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Judge strikes down state teacher tenure laws in suit brought by Menlo Park nonprofit

Unions vow to appeal

By Julia Cheever, Bay City News Service

California's teacher tenure laws were declared unconstitutional Tuesday by a Los Angeles County Superior Court judge, ruling on a lawsuit sponsored by Students Matter, a Menlo Park-based nonprofit group founded by Silicon Valley entrepreneur David Welch.

Judge Rolf Treu said in a written ruling that five laws governing teacher tenure, dismissal procedures and seniority violate the state constitutional rights to equal treatment and a free public education.

Nine students who challenged the laws in a suit filed in 2012 proved that they "impose a real and appreciable impact on students' fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students," Judge Treu wrote.

The decision came after a two-month nonjury trial before Judge Treu earlier this year.

"I believe in public education," said Mr. Welch, the founder of Students Matter. "But I also believe our public education system is failing our children because it has stopped putting their needs and their success above all else."

Judge Treu issued an injunction barring enforcement of the laws, but suspended it to give the state and two teachers' unions a chance to appeal.

The two unions, the Burlingame-based California Teachers Association and the Burbank-based California Federation of Teachers, vowed to appeal.

"Like the lawsuit itself, today's ruling is deeply flawed," said CTA President Dean Vogel. "This lawsuit has nothing to do with what's best for kids."

The unions, which were allowed to join the case to defend the laws, argued during the trial that eliminating teachers' rights would make it harder for public schools to attract and retain good teachers.

"It is fundamentally anti-public education, scapegoating teachers for problems originating in underfunding, poverty, and economic inequality," CFT President Joshua Pechthalt said of the lawsuit.

A spokesman for California Attorney General Kamala Harris, who represented state officials in the trial, said lawyers in Harris' office are reviewing the decision.

The appeal process could take a year or more. If the ruling is upheld, it would require a revamping of the teacher tenure laws.

Judge Treu wrote that as a judge, he had to "trust the Legislature to fulfill its mandated duty" to pass laws that are constitutional and give children an equal education opportunity.

State Superintendent of Public Instruction Tom Torlakson, who was a defendant in the case, said attracting and training talented teachers is one of the most important tasks of school districts. "Today's ruling may inadvertently make this critical work even more challenging than it already is," Mr. Torlakson said in a statement.

Judge Treu estimated, on the basis of testimony by state officials, that between 2,750 and 8,250 of California's 275,000 public school teachers are in a category he called "grossly ineffective."

He said the evidence that grossly ineffective teachers have a negative impact on students is compelling. "Indeed, it shocks the conscience," the judge wrote.

The five laws Treu struck down were:

● A measure that gives teachers permanent tenure after two years, unless a district tells them by March 15 of the second year that they won't be retained. That is "not nearly enough time for an informed decision to be made," the judge wrote.

● Three laws providing procedural protections for teachers whom school districts are seeking to dismiss for incompetence. The layers of procedures are so "complex, time-consuming and expensive as to make an effective, efficient and yet fair dismissal of a grossly ineffective teacher illusory," Judge Treu said. He said trial evidence indicated that firing a bad teacher can take two to 10 years and cost a district $50,000 to $450,000.

● A last-in, first-out statute requiring that teachers must be laid off in order of least seniority. Judge Treu said the layoff of a gifted junior teacher is a "lose-lose" situation for both that teacher and students.

Congressman George Miller, D-Martinez, the senior Democrat on the House Education and Workforce Committee, applauded the decision. "This is an historic opportunity and a defining moment for California, one that we must not squander," he said in a statement.

"We owe it to the six million students in California's public education system to be thoughtful and deliberate, and to put their needs first as we move forward," he said.

Comments

 +   Like this comment
Posted by Martin Engel
a resident of Menlo Park: Park Forest
on Jun 11, 2014 at 12:57 pm

If this ruling survives the appeals and other legal hurdles, it will have a profound effect on American public education:
1. Note that private education (with some exceptions) has no guaranteed tenure contracts with its teachers. The removal of public education tenure may encourage the expansion of Charter Schools (also without tenure).
2. It will further weaken Teachers' Unions, obliging them, over time, to become more professional organizations, perhaps like the American Medical Association or American Bar Association. The "bar" will be set higher.
3. It will -- it must -- change (professionalize) teacher education in colleges and universities.
4. Just as the Common Core curriculum imposes more demanding criteria on students, it does so also on teachers, and the absence of assured tenure will increase those performance pressures on teachers.
5. There will be greater pressure to increase teacher performance-based salaries, including levels of seniority based not on years of service, but somewhat like university professorship rankings (Instructor, Assistant, Associate, Full Professor) with concomitant salaries (only without tenure).
6. The overall costs of public education will increase; the per capita student costs will increase. The unequal distribution of economic resources (Rich Schools; Poor Schools) will diminish. For the most difficult and challenging schools, teachers may be awarded "hazardous duty pay."
7. Administrative costs will decline as less competent teachers are no longer kept in the system by being given "desks" downtown, so to speak.


 +   Like this comment
Posted by newcomer
a resident of Menlo Park: other
on Jun 11, 2014 at 1:21 pm

I would suggest that a large workforce in which only 1% to 3% of the workers are grossly ineffective (to use the judges figures) is a remarkably effective workforce. Is it really necessary to deprive the huge majority of competent and superior workers of their collective job security, to purge the grossly ineffective few? It sounds like plain old union busting to me.


 +   Like this comment
Posted by Joe
a resident of Menlo Park: Allied Arts/Stanford Park
on Jun 11, 2014 at 3:36 pm

I could see tolerating a small percentage of poor performers if they were mowing the grass or weeding a garden. But the impact of a poor teacher and the importance of each life at the receiving end of poor teaching makes that arithmetic quite problematic and, to be fair to everyone concerned, intolerable.

When adults -- these are adults and ostensibly professionals -- when they are not performing in as crucial a position as teaching, they need to find some other way to earn a living.


 +   Like this comment
Posted by Norman
a resident of Menlo Park: Central Menlo Park
on Jun 11, 2014 at 4:20 pm

If the unions had a soul to say nothing of a collective brain, they would renegotiatie the onerous 'tenure' provision, not appeal this righteous decision and get on with having a clean and honorable teacher workforce. Everyone's morale would be lifted. The jig is up.


 +   Like this comment
Posted by D Kelly
a resident of Menlo Park: Menlo Oaks
on Jun 11, 2014 at 4:36 pm

You couldn't pay me enough to work in an environment that takes such an initial investment the first five years (that teaching does) without some sort of worker protections.

I've dated two teachers in the past, and what it takes to become a good, efficient teacher (countless hours in the first few years) versus the amount that wash out in those same first five years is insane. I also saw first hand with my own kids' teachers, what a bad administrator can do. She drove away a really talented young teacher from Laurel, who proceeded to get hired in Palo Alto and has thrived.

My opinion: it's a bad decision (though the first part about tenure decision period being too short sounds like it has some merit.)

Doesn't effect me though: don't know any teachers any more, my kids are out of school, and I'll advise them to never consider teaching if their chosen careers don't work out.

I know my post doesn't fit the anti-union bias here, so go ahead, posters, unload.


 +   Like this comment
Posted by D Kelly
a resident of Menlo Park: Menlo Oaks
on Jun 11, 2014 at 4:38 pm

***** before you do: no, never been a teacher, never been in a union, yes - always private sector, merit based.


 +   Like this comment
Posted by Great teachers
a resident of Menlo Park: Linfield Oaks
on Jun 11, 2014 at 7:52 pm

Getting rid of Tenure will rid the schools of a few bad apples, but likely more great ones like Dr Davenport. Hard working teachers that find unique ways to motivate students are going to ruffle a few feathers - and when parents don't like when a tough teacher doesn't give out A's to their kids automatically, their jobs will be in jeopardy. Without Tenure, fabulous teachers like Portola Valley's Elaine Winer and Davenport would been dismissed as quickly as the Principals in P.V.
Web Link


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Posted by Win Win
a resident of Menlo Park: Linfield Oaks
on Jun 11, 2014 at 7:54 pm

Tenure hurts capable teachers and keeps them from earning what they deserve because it lumps them into categories that have nothing to do with excellence. Tenure keeps talented newcomers from getting hired and protects those who are mediocre or worse. It breeds distrust and blame because it protects the weak and takes opportunity away from the strong.

Who in the world gets a guaranteed job until retirement other than teachers? As long as they don't commit a crime it is almost impossible to fire tenured teachers no matter how poorly they do their jobs -- some school districts (like NYC) decided it was cheaper to put the worst of them in a rubber room and keep paying them than it would be to hire a lawyer to get them out of the classroom.

Tenure is a 19th century practice that needs to go the way of child labor, bloodletting and public flogging. Eliminate tenure, restore the reputation of teaching as an honored profession, and improve public education.


 +   Like this comment
Posted by Please reconsider
a resident of Menlo Park: Fair Oaks
on Jun 12, 2014 at 1:06 am

After reading the impassioned comment by 'Mr. Welch, You are my hero' I feel compelled to respond.

As a former student of the teacher whom you discuss in your comment, I felt rather hurt and confused by your statements. Menlo-Atherton has a number of talented teachers and a wealth of interesting courses from which students may choose, but the AP European History course is a gem. I am truly saddened that your child had a poor experience with the class, but I find it unfair that you so harshly condemn a teacher who has crafted this beautiful class that has the potential to serve as a crucial and positive turning point in a high school student's education. I entered AP European History my sophomore year as an excited student who, after a somewhat uninspiring freshman year, was happily anticipating diving into an exploration of the art, battles, politics, and religious structures that punctuate the history of the West. From the first gorgeous whiteboard outline and brilliant lecture on the emergence of the Renaissance, I was hooked. In the weeks before research paper due dates my room was a whirlwind of open books on art and politics, post-it notes forming a pointillist rainbow worthy of Seurat.

This wasn't your standard AP course where students slave towards high marks and a stellar record for college applications; this was a small piece of college itself brought to our local public high school. It is so important for all students considering taking the class to remember that it is truly optional, and that high school success is by no means continent on adding this undeniably time-consuming class to the already overloaded schedule of the modern high school student. Students should take the class only if they are truly passionate about its content and want a fully immersive trip through the rise of the modern European world. Learning the dates of obscure and quirky events should sound like fun. Writing papers the like of which you won't see again until college should seem exciting, not a chore. Not feeling a deep passion for European history and opting not to take the class, or finding the class miserable, says nothing about one's intelligence; bright, eager students and wonderful classes can be incompatible, and there is nothing wrong with either party.

Thus before you call for the dismissal of a teacher who has brought so much joy to my life and to the lives of many of my friends, I would ask that you consider that what can be a tragic experience for one student can be a transformative and enlightening experience for another. I certainly believe that the nature of the class should be made crystal clear to students before they enroll: it will be incredibly time-consuming; you will memorize pages of facts and dates and should consider this process at least slightly fun; essays will require devotion to the material; and there is the definite possibility that you will not get a high grade in the class.

To prevent any more students from becoming "victims" of AP European History at M-A, I would say support its incredibly dedicated and talented teacher (who, contrary to popular belief is in fact one of the most genuinely kind-hearted teachers I have ever had), and you should fight to make sure that every future student understands the particular nature and extensive expectations of the class. Reinstating the entrance exam could be a great way to give students a taste for what the material is like; detailed information sessions could also be a viable option. No student should ever feel tortured by a class. Thus let us labor to ensure that no more students unknowingly enter a course which they will not enjoy, while preserving an M-A tradition that allows students with particular interests to thrive in a class with a wonderful teacher who can transform their high school experience in the most beautiful ways.


 +   Like this comment
Posted by A Parent
a resident of another community
on Jun 12, 2014 at 10:27 am

First off, I am not anti-union (in fact, I am a union member and value the protections that unions provide for their workers to balance the power of employers.) Second, I value enormously the teaching profession and know that good teachers made an enormous difference in my own education and in the education of my (now grown) children. So please do not take my comments as any disrespect for either public education or public school teachers.

But the fact is that tenure as it is currently structured is a problem, and it is not only a problem that involves keeping incompetent tenured teachers in the classroom or shuffling them around. In some cases the seniority system can result in a talented and high performing newcomer losing her position due to the last hired, first laid off rule, while a veteran with mediocre performance stays on.

I would still support tenure if it was harder to earn, such as the process that college professors go through to achieve tenure. Just managing to keep your head above water for 2 years is not enough time to decide that performance warrants lifetime tenure. It needs to be earned.

And discussions about this topic should not only rest on the conditions in large, urban districts like LAUSD. In a small district, like some of the ones in this part of San Mateo County, a single teacher who is not providing students with an excellent education can have an enormous (negative) impact on a school or a district and its students.

I hope beyond hope that the teacher's union will take this opportunity to negotiate modifications to tenure, rather than draw a line in the sand and blindly defend it. It's time to elevate the teaching profession by providing higher wages to teachers, but also requiring high performance from ALL teachers.


 +   Like this comment
Posted by fwiw
a resident of Woodside: other
on Jun 12, 2014 at 11:32 am


Imho, the most onerous provision of CA teacher tenure is that a decision be rendered by March 15th of the 2nd year. That may sound like 2 full years, but there needs to be time for evaluations to be written and board review after Winter Break, so there simply isn't going to be relevant feedback outside of 1.5 years of teaching. That's not reasonable.

I wish the teacher's union would recognize that this is neither fair or beneficial to teachers fresh out of college. They may start out with enthusiasm but there is no substitute for experience, so a potentially long term great but young teacher may be dismissed simply because the granting tenure after a marginal first year is simply too risky for school boards to accept.

Hopefully the net result of this will be the negotiation of more reasonable tenure provisions with the teacher's union.


 +   Like this comment
Posted by Not Relevant, but Responding
a resident of Menlo Park: Central Menlo Park
on Jun 12, 2014 at 12:28 pm

@ Please Reconsider:

The teacher you are speaking of is not a bad person and his class is uniformly appreciated by impressionable 14yo-15yo kids. For the record, I don't see how this ruling has anything to do with this teacher. He's hardly a bad apple. But your spirited defense deserves a response because you give him far too much credit.

Those of us with a bit more life under our belts look at this teacher and his habits a bit differently. I appreciate his passion for the topic and his reputation for demanding high standards. However, the metrics he applies are arbitrary/capricious and his judgments are prejudicial (not in the racial sense obviously). He appears to have a habit of deciding someone's grade before they have had a chance to reveal their ability. Presumably, it s made based upon some first impression. All grading thereafter is meant to reinforce his original decision. Subsequent efforts by the student may be immune to the criticisms that were used to downgrade a previous paper but, miraculously, the grade remains the same on subsequent papers.

If he likes you, you do as well as you like. If he has decided that you are not in the group he will give an "A", you will never enter into that group regardless of your efforts. Whether it's "because of" or "due to" his inability to see beyond his own bias and the substantively meaningless nature of some of his critiques, it's irrelevant. The end result is the same. His requirements remain arbitrary/capricious and his habits are indeed prejudicial.


 +   Like this comment
Posted by student
a resident of Menlo Park: Allied Arts/Stanford Park
on Jun 12, 2014 at 8:32 pm

To Not Relevant, but Responding:

There are some of us who have had this class that would like YOU to reconsider. Sorry if your kid took hard classes and had water polo, or some other sport and was unable to put in the time and effort an AP class requires. It is upsetting to those of us who have to work hard to be subjected to someone claiming that the grades are based upon first impression. Many who take the AP's think they are the smartest and the brightest and just can't figure out how to balance the workload, while their parents think they are the best of the class and are upset their student isn't gifted with expected grades.


 +   Like this comment
Posted by my poor child deserves better grades
a resident of Menlo Park: Suburban Park/Lorelei Manor/Flood Park Triangle
on Jun 13, 2014 at 11:12 am

A parent that moans: "wah, wah, he APPEARS to..." is the EXACT reason we need to protect good teachers with tenure.

And this statement from another entry: " keeps them from earning what they deserve " implies that the public will support higher salaries for teachers once tenure is removed, is absurd.

Tenure needs to be modified and improved.


 +   Like this comment
Posted by PV Parent
a resident of Portola Valley: other
on Jun 13, 2014 at 12:54 pm

With a record number of teachers leaving the Portola Valley School District today, and Davenport head of the teacher's union there, I disagree that he is one of the good apples that should retain tenure. Medical phd's (doctors) have a motto 'first do no harm' - teachers should have it too.


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