City Journal Summer 2014

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Summer 2014
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California

Larry Sand
LIFO Lite?
Teacher seniority might well survive the Vergara decision.
25 July 2014

Last month’s decision by a Los Angeles Superior Court judge to strike down California’s teacher tenure, seniority, and dismissal statutes may be a great victory for children, though much depends on the outcome of any appeal. This week, Attorney General Kamala Harris filed a 22-page request with Judge Rolf M. Treu asking for further clarification of his decision in Vergara v. California. Harris’s filing, coming on the heels of a similar request from the California Teachers Association, could be the prelude to an appeal. But assuming such appeals fail, the question is what would replace the laws that Vergara voided. A roadmap may already be in place to preserve teacher seniority, based on another pending legal settlement in Los Angeles.

In April, the Los Angeles Unified School District and the United Teachers of Los Angeles reached an agreement on a lower-profile case that had worked its way through the courts for four years. In 2010, the American Civil Liberties Union sued L.A. Unified and the local union over mass layoffs stemming from state budget cuts. The ACLU focused in particular on three low-performing schools in South L.A., where more than half of the teachers received pink slips. The lawsuit noted that, district-wide, less than 20 percent of teachers met the same fate. Alleging that seniority-based layoffs had taken a disproportionate toll on poor and minority schools, the ACLU won a settlement protecting students in up to 45 schools from the ruinous effects of the “last in/first out” (LIFO) process.

The union appealed, claiming the settlement would undermine teachers’ rights. In 2012, a state appeals court agreed, sending the lawsuit back to the superior court. After 20 months of wrangling, the parties agreed to another settlement. As EdSource’s John Fensterwald explained, “The deal in the Reed v. the State of California lawsuit will provide about $25 million annually for three years for additional administrators, mentor teachers and teacher training in 37 middle and high schools where there had been low student performance and high turnover of inexperienced teachers.” But the LIFO problem—the meat and potatoes of the original ACLU lawsuit—remains unaddressed. And the settlement says nothing about how administrators may keep the best teachers when (not if) layoffs become necessary again. The union-enforced LIFO system regularly denies thousands of children a decent education.

Nevertheless, all parties seem to view the Reed settlement as satisfactory. L.A. Unified schools superintendent John Deasy said that it would ensure that kids in the greatest peril benefit the most. “These are invaluable investments . . . which will make a difference in transforming these schools and bring justice to our youth,” he gushed. But Deasy wouldn’t elaborate on how children will prosper from the “investments,” when teachers-of-the-year are laid off and less talented and occasionally inept colleagues are protected—all while the district spends more money on bureaucracy.

Meantime, UTLA attorney Jesus E. Quinonez insisted that “any attempts to extinguish the rights of teachers—here, the right to a neutral and fair hearing process—will not serve the needs of kids or lead to justice in our schools.” That’s outrageous. With LIFO in place, no one gets a hearing of any kind. Administrators ignore variations of teacher effectiveness in making their decisions. LIFO discriminates not only against children, but also against good and great teachers. Yet Dale Larson, an attorney with Morrison & Foerster, which partnered with the ACLU in the lawsuit, asserted: “By providing resources to attract and retain teachers in the 37 low-performing, high-turnover middle and high schools, the settlement renders the legal question raised in Reed academic.” Hardly: the agreement never mentions the words “seniority” or “last in/first out.”

What boosters of the Reed settlement can’t explain is how adding administrators to underperforming schools would help retain good teachers. In L.A. Unified, administrators are “at-will” employees, but they’re treated like unionized teachers, and they’re almost never fired for incompetence. I know this from first-hand experience. We had a revolving door of assistant principals at the middle school where I toiled for 15 years. A few were terrific and some merely adequate. Others were so bad that they were shuttled from school to school as “must-place” employees. I never met a teacher who was drawn to a school for its administrators.

“What these 37 schools need urgently is stability in teacher staffs, and this settlement is tailored to achieve that result,” Mark Rosenbaum, the ACLU’s chief counsel in Southern California, told me in an e-mail. “And should budget-based layoffs have to take place in the future, then it will be a no brainer under current law that the teachers who have been specially trained and taught on these campuses will keep their jobs, no matter their years of seniority.” Rosenbaum is alluding to a part of the education code stipulating that, if a teacher has “special training and experience,” seniority can be waived. This exemption prioritizes teacher credentials, elevating an “input” (training) over an “output” (effectiveness in the classroom). Should layoffs be necessary, schools need to hold on to their best teachers, regardless of whether they have “special training.”

Though the Los Angeles school board approved Reed months ago, the court must still sign off. A new law might eventually stipulate that if teachers undergo certain training, they would be exempt from “last in, first out.” Or the law could provide LIFO as a method of last resort. If so, what criteria would administrators use to decide layoffs? Would there be any consideration for effective teachers? Could individual districts be given the discretion to make their own choices? Most likely, the legislature would craft a one-size-fits-all state law making small changes to the current system, satisfying the minimum requirements of Vergara and leaving the problem of seniority largely unsolved. Until California has a system that evaluates teachers on how well their students learn, the state’s public education will suffer.

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