Vergara v. California and the Teach-to-the-Test Epidemic

On Tuesday, the Los Angeles Superior Court reached a tentative verdict on Vergara v. State of California, deeming five of the state’s Education Code statutes unconstitutional.

In a sixteen-page report on his decision, presiding Judge Rolf M. Treu scrutinizes the Permanent Employment Statute, collective Dismissal Statutes and Last-In-First Out (LFO) statute, supporting plaintiff allegations that “the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment.”

“Grossly ineffective teachers,” he argues, “are disproportionately situated in schools serving predominately low-income and minority students,” comparing the case to Brown v. Board of Education.

Treu first targets the Permanent Employment Statute, calling it a “misnomer.” He explains, “In order to meet the March 15 deadline, reelection recommendations must be placed before the appropriate deciding authority well in advance of March 15,” cutting months off the already short two year period.

”The heavily expedited reelection process,” he argues, “does not provide nearly enough time for an informed decision to be made regarding the decision of tenure.”

Only four other states (Connecticut among them) have two year tenure rules. Meanwhile, the report explains, “32 states have a three year period, and nine states have four or five.”

Treu directs further criticism at California’s Dismissal Statutes, under which, he says, “it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring (termination) cases to conclusion.” Schools are, consequently, reluctant to even begin the process of firing tenured teachers.

Responding to defendant concerns about Dismissal Statute reform encroaching on employees’ right to due process, Treu says, “Evidence was presented that classified employees, fully endowed with due process rights … had their discipline cases resolved with much less time and expense than those of teachers.”

The final statute to see Treu’s jurisdictional guillotine was LIFO, which mandates that teachers with less experience be laid-off first. LIFO, he explains, “contains no exception or waiver based on teacher effectiveness.”

Expert testifier Dr. Thomas Kane, a professor at Harvard’s Graduate School of Education, told the court that Los Angeles Unified School District students “taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.”

Similarly, Dr. David Berliner, Professor Emeritus of Education at Arizona State University, “testified that 1-3% of teachers in California are grossly ineffective.” If accurate, 2,750 to 8,250 of the state’s approximately 275, 000 teachers are lemons.

Judge Treu’s decision makes a great deal of theoretical sense. Protecting incompetent teachers through bureaucratic statutes is a serious violation of public students’ rights to equal education.   

I am, however, skeptical of the methods by which the Court came to its verdict, as Treu’s report fails to provide a uniform definition of the “gross ineffectiveness” for which teachers are to be punished.

Will teachers be evaluated on their students’ standardized test scores, grades? Or is Treu suggesting another objective or numerical evaluation of a teacher’s effectiveness?

Late last year, US News reported the findings of a study by researchers at MIT, Harvard and Brown that tracked the standardized test scores of 1,400 eighth graders in Boston Public Schools. The study concluded, “Even when students improve their scores on standardized tests, they don’t always improve their cognitive abilities.”

Why, then, should teachers’ jobs hinge on an aptitude test with little to no relevance to students’ real world functionality? Can teachers’ competence be evaluated objectively?      

Treu’s explanatory negligence exemplifies a rampant misperception of public education as an input-output function through which teacher competence can be measured numerically.

America’s teach-to-the-test epidemic, in failing to nurture students’ cognitive development, poses as much a threat to public school students as does the “Dance of the Lemons.”

It is, therefore, just as unreasonable to evaluate teachers on their students’ standardized test performances as it is to evaluate the students themselves.