In a blockbuster of a decision, a California judge declared this week that its state's teacher tenure, “last-in, first-out” (LIFO) and dismissal procedure laws are unconstitutional.

Los Angeles Superior Court Judge Rolf M. Treu ruled that the laws rob public school students of the right to an education by subjecting them to “a significant number of grossly ineffective teachers.” Furthermore, the laws struck down by Judge Treu disproportionately harm low-income students and students of color and thereby violate their civil rights to an equal education. 

The suit, Veraga v. California, was brought by nine California public school students representing five major districts.

Here’s why I think this verdict is such a big deal:

1) The 33-day trial gave the public the most open, systematic, and evidence-based debate on how teacher tenure and LIFO affect student learning. It was the tenure/LIFO version of the Scopes trial in “Inherit the Wind.”

Both sides brought in their best witnesses and experts. Both lawyers made their most eloquent arguments, although instead of Spencer Tracy as Clarence Darrow, we had the amazing Marcellus McRae. (Watch his riveting closing argument for the students here.) A veteran judge went over the evidence. And the result was… a slam-dunk decision against the laws and in favor of the students.

“The evidence is compelling. Indeed, it shocks the conscience,” Treu wrote in his ruling. (You can take a brief look at the evidence here and excerpts from witness testimony here.)

2) The trial showed how teacher tenure and seniority rules routinely violate the civil rights of children of color. Which is why the judge—along with many other legal experts—are comparing Vergara to Brown v. the Board of Education.

Evidence showed that students assigned to ineffective math or reading teachers lose anywhere from 10-12 months worth of learning, which means kids subjected to ineffective teachers actually worsen from when they entered the classroom. And in Los Angeles, African American students are 43 percent more likely than whites to be taught by a teacher in the bottom 5 percent of effectiveness. Latino students were 68 percent more likely.

As a veteran Minneapolis Public Schools parent, I’ve seen a similar pattern here. And as an active die-hard Democrat, it pains me to watch my beloved fellow Democrats be the chief defenders and enablers of these antiquated—and yes, racially discriminating—laws. We as Democrats often talk about the role of good government, the power of public education, social justice and racial equity.
So if this case is or leads to the new Brown v. Board of Education, what side do we, as Democrats, want to be on? Do we want to be the next Topeka Board of Education? I mean, really? Seriously?

3) Vergara is predicted to inspire similar lawsuits across the country, including Minnesota.

Minnesota is one of 14 states where teacher layoffs are solely based on seniority–not effectiveness, creativity or any other variable that is proven to serve the needs of our kids. Minnesota teachers gain automatic tenure after three years, making the process of replacing an ineffective teacher cumbersome, expensive and nearly impossible. The civil rights violations stemming from certain laws cited in California have also been occurring for years in Minnesota.

Yet our elected officials have refused to amend or fix these laws. In 2012, Gov. Mark Dayton vetoed legislation that would have ended LIFO. He did this in a state that has one of the worst achievement gaps in the country–but to the great applause of the state teachers union.

All this adds up to Vergara The Sequel. Coming to a court room near you soon.

In a recent article in the Star Tribune, Education Minnesota President Denise Sprecht responded to the Vergara case stating that the union is preparing to defend tenure and LIFO in Minnesota. She decried the millions spent on legal fees that would be better spent in the classrooms.

My response: Don’t want to spend millions in a civil rights trial? Great! We don’t have to. All you have to do is stop violating civil rights. Education Minnesota is one of the most powerful political lobbies in the state. The organization and its partners could agree to change these discriminatory laws with us or they can oppose every progressive step toward justice in lengthy and expensive court trials. At the end of the day, we will have the outcomes that best serve our kids regardless of others’ intentions.

4) Retaining the best teachers and fairly but quickly dismissing ineffective ones is in the state’s interest.

All sides agree that grossly ineffective teachers undermine the ability of children to succeed. In fact, according to a MinnCAN poll of district teachers across the state, more than 60 percent of teachers who have taught one to 20 years say that effectiveness should be the primary factor in deciding staff. It is also evident that like in California, Minnesota has a significant number of grossly ineffective teachers currently active in our classrooms. The number of grossly ineffective teachers has a direct, real and negative impact on a significant number of kids–especially our low-income kids and kids of color.

In his decision, Judge Treu referenced California’s constitution. One relevant section reads, “a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the law.” Another reads, “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 … improvements.” And also relevant, “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district.”

Minnesota’s Constitution is strikingly similar to California’s. In addition to the nearly identical language on due process and the preservation of the rights of the people, Minnesota’s Constitution reads, “It is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.” A clause too similar to California’s language and too often ignored by the Minnesota Legislature that it would be wise to assume any Minnesota judge would likely consent with Judge Treu’s ruling.

In Minnesota and elsewhere, teacher unions have long insisted that automatic tenure and LIFO are actually just smart management tools that create a high-quality, stable workforce. The outcome of these policies have resulted in unequal schools, inefficiencies in our education and statewide mediocrity and dysfunction, which is why most employers, including businesses, non-profits and much of the public sector, have refused to voluntarily adopt them.

So what is the compelling state interest for Minnesota legislators to force schools to work under rigid rules that no healthy organization, non-profit or business would ever willingly choose?

         (Long silence… crickets chirping…)

         Yeah, I know. I couldn’t come up with one either. Neither could the judge in California.

Lynnell Mickelsen is a long-time education activist, Minneapolis public school parent veteran and co-founder of Put Kids First Minneapolis.


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