Sunday, June 15, 2014

A Drive-By Ruling on Teacher Tenure Laws

      Federal judge Vaughn Walker presided over a two-month trial in California’s Proposition 8 case and five months later issued a 138-page opinion that struck from the state’s constitution the 14-word definition of marriage as one man and one woman.
       Years later, some of the lawyers from the plaintiffs’ side in the Prop 8 case put on a two-month trial of California’s teacher tenure laws before a Los Angeles Superior Court judge, Rolf Treu. Just two-and-a-half months later, Treu issued a 16-page decision to strike down major provisions of the teacher tenure laws.
       Treu’s ruling made front-page news from coast to coast, cheering those education reformers — including U.S. Education Secretary Arne Duncan — who view teachers unions as obstacles to improving K-12 schools. At 16 pages, however, the decision is conspicuously short on facts and on law — a drive-by assault on teachers unions too thinly documented or substantiated to hold up well on appeal.
       Tellingly, Treu’s decision drew criticism not only from liberal, teacher-friendly education policy advocates and experts but also from conservative legal commentators receptive to the anti-union pitch of Treu’s ruling. “Count me very skeptical,” Ed Whelan wrote the next day in his column on National Review Online. “At first read, I don’t see how the court is doing anything other than second-guessing the legislature’s judgment.”
       Treu, a Republican appointed by the state’s GOP governor Pete Wilson in 1995, draws mixed ratings from unidentified lawyers who have provided comments on judge rating web sites. His overall rating on is “very bad,” with especially poor marks from five of the six commenters for “robe-rage control.” The same day as the teacher-tenure ruling, one lawyer remarked that Treu “lets his personal political agenda control his behavior.”
      In his opinion, Treu insisted he was focused only on the legal, not the political, aspects of the case. But Treu’s repeated denunciations in the opinion of “grossly ineffective” teachers brought to mind the lawyers’ descriptions of him as “sanction-happy,” “vindictive,” and “disrespectful.”
      The judge relied heavily on a statistical extrapolation of 2,750 to 8,250 of “grossly ineffective” teachers in the state. Those numbers turn out, however, to be merely a guess now disavowed by the expert who made it, according to a story by Slate education writer Jerome Weissman. David Berliner, an education professor emeritus at Arizona State University, told Weissman that he pulled the number “out of thin air” and in fact never used the phrase “grossly ineffective” that Treu attributes to him.
       Treu also made up the legal reasoning in his decision. He began by drawing from the California Supreme Court’s school-financing precedents a general rule that the courts must guarantee not only “equality” of educational opportunity but also “quality” of education. None of those precedents involved public employee statutes, but he nonetheless imposed the highest level of constitutional review — “strict scrutiny” — on the detailed teacher tenure provisions of California’s Education Code.
       Treu started with the “permanent employment” provision (§44929.21(b)) that grants tenure after a teacher’s second year of employment. To prove that two years is constitutionally too short, Treu does nothing more than survey other states. California is an outlier: one of only five states that grant teachers tenure after two years or less of employment. Three years is the most common period (32 states), while nine keep teachers on probation for five years. Treu cites no decision from any jurisdiction to suggest that the difference between two years or three is a constitutionally significant marker.
       In like vein, Treu strikes down the “last in, first out” seniority rule for teacher layoffs (§44955) by saying that California is one of 10 states that base layoffs on seniority alone. Among the others, 20 explicitly allow seniority to be a consideration, 18 allow school districts discretion in fashioning criteria, and only two prohibit any consideration of seniority. Again, Treu cites no precedent for subjecting this sensitive collective bargaining issue to strict constitutional scrutiny.
       Treu is most disturbed by the supposed high cost (hundreds of thousands of dollars) and long time (up to 10 years) needed to dismiss the supposedly grossly ineffective teachers. He first presents those figures with no statistical proof and then rules the dismissal procedures (§§44934, 44938(b)(1) & 2, and 44944) unconstitutional without identifying which particular parts of the complex code sections amount in his words to “uber due process.”
       The ruling ends with a scant two paragraphs that appear to blame these tenure provisions for the supposed concentration of underqualified teachers in high-poverty, low-performing schools. Yet the same state government document that Treu quotes warns only a few paragraphs later against “simplistic solutions” to deal with “the complex nature of equitably distributing [high-quality] experienced teachers.”
       California voters voted on a ballot measure in 2005 to raise the probationary period for teachers to five years and ease the dismissal procedures, but it failed with 45 percent of the vote. The state’s teachers unions argued then that the changes would make hiring new teachers harder and encourage some districts to fire older, higher-salary teachers without improving classroom performance.
      As intervenors in the current case, the unions will join the state in appealing the decision even as opposing candidates in the November election for state superintendent of instruction debate the issues in the political arena. Taking these issues out of the political realm requires heavy legal justification that is hard to see in Treu’s ruling.

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