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A California appeals court last week reversed a 2014 decision that declared state laws governing teacher hiring and firing violated students’ equal rights to a quality education.

Plaintiffs in the Vergara v. California case –nine students represented by high-profile attorneys – argued state laws made it too easy to hire and too difficult to dismiss a small but significant number of ineffective teachers who disproportionately ended up in impoverished schools.

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Last week’s decision vindicated teachers unions who saw the lawsuit as an attack on the tenure, layoff and dismissal policies they support.

In the reversal, a three-judge panel determined plaintiffs failed to show the statutes necessarily harmed students:

“Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.”

“I’m not going to mince words — we lost,” David Welch, founder of the group driving the lawsuit, said in response to the decision. “This is a sad day for every child struggling to get the quality education he or she deserves — and is guaranteed by our state constitution.”

Welch pledged to take the case to the California Supreme Court.

State superintendent of public instruction Tom Torlakson and the California Teachers Association applauded the ruling.

“Stripping teachers of their ability to stand up for their students and robbing school districts of the tools they need to make sound employment decisions was a wrong-headed scheme developed by people with no education expertise and the appellate court justices saw that,” CTA President Eric Heins said in a statement.

Vergara has become symbolic of public skepticism that teacher protections like tenure are good for kids. Groups in both Minnesota and New York have initiated similar efforts to challenge teacher protections.

Last year, a poll conducted by USC and the Los Angeles Times found the overwhelming majority of  respondents thought teachers receive tenure too quickly (after 18 months on the job) and that performance should matter more than seniority when teachers are laid off.

“The judges are saying things are not right in California, that there are drawbacks to the current system, but this is not something for the courts to decide,” Katharine Strunk, an associate professor of education at USC,  told the New York Times regarding the Vergara decision.

“I don’t think anyone believes that these laws are the best we can do.”

In other words, regardless of Vergara’s outcome, there’s broad consensus the system could be better.

But if making it easier to fire ineffective teachers wouldn’t necessarily improve teacher quality, what would?

One reader wonders if there’s a way to incentivize better teaching with better pay.

Question: Why are teachers’ unions unwilling to allow for a more pay-for-performance model of teacher evaluations, compensation, promotions, terminations, etc?  We should want to reward the best teachers with better compensation and benefits so as to attract top talent and motivate great results; and we should rid ourselves of underperforming and/or burnt out teachers.  — Jon Bellmonte, interested reader

In 2014, then-Congressional Candidate Carl DeMaio announced he’d lead a series of education town hall meetings in San Diego.

The Vergara decision had created a vacuum for teacher evaluation, DeMaio said, and he wanted to fill it with measurable performance standards developed by local school boards, teachers and parents. Based on those standards, school districts would reward exceptional teachers:

“I want parental involvement in how we evaluate our teachers. But the most important thing is that we need to make sure that the dollars go to our best teachers. Our best teachers that are actually making progress with our kids should receive whatever available monies we have for pay increases or bonuses,” DeMaio told KUSI.

Teachers unions typically reject merit pay. They say teachers aren’t motivated by money.

Lindsay Burningham, president of the local teachers union, told me in 2014 that teachers are motivated not by money and corporate values – but by working in collegial environments where teachers collaborate with colleagues and principals:

If pay was tied to student performance, or test scores, I don’t think teachers would risk it. Because so many factors impact learning that have nothing to do with what happens in the classroom – things like poverty and home life.

Don’t get me wrong, competitive pay helps, especially when you consider that San Diego Unified teachers are among the lowest paid in the county. If you look at the our Fight for 5 campaign, and see the things we’re pushing for, pay and benefit increases is one component – but it’s not the only one.

If salary is what attracts people to the teaching profession, those are the ones who leave after a few years and contribute to the high turnover rate. There’s so much more to it when it comes to retaining teachers, things like low class sizes.”

This was the same argument school board trustee Richard Barrera used when he testified during the Vergara trial.

Barrera pointed to inner city schools like Central Elementary – the school once led by current Superintendent Cindy Marten – as evidence San Diego Unified had raised performance at high-poverty schools by creating collaborative environments in which teachers wanted to work.

Things like merit pay, or even evaluating teachers based on the improvement shown by students in their class, would divide teachers and make them less likely to share information with their colleagues, Barrera said.

This might sound like a cynical attempt to preserve the status quo, but there’s evidence to support Barrera and Burningham’s points.

After the Vergara ruling in 2014, education writer Dana Goldstein highlighted some of the reasons merit pay has had trouble gaining traction:

“From 2009 to 2011, the federal government offered 1,500 effective teachers in 10 major cities—including Los Angeles—a $20,000 bonus to transfer to an open job at a higher poverty school with lower test scores. In the world of public education, $20,000 is a major financial incentive. All these teachers were already employed by urban districts with diverse student populations; they weren’t scared of working with poor, non-white children. Yet less than a quarter of the eligible teachers chose to apply for the bonuses. Most did not want to teach in the schools that were the most deeply segregated by race and class and faced major pressure to raise test scores.”

Firing bad teachers, Goldstein writes, doesn’t address the larger problem: getting good teachers to take jobs in high-poverty, racially isolated schools.

To do that, Goldstein writes elsewhere, we need to reimagine the problem, such as by focusing more on principals, instead of only looking to teachers.

That’s not to say school districts should stop looking for better ways to recruit, train and evaluate teachers. But reforms focused exclusively on teachers overlook the larger systems in which high-poverty schools operate.

Mario Koran

Mario was formerly an investigative reporter for Voice of San Diego. He wrote about schools, children and people on the margins of San Diego.

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