Nan Austin

Lawmakers, lawyers zero in on seniority-only job security

Two separate challenges to the supremacy of teacher seniority in California are moving forward this week. One is a legal pleading to reinstate the Vergara v. California lawsuit. The second is legislative reform that handily passed the state Assembly last year but hit resistance in the Senate.

With teachers already in short supply, California’s dedication to safeguarding those closest to retirement seems like a legal stand ripe for rethinking. Tax receipts have slowed in recent months, making the pecking order of layoffs more than a philosophical debate.

Consider: For this week’s college graduates, teaching offers a career path where the next 10 years of hard work and dedication will not matter one whit if school funding falters. They will be the first to go.

Californians are a diverse bunch, but we nearly all agree on this – seniority alone is a lousy way to pick the teachers who stay when class sizes have to rise. At least that was the opinion of 92 percent of statewide voters surveyed in a USC Dornsife/Los Angeles Times poll released in April 2015.

The Vergara trial ruling would have invalidated California’s so-called last-in, first-out teacher layoffs law, shorter tenure provision and long statutory delays to dismiss a teacher. Backing the plaintiffs is the nonprofit Students Matter. Defending the status quo are the state and teacher unions, the California Teachers Association and the California Federation of Teachers.

“Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience,” Superior Court Judge Rolf Treu wrote in his Sept. 16 decision overturning several sections of Education Code, including seniority-only layoffs.

The changes were put on hold for appeal, however. In April, the Court of Appeals flatly struck down Treu’s findings, saying the harm to children came from district staffing decisions, and without proving a causal link to teacher worker protections the court had no authority to act.

The plaintiffs’ petition for review, submitted to the California Supreme Court on Tuesday, takes issue with that. Its arguments lean heavily on the landmark Serrano v. Priest decisions handed down in 1974, 1976 and 1977, which found school funding dependent on real estate values (i.e. local property taxes) violated the equal protection clause and opined that “wealth-related disparities” were not permissible.

The Serrano ruling led to the state-based funding system that in the Central Valley in recent years returned school salaries to pre-recession highs and then some, while area cities have struggled to keep firefighters and police on the streets. But Serrano’s legal heft comes from its assertion that education in public schools is a fundamental interest or right.

Because disparities in education lead to unequal job opportunities, income and civic life, the Vergara brief says, “this Court has held that California courts ‘must unsympathetically examine any action of a public body which has the effect of depriving children of the opportunity to obtain an education.’ 

The Vergara attorneys argue by demanding proof the law itself – not any practices common to following it – caused the inequity, the appellate ruling raises the bar for showing inequitable outcomes so impossibly high it essentially invalidates the precedents laid down in the Serrano decisions.

The court has up to 90 days to decide if it will take the case. If it does, California Supreme Court civil cases take one to three years to be decided.

Responding to the petition, the state’s second largest teachers union, the California Federation of Teachers, released a statement.

“We are disappointed but not surprised that they are continuing to spend large sums of money on the suit and the PR campaign attached to it smearing teachers and public education,” it begins.

The statement ends, however, asking for action, in part to support teachers and provide teacher leadership opportunities – positions many who want movement on teacher worker laws have also advocated.

In a Venn diagram where one circle is those who want to slash seniority protections, and the other signifies unwavering loyalty to teacher rights, that small overlap in the center seems to be widening around the topic of greater support for new or struggling teachers.

Whether that also includes meaningful and timely evaluations with teeth, or be limited to giving training without review, will be tested by a legislative effort moving forward in Sacramento.

AB 934 by state Assemblywoman Susan Bonilla, D-Concord, is set for hearing in the state Senate Committee on Education. Her bill sailed through the Assembly with a bipartisan 74-6 vote a year ago – May 22, 2015 – but stalled in the Senate. The bill has been revised in the state Senate Committee on Education four times.

Students Matter has endorsed AB 934, as has Teach Plus, a nonprofit focused on teacher training and leadership.

“Assembly Bill 934 is unambiguously good for kids in California. The bill establishes a differentiated teacher evaluation rating system, and ensures that there are appropriate programs and mechanisms to support teachers.” said Mike Stryer, Teach Plus California senior executive director, in a statement Monday.

The bill provides for peer assistance and review for teachers, and peer mentors for principals and vice principals. It requires a two-year program to help teachers seen as unsatisfactory be designed with union buy-in.

As the bill reads now, teachers would be protected from dismissal for one year while in the program, but would do away with the delays based on when the decision comes within the school year, and the right to a court hearing over dismissal solely for unsatisfactory performance.

Existing law gives teachers automatic tenure if retained after two school years, regardless of performance. Under AB 934, the probationary period would extend to three years and give districts the option of a fourth probationary year with extra training and support.

Critical for layoffs, the bill makes teacher effectiveness count when considering who gets pink slips. Underscoring all of the above are genuine evaluations, not the pass-fail check off most districts use today where virtually everyone passes. If California wants to support teachers, telling them honestly where they are doing well and not so well seems foundational.

All this back and forth over the extra job protections afforded teachers, however, fails to consider the real reason most teachers become teachers, notes Ilesha Graham, Sacramento Valley Campus college chair for University of Phoenix College of Education.

“Most teachers are in this profession to make a difference,” Graham said in a phone interview following the release of a Harris poll conducted on behalf of the university and released May 2.

The online survey of 1,005 U.S. teachers found most are satisfied with their career choice and would recommend the profession to others.

Graham, a former principal in the large Elk Grove Unified School District, said she was encouraged by the positive read on teaching, especially given increasing signs more teachers are needed.

Nearly half of the California teachers responding said their school had at least one permanent position unfilled and their classes were larger to manage the gap. Other strategies Graham said she sees are districts using substitute teachers or teachers working outside their main area of expertise, for example a math teacher leading a science course.

“I don’t have specific data, just what I hear from districts. But from what I’m hearing, 100 percent of them need special education teachers,” she said. Districts are recruiting teachers from out of state and bringing back teachers who had left the field, all of whom need a waiver to teach until they have all their credentials in order.

“As we talk about filling the shortage, we should really consider those coming from other careers into teaching,” Graham said. “There’s a lot of positive benefit in teaching. I never left a day not challenged. Every day felt like I was really making a difference.”

Young idealists and veterans of less all-consuming professions may find teaching offers an outstanding outlet for their passions and commitment. But the profession needs to respect its newcomers and value them, even when times get tough.