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Russo: The Vergara Effect

Don't wait for a lawsuit before making things better in your district.

A California judge’s decision in favor of a group of students against the state’s teaching-job protections has set the education world on fire. Some are already calling it the Brown v. Board of Education decision of the 21st century—and its effects could spread to other states this fall.

While legislators and advocates fight it out at the statehouse level and in the press, the key task for educators is to decide whether to hunker down and keep doing what they’re already doing—a time-tested approach to change that is sometimes the wisest course—or take a hard look at what’s really possible under current law, start talking to counterparts about improving things in their districts in the short term and perhaps avoid the necessity of a wave of Vergara-like lawsuits in the first place.

What is to be done?
The Vergara decision itself is almost certain to be appealed, and it may be many years before its effects are felt in California classrooms. In the meantime, action (legal and otherwise) seems likely to spread to other states. Dozens have equity clauses in their state constitutions. Two different Vergara-like lawsuits have already been filed in New York. The nonprofit behind the Vergara case, Students Matter, was recently in Washington, D.C., briefing congressional staffers and members.

In the end, it’s likely that only a handful of these suits will go forward, and only a subset of those will prevail. Each state’s law is a little different, and practices on the ground can vary even more. But that doesn’t mean that educators and state legislatures have to sit on their hands waiting for legal papers to be filed.

Some states are already taking action. Indeed, the California legislature passed a much-delayed law speeding up the removal of teachers who have been accused of egregious behavior, such as sexual molestation.

And there’s no reason that states, districts, and even schools should have to wait to make things better. The current law often has more wiggle room than is commonly understood. Contract renegotiations and new state regulations can always be adopted, without anyone having to resort to lawsuits.

Nobody knows exactly how a seniority-free layoff process would work, or whether delaying or limiting tenure protections would have any ameliorative effects. Reasonable people can disagree over the impact of limiting tenure and seniority rights. The broader problem isn’t really tenure or LIFO, but rather teacher assignment and selection policies that often lead to the clustering of the most effective (and usually most expensive) teachers in the area’s higher-performing schools. And, of course, educators can do only what is allowed to address perceived flaws in current law.

But remember that, whatever you may think about tenure, seniority, or school reform in general, any debate set up as a conflict between teachers/unions and kids is bound to go for the kids. Or, as Washington, D.C., policy wonk Andy Smarick put it recently, “The most important outcome of Vergara wasn’t the ruling; it was the spectacle of the trial. The plaintiffs assembled a devastating case, detailing how state law conspired against disadvantaged kids. District superintendents explained the injurious influence of these policies.”

The reform-minded TNTP (formerly the New Teacher Project) recommends a four-year probationary period, streamlining due process with job performance, and lowering the stakes for teachers who are removed for poor performance. Make seniority a tiebreaker in layoff situations, not a prime determinant.

If and when a Vergara-type lawsuit comes to your state, you don’t want to be one of the districts held up as a negative example in the courtroom—as happened to several California districts during the Vergara proceedings. Or, if you are, you want it to be clear that you were doing what was required and that there was no wiggle room that would have allowed you to do better. 

—Back to School 2014—

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