Supplemental: The New York Times bungles teacher tenure!

FRIDAY, JUNE 20, 2014

And the world keeps producing great kids: On Tuesday morning, we groaned when we read the New York Times letters page.

The first group of letters concerned the recent court decision about California’s teacher tenure laws.

It’s amazing how often this happens! The very first letter the Times chose to print seemed to misstate the ruling:
LETTER TO THE NEW YORK TIMES: Re “Judge Rejects Teacher Tenure” (front page, June 11):

Of all the muddle-headedness that passes for serious education policy these days, the least thought through is, to me, the idea that getting rid of teacher tenure will improve the education of public-school children.

Let’s say, as Judge Rolf M. Treu of Los Angeles Superior Court wrote in his decision about tenure, that many inner-city California schools are afflicted with bad teachers. This can best be explained by one of two reasons:

The first is that school administrators, the ones who grant tenure, can’t tell an incompetent teacher from a good one. How will handing more power to bad managers result in better decision-making and education?

The converse reason is that the administrators are good, but that the available teachers from which they have to choose is so poor that they must settle. In that case, how will jettisoning tenure—one of the few perks that teaching can offer that other professions available to highly qualified people can’t—do anything but further dilute the talent pool?
From that letter, a reader might think that Judge Treu ruled that the state of California has to “get rid of teacher tenure”—has to “jettison tenure.”

Treu didn’t issue that ruling. That said, it’s amazing how often the Times does this—highlights a letter which flatly misstates the basic facts of some matter.

But wait a minute, you might complain! What about the headline on that front page report? “Judge Rejects Teacher Tenure!”

Sad but true! On June 11, the Times ran a front-page news report which appeared beneath a version of that headline. Even worse, Jennifer Medina’s first paragraph may well have conveyed the impression that the judge ruled that “teacher tenure laws” violate California's state constitution as a general matter.

Here's the way that news report currently appears on-line. In our own hard-copy Times, that same headline appears right at the top of the front page:
MEDINA (6/11/14): Judge Rejects Teacher Tenure for California

A California judge ruled Tuesday that teacher tenure laws deprived students of their right to an education under the State Constitution and violated their civil rights. The decision hands teachers’ unions a major defeat in a landmark case, one that could radically alter how California teachers are hired and fired and prompt challenges to tenure laws in other states.
“Judge Rejects Teacher Tenure for California?” Doesn’t that headline, and that first paragraph, seem to say that teacher tenure has been ruled unconstitutional—full stop?

That isn’t what the judge ruled. But that seems to be what the letter writer thought he read in last Wednesday’s Times. Six days later, the Times rushed his mistaken letter to the top of the letters page. For our money, a few other letters in that batch jumbled the basic facts too.

The judge did not declare that teacher tenure is unconstitutional in California. He ruled that certain state laws are too extreme to pass constitutional muster.

His finding may be overturned on appeal. But not before our greatest newspaper has everyone confused!

This case, Vergara v. California, is named for two teen-aged plaintiffs, Beatriz Vergara, age 15, and her older sister, Elizabeth Vergara. The sisters are students at Cesar Chavez Learning Academy in Pacoima, a district in Los Angeles.

According to their testimony, the sisters both receive free lunch. They speak Spanish in the home.

They want to go to college.

In the 2000 census, about half the residents of Pacoima had been born in other countries. Eighty-six percent were Hispanic. Only 4.2 percent had four-year college degrees.

The Vergaras want to go to college. In their testimony, they describe the conduct of some of their teachers in the middle school grades.

We’ve watched their testimony on tape; we’re very glad we did. Our basic reaction was simple: “What have any of us ever done to deserve such beautiful, cheerful kids?” You might consider watching too.

The Vergara case is fascinating because of the way it’s been partisanized. For various reasons, we liberals are supposed to oppose the plaintiffs, who in this case happen to be beautiful, cheerful kids.

If you have a few minutes, you might consider watching their testimony. Next week, we’ll probably discuss some press reactions to this case. But that tape lets you marvel at the way the world just keeps producing beautiful, smiling kids.

We groaned when we read those letters this week. We were moved by what we saw from the next generation.

Baltimore’s full of great kids too. We see them every day of the week, but today we defer to Pacoima.


  1. This comment has been removed by the author.

  2. I'm sorry, but rejecting a tenure regime while not specifying an alternative is de facto rejection of tenure, no? The fuzzy non-rejection rejection suit this case isn't surprising, given the extremely fuzzy reasoning behind it; what percentage of grossly incapable teachers is not well defined (a number provided by an attorney isn't my standard of rigor), nor is the concept of gross incompetence. I'd say most people are reacting to the entire process, not simply the fact that the judge nullfied a contract without setting any sort of terms that would make a new contract acceptable.

    1. Separation of powers forbids the judge to specify an alternative.

      There was a trial to determine facts like the percentage of grossly incompetent teachers, which was set at 1% to 3% based on things like the number of teachers in the interminable dismissal pipeline.

      If a contract contravenes constitutional law, then it's null and void. Sorry.

    2. "Separation of powers forbids the judge to specify an alternative."

      Wrong. Courts issuing a ruling of unconstitutionality or non-compliance with a statute often give guidance as to the type of changes needed to satisfy requirements.

      The idea that a law that requires a district wishing to terminate experienced teachers who previously passed the test of competence to follow fundamental of fairness, including objective evidence that the charge of incompetence is valid -- that's what we mean by due process, and that's what tenure is -- is bizarre. Tenure laws in education have been around for a century or more, and for a lot of legitimate and important reasons. It only means that a firing must be "for cause," a type of clause that exists in every union contract. If the judge thought the application of the tenure law reached a level of unconstitutionality because the cause requirement had become impossible to meet, it was incumbent upon him to show how that had happened. It is either due to administrative incompetence or laziness -- unwillingness to take the time to collect evidence showing cause -- or overly stringent arbitrator interpretations. However, poor administration does not make the law unconstitutional.

      It also appears the judge looked only at the formal statistics of decisions reaching an arbitrator, without considering the many more cases of teachers charged with incompetence deciding not to fight it -- or deciding to quit because they are not good at it, or not receiving tenure in the first place.

    3. I'm sorry, urban legend, but in the Unites States, a judge may not specify the replacement to a law that he finds unconstitutional. That power is reserved for the legislature. Certainly, a judge may give guidance by specifying exactly what parts of the law are unconstitutional and how they err. But that's different from specifying the solution.

      In fact, the judge gives hints as to what he might find acceptable. He notes that other states have longer times before tenure is granted, that in other states, seniority is a factor in layoffs but not dispositive, and that the more efficient dismissal procedures for other state employees has been declared constitutional by California courts.

      But he can't change the two-year rule for tenure to four years.

    4. Sorry, deadrat, but guidance is not specifying a replacement, and it is perfectly consistent with separation of powers. Of course, the judge cannnot change the existing tenure rule. Actually, your second paragraph is exactly what I was talking about. Thanks for that. I skimmed the decision and while I saw those things said, it seemed elsewhere like there was a lot of ambiguity whether he was opening the door on those observations to improved statutes or was more definitively attacking tenure and seniority as inherently damaging.

    5. ul, I can't tell whether we're in violent agreement or not. My original comment was to Justin, who wondered whether the decision was tantamount to making tenure unconstitutional because the judge didn't specify a replacement.

      The answer is no, not least because the judge is not allowed to specify a replacement. @3:17P you tell me I'm wrong, and a day later you agree with me.

  3. Other countries have strong teacher's unions. Do they have tenure?

    Whatever the precise ruling in this case, any kind of judgement that incompetent teachers are the problem is likely to worsen the situation, leading to more efforts to cut teacher pay. Relatively poor teachers in underachieving schools are more likely a symptom than a cause.

    Judges are like other people - they follow the crowd. Expect more decisions further restricting teaching union power.

  4. Union protection of job security for people who perform poorly in their jobs is more important than making sure motivated kids have decent teachers that can qualify them to get into college. Liberal 101.

    1. As noted above, the percentage of teachers who perform poorly is unspecified. Unions protect ALL teachers, including the many who perform well, the kind those motivated kids need to get into college. That is Liberal 101, a course you obviously flunked.

    2. The union doesn't "protect" the job security of a teacher the school district wants to dismiss, it insists that due process be followed. If an administration does its job and gathers evidence of incompetence that justifies a dismissal, then there is nothing the union can do to stop it. Without due process, there is nothing to stop a completely arbitrary action.

      The judge says he's all down with due process, and then demonstrates he doesn't have a clue what it means.

    3. Anonymous @6:13P, the trial produced the percentage of grossly incompetent teachers at between 1% and 3%.

      urban legend, the judge ruled that the dismissal procedures were so onerous and expensive so as to preclude getting rid of anyone. He noted that other state employees work under more efficient procedures that the courts have ruled to provide adequate due process.

    4. If the % of incompetent teachers is 1-3%, then the likelihood of having two in a row is very small. If students had the same teacher every year, I could see the problem, but children have different teachers each year. How can they conclude that one year with a bad teacher ruins a child's life to such an extent. We all had good and bad teachers in school and we all survived the bad ones and learned from the good ones. I really don't understand this issue.

      Is there any evidence that the % of bad teachers is any different than the % of bad practitioners in other fields? If there is no difference how can it be concluded that union practices are protecting bad teachers from being fired?

      As someone who has taught, my experience is that the students themselves punish bad teachers to the point that they voluntarily leave the classroom. It is not fun to be ineffective in a classroom. There are much easier ways to make a living, especially given the low pay of today's teachers.

    5. Somerby has proven for a fact that having a bad parent for the first 18 months renders may get all future teachers off the hook.

    6. Kids by school age are not at a critical period in development the way they are in the first three years of life. Somerby hasn't proven anything -- he cites researchers who have studied this stuff. Further, he is talking about gaps between different groups of children, not what influences an individual child's success. Do you have anything substantive to say about that or are you just interested in knocking Somerby?

    7. Anonymous @10:47A,

      I haven't read the testimony, so I don't know the evidence presented to the court. But union practices are not at issue, and the Cal Teachers Assoc was not a defendant. They were intervenors, i.e., they asked to join the suit on the side of the defendant, the state.

    8. I don't know everywhere that 1% to 3% figure for incompetent teachers might come from but I did hear the same thing about it that Anonymous @ June 21 at 8:47am claims.

      Anonymous @ June 21, 2014 at 10:47am says:

      >>>>>If the % of incompetent teachers is 1-3%, then the likelihood of having two in a row is very small.<<<<<

      The article Somerby links to says:

      >>>>>...During her testimony, Beatriz testified about her experience with three ineffective teachers: her sixth-grade math teacher; her seventh-grade history teacher; and her seventh-grade science teacher....<<<<<

      The point to consider being that if you have several teachers at each grade level, it's much more likely that two years in row you might have a bad teacher than if you just had one teacher each year. Also, there might be a localized effect at a particular school that might cause a higher percentage of bad teachers to be at that one school than is found throughout the system.

    9. Good point.

  5. In nearly every argument that public school teachers should be at-will employees there are two constants. First, contrary to what is generally stated and believed, California teachers do not have tenure in the same way that college professors do. All they have is the right to keep their jobs unless they fail to meet their contractual duties. In other words, they cannot be fired for good reason, bad reason, or no reason at all (the standard for at-will employees). If they are bad teachers, they can be discharged. It just takes a competent administrator to make the record. Which leads to the second constant.

    Every person who argues that teachers should be at-will employees assumes the competence and good faith of every administrator. I can't imagine what that assumption is based on.

    1. College professors can be fired for a variety of things with tenure.

    2. JEP, the judge found that bad teachers are dischargeable only in theory. It's very unlikely that the law will be changed to make teachers at-will employees, and the judge even provided a comparison that reveals what he thinks is acceptable.

  6. "The judge did not declare that teacher tenure is unconstitutional in California. He ruled that certain state laws are too extreme to pass constitutional muster."

    As far as I can tell, the judge did rule that teacher tenure was unconstitutional. I am confused by this passage that says what I have read is not so.

    1. The judge ruled that there were five statutes that had the effect of violating the California constitution -- two that implemented tenure, three that set up the dismissal procedures for teachers, and one that mandates last-hired-first-cut.

      The effect was the retention of an unconscionable number of grossly incompetent teachers, 1%-3% of the body of California teachers. (Sounds low to me, but I left California decades ago.)

      The constitutional violations were two: the guarantees of equal protection and a quality education. The plaintiffs' cause of action rested on the first, namely that bad teachers were concentrated in schools in minority areas. But the judge ruled that even if the bad teachers were inflicted equally, that would still deny students their rights based on the second.

      I'm used to decisions that strike down laws based on their conflict with principle. When the Dover, PA school board decided to introduce IDiocy in the science curriculum, the judge ruled that IDiocy was religion and that violated the principle of separation. Utah just had its xenophobic anti-immigrant law overturned on the grounds that it violated the principle of federal preemption. Prop 8 got tossed on the grounds that it offended the principle of equal protection.

      I'd guess that when judges confront a bad result of a law's execution, they mostly don't overturn the law but issue an injunction against the executive to stop making a mess of things. I haven't taken a survey, though.

      In this case, the judge evidently felt that the statutes themselves were at fault, and that under them, even the best executive authority would end up retaining bad teachers. But the judge didn't strike down tenure and dismissal procedures on principle, so presumably tenure could pass constitutional muster were the time before granting tenure made longer, and protective dismissal procedures for teachers would likewise pass if they conformed to those for other state workers.

      Mandatory last-hired-first-cut (what the judge called LIFO, for Last-In-First-Out) is doomed if the judge is upheld on appeal. Since LIFO guarantees that bad senior teachers will stay to torment students while good junior teachers will be booted, the judge notes that the defendants were required "to defend the proposition that the state has a compelling interest* in the de facto separation of students from competent teachers, and a like interest in the de facto retention of incompetent ones."

      "The logic of this is unfathomable," he says.

      *Since the rights involved are constitutionally mandated, the law must be examined under strict scrutiny, which requires a compelling state interest for any discrimination.

    2. I really appreciate the detailed explanation. This really helps me understand the issues.

      Thank you so much.

    3. Credit where credit's due.

      [D]eadrat actually posted a reasoned response without indulging in unnecessary over-the-top pedantics and name-calling.

    4. Yeah, imagine that. The anti-tenure decision, an analysis of the law regarding 5013(c) organizations, a discussion of executive power and deadlines with regard to the ACA, equal protection law, a historical perspective on DOMA, patient explanations when we get TDH's seeming inability to understand physics. Just of few examples of the topics to which my pellucid prose has provided you insight.

      On the other hand, I also ridicule trolls. I'd like a little credit where that's due as well.

      Is that too much to ask, troll?

    5. I'd say his first comment was premature.

  7. Hard to take this seriously. The letters to the NYT I have read recently on this subject have been mostly excellent. Anyway, attacking letters to the editor is a fool's game. They edit letters mercilessly.(I assume you're talking the print edition here, btw. If not, you should have specified. The print edition remains the default "of record" version.)

    Mercilessly, esp. overly wordy ones. Bob must have experienced this.

    Bob's usual weird game. Having published a series of (wordy) analyses worthy of some attention, he veers the other direction. Mind games (in his mind? played on our minds? I've stopped caring).

  8. Some commenters cite the “statistic” that between 1 and 3 percent of California teachers are “incompetent” as though it somehow has meaning. It doesn’t. It’s made up; it’s a “guesstimate.” David Berliner was the source of that 1-3 percent guess, and he said later that “I pulled that out of the air...There’s no data on that.” Berliner added that “In hundreds of classrooms, I have never seen a ‘grossly ineffective’ teacher.”

    Judge Rolf True based his decision not only on the 1-3 percent “guesstimate,” but also on the assumption that student test scores determine teacher effectiveness. And that’s a very shaky assumption indeed.

    Judge Treu was first appointed to the California bench by former Republican governor Pete Wilson. Wilson is the prototypical “free” market conservative who subscribes to trickle-down economic nonsense. As governor Wilson pushed more standardized testing of students, his tough-on-crime policies led to Three Strikes legislation –– incredibly costly, with huge racial disparities, and resulting in stupidities and injustices like a life sentence for stealing golf clubs or a $2.50 pair of socks or 5 videotapes –– and he cut spending significantly on both infrastructure and public education.

    Presumably Wilson appointed people who shared his conservative ideology as judges.

    While serving on the bench, Treu has been characterized as being irascible and criticized for letting “his personal political agenda control his behavior and decisions” and for doing the entire “legal system an injustice.”

    In this particular case, the plaintiff’s attorney told Treu in closing arguments that “most teachers are talented, hard working, doing a good job.” But he also told Treu that “echoes” of Brown v. Board filled the room, and that “evidence demonstrates overwhelmingly” that ineffective teachers produce “education harm” and “deprive students of their rights to a good education."

    The “evidence” was mostly this. As Judge Treu wrote in his decision:

    “The evidence is compelling. Indeed it shocks the conscience. Based on a massive study Dr. Chetty testified that a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings.”

    The Chetty study cited by Treu is chock full of problems. It’s a correlational study that purports to show a direct causal link between mostly elementary grade teachers, their students’ test scores, and student lifetime earnings.

    On the face of it, it’s a flimsy allegation. Think about it a slightly different way. Does one year of “bad” coaching, or of faulty coaching decisions, bilk a team of young players out of a million-plus bucks in potential lifetime sports earnings? Highly doubtful.

    Rolf Treu cannot be said to be a “bright” man. That he bought lock, stock and barrel the Chetty correlations as “overwhelming” proof is testimony enough.

    This decision will eventually be overturned.

  9. These comments were especially helpful to me in understanding this important matter, and I am grateful.

  10. Eliminating LIFO is eliminating due process. A staff reductions is not a legitimate time to do a backdoor weed-out because it depends solely on an administrative determination without the teacher having any recourse. A termination for cause (of a teacher who was previously judged competent when given the right to due process) is the time to get rid of incompetent teachers who were mistakenly given tenure.

  11. They may be beautiful kids and their teachers may have been rotten. But the issue has been raised as to whether these teachers were actually tenured. Also that the schools these kids attended had the ability to remove teachers. Did anyone ask about the people supposedly supervising these teachers? We all know who is behind the case. I bet there are also beautiful children being used by terrorist networks as suicide bombers.

    1. You raise excellent questions, Ed. Yes, how did these teachers get to be "tenured" in the first place? Were they at one time excellent teachers who are now suffering from burn out? If so, that's a whole 'nother problem that removing job protections for classroom teachers won't solve.

      And bear in mind these protections were put in place to protect GOOD teachers from the whims of local politics, not to keep lousy teachers in their jobs. In how many schools would excellent science teachers get kicked to the curb for introducing their students to Darwin? Or the Big Bang? Or the fact that dinosaurs and humans did not co-exist?

      Or how many teachers get a pink slip for demanding too much out of Johnny, and Johnny's dad is the president of the school board?

      So let's say we can get rid of all the bad teachers in fairly short order. Now what? Is there a large pool of excellent, unemployed teachers who can take their place?

    2. Anon 10:01 - Ravitch blogged about the schools and teachers the kids attended. Here is an excerpt. (My name is Norm by the way). These beautiful kids were used by the ed deform anti-union crowd to do a hit job. The real hit should be on the utter incompetence of the teacher unions in making their case.
      I was curious to learn whether the plaintiffs in the Vergara trial actually had “grossly ineffective teachers.” The answer is “no, they did not.”

      Not only did none of them have a “grossly ineffective” teacher, but some of the plaintiffs attended schools where there are no tenured teachers. Two of the plaintiffs attend charter schools, where there is no tenure or seniority, and as you will read below, “Beatriz and Elizabeth Vergara both attend a “Pilot School” in LAUSD that is free to let teachers go at the end of the school year for any reason, including ineffectiveness.

      It turns out that the lawyers for the defense checked the records of the plaintiffs’ teachers, and this is what they found (filed as a post-trial brief in the case): (See pp. 5-6).

      “Plaintiffs have not established that the statutes have ever caused them any harm or are likely to do so in the future. None of the nine named Plaintiffs established that he or she was assigned to an allegedly grossly ineffective teacher, or that he or she faces any immediate risk of future harm, as a result of the challenged statutes. The record contains no evidence that Plaintiffs Elliott, Liss, Campbell or Martinez were ever assigned a grossly ineffective teacher at all. Of the remaining five Plaintiffs, most of the teachers whom they identified as “bad” or “grossly ineffective” were excellent teachers. Because none of the five Plaintiffs are reliable evaluators of teacher performance, their testimony about the remaining purportedly ineffective teachers should not be credited. Nor could Plaintiffs link their assignment to purportedly “bad” or “grossly ineffective” teachers to the challenged statutes. Not a single witness claimed that any of Plaintiffs’ teachers were granted permanent status because of the two-year probationary period, would have been dismissed in the absence of the dismissal statutes, or would have been laid off had reverse seniority not been a factor in layoffs. Indeed, Plaintiffs did not call any administrator of any of Plaintiffs’ schools to corroborate their testimony or in any way connect the teachers they identified to the statutes they challenge. Furthermore, any threat of future harm to Plaintiffs caused by the challenged statutes is purely speculative. Plaintiffs Elliott and DeBose are high school seniors who will almost certainly graduate in spring 2014. Plaintiffs Monterroza and Martinez both attend charter schools that are not subject to the challenged statutes at all. Beatriz and Elizabeth Vergara both attend a “Pilot School” in LAUSD that is free to let teachers go at the end of the school year for any reason, including ineffectiveness. As for the remaining three Plaintiffs, there is no concrete, specific evidence supporting any claim that they will be assigned to grossly ineffective teachers due to the challenged statutes; instead, their claims are based on pure speculation.”

      One of the plaintiffs (Monterroza) said that her teacher, Christine McLaughlin was a very bad teacher, but McLaughlin was Pasadena teacher of the year and has received many awards for excellent teaching (google her).

    3. Norm at ed notes online,

      Thanks especially for your June 23, 2014 at 11:31 AM comment. That post-trial brief Ravitch cites casts the merits of the suit in an entirely different light for me.

  12. I look forward to Somerby's future coverage. I hope he tells us how many online comments there were and provides a sample of bad ones.

  13. One point not mentioned in the debate is that LIFO (layoff of newly hired teachers first) prevents administrators from using staff reductions as a way to reduce aggregate teacher compensation. Teachers with long tenure typically earn more than newly-hired teachers. If a superintendent can fire anyone, surely the superintendent, in an effort to reduce personnel costs, would fire those teachers with the highest salaries. Thus teachers with seniority would be the most vulnerable to being dismissed if a school has budgetary constraints. That is what the LIFO rule prevents. It protects those teachers most likely to be fired regardless of their competence. Superintendents are not above such Machiavellian ploys as using a "staff reductions" as a way to remove more "costly" teachers if not for LIFO.

    By the way, speaking of education, did anyone notice that the the Judge used the word "paradigmatized?" Yes, he really did. For my money, the entire opinion is tainted by the Judge's efforts to appear intellectual.


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