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Why Vergara-Like Lawsuits Will Likely Fail (and Where They Might Succeed)

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Every once in a while the courts make a decision that is both surprisingly and profoundly important. The Vergara suit in California, challenging standard teacher personnel laws, was just such a case.

In August of 2014, a trial court in California ruled that the state's tenure, due process, and last-in-first-out provisions were unconstitutional, violating the state's equal protection provision. This sent shockwaves through the educational establishment, especially teachers and their unions. The appeal recently over-turned the original decision, but the final decision is sure to drag out and more such cases are emerging around the country.

This is a major national issue. Similar policies were put in place in most states almost a century ago, partly to prevent personnel decisions from being based on politics or questionable social conventions (would you believe that female teachers in decades past could be fired for getting married?). Directly and indirectly, they may also have the effect of detaching personnel decisions from actual performance and leading to more ineffective teachers in schools. The judge in the Vergara decision took this position, and took it a step further, accepting the plaintiff's argument that these policies place ineffective teachers disproportionately in schools serving disadvantaged students. Tom Kane, one of the witnesses for the Vergara plaintiffs, argues strongly for this in a recent article.  

I don't think the evidence is very strong, however. In fact, based on the evidence we have today, Vergara-like suits are likely to fail. It's simply too difficult to prove that these policies are inequitable.

To see why, note that the case requires establishing two main facts: #1 that disadvantaged students typically have worse teachers; and #2 that this inequity is caused by these personnel policies.

Fact #1 is indisputable. I would be surprised if the Vergara defense team could have found a credible expert to testify that disadvantaged students have teachers of the same quality as more advantaged students. Just about every study on the subject, using all types of measures of teacher performance, have come to the same conclusion. Of course, it's true that achievement gaps are caused mainly by poverty and family factors, but that's beside the point.

The real challenge is establishing Fact #2. There is just not clear evidence that tenure causes these inequities, as the appeal's court rightfully pointed out. The problem is the large number of other factors that may cause inequity in teacher quality:

  • Funding inequity. An earlier generation of lawsuits challenged the educational equity, not regarding tenure, but funding. While these lawsuits mostly succeeded and have reduced funding gaps between rich and poor districts, there are still substantial funding gaps in many states.
  • Union contracts. Though the Vergara-like cases pose a clear threat to teacher unions, they do not directly challenge union contracts--contracts that often have their own due process provisions and other rules affecting how teachers are assigned to schools. The fact that the union contracts have the same goals as tenure-related policies (namely, job security), it is hard to show that tenure itself is having a negative influence. Even if you could show that teacher job security and seniority-based rewards harmed educational equity, which itself would be hard, you couldn't necessarily attribute that to tenure.
  • Public employee civil service protections. Many states have tenure-like protections for all public employees. So, you could remove the personnel laws being challenged, but, as with unions, many of the same provisions would remain in place.
  • The teacher labor market. There are more, and more qualified, teachers interested in working in schools serving more advantaged students. Teachers also tend to work in schools like the ones they grew up in and the college graduates who can become teachers have more advantaged backgrounds. This situation in the labor market leads to vicious cycle, and one that has nothing to do with job protections and seniority rules.
  • Lack of teacher preparation. Teachers are generally not prepared to educate students who are far behind academically, have learning disabilities and mental health issues, and who act out and disrupt classes--all of which are consequences of growing up in poverty. Even though we should have the same aspirations for all students, some face more challenges for getting there and few teachers are prepared to meet those challenges.

In addition to these other factors increasing inequity, a plausible (though not probable) case can be made that this package of tenure and related policies actually reduces educational inequity. Job security which makes teaching more attractive to teachers who would be otherwise turned off by relatively low pay and difficult working conditions in schools serving disadvantaged students. In other words, job security is like a form of compensation and taking that away could make matters worse. The question is this: Are the harmful consequences of keeping some low-performing teachers larger than the positive influence of attracting teachers to the profession?

We really don't know. To find out, we would need to study what happens before and after these policies are removed (with a comparison group). But no such study exists. The center I direct, the Education Research Alliance for New Orleans (ERA-New Orleans), will be releasing a study by ERA-New Orleans' Nathan Barrett and Jane Lincove and USC's Katharine Strunk on the effects of essentially removing tenure in Louisiana. This and other forthcoming studies will provide some useful insight to help untangle the various forces in educational inequality.

Here is another twist--this time a legal one. In states that have constitutional language or legal precedent for "adequate" or "thorough and efficient" education, those seeking to reduce tenure protections may have a stronger case. The adequacy logic, as opposed to equity, means that any major barrier to provide a quality education for disadvantaged students could be deemed unconstitutional regardless of how that barrier affects other students. It is easier to show a negative impact on students in general than to show that this harm is worse for some groups over others.

My conclusion here is quite different from Tom Kane's. He writes that, because of these tenure and tenure-related policies, "ineffective teachers will accumulate in the lowest-income schools and the lowest-income districts. How? As has been well-documented, low-income schools and districts are at a disadvantage in the teacher labor market."

Though he doesn't quite come out and say it, I think Kane's intended argument is that the combination of tenure and related policies and the teacher labor market causes inequality. That is, tenure-related policies lead to more low-performing teachers in general and, because of the labor market, they end up in low-performing schools. That's not nearly as obvious as it might seem though. In addition to the fact that union contract provisions and public employee protections create some of the same pressures, schools serving low-income students tend to have more young and untenured teachers who lack the job protections at issue. In other words, low-income schools are better able to make personnel decisions based on performance already, making it less likely that the policies are disproportionately harming low-income students.

What does all this mean for students? That's the key question. Unfortunately, tenure opponents are likely to be disappointed here as well. If the goal is really to improve educational equity and excellence, the complexity of the reasons behind existing inequities probably also means that, even if they did scale back tenure and related policies, the effects would be smaller than they hoped for. In addition to making teaching less attractive, union contracts can and already often do, provide many similar protections. And even if we ignored that, there is evidence that principals are not inclined to even give teachers low ratings, let alone fire them. So, even if they do win these lawsuits, it's not clear that reducing tenure protections would change the way schools operate.

But there are at least three reasons for optimism. First, new evidence may shed more light on the issue and help us move forward in a way that really does help students. Second, the adequacy lawsuits of past decades, and desegregation before that, led some states to make pre-emptive legislative strikes to address problems before they went to court. In the wake of Brown v. Board, for example, districts tried to equalize funding in an effort to avoid desegregation and address inequities. In the case of tenure and related policies, the lawsuits will continue drawing attention to this issue, so perhaps even failed Vergara-like lawsuits will induce some over-due positive policy changes, especially in states and districts where those provisions most strongly detach personnel decisions from performance. Finally, the more vociferous challenges to these provisions may embolden school principals to take appropriate steps within existing legal frameworks.

The key message though is that educational inequity is a massive and complex problem. Changes in due process and other personnel policies might help solve it in some small way, but the long list of factors causing inequity highlights that it will take a lot more to even put a dent in this problem.


Douglas N. Harris is professor of economics, the Schleider Foundation Chair in Public Education, and founder and Director of the Education Research Alliance for New Orleans.

You can follow him on Twitter: https://twitter.com/douglasnharris

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