Bad Day for Bad Teachers, Good Day for Kids
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This is a guest post courtesy of Richard Berman at the Capital Research Center, under the title A Bad Day for Bad Teachers.
Summary: In 1954, the U.S. Supreme Court issued the landmark
decision Brown v. Board of Education, which struck down racially
segregated schools because, the court said, they were inherently unequal
and they unjustly harmed poor and minority children. Last month, a
California court cited Brown v. Board as it struck down multiple state
laws, passed at the behest of teachers’ unions, which the court said
unjustly protected incompetent teachers and unconscionably harmed
children, especially the least fortunate.
In a landmark decision that sent shock waves through the educational
establishment, Los Angeles Superior Court Judge Rolf Treu ruled last
month that California’s teacher tenure laws unconstitutionally deprive
students of their guarantee to an education and to equal rights. “The
evidence is compelling,” Judge Treu wrote. “Indeed, it shocks the
conscience.”
In Vergara v. California, nine students sued the State of California,
claiming that ineffective teachers were disproportionately placed in
schools with large numbers of “minority” and low-income students. Judge
Treu agreed and quoted the U.S. Supreme Court’s 1954 Brown v. Board of
Education decision that education “is a right which must be made
available to all on equal terms.”
Nine young people and their families filed suit against California’s laws on teacher retention and dismissal, which, they say, protect bad teachers and deprive students of a high-quality education.
The Vergara decision came down less than one month after the 60th
anniversary of the Brown decision, in which the U.S. Supreme Court
struck down state and federal laws establishing separate public schools
for students classified by the government as “white” and “black.”
(In
Brown, the Court consolidated cases from Kansas, Virginia, South
Carolina, and Delaware, as well as the federal jurisdiction of
Washington, D.C.) The Supreme Court found that the practice of
segregation violated the provision in the U.S. Constitution that “No
State shall make or enforce any law which shall . . . deny to any person
within its jurisdiction the equal protection of the laws.”
The argument in the current case, Vergara, is that, by forcing
schools to favor incompetent teachers with seniority over more capable
junior teachers, the rules deprive students of the education that the
state constitution guarantees them. Further, because these rules funnel
bad teachers to districts with large numbers of poor and “minority”
students, those students are denied the equal treatment of the law.
The Vergara lawsuit was backed by Students Matter, a nonprofit
educational policy advocacy group funded by Silicon Valley entrepreneur
David Welch. “The state has a responsibility of delivering an education
for the betterment of the child,” said Welch. “The state needs to
understand that [its] responsibility is to teach children, and teach all
of them.” Welch’s organization recruited the nine students, from
several school districts, to serve as the public face of the case.
Astonishingly, the teachers’ union response to the ruling was that it
was actually an attack on children. “This decision today is an attack
on teachers, which is a socially acceptable way to attack children,”
said Alex Caputo-Pearl, the president-elect of the Los Angeles teachers
union. Instead of providing for smaller classes or more counselors, the
reformers “attack teacher and student rights.”
Welch answered that claim in an op-ed for the San Jose Mercury News
in which he described the harm students suffer from bad teachers:
According to the testimony of Harvard economist Dr. Thomas Kane, a
student assigned to the classroom of a grossly ineffective math teacher
in Los Angeles loses almost an entire year of learning compared to a
student assigned to a teacher of even average effectiveness. Students
assigned to more than one grossly ineffective teacher are unlikely ever
to catch up to their peers.
And far from wanting to attack all teachers, Welch in the same
article pleaded with his fellow Californians to reward good teachers:
“Let’s offer teachers opportunities for promotions, such as to master
teacher, teacher mentor, or department chair, where the skills of a
truly excellent, creative educator can reach more children—as well as
better pay with incentives for excellence and taking on extra
responsibilities or difficult positions.”
No less a union friend than Rep. George Miller (D-Calif.), whose
largest campaign support comes from unions, has bluntly admitted,
“Vergara will help refocus our education system on the needs of
students.” No wonder the teachers’ unions made five separate legal
efforts to have the lawsuit dismissed on grounds other than the merits
of the case.
California teacher union members number some 445,000. Both the
California Teachers Association (CTA, an affiliate of the National
Educational Association) and the California Federation of Teachers (CFT,
an affiliate of the American Federation of Teachers) plan to appeal the
court’s decision. Jim Finberg, a lawyer for the two teachers’ unions,
said that Judge Treu’s decision “ignores overwhelming evidence the
current laws are working.”
Actually, less than 0.002% of teachers in California are dismissed in
any given year. Judge Treu noted that, when an effort is made to fire a
teacher, “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 Statute, and that given these facts, grossly ineffective
teachers are being left in the classroom.”
Judge Treu concluded that “distilled to its basics,” the unions’
position requires them to defend the proposition that the state has a
compelling interest in the de facto separation of students from
competent teachers, and a like interest in the de facto retention of
incompetent ones. The logic of this position is unfathomable and
therefore constitutionally insupportable.
Seniority vs. Merit
The Vergara decision overturned a LIFO (last-in/first-out) law
requiring that teacher layoffs be based on seniority, rather than
individual merit. California’s Permanent Employment Law required that a
teacher be tenured after two years at a school (which, because of an
early notice requirement, worked out in practice to 18 months or less).
California is one of only five states in which tenure may be received
after such a short period. As noted by the blog Voices of San Diego:
Regardless of what we call it, here’s how it looks in San Diego
Unified. Once they’re hired, rookie teachers have to make it through a
two-year probationary period, during which they can be dismissed for
pretty much any reason.
But because the district has to tell teachers by mid-March whether
they’ll be invited back for the next school year, the trial period is
actually shorter than two years. In the past, the district hasn’t been
particularly aggressive in the number of probationary teachers it sends
away—only about 1 percent wasn’t given tenure.
“With such little time, you don’t even have enough information to
actually consider whether they’re an effective teacher,” said Nancy
Waymack, a managing director for the reform-advocacy group National
Council on Teacher Quality.
Compared to other states, California has some of the strongest laws
in place to protect teacher employment. The effect of this case may spur
action throughout the nation. “Without a doubt, this could happen in
other states,” said Terry Mazany, who served as interim CEO of Chicago’s
public schools in 2010-2011. A lawyer for Students Matter said they are
already hoping to “engage with policymakers in New York and
nationally,” and donor David Welch said the group would consider suits
in other states (New Jersey, Connecticut, Maryland, Minnesota, New
Mexico, and Oregon were mentioned as possible sites).
Undue Process
The term “due process” refers to a legal or quasi-legal system that
protects the rights of an individual, such as by requiring a trial
before a person can be executed. Unions defend the complicated
procedures for firing teachers by claiming they amount to “due process”
that protects those teachers from arbitrary, unfair treatment. As the
Pew publication Stateline reports, “The unions argue that the rules
protecting teachers are needed for school districts to attract and
retain good teachers and to ensure that employees are not fired for
arbitrary or unfair reasons.”
But the judge ruled in Vergara that the process has become so
cumbersome—that it’s become so difficult to get rid of bad teachers—that
it deprives students of their rights. He ridiculed the process as “über
due process,” and observed that California state laws already provide a
great deal of protection for government and private-sector employees
facing dismissal. “Why,” he pleaded, “the need for the current tortuous
process” that is mandated only for teachers, a process so unjust, he
added, that it was even decried by witnesses called by the teachers’
unions?
James Taranto of the Wall Street Journal noted an irony at the center of the ruling: “The California Supreme Court had applied the same legal premises to
hold unconstitutional funding disparities among districts and one
district’s decision to end the school year six weeks early owing to a
budgetary shortfall. Vergara doesn’t break new legal ground so much as
apply precedent in a way that threatens the education establishment.
It’s a case of judicial activism coming back to bite the left.”
A permanent job
As noted in Waiting for ‘Superman,’ a documentary promoting
educational reform, one out of every 57 doctors loses his or her license
to practice medicine, and one of every 97 lawyers loses his or her
license to practice law. Yet, in many major cities, only one out of
1,000 teachers is fired for performance-related offenses. The reason is
tenure, or as the unions call it, “permanent status.”
Tenure is the practice of guaranteeing a teacher his or her job.
Originally, this was a due process guarantee, something intended to work
as a check against administrators capriciously firing teachers and
replacing them with friends or family members. It was also designed to
protect teachers who took political stands the community might disagree
with. Tenure as we understand it today was first seen at the university
level, where, ideally, professors would work for years and publish many
pieces of inspired academic work before being awarded what amounted to a
job for life.
At the elementary and high school level, tenure has evolved from the
original understanding of “due process” to the university-style “job for
life.” In most states, teachers are awarded tenure after only a few
years, after which time they become almost impossible to fire. The main
function of these laws is to help bad teachers keep their jobs.
►One Los Angeles union representative has said: “If I’m representing
them, it’s impossible to get them out. It’s impossible. Unless they
commit a lewd act.” Unfortunately for the students who have to learn
from these educators, virtually every teacher who works for the Los
Angeles Unified School District receives tenure. In a study of its own,
the Los Angeles Times reported that fewer than two percent of teachers
are denied tenure during the probationary period after being hired. And
once they have tenure, there’s no getting rid of them. Between 1995 and
2005, only 112 Los Angeles tenured teachers faced termination—eleven per
year—out of 43,000. And that’s in a school district where the high
school graduation rate in 2003 was a pathetic 51 percent.
►One New Jersey union representative was even blunter about what his
union does to keep bad teachers in the classroom: “I’ve gone in and
defended teachers who shouldn’t even be pumping gas.”
In 10 years, only about 47 out of 100,000 teachers were terminated
from New Jersey’s schools. Original research conducted by the Center for
Union Facts (CUF) has confirmed that almost no teacher is ever fired in
Newark, which is New Jersey’s largest school district, no matter how
bad a job the teacher does. Over one four-year period, CUF discovered,
Newark’s school district successfully fired about one out of every 3,000
tenured teachers annually. This is a city where roughly two-thirds of
students never graduate from high school.
►In New York City, the New York Daily News reported that “just 88 out
of some 80,000 city schoolteachers have lost their jobs for poor
performance” over 2007-2010.
Then there were the so-called “rubber rooms” of New York City, which
operated until 2010. Teachers who couldn’t be relieved of duty would
report to these “rubber rooms,” where they would be paid to do nothing
for weeks, months, even years. According to the New York Daily News, at
any given time an average of 700 teachers were being paid not to teach
while the district jumped through the hoops, imposed by the union
contract and the law, to pursue discipline or termination. (A city
teacher in New York who ended up being fired spent an average of 19
months in the disciplinary process.) The Daily News reported that the
New York City school district spent more than $65 million annually just
to pay the teachers who were accused of wrongdoing. Millions more tax
dollars were spent to hire substitutes.
After the embarrassing Daily News story and an exposé in the New
Yorker, the union agreed to end the practice of rubber rooms but refused
to expedite the dismissal process. Instead of whiling the days away
doing nothing, the teachers were assigned to do clerical work and
perform other semi-useful tasks.
The problem isn’t limited to teachers accused of wrongdoing. The city
spends more than $100 million every year paying teachers who have been
excessed (i.e., whose positions have been eliminated) but have yet to
find jobs.
According to the Wall Street Journal, the ironclad union contract
requires that any teacher with tenure be paid full salary and benefits
if he or she is sent to the “Absent Teacher Reserve pool.” The average
pay of a teacher in that pool is over $80,000 a year, and some teachers
have stayed in the pool for years. The Journal reports that the majority
of teachers in the pool had “neither applied for another job in the
system nor attended any recruitment fairs in recent months.”
►Things are no better in New York as a whole. The Albany Times Union
looked at what was going on statewide outside New York City and
discovered some shocking data: Of 132,000 teachers, only 32 were fired
for any reason between 2006 and 2011.
►In Chicago, a school system that has by any measure failed its
students—only 28.5 percent of 11th graders met or exceeded expectations
on that state’s standardized tests—Newsweek reported that only 0.1
percent of teachers were dismissed for performance-related reasons
between 2005 and 2008. When barely one in four students nearing
graduation can read and do math, how is it possible that only one in one
thousand teachers is worthy of dismissal? It may well be that most of
the city’s teachers are good teachers, but can 99.9% of them be good?
Effects of tenure and related teacher “protections”
Modeled after labor arrangements in factories, the typical teachers’
union contract is loaded with provisions that do not promote education.
These provisions drive away good teachers, protect bad teachers, raise
costs, and tie principals’ hands.
● The Dance of the Lemons
One of the more shocking scenes in the documentary Waiting for
‘Superman’ is an animated illustration of “The Dance of the Lemons.”
This is no waltz or foxtrot. Rather, it’s the systematic shuffling of
incompetent teachers from school to school. These teachers can’t be
fired because union contracts require that “excessed” educators, no
longer needed at their original school, must be given first crack at new
job openings when slots open up elsewhere in the district.
Administrators at other schools don’t want to hire these bad teachers,
but districts are unable to fire them.
What happens? LA Weekly documented just how this process plays out in
Los Angeles in a massive 2010 investigation. “The far larger problem in
L.A. is one of ‘performance cases’—the teachers who cannot teach, yet
cannot be fired. Their ranks are believed to be sizable—perhaps 1,000
teachers, responsible for 30,000 children. … The Weekly has found, in a
five-month investigation, that principals and school district leaders
have all but given up dismissing such teachers. In the past decade,
LAUSD officials spent $3.5 million trying to fire just seven of the
district’s 33,000 teachers for poor classroom performance—and only four
were fired, during legal struggles that wore on, on average, for five
years each. Two of the three others were paid large settlements, and one
was reinstated. The average cost of each battle is $500,000.”
Unintended Consequences, a study by The New Teacher Project (TNTP),
documented the damage done by this union-imposed staffing policy. In an
extensive survey of five major metropolitan school districts, TNTP found
that “40 percent of school-level vacancies, on average, were filled by
voluntary transfers or excessed teachers over whom schools had either no
choice at all or limited choice.” One principal decried the process as
“not about the best-qualified [teacher] but rather satisfying union
rules.”
● Thinning the talent pool
One problem related to the destructive transfer system is a hiring
process that takes too long and/or starts too late, thanks in part to
union contracts. Would-be teachers typically cannot be hired until
senior teachers have had their pick of the vacancies, and the transfer
process makes principals reluctant to post vacancies at all for fear of
having a bad teacher fill it instead of a promising new hire.
In the study Missed Opportunities, The New Teacher Project found that
these staffing hurdles help push urban districts’ hiring timelines
later to the point that “anywhere from 31 percent to almost 60 percent
of applicants withdrew from the hiring process, often to accept jobs
with districts that made offers earlier.”
“Of those who withdrew,” the TNTP report continues, “the majority (50
percent to 70 percent) cited the late hiring timeline as a major reason
they took other jobs.” It’s the better applicants who are driven away:
“Applicants who withdrew from the hiring process had significantly
higher undergraduate GPAs, were 40 percent more likely to have a degree
in their teaching field, and were significantly more likely to have
completed educational coursework” than the teachers who ended up staying
around to finally receive job offers.
● Keeping experienced teachers away from poor children
Another common problem with the union contract is a “bumping” policy
that fills schools which are more needy (but less desirable to teach in)
with greater numbers of inexperienced teachers. In its report Teaching
Inequality, the Education Trust noted: “Children in the highest-poverty
schools are assigned to novice teachers almost twice as often as
children in low-poverty schools. Similarly, students in high-minority
schools are assigned to novice teachers at twice the rate as students in
schools without many minority students.”
● Bad apples stay
A study conducted by Public Agenda polled 1,345 schoolteachers on a
variety of education issues, including the role that tenure played in
their schools. When asked “does tenure mean that a teacher has worked
hard and proved themselves to be very good at what they do?” 58 percent
of the teachers polled answered that no, tenure “does not necessarily”
mean that. In a related question, 78 percent said a few (or more)
teachers in their schools “fail to do a good job and are simply going
through the motions.”
When Terry Moe, the author of Special Interest: Teachers Unions and
America’s Public Schools, asked teachers what they thought of tenure,
they admitted that the byzantine process of firing bad apples was too
time-consuming: 55 percent of teachers, and 47 percent of union members,
answered yes when asked “Do you think tenure and teacher organizations
make it too difficult to weed out mediocre and incompetent teachers?”
● The union tax on firing bad teachers
So why don’t districts try to terminate more of their poor
performers? The sad answer is that their chance of prevailing is
vanishingly small. Teachers unions have ensured that even with a
victory, the process is prohibitively expensive and time-consuming. In
the 2006-2007 school year, for example, New York City fired only 10 of
its 55,000 tenured teachers, or 0.018%. The cost to eliminate those
employees averages out to $163,142, according to Education Week. The
Albany Times Union reports that the average process for firing a teacher
in New York state outside of New York City proper lasts 502 days and
costs more than $216,000. In Illinois, Scott Reeder of the Small
Newspaper Group found it costs an average of $219,504 in legal fees
alone to move a termination case past all the union-supported hurdles.
In Columbus, Ohio, the teachers’ union president admitted to the
Associated Press that firing a tenured teacher can cost as much as
$50,000. A spokesman for Idaho school administrators told local press
that districts have been known to spend “$100,000 or $200,000” in
litigation costs to toss out a bad teacher.
It’s difficult even to entice the unions to give up tenure for more
money. In Washington, D.C., school chancellor Michelle Rhee proposed a
voluntary two-tier track for teachers. On one tier, teachers could
simply do nothing: Maintain their regularly scheduled raises and keep
their tenure. On the other track, teachers could give up tenure and be
paid according to how well they and their students performed, with the
potential to earn as much as $140,000 per year. The union wouldn’t even
let that proposal come up for a vote among its members, and stubbornly
blocked efforts to ratify a new contract for more than three years. When
the contract finally did come up for ratification by the rank and file,
the two-tier plan wasn’t even an option.
● Taking money from good teachers to give to bad teachers
During the expansion of teacher collective bargaining in the
mid-twentieth century, economists from Harvard and the Australian
National University found, the average, inflation-adjusted salary for
U.S. teachers rose modestly—while “the range of the [pay] scale narrowed
sharply.” Measuring aptitude by the quality of the college a teacher
attended, the researchers found that the advent of the collectively
bargained union contract for teachers meant that on average, more
talented teachers were receiving less, while less talented teachers were
receiving more.
The earnings of teachers in the lowest aptitude group (those from the
bottom-tier colleges) rose dramatically relative to the average wage,
so that teachers who in 1963 earned 73 percent of the average salary for
teachers could expect to earn exactly the average by 2000. Meanwhile,
the ratio of the earnings of teachers in the highest-aptitude group to
earnings of average teachers fell dramatically. In states where the
highest-aptitude teachers began with an earnings ratio of 157 percent,
they ended with a ratio of 98 percent.
Data from the National Center for Education Statistics, as reported
by Education Week, add further evidence to the compressed-pay claim. The
Center’s stats indicate that the average maximum teacher pay nationwide
is only 1.85 times greater than the nationwide average salary for new
teachers.
● Locking up education dollars
Much of the money commanded by teachers’ union contracts is not being
used well, at least from the perspective of parents or reformers.
Several provisions commonly found in union contracts that cost serious
money have been shown to do little to improve education quality. A
report from the nonprofit Education Sector found that nearly 19 percent
of all public education spending in America goes towards things like
seniority-based pay increases and outsized benefits—things that don’t go
unappreciated by teachers, but don’t do much to improve the quality of
teaching children receive. If these provisions were done away with, the
report found, $77 billion in education money would be freed up for
initiatives that could actually improve learning, like paying
high-performing teachers more money.
● Putting kids at risk
Teachers unions push for contracts that effectively cripple school
districts’ ability to monitor teachers for dangerous behavior. In one
case, school administrators in Seattle received at least 30 warnings
that a fifth grade teacher was a danger to his students. However, thanks
to a union contract that forces schools to destroy most personnel
records after each school year, he managed to evade punishment for
nearly 20 years, until he was finally sent to prison in 2005 for having
molested as many as 13 girls. As an attorney for one of the victims put
it, according to the Seattle Times, “You could basically have a
pedophile in your midst and not know it. How are you going to get rid of
somebody if you don’t know what they did in the past?”
The Bottom Line
Too many schools are failing too many children. Americans should not
remain complacent about how districts staff, assign, and compensate
teachers. And too many teachers’ union contracts preserve archaic
employment rules that have nothing to do with serving children.
Even Al Shanker, the legendary former president of the American
Federation of Teachers, admitted, “a lot of people who have been hired
as teachers are basically not competent.”
This is what the union wants: To keep teachers on the payroll
regardless of whether or not they are doing any work or are needed by
the school district. Why? As long as they are on the payroll, they keep
paying union dues. The union doesn’t care about the children who will be
hurt by this misallocation of tax dollars. All union leaders care about
is protecting their members and, by extension, their own coffers.
Most teachers absolutely deserve to keep their jobs, and some have
begun to speak out about the absurdity of teacher tenure, but it’s
impossible to pretend that the number of firings actually reflects the
number of bad teachers protected by tenure. As long as union leaders
possess the legal ability to drag out termination proceedings for months
or even years—during which time districts must continue paying
teachers, and substitute teachers to replace them, and lawyers to
arbitrate the proceedings—the situation for students will not improve.
The Vergara case offers hope, but supporters of better education
cannot rely on judges to fix America’s schools. Parents and teachers
must join together to eliminate teacher tenure systems that protect bad
teachers and that divert our best teachers away from many of the
students who could benefit most from their skills and experience.
Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
