Nan Austin

Courts: California laws promise education, not excellence

Several education lawsuits have lost in higher courts in recent weeks, each framed as a loss for children or a win for workers, depending on which side you talk to. But the overarching theme I took away is that the courts are saying nothing in state law ever promised us a rose garden.

Vergara v. California centered on California’s teacher dismissal, tenure and layoff laws. The plaintiffs argued the laws put poor kids at a disadvantage by protecting the most senior teachers without regard to effectiveness. With districts unable to dismiss them, teachers with problems get passed to the schools with the least-active parents – the low-income campuses.

The defense argued (in far more eloquent terms): But that’s the law.

A passionate rebuke against existing law in the trial court failed to sway California’s 2nd District Court of Appeal, which said the Superior Court judge had overstepped. The law says seniority matters, tenure should be quick and dismissal difficult. The law says teachers have a right to worker protections. It does not say a child has a right to an excellent education.

A growing movement among teachers, however, says there should be a better balance.

The nonprofit Teach Plus wants to see stronger evaluation measures, more support for struggling teachers and a more holistic look at student learning required in state evaluations of schools. The Teach Plus proposal for a two-tiered accountability system for the new federal Every Student Succeeds Act was picked in January by the Thomas B. Fordham Institute as one of 10 models recommended for states to follow.

A bill to reform teacher evaluations was introduced March 31 in the state Assembly. AB 934 seeks to require schools to better support beginning teachers and any teacher who receives an unsatisfactory performance rating. It would give districts the option to keep new teachers on probation for up to four years rather than the existing two-year tenure track.

The bill would also set up a binding arbitration process for dismissal based solely on poor performance. Under existing law, teachers cannot be fired for poor performance unless they have been given formal notice by March 15 of the preceding school year, more than a year’s delay in many cases.

The state Legislative Analyst’s Office issued a report two years ago recommending teacher evaluations be annual, as they are for most employees, and include how well kids are learning, classroom performance, parent input and, in high school, feedback from students. Performance, not seniority, should be the basis for layoffs, the report said.

The LAO also took issue with current law, which requires a hearing before a teacher convicted of even horrendous crimes can be dismissed and allows reinstatement after a year.

Robles-Wong v. California, a case about overall funding for education in the state, lost on appeal in a 2-1 ruling April 20. Judges in this case said the California Constitution guarantees there will be schools, but says nothing about their quality or level of funding.

“After nearly five years, we were hopeful the appeal court would agree to address the vital issue of adequate school funding,” California State PTA President Justine Fischer said after the decision was announced. “Although education spending has increased somewhat since the depths of the recession, California’s schools still remain substantially underfunded and under-resourced by all measures.”

California State PTA was a plaintiff in the lawsuit, along with the California School Boards Association, Association of California School Administrators, nine school districts and 60 students. No word yet on whether they will pursue further action.

California is low in per-student spending and has among the highest costs of living, so what schools do get does not go as far. In 2013, California schools spent $9,220 per child, 34th among the 50 states, according to a Governing report using U.S. Census Bureau survey data. Utah spent the least, $6,555, and New York spent the most, $19,818 for every student from kindergarten through high school.

Friedrichs v. CTA, a case the plaintiffs believed the U.S. Supreme Court was aching to try, lost on a 4-4 vote the late Justice Antonin Scalia would almost certainly have decided in their favor. The case was filed against the California Teachers Association on behalf of 10 teachers and Christian Educators Association International, but its implications touched every public-sector union.

The lawsuit protested the union’s right to collect so-called fair share or agency fees. Those are a per-person charge of what the union lays out as its cost to provide bargaining services for all teachers in a district. The fee is levied on teachers who benefit from the bargaining but choose not to join the union and chip in for its political activities.

The Center for Individual Rights, which backed the case, filed a petition April 8 asking the Supreme Court to rehear arguments when a ninth judge is appointed, which could be a year or more from now.

Nothing in this case directly affects kids, but if it had succeeded and unions had been crippled – as CTA suggested they would be – the repercussions would have touched everyone.

Whether you think that’s a good thing or a bad thing boils down not to law, but to politics. And there is the rub.

A lawyer with whom I spoke a year or so ago about the Vergara case said filing the lawsuit was a way to take the conversation out of the political sphere and into the more disciplined confines of a courtroom.

There, the conversation has to focus on the merits and the law. It must use evidence based on facts, not Internet blather or party spin. It has to come to a conclusion, not get walled up in committee.

Though soft-spoken and logical, what he said at its core was a sweeping condemnation of what our political system has become. We just can’t get past the powers that be in politics to study with any objectivity what would be best for children and take action to make it happen.

A legacy of laws that, courts find, promise kids nothing says pretty much the same thing.

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