Yesterday I published a post on this blog entitled “The Vergara Decision and the Threat to Tenure,” in which I discussed the potential direct and indirect impact on higher education of a recent California Superior Court decision voiding the state’s K-12 “teacher tenure” laws and summarizing and excerpting some of the critical response that has greeted this ill-conceived and sloppy ruling. But one aspect of the case has continued to puzzle me. In his 16-page decision Judge Treu wrote:

Plaintiffs allege that it is too time consuming and too expensive to go through the dismissal process as required by the Dismissal Statutes to rid school districts of grossly ineffective teachers. The evidence presented was that such time and cost constraints cause districts in many cases to be very reluctant to even commence dismissal procedures. The evidence this Court heard was that it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion under the Dismissal Statutes; and 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.

These claims are presented in the decision without any supporting evidence, much less a footnote, direct quote, or reference to a specific report, document or witness. And it seemed to me that the claim that dismissing a single ineffective teacher for cause could cost a school district as much as $450,000 lacked credibility. After all, I thought, couldn’t you easily get a teacher to retire or resign by simply offering a severance package less than half that size? So I tried to find some evidence myself. Nowhere, however, have I found anything concrete to justify these numbers. Nowhere have I found any accounting of what specific costs were involved here. Are these expenses attributable to extraordinary attorneys’ fees? What explains such costs? I’m not saying such figures don’t exist somewhere, but I couldn’t find them. If someone else can, please let me know.

What I did find, however, is that these claims were advanced in trial via the testimony of two leading school district administrators. According to the anti-union organization Students Matter, which has funded the plaintiffs in this case and describes itself as “a national non-profit organization dedicated to sponsoring impact litigation to promote access to quality public education,” these claims derive from testimony offered by controversial Los Angeles Unified School District Superintendent Dr. John Deasy, who testified that the district “spends in excess of $250,000 to $450,000 per performance-based dismissal,” and testimony offered by Troy Christmas, labor relations administrator for the Oakland Unified School District, who told the court that his district “spends approximately $50,000 to $400,000 per dismissal act.”

According to an account in the Los Angeles Times, Deasy’s three days of testimony actually provided “fodder for both sides:”

He testified that he is simply unable to remove all “grossly ineffective” teachers and that taking action against them has proved prohibitively expensive and time-consuming. “Dr. Deasy doesn’t engage in speculation,” said plaintiffs’ attorney Marcellus McRae, who called Deasy as the first witness. “He has his hands on the steering wheel. And he’s telling people life as it really is.” In cross-examination, however, Deasy’s testimony also demonstrated a school system’s latitude under current law. The issue comes down to the choices and competence of management, not the constitutionality of current regulations, said attorneys for the state and teachers unions. “Dr. Deasy’s testimony affirmed the point that we made in the opening argument: that whether a district is well managed makes a huge difference,” said attorney James M. Finberg, who represents the California Teachers Assn. and the California Federation of Teachers.

In addition, the Times reported,

Deasy also noted that he doubled the number of teachers who were refused tenure and thus were dismissed after their second year. As far as making good tenure decisions, “I believe we have done a good job at accomplishing that,” Deasy testified. Attorneys defending the laws were inclined to agree. “Well-managed districts don’t grant tenure if the teachers have not established that they’re effective,” said Finberg [a defense attorney].

The L.A. Superintendent claimed that firing an ineffective teacher requires “volumes of documentation,” can consume several years and is “challenged at every step by the teachers union.” The typical cost can be about $350,000, he said. But In 2011-12, L.A. Unified fired 99 tenured teachers, compared to just 10 in 2009-10, before Deasy became superintendent. In 2011-12, 122 teachers resigned in lieu of being terminated. If these dismissals actually cost an average of $350,000, that means that the district spent a whopping $3,465,000 on terminating tenured teachers. On the one hand, that’s a lot of money to get rid of just 99 teachers. On the other hand, by my calculation it amounts to a mere 0.1% of the district’s unrestricted general fund for that year; it’s even a smaller proportion of the district’s $6.2 billion overall budget (see LA Unified 2011-12 budget report). In short, what’s the big deal? Where’s the problem?

Let’s look at this another way. According to Judge Treu’s admittedly sloppy opinion, between 1% and 3% of California teachers are “grossly ineffective.” That would mean that no more than about 1,300 of LA Unified’s approximately 45,000 teachers fit this designation. And since Deasy managed to terminate 99 of those 1,300 in one year and got another 122 to resign in lieu of dismissal, one must conclude that he successfully got rid of nearly a fifth and perhaps as much as a half of his “grossly ineffectives” in just one year. Once more, where’s the problem?

Apparently neither Deasy nor Christmas, whose testimony according to media accounts was essentially similar to that of Deasy, offered even a shred of specific evidence concerning the nature of the costs incurred by their districts during the dismissal process. So, let’s speculate about what these might be. To dismiss an ineffective tenured teacher a district must document ineffectiveness to the point that it can prove its case before a due process hearing. What kind of documentation might that involve? Well, obviously it would involve evaluations of teaching made by peers and supervisors, including school principals. But what special costs might these entail? Shouldn’t one assume that periodic evaluations are the norm for all teachers? If so, what extra costs are associated with such evaluations for allegedly “ineffective” instructors? I suspect not many.

In fact, LA Unified does require all tenured teachers to be evaluated every two years by their principals in what is called a Stull Evaluation. Tenured teachers who get “unsatisfactory” ratings are placed under “peer assistance and review” — PAR — for help and retraining. As one article highly laudatory of Deasy’s leadership reported, under Deasy, the Board of Education signed off on a policy to mark for dismissal teachers who’d been deemed unsatisfactory for two consecutive years. “If you get two unsatisfactory Stulls, I expect you to be prepared for termination,” Deasy explained, “for inability to do the job. That is the standard in this administration.”

In 2012, 331 teachers failed their Stull evaluations, and 89 of those were fired or pushed out. The evaluations may get harder, because Stulls now include the standardized test scores of the teacher’s students. It’s part of a broader new “student achievement” section, which will count for up to 30 percent of a teacher’s grade. Clearly, the existing laws that Vergara would overturn have not prevented meaningful (and no doubt some not very meaningful) teacher evaluation. Yet again, I ask, where’s the problem?

Of course, one must assume that the biggest chunk of the cost is attributable to legal expenses. But those expenses fall on both sides and one might assume that teachers’ unions, whose resources are far smaller than those of the state’s school districts, especially large ones like L.A. Unified, would also object to the allegedly high cost of the dismissal process. And one must also ask what kind of salaries the district’s lawyers earn, not to mention salaries of the undoubtedly small army of school administrators involved, many of whom no doubt have themselves enjoyed de facto “tenure” in their positions, no matter how useless they may be.

Before closing, I must report the following, which speaks volumes about the real nature of this mean-spirited lawsuit and the interests behind it. Today the San Francisco Chronicle Business Report printed an article with the headline “Tenure ruling might aid credit rating.” The article reads, in part:

California’s public schools would benefit financially if last week’s Superior Court ruling striking down teacher tenure laws is upheld, credit rating agency Moody’s said in a note published Monday. “The ruling is credit positive for school districts because greater employment flexibility will lead to increased budgetary flexibility,” the note said. It would also help urban school districts, such as Oakland Unified and Los Angeles, “better compete with the growing number of independent charter schools,” that are siphoning away students and dollars. . . . Deeming an event “credit positive or negative doesn’t mean there is (going to be) a credit rating change.” But “it could develop over time as a credit factor that could impact the rating,” Moody’s spokesman David Jacobson said. Last week, rival credit-rating agency Standard & Poor’s said it anticipated “neutral to positive credit implications” for California public schools as a result of the decision. . . . S&P noted that 75 to 80 percent of school district spending is on salaries and benefits. “The judgment could allow schools more flexibility in their largest expenditure line item,” it said in a brief note. Moody’s said that currently, districts must grant or deny a teacher tenure after two years of employment. “The ruling would allow school districts more time to determine teacher quality, which would improve educational quality and keep ineffective teachers off the payroll.” . . . It added that some California school districts must increasingly compete with charter schools to attract and retain students. When a student leaves a public school for an independent one, the district loses the full amount of per-pupil funding, “leaving fewer dollars for instruction or support programs as fixed costs are spread over a smaller number of students,” it said. . . . “Moody’s and S&P show as much good sense in their understanding of the potential impact of the Vergara ruling as they did in their understanding of the housing bubble and ratings related to it in the years before the 2008 crash,” Fred Glass, a spokesman for the California Federation of Teachers, said in an e-mail. “If all it takes to get a better credit rating for a state is to create greater employer flexibility, then why stop with Vergara? We should abolish child labor laws and get the kids working in the mines again.”

a national non-profit organization dedicated to sponsoring impact litigation to promote access to quality public education. – See more at: http://studentsmatter.org/#sthash.TxESKnnu.dpuf

a national non-profit organization dedicated to sponsoring impact litigation to promote access to quality public education. – See more at: http://studentsmatter.org/#sthash.TxESKnnu.dpuf

a national non-profit organization dedicated to sponsoring impact litigation to promote access to quality public education. – See more at: http://studentsmatter.org/#sthash.TxESKnnu.dpuf