Vergara Decision Raises Questions about Minnesota Anti-Tenure Suit

Forslund and Vergara:  The Forslund suit recently filed in Minnesota District Court challenges aspects of tenure and seniority protections afforded to licensed teachers.  The Forslund litigation is a close relative of the California litigation, Vergara v California, which is based upon  theories almost identical to the Minnesota suit Forslund v. Minnesota .  This post begins a discussion of the recent decision of the California Court of Appeals in Vergara v. California and considers what we can learn from Vergara as we ponder Forslund.  Its going to take a couple of posts to do that job:  my goal is to write in a way that assists non-lawyers to wade into the debate intelligently.    Since I've been critical of the theories presented in both Forslund and Vergara, I want to emphasize that my criticisms rest on a failure of the Forslund complaint to identify the correct constitutional flaws in the Minnesota system.  I'm not writing to defend the status quo:  I write to suggest a failure of Forslund's complaint to understand that our public education system is a complex web of interlocking interdependent legal and financial structures which must be reformed as a whole to fix our broken system.

So now let's turn the the California Vergara litigation and see what we can learn that might be useful here in Minnesota.

Facial Constitutional Challenge:  The Vergara plaintiffs brought a "facial constitutional challenge" to the tenure and seniority provisions of California’s Education Code. The Vergara plaintiffs alleged that California's seniority and tenure provisions violate California  Constitution’s guarantee that all citizens enjoy the “equal protection of the laws.” (Cal. Const., art. I, § 7, subd. (a).)

When I say that the Vergara plaintiffs made a "facial challenge" to these laws, I'm using a legal term of art.  A facial claim to a statute means that the plaintiffs contend that the statute itself is unconstitutional, as opposed to the way in which the statute is administered or applied.   For example, a statute that prohibits a demonstration against the government in the downtown areas would be struck down as facially invalid, because violates the first amendment no matter how it is administered.  On the other hand, a statute that requires a permit to demonstrate downtown, would likely survive a facial challenge, but its enforcement could be enjoined if permits were denied to persons who protested against certain causes and not others.    Both Forslund and Vergara, (Minnesota and California) make facial equal protection claims, alleging that some students are taught less than others and consequently are denied equal protection.   Both Forslund and Vergara also allege that tenure and seniority protections violate the two states education clauses of their respective constitutions, (but the California education clauses differ from that of Minnesota's.)

 California's Education Clause:  California's Education Article IX section 1 provides that:

 A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.

Article IX Section 5 of the California Constitution provides that:

The Legislature shall provide for a system of common  schools by which a free school shall be kept up and supported in each  district at least six months in every year, after the first year in which a school has been established.

Minnesota's Stronger Education Clause.  The California Education clauses are not as powerful as Minnesota's constitutional education clause.  Like California's constitution, Minnesota's constitution, certainly prevents invidious discrimination in our educational system, but the Minnesota Constitution has an education adequacy clause which requires the legislature adequately to fund a "thorough and efficient" system of education,.   Why have the Forslund plaintiffs failed to use the full force of the Minnesota Education clause to seek broader relief on behalf of the students and parents they purport to represent?! Let's save that question for another day, even though its really important.


Now I've said that the California litigation contended that the California tenure and seniority statutes  cause an unequal education "on their face," such that there was no way that they could be administered effectively to produce an equal education.  The allegation of facial invalidity was important to the plaintiffs, (or at least the funders of the California litigation), because they wanted to get rid of the challenged seniority and tenure provisions entirely, instead of fixing the way they were administered.   

Allegation that Seniority and Tenure Cause the Achievement Gap--the Grossly Ineffective 5%:  To prove that seniority and tenure are responsible for the failure of California schools to close the achievement gap, the Vergara plaintiffs needed to blame the gap on seniority and tenure, and that was a tall order.  They began by focusing on what they called "grossly ineffective teachers, which they defined as the bottom five percent of all educators.   The Minnesota Forslund complaint parrots this approach.  According to the Complaints, most teachers, approximately 95% are not grossly ineffective.    But, they contend,  about 5% of the teachers are grossly ineffective, as measured by the progress that their students make.    These teachers, the complaints allege remain in the system because allegedly, neither Minnesota or California are able to rid their school systems of this grossly ineffective 5%. 

Reliance on Value Added Evaluations:  In both cases, the plaintiffs measure gross ineffectiveness using so-called value-added  measures of effectiveness comparing the growth in learning measured by standardized tests to the average growth of all students.  In Minnesota, we use value added measures in evaluation, but the consensus of most professionals is that value added measures are only one measure of competence that should be considered along with a variety of other measures of competence.  However the thesis of the complaints is that value added measures are the gold standard in teacher evaluation, and indeed the Minnesota Forslund complaint criticizes Minnesota's decision to combine test score growth with other measures of effectiveness.

Super Duper Due Process Protections:  How allegedly, do these grossly ineffective teachers survive in the system?  In both cases, California and Minnesota, the complaints allege that teachers have "super-duper" procedural due process rights, (their words, not mine) which cause administrators to avoid efforts to terminate teachers even when they are grossly ineffective.   According to the California complaint, administrators get stuck with these grossly ineffective teachers, because California's tenure laws give them only 18 months (Minnesota administrators get 36 months) to evaluate teachers, and hence allegedly California administrators merely roll the dice and allow teachers to receive tenure, even though their competence has not yet been established.   Then, both Complaints allege, the super duper tenure protections are so onerous that administrators simply give up and settle for gross ineffectiveness. (In Minnesota, the Forslund complaint alleges, these super duper protections include the right to a lawyer, the right to adjudication by arbitration and other due process rights.)  

Do Administrators Really Grant Tenure and Retain Grossly Ineffective Teachers to Save Litigation Costs?  Now as we think about this contention: that Minnesota administrators are not firing ineffective teachers because our seniority system makes it too expensive to complete a firing, we should think about the economics of that argument.  Assume for example that a mid-career costs a school district (salary and benefits) about $25,000 per year more than a starting teacher.  That means that if an administrator can terminate the employment of a grossly ineffective mid-career teacher and replace her with a new teacher, the administrator can save $25,000 per year for the next ten to 20 years-- a saving of from $250,000 to one half million dollars over the life of the grossly ineffective teacher's remaining contract, simply by terminating the mid career ineffective teacher, and by hypothesis, can dramatically improve the district's educational results at the same time.  Are we really sure, then, that administrators avoid terminations because they want to avoid litigation costs, or might there some other reason?

 Now there are some problems with Minnesota's termination system:  arbitrators are chosen by the parties in a mutual strike system that gives the arbitrators an economic motivation to rule in favor of labor and management about evenly.   So I'm not here to defend the system as perfect, but it should give us pause to assume that cost is the primary reason that administrators fail to terminate grossly ineffective teachers (assuming that this is the case).   But this topic, we save for a different time and a different post.

More Defects in the Vergara-Forslund Logic:  California administrators have only 18 months to evaluate new teachers before tenure is granted.  Minnesota administrators have three years to evaluate teachers, twice that in California, but the Minnesota complaint contends that this is still not enough time.  Moreover, the Forslund complaint contends, the Minnesota evaluation system is defective, because only 35% of the teacher's evaluation score is determined by a "value-added" method.  Basically, the complaint is contending that Minnesota administrators cannot identify a grossly ineffective teacher unless they use the Value Added system exclusively, and that, my friends is a preposterous contention. 

Now here, let us pause to remember the difference between a facial challenge and challenge to the implementation of the law as applied.   If it were, for example, alleged that administrators are granting tenure to grossly ineffective teachers because those administrators are themselves incompetent to evaluate quality teachers, then a court might order relief against the administration of the tenure evaluation, rather than eliminate tenure. Is it possible that Plaintiffs in Forslund have identified a problem with administrators and administration, rather than the system of tenure and seniority?! 

This brings us to a common allegation in both complaints, word for word copies of each other.   Both complaints allege that California and Minnesota schools and their administrators ( I quote exatly)

"Hire And Retain Grossly Ineffective Teachers At Alarming Rates"

This raises a rather troublesome question for both California and now the Minnesota litigations.  How does it come to pass that Minnesota and California administrators responsible for hiring and retaining teachers pick candidates who turn out to be grossly ineffective, and do so "at alarming rates?"   Why, in Minnesota, do administrators (allegedly) grant tenure to grossly ineffective teachers, after observing their teaching, evaluating the supposed alarmingly slow progress of their students.  And, if the hiring is occurring at alarming rates, why then are only 5% of teachers grossly ineffective.   If grossly ineffective teachers are being hired at alarming rates, how is it that they fail to accumulate in the teaching force and stay their building up great reservoirs of incompetence. 

Let us remember that in Minnesota, a teacher who fails to prove her competence does not have to be given tenure.  There is no review, no procedure, that can reverse an administrator's decision to deny tenure.  When an administrator has doubt, she can deny tenure without proving incompetence, indeed without having to prove any reason at all.  And, if there is doubt, the administrator can extend the probationary period by consent, and if consent is not given, can deny tenure and replace?  So maybe something else is going on! 

Can 5% of teachers actually cause the Achievement Gap?   How also, we might ask, is it possible, that the primary flaw in Minnesota's allegedly failing system caused by 5% of the teachers who are grossly ineffective.   The complaint suggests that once a student falls a bit behind as a  result of the ineffective teacher, she is doomed for the rest of her academic career, even if the next teachers who follow are highly effective.   This is an allegation that ought to be carefully examined, because in the schools identified by the complaint, the allegation is that an extraordinary number of these students come to the school already way behind even before they are exposed to a single grossly ineffective teacher.  Unless every last one of these students meet their first grossly ineffective teacher in kindergarten or first grade, how is one to explain the achievement gap in these grades?  Because students are coming to school behind, these schools cannot be effective unless they have a system in place that accelerates the progress of students at a pace greater than one year per year of schools.  It cannot possibly be, then, that a student who loses time is doomed for life:  these public schools are in  the business of catching up and surpassing and we need to ask how schools can organize themselves to do vastly more than an ordinary teacher can do in one year.   Now, that's not by any stretch of the imagination to justify even one grossly incompetent teacher.   I'm just suggesting that we take these allegations with a healthy dose of skepticism and recognize that even hiring super duper teachers is not going to be good enough:  we need super duper leaders, with super duper curriculum and super duper training.  The concept of making it all happen merely by getting rid of 5% of the worst teachers is just, pardon my french, plain bunk.  

There is something about these allegations, in fact, that makes one want to ask whether part of the problem is grossly ineffective administration of the personnel responsibilities of school districts that serve students who lack social and economic status.  Or possibly, that their are working conditions and rewards in these schools that discourage teacher retention.  (That's all assuming the claim that schools do retain grossly ineffective teachers, and that remains to be seen).   We'll have more to say about this in the next posts.  And, we'll explain why these defects in logic caused the California Court of Appeals dismissed the Vergara complaint, even though the California system is vastly more problematic than Minnesota's in virtually every respect.