment law is as unethical and unlikely to improve overall student outcomes as an intense focus on removing poorly behaved students from their classrooms.

We expect teachers to concentrate on classroom structures that support their students.  We recognize that student test scores do not necessarily reflect intelligence or effort, that poor performance on academic assessments may reflect a lack of investment in tests, a poorly designed assessment, pure chance, inadequate instruction, and/or life circumstances outside of a student’s control.  When a student is clearly underperforming or negatively impacts other students with disruptive behaviors, we assume the best about the student.  We assume the student wants to learn and behave appropriately, but that the student may lack the skills necessary to do so.  We do everything in our power to keep that student in our classroom, continuously trying new approaches to help the student improve his or her behavior and academic performance.  We still implement systems to deal with the situation when students, despite all the support they have received, continue to disrupt their peers’ learning.  When we take disciplinary action against these students, however, we stipulate that the teacher and school prove that alternative, supportive measures failed to achieve the desired results and that the disciplinary action is warranted.  We then redouble our efforts to design better student support structures that can help us avoid future expulsions.

We should adopt a similar paradigm when we consider education reform.  We should expect policies, districts, and administrators to concentrate on supporting teachers.  We should recognize that student test score data does not necessarily reflect quality of teaching or effort, that low value-added scores may reflect reasonable concerns about “teaching to the test;” assessments that may not measure what they’re supposed to and that have questionable longitudinal validity; pure chance; inadequate teacher training, evaluation, and support; and/or external factors outside of a teacher’s control.  When a teacher is clearly struggling to meet student needs, we should assume the best about the teacher.  We should assume the teacher wants to teach effectively, but that the teacher may lack the skills necessary to do so.  Especially because teacher turnover is bad for students, we should do everything in our power to help the teacher improve and keep the teacher at our school.  We must still implement systems to deal with the situation when teachers, despite all the support they have received, remain ineffective.  When we take disciplinary action against these teachers, however, we should stipulate that the district and school administration prove that alternative, supportive measures failed to achieve the desired results and that the disciplinary action is warranted.  We should then redouble our efforts to design better teacher support structures that can help us avoid future dismissals.

Students Matter and supporters of their frivolous lawsuit betrayed their true agenda, which has nothing to do with educational equity, when they took the opposite approach in Vergara v. California – they ignore support and focus their efforts primarily on dismissal.  We wouldn’t accept that approach from teachers and we shouldn’t accept it from the ed reform movement.

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by | January 28, 2014 · 10:17 pm

Vergara v. California: The Agendas, the Facts, and Recommendations for California Law

Ted Boutros believes corporations that destroy lives with reckless policies should suffer minimal financial penalties in court.  Boutros’s partner, Marcellus McRae, proudly defends white-collar criminals.  Eli Broad pretended to support Proposition 30, a ballot initiative designed to prevent massive cuts to public education, while secretly funding the No on 30 movement.  All three of these individuals and the rest of their well-funded legal team, however, hope their deployment of nine California students as the listed plaintiffs in Vergara v. California will convince a judge that they care about the plight of low-income children.  Their narrative self-serving and convenient, they argue that the massive income inequality they actively exacerbate has nothing to do with the achievement gap, that it is instead “grossly ineffective teachers” who ruin poor kids’ lives.

The original complaint in Vergara, filed on May 14, 2012, contains a number of factual errors.  As one example, the plaintiffs contend that “schools that serve predominantly minority and economically disadvantaged populations…have a disproportionate share of grossly ineffective teachers” when their own expert for the trial, Raj Chetty, has acknowledged since that “the quality of teaching…does not differ substantially across schools.”  In addition, the research summaries and numbers the complaint presents are rife with the type of statistical misinterpretation and manipulation I’ve discussed previously.  Unfortunately, far too many people who care about low-income students have fallen for the plaintiffs’ inaccurate narrative and support their efforts in Vergara.

The case challenges three aspects of teacher employment law in California’s Ed Code: permanent status (commonly referred to as tenure), the teacher dismissal process, and seniority-based layoffs (commonly referred to as LIFO, which stands for “last in, first out”).  Elements of all these laws need improvement, but education “reformers” have frequently misled the public about their purpose and propose changes unlikely to improve teacher quality.  An analysis of each policy, the rationale behind it, and a more sensible revision proposal reveal that the agenda in this case is more about dismantling employee workplace protections than it is about improving the lives of low-income students.

Permanent Status (Tenure)

Current Law: Teachers begin their employment with a school district with probationary status.  The school district must decide, by March 15 of a teacher’s second school year, whether or not to grant the employee permanent status.  Before that point the district may non-reelect (fire) a probationary teacher without having to provide a specific reason.  “Permanent status” is actually a misnomer because teachers with permanent status aren’t permanently guaranteed a job; teachers who have been granted permanent status are only afforded due process rights when an administrator deems them unfit to teach.  Teachers with permanent status may be dismissed (fired) if they are unwilling or unable to address an administrator’s stated concerns.

Current Law’s Rationale: Tenure was originally established at the university level to ensure academic freedom – granting academics tenure enabled them to pursue research without fear of political retribution from major donors.  California’s permanent status statute was likewise adopted to safeguard teachers from arbitrary firings.  California Teachers Association (CTA) members, over the course of the organization’s history, have fallen victim to dismissals based on nepotism, political patronage, political bias, racism, sexism, personal vendettas, a desire to replace higher-salaried teachers with lower-salaried replacements, and other capricious reasons unrelated to a teacher’s ability to effectively educate students.  Teachers with permanent status can advocate for the interests of their students and teach potentially controversial topics like evolution without fear of retribution from school or district administration or parents.  Since principal turnover is also fairly common, permanent status can prevent a short-term administrator from drastically overhauling a staff, an important protection for students given the negative impact teacher turnover has on student outcomes.

How to Improve the Law: As the plaintiffs’ note, probationary teachers can sometimes secure permanent status after “a cursory performance evaluation, or sometimes none at all.”  That statement, however, is an indictment not of permanent status, but of both teacher evaluation practices and administrator incompetence.  Instead of ending permanent status, California should adopt the type of comprehensive teacher evaluation system, supported by teachers unions, that provides meaningful feedback to teachers, helps support ineffective teachers in addressing growth areas, and trains administrators on how to give productive feedback.  The legislature should then consider changing the timelines for permanent status.  When a district remains on the fence about a probationary teacher after two years, the district should be allowed to extend the probationary period an extra year.  And if a probationary teacher has a well-documented, amazing first year, that teacher should have the opportunity to earn permanent status early.

The Dismissal Process

Current Law: If a school district deems a teacher ineffective, the district must provide the employee with “written notice of the unsatisfactory performance [and 90 days] to correct his or her faults.”  Should the employee’s performance remain unsatisfactory following these 90 days, the school district must give the employee notice of its intent to dismiss the employee.  The employee may then request a hearing with the school board and, if desired afterwards, a subsequent hearing before a Commission on Professional Competence.  The Commission’s decision may be appealed to higher courts.

Current Law’s Rationale: The requirement that school districts provide employees with the opportunity to improve performance before potential hearings extends the 14th Amendment’s due process requirements.  But when someone is accused of doing something wrong, especially someone who has received at least two years of satisfactory evaluations from the same employer, that person should have the opportunity to hear the accusation, address it, and have a neutral party evaluate the accusation’s legitimacy.

How to Improve the Law: Incompetent and/or poorly-intentioned professionals exist in every profession and teaching is no exception.  All self-respecting teachers and unions believe colleagues who sleep during class or otherwise ignore students should be dismissed.  The plaintiffs surprisingly acknowledge, though, that these situations are anomalous: “the majority of teachers in California are providing students with a quality education” and even “grossly ineffective teachers [are often] well-intentioned.”  Not only is it unethical to fire well-intentioned people without giving them the opportunity to improve, teacher turnover, as mentioned above, is bad for students.  The focus of reform efforts, therefore, should be on teacher support initiatives like instructional coaching first and dismissal processes second.

That said, the dismissal process takes far too long and involves a plethora of potential appeals that can prove costly for both unions and districts.  To streamline dismissal of a teacher unable or unwilling to improve after provided with ample support, the evidence of both the teacher’s unsatisfactory performance and the support provided to help the teacher improve could be presented directly to a state oversight panel, similar to the current Commission on Professional Competence, consisting of three teachers and three administrators.  For the dismissal to move forward, a majority of both the teacher and administrator members of the panel would need to approve it.  The panel’s decision would not be subject to appeal.  Such a system would preserve due process, maintain the employer’s responsibility to help support struggling veteran employees, and reduce the timeline and cost of dismissing truly ineffective teachers.

Seniority-Based Layoffs (LIFO)

Current Law: When a district faces budget cuts and decides to reduce the number of teachers as a result, it is bound by the following section of Ed Code:

[The] services of no permanent employee may be terminated…while any…other employee with less seniority…is retained…[However,] a school district may deviate from terminating a certificated employee in order of seniority [if the] district demonstrates a specific need for personnel to teach a specific course or course of study…or to provide services [for which a] certificated employee has special training and experience…which others with more seniority do not possess.

Current Law’s Rationale: Though the exception for cases in which the district “demonstrates a specific need” is notable, the main benefits to seniority-based layoffs are the predictability and stability they provide for both employees and students.  While teacher experience correlates to some degree with effectiveness, this policy is the least sensible of those challenged in Vergara v. California.

How to Improve the Law: Most new teacher evaluation systems currently rely on unreliable and invalid student test score data and are thus inaccurate indicators of teacher effectiveness.  While seniority also fails to capture teacher effectiveness accurately, we should not replace one faulty system with another.  Instead, legislators should develop budget mechanisms that prevent teacher layoffs.  At the same time, legislators should implement the type of comprehensive, thorough teacher evaluation system discussed above and apply it when layoffs are inevitable.

The beginning of the first sentence regarding the dismissal statute in the plaintiffs’ original complaint reveals the true motive behind their opposition to these policies: “Unlike employees of private companies, public employees in California must be afforded certain due process rights.”  Since the large corporations represented by Boutros’s and McRae’s firm frequently underpay workers and illegally fire employees, these corporations view due process and other worker protections anywhere as a threat to exorbitant corporate profits everywhere.  They hope their ostensible compassion for students (some of whom were likely recruited by cold-calling TFA corps members; a 2010 TFA alum and friend of mine was called to see if he could recommend any students for the lawsuit) will provide cover for their overt attempt to undermine organized labor.

Opening arguments in the 20-day Vergara v. California trial began in downtown Los Angeles on Monday, January 27.  The plaintiffs have asked the court to act in the best interests of low-income students; Judge Rolf Treu should do so by rejecting the plaintiffs’ deceptive arguments and ruling in favor of the state of California.  Legislators should then work with teachers unions to enact evidence-based reforms that empower teachers to continue to hone their craft and improve their students’ lives.

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