I used to teach in a Los Angeles Unified school, so the
Vergara court case about teacher tenure is not just an abstract legal decision to me. It’s personal. That’s why I joined some 80 other observers in a courtroom last week for the hour-long Vergara appellate hearing. I’ve learned from and worked alongside outstanding educators in Los Angeles. And I’ve also witnessed what happens when some of the most vulnerable students in the district are taught by tenured teachers who do the absolute minimum to get by. In fact, a tenured teacher in the classroom next door to mine showed her students the movie “The Lion King” in every single period. She taught sixth-grade English; when her former students came to me for seventh-grade English, I was supposed to teach them how to write persuasive essays, but they didn’t yet know how to write paragraphs. “She didn’t teach it to us,” they told me.
Denying Students the Right to Quality Education
As most of us education nerds know by now, Vergara focuses on the personnel laws that govern California’s teacher tenure, layoff and dismissal policies. Last year, the
trial court found that these laws all violate California’s equal protection clause and also deny students their fundamental right to education because the laws, as they’re applied, result in the state’s low-income African-American and Latino students having many more low-performing teachers than their peers in wealthier, whiter schools. Our gathering of courtroom observers were clearly mixed in their views of the case. Personally, I hope that the Court of Appeals upholds the decision because I know that every student in my city deserves a good teacher, and I’ve seen the ways in which these laws make it hard for our most inspired and effective teachers to stay in the schools where they are needed most. The schools serving the most advantaged students can cream the best teachers in the system simply because of demand and low turnover. Conversely, the most challenged schools serving high populations of low-income black and brown children struggle with the instability of constant turnover. This forces principals to lay off teachers based on seniority rather than skills and makes it extraordinarily difficult to push out teachers who have given up on their students and their profession. Regardless of where you stand on the issue, the hearing provided some fascinating insights into the nuance of these laws.
The Inevitability of Low-Performing Teachers
There was one interaction about halfway through the hearing that brought me and most of the 80 people in the courtroom to attention. This was the point at which Associate Justice Brian M. Hoffstat, one of three justices hearing the case, interrupted attorney
Theodore J. Boutrous (representing Beatrice Vergara, et al.) to ask whether the teacher personnel laws in question “inevitably” lead to low-income black and Latino students having a disproportionately large share of low-performing teachers. As Boutrous had pointed out, having a series of low-performing teachers ultimately affects students’
entire life trajectory, including their likelihood of becoming pregnant as teens and their earning potential. So, to the question of inevitability—do California’s layoff, tenure and dismissal laws inevitably create inequity for students? Boutrous, with impressive agility, danced around this question for a while and eventually offered up evidence of a Los Angeles Unified School District (LAUSD) human resources officer who was
unable to dismiss hundreds of ineffective teachers because of California’s teacher tenure and dismissal statutes. Where Boutrous may have circumvented the question of inevitability, the California Teachers’ Association (CTA) attorney Michael Rubin answered it directly, stating multiple times that the laws in question do
not make it inevitable that low-income African-American and Latino students are placed with lower-performing teachers. In fact, he argued, it is local school district policies, not the statutes, that have created an inequitable distribution of teachers.
Doesn’t Mean It Doesn’t Violate the Constitution
Will the Court of Appeals ultimately require that
LIFO, tenure and dismissal laws
inevitably harm black and Latino students in order to find the laws unconstitutional? If so, this is a pretty high bar. California is home to nearly 1,000 school districts, and it’s likely that a bunch of those districts don’t have inequitable distribution of teachers because they are so small that all students attend the same elementary, middle and high schools. And maybe some districts are so vigilant about placing and retaining great teachers in high-needs schools that their best teachers are distributed evenly among students of all socioeconomic statuses. So, perhaps it’s not
inevitable that these statutes disparately impact low-income students of color. But just because these statues don’t create conditions that violate the constitution in
every district in the state doesn’t mean that they don’t violate the constitution. In
Serrano v. Priest (1976), for example, the California Supreme Court held that the state’s public school financing system violated the Equal Protection Clause in that it allowed educational opportunities to “vary” in substantial and unjustified ways. According to this logic, even if inequitable distribution of teachers isn’t inevitable for all California districts, enough inequitable distribution within and among districts may be sufficient for the Appellate Court in Vergara to uphold the lower court’s findings. It’s time for a change here in California. As Boutrous stated toward the end of his argument, the legislature “isn’t going to do anything” to create that change. And as a former teacher who is committed to creating more equitable schools, I want the Appellate Court to uphold the lower court’s findings because I want every single seventh-grader in my city to be able to write not just paragraphs but entire essays full of their own brilliant ideas, dreams and opinions.
Halli Bayer is an attorney and former middle school English teacher. Since she left the classroom, she has been working in public education law, policy and funding. Halli lives in Los Angeles, California.