California tenure ruling and the potential shock-waves to Massachusetts

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Justice Rolf Treu of the Superior Court of California delivered a decision that shook the world of public education on Tuesday, June 10th, 2014. Nine public school students, represented by the organization Students Matter, brought the case against the state of California, on the grounds that their right to an equal education had been infringed upon. The ruling in Vergara v. California struck down all five offending laws, finding that California’s teacher tenure practices violate students’ rights to equal and adequate education in public schools.

In his ruling, Treu wrote that the flawed tenure practices, including the highly contested “Last in, first out” practice, inordinately affect the education of low-income and minority students and thus cannot stand under Serrano v. Priest (1971) and the state Constitution’s Education Code Section 200et seq. Serrano v. Priest declared that education is a fundamental in California, and the Code states that California “… prohibits sex, ethnic group identification, race, national origin, religion, and mental or physical disability discrimination in education.”

While the tenure appointment period was significantly shorter in California than Massachusetts (18 months and 3 years, respectively), the Vergara v. California case opens up a conversation about reform possibilities within Massachusetts, which has a comparable law that charges the Commonwealth with an

“…enforceable duty to provide an education for all its children, rich and poor, in every city and town through the public schools,”

as ruled in the McDuffy v. Secretary of the Executive Office of Education case of 1993. It does not mandate equal spending, but it does imply that all Massachusetts children have a right to an equal education.

Part One, Title XII, Chapter 7, Section 42, of the Constitution of the Commonwealth of Massachusetts addresses the dismissal of tenured and untenured teachers. The law states that a professional teacher (defined as a teacher granted tenure) cannot be dismissed, except for reasons of gross “inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards.” While the laundry list seems comprehensive, many of these issues are hard to prove, and the school district always bears the burden of proof. Judge Treu described the similar process in California as “so complex, time-consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

A 2012 amendment reaffirmed our “last in, first out” layoff policy and a new system wherein, when downsizing due to budget constraints, school committees and union reps “may negotiate for seniority or length of service only as a tie-breaker in personnel actions under this paragraph among teachers whose qualifications are no different,” will be implemented in September of 2016. If all else is equal, the junior teacher is still likely to be ousted. Furthermore, the measures of qualifications and quality are unclear, making it difficult to have exact standards for comparison.

The California ruling is likely to be challenged, but the impacts of such a decision are far reaching. Given the similarities of the laws in California and Massachusetts, the conversation may cross the country with lightning speed.

Many states have made moves toward tenure reform, but this new ruling puts particular pressure on the Bay State to put its children ahead of the adults in our public schools.

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