David Bloomfield on 'Vergara' and Teacher Tenure

Last month, a California appeals court ruled that the state’s job protections for teachers do not deprive poor and minority students of a quality education or violate their civil rights — reversing a landmark lower court decision that had overturned the state’s teacher tenure rules.
The Vergara v. California plaintiffs were always on “shaky ground,” as Professor David Bloomfield (GC/Brooklyn, Urban Education) foresaw in a 2014 op-ed.   
Bloomfield, an expert on K-12 national and New York related educational issues, recently sat down to talk about the significance of the case, particularly as it relates to teacher tenure.
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Why is the Vergara case so important to teachers in the United States?
Vergara is a case challenging a number of California teacher employment laws that plaintiffs allege have racially disproportionate negative student impact. Among the laws challenged are ones that relate to the short time horizon for gaining tenure; procedural difficulties in firing teachers whose performance has been deemed inadequate; and quality-blind LIFO (last in, first out) teacher termination procedures during layoffs.
All of these were packaged in Vergara under a theory that these laws protected low-performing teachers who tend to be found in classrooms, schools, and districts with large numbers of poor and minority students. As you can imagine, these charges go to the heart of many employment protections closely guarded by teacher unions and their legislative champions.

Moreover, if the California laws were overturned, similar laws in other states would be at risk. As a result, Vergara has taken on national significance.

The trial court’s finding in plaintiffs’ favor, which I wrote about in my 2014 Gotham Gazette column, sent shockwaves throughout the country, not only among teachers but for all concerned about the personnel underpinnings of American pubic education. 

What will be the effects of the decision?
Our legal system provides parties with multiple bites of the apple. Just as the trial court’s finding for the Vergara plaintiffs was not the end of the story, neither is the appellate court’s reversal in favor of defendants. The case will now go to the California Supreme Court for the final verdict. Since the case rests entirely on California law, this will not go to the U.S. Supreme Court. Meanwhile, the California laws at issue remain on the books.
I believe the statutes will survive the next stage, too, but if they don’t the action will move to the California legislature to re-craft the statutes under whatever terms might be laid out by the court. It’s not as if all teacher employment laws will be eradicated, just the specific provisions of any laws found wanting, so it’s possible, even likely, that replacement laws would only be minor tweaks from the present texts.

Are there other cases like Vergara currently before courts in New York and other jurisdictions?
Vergara has always been a test case in two respects. First, it gave greater public visibility to teacher protections written into state law that those opposing these protections wanted to expose. In this sense, Vergara is part of a political strategy to change or even eliminate some or all of these protections.
Second, the case was meant to hone legal arguments as a paradigm for similarly minded plaintiffs and their advocates in other states to bring their own Vergara-type suits, such as one currently being litigated in New York.

There is nothing wrong with either of these strategies, used by both the left and right to advance their causes, but in discussing such “impact litigation,” it helps to understand the multiple motives involved.
However Vergara is eventually decided, we can expect other suits and other political activity based on the arguments and evidence now being tested in that case.

What are the larger issues related to teacher tenure?

The appellate court’s decision, echoing my analysis, found that the problem identified by plaintiffs was a real one but is not caused by the legal provisions they challenged. Rather, in the words I used, feckless administrators fail to implement existing legal tools to root out bad teachers before and after tenure is granted.
I ran the Educational Leadership program at Brooklyn College for a decade and, in addition to my law degree, possess certification as a principal and superintendent. These latter credentials are those most tied to terminating teachers who don’t belong in classrooms. Tenure, due process, and objective termination procedures are all instructionally defensible teacher employment practices. Reasonable people can differ on the exact provisions and all can be misused.
But, as the court recently found, complacency in the face of poor teaching is a greater threat to students than a particular legal standard and, even then, these are policy choices more suitable to the administrative and political domains than the courts.

David Bloomfield is the author of American Public Education Law, 3rd ed. (summer, 2016) and many other works. Last fall he was appointed Content Expert on the New York City Children’s Cabinet, an initiative created by Mayor Bill de Blasio to increase coordination among city agencies that are involved with child safety and well-being. 

Submitted on: MAY 6, 2016

Category: Faculty Activities | General GC News | Urban Education