Monday, September 21, 2015

Vergara's Big Problem: The Trial Court Ignored the Causes of Ineffective Teaching

The briefs are in the appeal of Vergara v. State.   Amici in support of the state are exposing a huge evidentiary flaw in the plaintiffs' case: the lack of causation.  For those who are new to the case, last year a California trial court held that teacher tenure was unconstitutional, concluding that tenure prevented schools from removing grossly ineffective teachers.  The court reached a similar conclusion in regard to the state's "last-in-first-out" statute, which requires reassignment and retention be based on seniority during reductions in force.

The San Francisco Lawyers' Committee for Civil Rights and the Education Law Center wrote:

Plaintiffs . . . did not show, nor can they show, that the challenged statutes require the retention of clearly ineffective teachers or that those statutes resulted in assignment of teachers incapable of delivering curriculum and instruction to students in particular classrooms, schools, or districts. That is, plaintiffs did not show that the “Permanent Status Statutes,” and in particular, Education Code section 44929.21, subdivision (b), requires districts to reelect ineffective teachers at the expiration of their two-year probationary period. . . . Plaintiffs focused on the processes for dismissing teachers . . . . While plaintiffs critiqued these processes as a matter of public policy, they did not produce sufficient record evidence establishing that the statutes required districts to retain unqualified and ineffective teachers. . . .

At best, plaintiffs presented anecdotal evidence that in some instances, the challenged statutes could contribute to retention of ineffective teachers. However, the trial court’s analysis, given the record below, does not show or support a causal connection between these statutes as compared to the many other factors linked to teacher quality, and the deprivation of a constitutional education in specific California districts or schools.

Erwin Chemerinsky and Catherine Fisk's brief on behalf of constitutional law professors was even more specific:

The trial court’s principal finding on the effect of statutes on poor and minority students consisted of a block quote from a single exhibit, the 2007 California Department of Education Report noting that minority students are more likely to attend high-poverty schools with a “disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators.” Tent. Dec. at 15. The court’s sole finding on causation was the following single sentence after that block quote: “The evidence was also clear that the churning (aka ‘Dance of the
Lemons’) of teachers caused by the lack of effective dismissal statutes and LIFO affect high-poverty and minority students disproportionately.” Id. These two sentences are not findings that five statutes, neutral on their face, cause a denial of equal protection in education, and they are not a basis on which a court to enjoin the enforcement of several longstanding statutes regulating public education.

As to the statute providing for tenure decisions to be made within two years, the trial court found some teachers receive tenure “who would not have been had more time been provided for the process,” and also that others are denied tenure who might have received it if they had “an adequate opportunity to establish their competence.” Tent. Dec. at 10. The trial court also found that a majority of states grant tenure after three years, and California is one of only five states with a two-year tenure period. In the trial court’s view, “both students and teachers are unfairly…disadvantaged by” a two-year tenure clock and “3-5 years would be a better time frame to make the tenure decision.” Id. 

This is all the court found with respect to how teacher tenure violates the constitutional rights of students, and on that basis enjoined the tenure statute. None of these findings show that a two-year tenure period causes any group or class of students to suffer a denial of an equal right to education. . . . The reality is what the record evidence showed: many factors cause poorer children to do worse in schools, including their peer group, school facilities, curriculum, enrichment programs, and the students’ family and living conditions; it is entirely speculative as to whether the statutes declared unconstitutional by the trial court are the cause of this serious problem. 

For a full explanation of what plaintiffs would need to prove to make out a claim against the state and a discussion of the current evidence regarding the causes of ineffective teaching, see here

Read LCCR-SF and ELC's brief here: Download FINAL amicus brief Vergara

Read Chemerinsky and Fisk's brief here: Download B258589_ACB_LP

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