Teacher Tenure Lawsuits Spread From California To New York

Jul 28, 2014
Originally published on July 28, 2014 7:40 pm

Why are so many low-income and minority kids getting second-class educations in the U.S.?

That question is at the center of the heated debate about teacher tenure. In New York today, a group of parents and advocates, led by former CNN and NBC anchor Campbell Brown, filed a suit challenging state laws that govern when teachers can be given tenure and how they can be fired once they have it.

As WNYC reported, Brown announced the suit on the steps of City Hall:

"I am so inspired by what these people are doing," Brown said, tearing up during her brief appearance at the press conference. "This is not going to be easy and they are so incredibly brave to be taking this on."

Some of the named plaintiffs also appeared:

Bronx resident Angeles Barragan said her daughter fell behind due to an incompetent teacher who didn't assign homework and didn't help her child learn to read. Now Natalie is repeating second grade at Kings College School P.S. 94.

"What I'm looking for is changes. I'm not looking for them to get rid of anybody," Barragan said in Spanish. "I'm looking for changes so that teachers in classrooms really want to teach children."

The suit is the second of its kind in New York. The first, filed earlier this month, comes from a group calling itself the New York City Parents Union. Both arrive on the heels of last month's ruling in Vergara v. California. There, a Los Angeles Superior Court judge found similar state laws unconstitutional, ruling that tenure rules disproportionately saddle poor and minority students with "grossly ineffective" teachers, a violation of the right to equality of education spelled out in California's constitution.

The Vergara ruling has been stayed pending an appeal, but critics of teacher tenure laws clearly consider it a promising template for potential battles across the country. New York is the second major front in that fight.

Out With 'Last In, First Out'?

Michelle Rhee and her group, StudentsFirst, are a major force behind these tenure law challenges. After resigning under a cloud of controversy as Washington, D.C.'s schools chancellor, Rhee embarked on a national campaign to target teacher tenure and seniority laws.

"There are states and jurisdictions in which the dismissal process is way too time-consuming and cumbersome, making it impossible for teachers to be fired," Rhee says. "And so, when we have nonsensical laws that give people a job for life regardless of performance, we should remove those policies or fix them."

The criticisms of tenure rules in both the Vergara case and today's New York lawsuit come in roughly three buckets. First, critics say that teachers receive tenure too quickly, before their performance can be evaluated reliably or tied to students' test scores. In California for example, teachers can be given tenure after just 18 months on the job. Second, they argue that rigid "last-in, first-out" seniority rules mean that younger teachers are dismissed before older teachers regardless of effectiveness. And third, they say, firing low-performing teachers is just too difficult and involves too much red tape.

Dennis Van Roekel, the outgoing president of the National Education Association, says groups like Rhee's simply want to go after unions. Partnership for Educational Justice, the group that filed the New York suit, is headed by Brown, who's been an outspoken critic of teachers unions on several fronts. Her husband sits on the board of Rhee's StudentsFirstNY chapter. Among Brown's advisors is David Welch, a telecommunications billionaire who also funded the Vergara lawsuit.

This anti-tenure activism "has nothing to do with students," Van Roekel says. At the same time, he concedes that unions are not opposed to streamlining the dismissal process for ineffective teachers or, for that matter, lengthening time to tenure. California's tenure process is unusually short, at just a year and a half; a three-year probationary period, the rule in New York State, or even five years is more common.

The California teachers NPR Ed talked to last month agreed that teacher protections are important but that it should also be easier to get rid of lower-performing colleagues. "Working with a bad teacher is an embarrassment," said Alan Warhaftig, a 25-year veteran of Los Angeles Public Schools. "You feel bad for their students."

'The Losers Are The Students'

Kevin Welner of the National Education Policy Center hasn't taken a position in the tenure fight, but he sees a problem with focusing on tenure and seniority laws in the quest to improve schools. Namely, it takes the focus away from everything else.

"It doesn't focus on attracting stronger teachers, it doesn't focus on developing stronger teachers," Welner says.

Other researchers have found that the main reason strong teachers leave low-performing schools is because of working conditions, including discipline problems and reduced opportunities for professional development. Making matters worse, compared to data from 2000, more students now attend schools with high concentrations of poverty.

If there is a silver lining, Welner says, it's that these suits are putting a magnifying glass to the nation's highest-poverty schools, and that could expose plenty of unjust policies that need addressing.

But the courts are a slow, tortuous path to change. The New York lawsuit is likely to take years, while the California decision is being appealed. Welner questions whether the courts are up to the task of, as he puts it, "mucking around" with complex, contentious educational policies and practices. Still, he says, asking the courts to play that role is "preferable to generation after generation of kids being denied basic equality of educational opportunities."

Rhee's group, meanwhile, is considering additional suits in Minnesota, Connecticut, New Jersey and Tennessee.

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CLAUDIO SANCHEZ, BYLINE: And I'm Claudio Sanchez in Washington. There's a good reason critics of teacher tenure laws view the Vergara ruling and now this New York lawsuit as a promising template for still more court battles.

KEVIN WELNER: Saying, well we should be able to fire teachers who are bad, of course we can agree on that.

SANCHEZ: To be clear Kevin Welner is not a critic of tenure laws. As director of the National Education Policy Center he hasn't taken a position and sees merit in both sides of the debate.

WELNER: I think there are probably also strong very strong arguments to be made that they should remain unchanged. I mean these job perfections were put in place to avoid other problems related to arbitrary firings and corrupt and nepotistic employment practices and they still serve that purpose to some extent.

SANCHEZ: Up to a point says Michelle Rhee, founder of Students First.

MICHELLE RHEE: There are states and jurisdictions in which the dismissal process is way too time-consuming and cumbersome essentially making it impossible for those teachers to be fired. And so when we have nonsensical laws that give people essentially a job for life, regardless of performance we should remove those policies or fix them.

SANCHEZ: After resigning under a cloud of controversy as Washington D.C.'s schools Chancellor, Rhee embarked on a national campaign. She and her group are targeting states whose constitutions explicitly guarantee every child the right to a quality education but are clearly falling short. Rhee could have used any number of problem areas to make her case, lopsided school funding, ability grouping, special education, but she settled on teacher tenure and seniority. Rhee's group supported the Vergara lawsuit in California and helped with this latest lawsuit in New York. Now she says it's time to take the fight to at least four other states. Minnesota, Connecticut, New Jersey and Tennessee.

VAN ROEKEL: She wants to go after unions. This has nothing to do with students.

SANCHEZ: Dennis Van Roekel is the outgoing president of the National Education Association.

ROEKEL: She has no evidence whatsoever that if you removed due process that that will somehow improve education.

RHEE: Nobody's arguing that we get rid of due process rights. What we're saying is lay offs should not be done by seniority (Unintelligibility) egregiously incompetent teachers, that the dismissal process should be process should be more streamlined.

SANCHEZ: Van Roekel insists unions are not opposed to straightening the time it takes to fire ineffective teachers or lengthening the time it takes to get tenure. Most states, 41 in fact, require anywhere from three to five years before a teacher is eligible for tenure. If anti-tenure groups don't think that's reasonable and want to challenge tenure laws in court, fine, says Van Roekel.

ROEKEL: But I'm going to fight like crazy to make sure that they also deal with equable funding, equitable learning conditions for all students because if they fail to address those issues, the losers are the students that we have in our schools today and tomorrow. And that is just wrong.

SANCHEZ: Legal experts say focusing on tenure and seniority laws alone does not get at lots of other problems. Again Kevin Welner.

WELNER: It doesn't focus on attracting smart teachers, it doesn't focus on developing smarter teachers, it doesn't focus on how to convince weaker teachers, who are not developing leave voluntarily. I mean most people don't leave jobs because they were fired, they leave jobs because they aren't successful at those jobs.

SANCHEZ: And Welner says Vergara like lawsuits could expose lots of other damaging policies that state courts could just as easily view as discriminatory. Again policies like ability grouping, which tracks low-income minority students into classes and programs that are nothing more than academic dumping grounds. So, maybe the silver lining in all this says Welner, is that state courts will be asked to scrutinize lots of questionable education policies and laws.

WELNER: Maybe it's time that we started moving in that direction. Asking the courts to play that role isn't ideal but it's probably preferable to generation after generation of kids being denied basic equality of educational opportunities.

SANCHEZ: The case in New York is likely to drag on. As for the Vergara ruling in California, teachers unions have appealed and Welner says only if the decision is upheld are we likely to see a sea change in teacher tenure and seniority laws. Claudio Sanchez NPR News. Transcript provided by NPR, Copyright NPR.