University of Arkansas Office for Education Policy

Vergara v. California Verdict: What Could This Mean for Arkansas?

In The View from the OEP on June 18, 2014 at 12:24 pm

Just-In-Breaking-Vergara-Trial-RulingLast week, the verdict for Vergara v. California came in. In sum, Los Angeles Superior Court Judge Rolf Treu ruled that teacher tenure, difficult procedures for firing teachers, and “last in, first out” (LIFO) policies that protect senior teachers from layoffs have deprived poor students of the best teachers. The Court struck down three state laws that provide teachers with these protections. Though the case will almost certainly be appealed, the verdict is considered to be, at the very least, an important symbolic win for “education reformers” and an indicator of the change in public opinion about teachers unions and teacher job protections.


Students Matter, an education advocacy group founded by Silicon Valley entrepreneur David Welch, brought the lawsuit against the state of California on behalf of nine public school students, including sisters Elizabeth and Beatriz Vergara (for whom the case is named). The core argument of the lawsuit is that three teacher job protection laws (tenure, dismissal process, and “last-in, first-out”) violate the equal protection clause of the California state constitution because they prevent school districts from dismissing ineffective teachers and  economically-disadvantaged and minority students are disproportionately harmed by these laws.

The Plaintiffs

The nine plaintiffs of Vergara v. California hailed from different cities and attended schools in different school districts across the state of California, but all argued that they were exposed to ineffective teachers. The Vergara sisters complained to PBS NewsHour about one history teacher that they both had, describing days when he would just sit at his desk and use his computer or sleep instead of teaching. The Vergara sisters became worried about getting behind in school due to teachers such as this one. Another student plaintiff, Brandon Debose, Jr., put it this way: “There were certain teachers that you knew, if you got stuck in their class, you wouldn’t learn a thing. That year would be a lost year. If we know how important education is, it makes no sense to me why we wouldn’t make sure that every kid has a good teacher every year.”

Vergara studentsThe nine plantiff students in Vergara v. California

The Lawsuit

Specifically, the lawsuit sought to strike down three laws related to teacher job protections:

  • Permanent Employment Statute (Tenure): After 18 months in the classroom, California teachers can earn guaranteed lifetime employment.
  • Dismissal Statuses: Many administrators will avoid dismissing an ineffective teacher because the dismissal process  is difficult and expensive.
  • “Last-In, First-Out” (LIFO) Layoff Statute: California has a “last-in, first-out” law that gives priority to senior teachers in times of teacher layoffs. (A California Teacher of the Year was forced out during layoffs because others had more time on the job.)

Overall, this case is about equity. In the poorest schools, often those with mostly black or Latino students, there is a disproportionate proportion of ineffective teachers. A comprehensive, three-year study that measured teacher effectiveness by tracking students’ test scores found that the Los Angeles Unified School District’s black and Latino students are two to three times as likely as their white or Asian peers to be taught by a teacher who rates as lower performing.

Consequences of Ineffective Teaching

Although this lawsuit does not address how to evaluate teachers or how to identify “bad teachers,” it identifies that such teachers exist and that they are detrimental to students’ success. Some negative effects on students include:

  • Less individual earning potential: Researchers from Harvard found that replacing a less effective teacher with one of just average quality results in a lifetime gain of $50,000 per student.
  • Less individual learning gains: According to Hanushek, in one year, a good teacher can produce 1.5 years of learning growth while a bad teacher gets .5 years of learning growth. If a student has a misfortune to receive a few bad teachers in a row, a student’s life can be dramatically altered.
  • Lowered national achievement: According to Hanushek, if you eliminate the bottom 5% of teachers in terms of effectiveness, or if you replaced 5-8% of the least teachers with an average teacher, U.S. achievement would rise to somewhere between Canada and Finland.

Predicted Impact of the Vergara Case

Some, including the major teachers unions and teachers’ rights advocates, believe that the Vergara v. California ruling puts the future of teacher rights into question. They argue that job protection laws that were struck down are necessary to protect teachers from capricious firings based on favoritism.

the widget effectOthers believe that, though symbolically important, this ruling will not have a direct impact on improving teacher quality. First of all, it is very likely that the ruling will be appealed, and it could be years before the case is out of the courts. Second, even if the case stands or the California legislature decides to preempt court action by rewriting the  laws, some doubt that the absence of teacher protections will lead to more dismissals of ineffective teachers. The well-known 2009 report, The Widget Effect, examined teacher evaluation practices in 12 districts in four states (Arkansas, Colorado, Illinois and Ohio)  that differed greatly size, geographic location, and evaluation policies and practices and found very similar results across all sites: that the vast majority of teachers (94-99%) of teachers were rated as “effective” and less than 1% were rates as “ineffective.” This shows that, in both states with a strong teachers union presence and teacher protection laws and states with less union influence and less strict laws, principals have a tendency to rate all teachers as doing a great job, even though student outcomes (and common sense) tell us that this cannot possibly be the case. This example should give pause to those who believe the primary barrier to dismissing ineffective teachers is the law; it seems that the prevailing culture and commonly accepted practices in education are at play here as well.

Finally, the question of how to measure teacher quality is far from settled, as debates still rage over whether “value-added” measures are sound and how to evaluate teachers in non-tested subjects and grades. As a result of the Race to the Top and ESEA waivers, many states across the country are implementing new teacher evaluation programs. We have yet to see how new revamped teacher evaluation systems, many of which may include use of student data as part of teacher’s rating, will lead to a greater number of dismissals of ineffective teachers.

So, What Could This Mean for Arkansas?

It is predicted that this case could generate similar cases in states across the country. David Welch, a Silicon Valley mogul who financed the organization that brought the matter to court, indicated that he would lend support to other states who want to fight similar legal battles, especially if those states have powerful teacher unions.
Arkansas is a right-to-work state and does not have as strong of a teacher union presence as California and other non right-to-work states. Still, Arkansas does have laws in place about teacher tenure, dismissal procedures, and layoffs. Below are the Arkansas laws that are analogous to the three laws struck down in California:
  • Tenure: In Arkansas, tenure is called “non-probationary” status and is typically granted after three consecutive years of teaching. The law does not require that teacher effectiveness be demonstrated in order to grant a teacher with non-probationary status. Once granted, non-probationary status is considered a property right.
  • Teacher Dismissal: Two laws are important for understanding dismissal procedures in Arkansas: The Arkansas Teacher Fair Dismissal Act of 1983 and Act 1209 passed in 2011.
  1. The Arkansas Teacher Fair Dismissal Act of 1983 states that a teacher can be dismissed for “incompetent performance” as defined by the district. The teacher dismissal process can take up to 60 days from start to finish, not including the remediation process.
  2. The procedures for dismissal recently changed when Act 1209 was passed in 2011, established the Teacher Evaluation and Support System (TESS). A teacher who is rated as “unsatisfactory” is placed in “intensive support status” for a period of no longer than one school year and given specific goals and tasks (though the can “intensive support status” period can be extended if a teacher is making documented progress). If the teacher does not meet their goals, the superintendent shall recommend termination or nonrenewal of the teacher’s contract.
  • Last-In, First-Out: State law requires “each district to have a written policy on reduction in force based upon objective criteria for a layoff and recall of teachers. State policy is silent on whether or not instructional effectiveness, if measured objectively, can be used in layoff and reduction-in-force procedures.”
As can be seen, the teacher protection laws in Arkansas are not as restrictive as the ones in California that were challenged by the Vergara case, so we would not expect Arkansas to be a likely candidate for a lawsuit spurred by Vergara.
TESSIn Arkansas, the recent passage of Act 1209, which established TESS, seems to be a step in the right direction in terms of identifying, remediating, and, when necessary, dismissing ineffective teachers. As always, laws can only do so much; the real test will come in how TESS is implemented when it is used for the first time on a non-pilot basis during the 2014-15 school year.



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