Court Overturn’s LAUSD’s Seniority Exemption

United Teachers of Los Angeles (UTLA) has won a small victory in its fight to preserve seniority rights at Los Angeles Unified (LAUSD), according to the 4LAKids Blog.

In February, 2010, in Reed vs. California, lawyers argued that low performing, low income schools were unfairly impacted by layoffs since they tend to have higher percentages of younger teachers who lack seniority and that this violated students’ constitutional right to educational equity. Judges ruled in the plaintiffs’ favor, paving the way for LAUSD to exempt 45 schools from seniority rules, even though this violated state law and teachers’ contracts.

UTLA sued to overturn the ruling and the California 2nd District Court of Appeal has now invalidated LAUSD's exemption. In the 2 to 1 decision, the justices said that UTLA has the right to a trial where they can argue the merits of their case. The ACLU, which supported the Reed lawsuit, is planning on appealing the case to the state supreme court. Until the Supreme Court takes action on the case, the 2^nd District Court’s ruling will stand.  

The recent ruling did not address the ACLU’s or Reed’s argument that seniority violated students’ constitutional rights, focusing instead on the fact that the Reed ruling violated existing state law on seniority rights during layoffs.

The argument that students’ constitutional rights are violated by seniority is absurd on several levels. First, the reason those schools are low performing is because they have high percentages of lower income students. Their teachers are not the cause of their poverty or their low test scores and even the best teachers cannot make every poor student successful in school. Educational equity is impossible without economic equity and if the ACLU and parent backers of the Reed lawsuit really care about educational equity for poor children, they should be looking for strategies that reduce economic inequity, not attacking teachers’ unions and labor protections for working people.

Nevertheless, it is reasonable to assume that the best teachers should be able to help some lower income students succeed academically and that they would be more effective than the worst teachers. However, there is no reason to assume that younger, less experienced teachers are necessarily more effective than their more senior colleagues. On the contrary, experienced teachers ought to be more effective, on average. Thus, protecting their jobs during layoffs is in children’s interests.

While it is true that lower income schools have larger numbers of inexperienced teachers, it is not necessarily true that protecting their jobs is the best way to maintain continuity for their students. Obviously, high teacher turnover is disruptive to academic programs and can be stressful for children. However, younger teachers have a much higher attrition rate than experienced teachers, even when layoffs aren’t occurring. Thus, lower income schools suffer higher turnover rates and personnel disruptions than affluent schools, regardless of seniority rules. The solution to this problem is not to undermine teachers’ binding contracts or to do away with seniority protections, but to provide more support for beginning teachers, so they are better able to cope with the challenges and frustrations of the teaching profession.

Abolishing or curtailing seniority does nothing to change the teacher demographics at low performing schools, especially if the protected novice teachers still leave the profession within 3-5 years. Rather, reformers ought to look at why these schools tend to have such high levels of novice teachers and seek remedies to these problems. Many experienced teachers, for example, have worked in such schools, but got burned out from all the extra demands placed on them by administrators and politicians to fix problems that were out of their control. Others saw the writing on the wall and decided to transfer to more affluent schools before their evaluations, tenure or pay started to be negatively affected by low student test scores. Some simply got emotionally drained from years of working with so many students who were hungry, sick, depressed or lacking in the prerequisite skills necessary for the classes they were in.

The Apartheid-like nature of most urban school districts ensures that there will be affluent schools with a majority of students who do well on standardized exams and who are socially and academically ready for the classes in which they are placed and others within the same district with a majority of lower income students, with lower graduation rates and test scores. This, along with inadequate funding and the persistence of the wealth gap are the real educational equity issues.

New Astroturf Group Calls Tenure, Seniority Unconstitutional

Huck/Konopacki Labor Cartoons

A right-wing astroturf group, Students Matter, has escalated the war on California’s teachers with a lawsuit seeking to overturn five state laws related to teacher tenure, seniority and the dismissal process.

The law suit, which was filed on May 14 in Los Angeles County Superior Court on behalf of eight students, argued that "A handful of outdated laws passed by the California Legislature are preventing school administrators from maintaining or improving the quality of our public educational system," the Los Angeles Times wrote this week.

The suit is full of logical inconsistencies. For example, it argues that teachers can earn tenure too easily (in two years), well before their actual skill in the classroom can be determined. If successful, this would make it much harder for teachers to earn tenure and the right not to be fired without cause. Yet at the same time the suit aims to abolish seniority rules that protect experienced veteran teachers (i.e., those who have demonstrated skill in the classroom) during layoffs. This would make it much easier to fire veteran teachers with a proven track record, exactly the teachers districts should want to protect assuming they were really interested in providing the best teachers possible for students.

The suit cynically claims to be fighting for the rights of low income students under the equal protection provisions of the California Constitution. It argues that the current law protects ineffective teachers and “creates arbitrary and unjustifiable inequality among students,” according to Thoughts on Public Education. In short, the suit is saying that tenure, seniority and due process violate the state’s constitution, a claim that would be laughable if there wasn’t a powerful national movement behind it.

While it is true that low income schools tend to have higher percentages of younger teachers, it is not because of seniority, tenure and due process. Rather, these are the toughest schools to teach at and require teachers to work much harder than at more affluent schools, but for the same pay. In districts like LAUSD, where student test score data are used to evaluate teachers and where teachers’ Value Added (VAM) scores are publicly posted, there is a significant disincentive to teach at these schools.

One should also question why we have an Apartheid system in which some schools are filled predominantly with low-income students, while others within the same district (and sometimes only a few miles away) are predominantly affluent. Likewise, California continues to have among the lowest per pupil rates of K-12 funding in the nation. These are the real stories of educational inequality and they have nothing at all to do with the teachers or their job protections.

In reality, abolishing tenure, seniority and due process rights has nothing to do with protecting children or making their schools better. It is really about three things: union-busting, increasing administrators’ power, and cutting salary costs so they can be reallocated to other things, like administrators’ salaries or irrational and unproven reform efforts.

The lawsuit would provide administrators with much greater flexibility in getting rid of higher paid veteran teachers, as wells as union activists and vocal advocates for student and teacher rights. By stacking schools with rookies and novices who must keep their mouths shut and suck up to their bosses longer in order to avoid being laid off, administrators can more easily push through “reforms” like increased class sizes and teacher evaluations based on student test scores and student surveys that are detrimental (see here, here and here) to both students and teachers.

This suit could have monumentally negative consequences for students and schools. Making it easier to get rid of experienced teachers could result in a large influx of novices who not only lack the experience to teach well, but who also have a much higher attrition rate than veteran teachers, thus increasing the turnover of teaching staffs. It could also accelerate the exodus of experienced teachers from teaching to other professions. And while it could save schools money by allowing them to replace relatively expensive veterans with much cheaper rookies, it would hurt K-12 education in the long run through its tacit acceptance of educational defunding by the state.

Students Matter, which is a relative newcomer to the teacher bashing game, was founded by Silicon Valley entrepreneur David Welch and, not surprisingly, has received much of its funding from Ed Deform Czar Eli Broad. Its advisory committee includes Students First, Michelle Rhee’s fake student advocacy group; teacher-bashing former state senator Gloria Romeo; and the Parent Trigger charter school front group, Parent Revolution.

The Thoughts on Public Education (Toped) blog says that California’s dismissal law can cost hundreds of thousands of dollars per teacher to fire a teacher for unsatisfactory performance, thus compelling districts to find workarounds, like shunting teachers from school to school [or filing trumped up disciplinary charges against the teacher].

This really misses the point. If a teacher is truly doing a bad job of teaching, but really wants to continue teaching, he should be provided professional development, mentoring and other support at the district’s expense. This would be far cheaper than going through the 10-step dismissal process and all the accompanying legal costs.

It also glosses over the important question of what really constitutes bad teaching and how is this being assessed? In my 15 years of teaching I have seen very few truly rotten teachers and only a handful of mediocre ones. This may be coincidental; however, I think the whole bad teacher hysteria is really a red herring, something intended to rally the public to support union-busting in the guise of children’s innocence and safety.

Indeed, Toped notes that while the suit claims 8 students suffered because of ineffective teachers, it did not cite any evidence of any specific teachers having a negative impact on the plaintiffs. Rather, if focused on research by the National Council On Teacher Quality and Eric Hanushek. The latter concluded that by dismissing the weakest 6-10% of teachers, students’ academic success and earnings as adults would increase.

“Weakest,” however, does not necessarily mean bad, inadequate or worthy of throwing into the unemployment line. As in any profession there is a spectrum of different skill levels and this is not necessarily detrimental. For example, I may not be able to see the same physician who treats the 49ers, but that doesn’t mean my orthopedist is doing a bad job or should be banned from practicing.

Furthermore, there is no accurate method for determining who the weakest 10% of teachers are. Even if there was such a method, we could find that 100% of teachers were effective, but there would still be a bottom 10% who would be fired just to fill Hanushek’s quota and mollify the Ed Deform wolves.

Evaluation Reform Means Big Profits (Big Surprise?)

The Ed Deformers have been attacking teachers and public education from numerous fronts (e.g., charter schools, vouchers, LIFO, VAM, etc.). While they claim that their intentions are to improve educational outcomes for students, each of these “reforms” allows entrepreneurs to transfer tax dollars into their pockets. NCLB, for example, has given away billions of dollars to textbook and test publishers, and billions more to Supplemental Educational Service providers. Both NCLB and Obama’s Race to the Top (RTTT) have accelerated the growth of private charter schools and for-profit Educational Management Organizations (EMOs), worth billions more in taxpayer dollars, while Common Core Standards (CCS) has been driven by publishers, who have reaped millions of dollars by forcing states to purchase new textbooks.

One of their latest targets of “reform” is the teacher evaluation system, which critics cite as one of the biggest causes of low student achievement. If school districts are culling less than 5% of their teachers each year, they argue, then certainly there must be a lot of lousy teachers slipping through the cracks to molest, torment, ignore or otherwise harm children. The Gates Foundation and the United Way just came out with an extensive study on how to improve LAUSD, placing evaluation reform at the top of their agenda (see Destroying Education Teacher by Teacher).

While there is no logical reason to assume that low dismissal rates mean that our schools overrun with bad teachers (it could be evidence that the vast majority of teachers are actually quite competent), these statistics have been used to whip up hysteria about our children’s safety and well-being. Allowing even one bad teacher to remain in the system becomes tantamount to child abuse, in the propaganda of the deformers, thus justifying a complete overhaul of the system and (though never mentioned publicly) a further opening of the Public Education Market.  Education Week's Stephen Sawchuk has called it a “Teacher-effectiveness industry,” but it is really just another angle in the corporate race to loot public education tax dollars.

In one example, Sawchuk cites an Atlanta Journal-Constitution story reporting that Georgia plans to spend $758,000 on outside experts to develop a teacher evaluation plan, provide training to teachers and administrators and perform follow-up surveys. The Georgia plan also includes a merit pay scheme based on student test scores.

Both the revamping of Georgia’s evaluation system and the merit pay scheme are part of the deal that brought the state $400 million in RTTT funds. Like most states that have joined the Race to the Trough, the “reforms” required to win RTTT funds cost far more than the federal grants they could or did win (though, in this case, the money for the evaluation reform contract is coming from the feds and is on top of their RTTT grant). While these economics might seem idiotic considering that the “reforms” have little or no benefit to students and that states already have huge deficits and cannot afford to spend frivolously, they make perfect business sense (i.e., the role of the state is to create a favorable business climate and help maximize profits).

Who Are The Real Bullies and Molesters?

In addition to the direct benefits to big business in the form of lucrative contracts and access to state and federal tax dollars, there is an indirect benefit to business in the form of weakening the unions and job security of teachers. Evaluation “reform” is really a Trojan horse for attacking tenure, seniority, compensation and due process rights for teachers, making it easier to fire them for reasons that have nothing to do with their skill or student well-being. For example, in Michigan, Gov. Rick Snyder wants to extend the probationary period for teachers from four years (already one of the highest in the nation) to five years, and they must be rated “effective” for three consecutive years, making it harder for them to earn tenure and job security (see Dave Murray’s piece in the Grand Rapids Press). Furthermore, even tenured teachers would have to be evaluated yearly (in many states, tenured teachers are evaluated every other year).

During the probationary period, teachers can be fired for any reason, even in order to replace a fifth-year probationary teacher with a first-year probationary teacher to save money, since the fifth-year teacher earns a higher salary. Furthermore, the longer the probationary period, the more power a district has to stifle dissent and weaken the union. Probationary teachers are much less likely to advocate for themselves (or their students) because they fear that drawing any attention to themselves (or ruffling any administrators’ feathers) might get them canned. For the same reason, probationary teachers tend to be much less active in their unions.

Even the best evaluation systems are subject to abuse. With the possible exception of a “double blind” process utilizing well-trained outside evaluators with no connections to the school district or any for-profit business, administrators can generally find a way to game the system in order to make a teacher look bad if they want to. When one considers the seemingly infinite amount of safety regulations, bureaucratic paperwork, bookkeeping, school policies and other responsibilities teachers must follow in addition to maintaining classroom discipline, teaching content, testing, communicating with parents and collaborating with peers, it is unlikely that there is a single teacher who is not guilty of some oversights each year.

Evaluation Reform Drives Down Wages Across the Economy

Evaluation “reform,” particularly when tied to tenure, promotion, and compensation, will most likely cause average teacher compensation to decline and make teaching a much less desirable job. While this does not have any direct benefit to business, it indirectly benefits business by bringing down all wages in the region and increasing the labor pool. Bosses compete with each other for employees and in some cases are forced to offer higher wages and benefits in order to attract them. When wages and benefits decline in one sector of the economy, it means that bosses in other sectors can offer jobs at lower wages and with worse benefits and still attract job candidates. With persistently high unemployment rates, this dynamic is exacerbated, as unemployed workers become more willing to accept lower pay and benefits, and employed workers accept less job security in exchange for promises of reduced layoffs and furloughs.

Is Real Reform Possible?

If the goal truly is to improve the quality of teaching, it is essential that the evaluation process be free of bias. This is not to say that all administrators are corrupt or self-serving (though there are plenty who do abuse the evaluation process to get rid of teachers they do not like for reasons unrelated to their skill). However, even those with good intent are still subject to the bias inherent in having a boss evaluate his or her own employees. Keep in mind that there are likely some mediocre or bad teachers who are protected by administrators, too, and many competent teachers who could benefit from meaningful evaluations and feedback to help them grow professionally.

If the goal truly is to improve educational outcomes, the evaluation reform debate must be reframed with an emphasis on the attraction, development and retention of good teachers, in contrast to the punitive approach that assumes incompetency and strives for elimination. Such a system would necessarily require a huge investment, not only to hire objective outsider evaluators to eliminate the bias inherent in administrator-based evaluations, but to fund more professional development designed to assist struggling teachers and help competent ones continue to grow. Over the past decade, the exact opposite has happened with respect to professional development, with states supporting fewer professional development days and workshops for teachers.

Any good evaluation system must focus entirely on what teachers are doing, and leave student performance and growth out of the picture. While this might seem counterintuitive, the vast majority of student achievement and growth (some say as much as 90%) is based on factors outside the classroom (particularly the students’ familial wealth). An evaluation system that includes student performance is therefore biased and will result in many false positives and negatives, which is not only unfair to the good teachers who get fired, but students who get stuck with the false positives. Furthermore, it will cause a mass exodus of veteran teachers from the lower income schools where they are most needed. Likewise, any system that ties pay to student performance will result in an abandonment of best teaching practices in favor of teaching to the test and rote test prep.

In California, the existing evaluation process is theoretically sound. There are very good state standards for the teaching profession. Any teacher who meets all these standards is most likely quite competent at their job. The problem is that administrators do not have the time to adequately observe teachers and assess them, they lack the training to do it well and, as mentioned before, they are not objective evaluators. Rather than pissing away a lot more money on private consultants to rework the standards or devise merit pay and value added schemes, the state would do well to leave the system intact, but invest in nonpartisan evaluators with the time and objectivity to do the job well, and professional development opportunities to encourage ongoing professional growth.