Tenure Ruling is Yet Another Attack on Teachers Rights...

Arne Duncan Calls California Ruling 'A Mandate' to Fix Tenure Laws

A California judge ruled as unconstitutional Tuesday the state's teacher tenure, dismissal and layoff laws, saying they keep bad teachers in the classroom and force out promising good ones.

Poor and minority students are especially hurt by the laws because "grossly ineffective teachers" more often work in their schools, Los Angeles County Judge Rolf M. Treu said.

The ruling was hailed by the nation's top education chief as bringing to California -- and possibly the nation -- an opportunity to build "a new framework for the teaching profession." The decision represented "a mandate" to fix a broken teaching system, U.S. Education Secretary Arne Duncan said.

The court ordered a stay of the decision, pending an appeal by the state and the teachers union, the plaintiffs said. 'Reforming teacher tenure and firing laws is a hotly debated issue in American education, and the California case is being watched nationally, as evidenced by a statement from Duncan immediately after the court ruling.

Reformers say firing a bad teacher is almost impossible because of tenure laws and union protections, but teachers and their unions argue school boards and their firing criteria have unfair, overtly political standards.

Duncan, a former schools chief in Chicago, said he hoped the ruling will spark a national dialogue on a teacher tenure process "that is fair, thoughtful, practical and swift."

At a minimum, Duncan said the court decision, if upheld, will bring to California "a new framework for the teaching profession that protects students' rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve."

"The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students. Today's court decision is a mandate to fix these problems," Duncan said.

Teachers unions, however, criticized the ruling, with one leader stating the court decision was "anti-public education" and a "scapegoating" of teachers for public education's problems. They will appeal the ruling.

Judge's ruling

The judge upheld the plaintiffs' arguments that the state's teacher tenure laws violated their rights to an equal education and caused "the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular," he wrote.

The effect of bad teachers on students "shocks the conscience," the judge wrote. He cited how one expert testified that a single year in a classroom with a bad teacher costs pupils $1.4 million in lifetime earnings per classroom.

An expert called by the defendants estimated there are as many as 8,250 "grossly ineffective" teachers in the state -- or up to 3% statewide, the judge said.

But the state's two-year process for evaluating new teachers -- much shorter than the three-year period in 32 states -- "does not provide nearly enough time" for making tenure decisions, the judge said.

"This court finds that both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one) disadvantaged by the current ... statute," Treu wrote.

Firing a bad teacher could take anywhere from two to almost 10 years and cost $50,000 to $450,000 or more, the judge said.

He said that "given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases."

"Based on the evidence before this court, it finds the current system required by the dismissal statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory," the judge wrote.

Plaintiffs' reaction

The plaintiffs said the ruling promises to usher in major reforms to public education and could "create an opportunity for California to embrace a new system that's good for teachers and students," according to the nonprofit Students Matter, which has been working with the nine students who are the plaintiffs.

One of the plaintiffs' attorneys called the ruling "a victory for students, parents, and teachers across California."

"This is a monumental day for California's public education system," plaintiffs' attorney Theodore J. Boutrous Jr. said in a statement. "By striking down these irrational laws, the court has recognized that all students deserve a quality education."

The nine students filed their lawsuit with help from the nonprofitStudents Matter, which says it sponsors "impact litigation to promote access to quality public education."

The plaintiffs alleged that tenure is granted too quickly, giving "grossly ineffective teachers" lifetime job protection, and asserted that dismissal laws are so costly and bureaucratic that districts remain stuck with bad teachers. The suit also contends that the state's "last-in, first-out" layoff laws force districts to fire top teachers and retain ineffective ones, the plaintiffs said in a statement.

Teacher unions will fight ruling

The California Teachers Association, a 325,000-member affiliate of the National Education Association, said it was "disappointed" by the judge's decision "as it hurts student and educators."

The union said there is nothing unconstitutional about the laws and says it is appealing.

"We are deeply disappointed, but not surprised, by this decision. Like the lawsuit itself, today's ruling is deeply flawed. This lawsuit has nothing to do with what's best for kids, but was manufactured by a Silicon Valley millionaire and a corporate PR firm to undermine the teaching profession and push their agenda on our schools," CTA President Dean E. Vogel said in a statement.

The state affiliate of the nation's other teachers union also denounced the court ruling.

"This suit is not pro-student. It is fundamentally anti-public education, scapegoating teachers for problems originating in underfunding, poverty, and economic inequality," California Federation of Teachers President Joshua Pechthalt said.

The CTA described Students Matter as a group created by Silicon Valley multimillionaire David Welch and a private public relations firm and said the group is supported by former Washington, D.C., schools chancellor "Michelle Rhee and Students First, Parent Revolution Executive Director Ben Austin, billionaire and school privatizer Eli Broad, former lawmaker Gloria Romero, and other corporate education reformers with an interest in privatizing public education and attacking teachers' unions."

Manny Rivera, a spokesman for the plaintiffs, confirmed the roles of those individuals and groups in the lawsuit and its efforts as stated by the union.

Rhee called the ruling "groundbreaking" and a moment for the state to now build "a first-class educational system."

Will the Supreme Court Kill Public-Employee Unions?

The massive stakes in the court case Harris v. Quinn.

Forget Wisconsin Gov. Scott Walker and his fellow union-bashing governors. Forget the partisan Republican attacks on organized labor. The gravest threat today to public-employee unions—which represent cops, firefighters, prison guards, teachers, nurses, and other city and state workers—is a Supreme Court case named Harris v. Quinn, which could be decided as early as this Tuesday. And, strangely enough, it is the court's most sharp-tongued conservative, Justice Antonin Scalia, who could ride to organized labor's rescue.

The case pits several of the nation's mightiest labor unions, such as the Service Employees International Union (SEIU) and the American Federation of State, County, and Municipal Employees (AFSCME), against their longstanding foe, theNational Right to Work Legal Defense Foundation, which helped bring the case. National Right to Work is funded by some of the biggest names in conservative philanthropy: the Bradley family, the Waltons of Walmart, Charles Koch, and DonorsTrust and Donors Capital Fund, two dark-money ATMs. Labor officials seeHarris as an effort by the deep-pocketed conservative movement to wipe public-employee unions off the map—and to demolish a major source of funding and support for the Democratic Party. "This is an attempted kill shot aimed at public-sector unions," says Bill Lurye, AFSCME's general counsel.

The origins of Harris date to July 2003, when the Illinois legislature passed a bill recognizing certain home-care providers as "public employees" and designating a Midwest branch of SEIU to exclusively represent those workers. Before that, these workers were deemed independent contractors with no union representation, even though the Illinois government paid them with federal health-care funds. In June 2009, Gov. Pat Quinn, a Democrat, went one step further. By executive order, Quinn declared the state's disability-care providers, another type of home-care worker, eligible for exclusive union representation. (Ultimately, the disability providers voted against unionizing.)

Organized labor hailed these moves. Unions see a huge opportunity in the rapidly growing population of elderly Americans—what SEIU president Mary Kay Henry calls the "silver tsunami." Labor leaders believe that organizing home-care workers across the country could slow the decline in union membership.

When the Illinois labor bill passed in July 2003, no home-care worker was forced into SEIU. But if they chose not to join, the union still was allowed to deduct a small amount of money from their paychecks. Why? It was the union's responsibility to represent every home-care worker impacted by the new law. To pay for representing union and non-union home-care workers, the union began taking what it calls a "fair share" fee. (This money cannot be used for political activity.) The Supreme Court has upheld a union's right to collect fair share fees. (This is where so-called right-to-work laws come in. Such laws ban unions from collecting fair share fees from non-union workers even if the employees benefit from union-negotiated contracts.)

Home-care workers, consumers, and advocates in Illinois say union representation has led to higher quality care, safer workplaces, and more stability. Flora Johnson, an 85-year-old home-care worker in Chicago and SEIU member, says union-funded training sessions taught her how to properly lift a person and how to feed patients without choking them. Johnson points out that the union brought a level of professionalism to her industry. "Before we got the union, it was like we was babysitters," she says. "We had no dignity."

But there was a backlash. In April 2010, a group of Illinois home-care workers, led by plaintiff Pamela Harris, filed a class action arguing that the state had infringed on their First Amendment rights by forcing them to be represented by a union and pay fees. (The suit named two unions, SEIU and AFSCME, as defendants.) A district court and the US Seventh Court of Appeals each dismissed the case.

The case lay dormant until last October. That's when, at National Right to Work'surging, the Supreme Court agreed to hear Harris. Until that point, Harris was narrowly focused on the Illinois home-care workers; it posed no existential threat to the likes of SEIU and AFSCME. But after the high court intervened, National Right-to-Work expanded its argument to threaten all public-employee unions. As SCOTUSblog's Lyle Denniston wrote, Harris "mushroomed…into a major test of the continuing validity of the Abood precedent."

Cue organized labor's freak-out. Abood v. Detroit Board of Education is the 1977 Supreme Court decision that, in effect, upheld the constitutionality of the public-employee union model. The majority in Abood said these unions did not infringe on the First Amendment by collecting representation dues and collectively bargaining on behalf of public workers.

"This is an attempted kill shot aimed at public-sector unions," says Bill Lurye, AFSCME’s general counsel

During oral arguments in January, the Obama administration contended that overturning Aboodwould result in "radically reshaping First Amendment law." Yet several of the court's conservative justices appeared to want just that. Writing for the majority in 2012's Knox v. SEIU, Justice Samuel Alito all but invited National Right to Work to challenge Abood. During the oral arguments in Harris, Alito and Justice Anthony Kennedy seemed eager to demolish Abood. The court's four liberal justices questioned National Right-to-Work's arguments at every turn, with Justice Elena Kagan saying that tossing out Abood would lead to a "radical restructuring of the way workplaces are run." John Roberts, who has used his time as chief justice to push a pro-corporate agenda, gave few hints about where he stood on the fate of public-employee unions.

That leaves Justice Antonin Scalia. A conservative who says he interprets the Constitution through an originalist lens, Scalia would make for a strange ally of organized labor. Yet it was Scalia who asked some of the toughest questions of William Messenger, the lawyer for National Right to Work, challenging Messenger's argument that public-employee unions are lobbying organizations focused mostly on influencing public policy. Forcing workers to be represented by a lobbying outfit, Messenger argued, infringes on the First Amendment rights of workers who don't agree with the union's positions.

Scalia didn't appear to be buying it. He seemed to lean more toward labor's argument: that unions exist to better the working conditions of the workers they represent. "Listening to Scalia's voice in oral arguments made me feel like he really doubted that there was a need to go so far right now," says Lee Adler, an expert on public-employee unions at Cornell University. "He couldn’t follow National Right to Work's logic."

The Supreme Court's decision in Harris could cut several ways. It could affirm the lower court's decision—a big loss for National Right-to-Work. It could issue a more narrow opinion, saying, for instance, that Illinois home-care workers aren't public employees and shouldn't be unionized without touching Abood. Or the high court could take that kill shot: Eviscerate Abood and gut public-employee unions.

Like many other court watchers, Cornell's Lee Adler says the fate of Harris—and, potentially, the fate of public-employee unions—rests with Scalia. For the labor movement, Adler says, "He's the great white hope."