When a California judge ruled on Tuesday that teacher tenure rights were unconstitutional and violated students’ rights to a good education in that state, the news reverberated 3,000 miles away.
But before anyone thinks it will soon change much in the never-ending debate over teacher tenure in New Jersey -- or even in California -- think again.
The decision in Vergara v. California found that California’s tenure law allowed the weakest teachers to remain in the classroom -- especially in the classrooms of low-income area students.
The ruling specifically cited seniority rights – known as “last in, first out” or LIFO -- that prioritized layoffs based on the number of years of employment.
“The logic of this position is unfathomable and therefore constitutionally unsupportable,” wrote Judge Rolf Treu of Los Angeles Superior Court.
A strong rebuke to teacher unions, the powerfully worded decision might turn out to be the first chink nationally in the intractable legal armor of tenure rights for teachers.
But promises of court appeals came quickly. And, even if the ruling is not challenged, it’s not at all clear how much the decision might transcend California and impact states like New Jersey.
Even those inclined to support the decision said the California situation doesn’t really apply to New Jersey.
The most important distinction is that New Jersey has already revised its tenure law in ways that Treu cited as lacking in California, including a clearer path for removing ineffective teachers.
New Jersey’s new tenure law, known as TEACHNJ and enacted in 2012, allows schools districts to remove teachers after two years of substandard evaluations.
"California's tenure law is not our tenure law,” said Kathleen Nugent, state director for Democrats for Education Reform, a national advocacy group that has pressed for tenure reform. “We can remove ineffective teachers more readily."
Still, Nugent said the California ruling did change the discussion about tenure to a legal and constitutional one, and she said it spoke to the importance of how New Jersey would implement its new law.
“It matters when students are harmed by state laws, and we’ve just seen that the courts are ready to step in and protect them,” she said. “It’s critical right now for New Jersey’s education stakeholders to ensure TEACHNJ is implemented with integrity to make sure no students are denied their right to a quality teacher and education.”
Still, that didn’t stop some from seizing the moment, with state Sen. Joseph Kyrillos (R-Monmouth) announcing late yesterday that he would revive his bill, first filed three years ago, that would abolish many of the many tenets of tenure, including seniority rights.
“This legislature should seize this opportunity and momentum to pass full tenure reform to improve education and lower property taxes in New Jersey,” Kyrillos said in announcing the bill’s re-introduction. “This overhaul bill allows public school districts to best serve their students and communities by ensuring only the best teachers, administrators and staff members are the ones educating and nurturing our next generation.”
Kyrillos said he also would invite the advocacy group that brought the Vergara case to consider bringing a case in New Jersey. The group, Students Matter, was largely funded by Silicon Valley millionaire David Welch, and it has vowed to bring similar suits in a half-dozen other states.
Gov. Chris Christie, who once supported Kyrillos’ bill, was quiet on the topic yesterday when his press office was contacted.
But even in claiming credit for the state’s new tenure law, Christie has not hidden his antipathy toward some of the rights that teachers still have in New Jersey -- especially layoffs are based on teacher seniority instead of performance.
Efforts to rescind those seniority rights have gone nowhere, and Democratic leaders in the Legislature have shown no inclination to make any changes in that law.
But there has been a flank attack on seniority through the regulatory process. Newark’s state-appointed schools superintendent, Cami Anderson, sought state permission to waive seniority rights as a consideration in planned layoffs in that district -- in part citing the same legal argument as Vergara.
After three months, the administration under acting Commissioner David Hespe has delayed ruling on the waiver request – and the urgency faded when Anderson announced last month that layoffs wouldn’t be needed this year after all.
But it still leaves the issue on the table in New Jersey, with the Newark Teachers Union filing its own request for a waiver last week for what it called Anderson’s failure to adequately implement the rules of the new tenure law.
David Sciarra, executive director of the Education Law Center, which has led the Abbott v. Burke litigation over school equity in New Jersey, said the Vergara argument applied here would require a high burden of proof.
“A claim that a New Jersey law violates the right to a thorough and efficient education under the State Constitution requires substantial evidence that the law results in wholly inadequate and severely deficient education to students in specific districts,” he said.
Sciarra also said he believed the ruling sidestepped the larger argument that districts serving low-income students continue to receive insufficient funding for needed programs and to pay high-quality teachers.
“New Jersey must stay focused on providing schools with the resources needed to attract and retain a high-quality teacher workforce,” he said in an email. “Lawsuits aimed at tweaking teacher work rules won't help, but will only detract from accomplishing this goal.”
A spokesman for the New Jersey Education Association, the teachers union, downplayed the Vergara decisions, and cited legislation already proposed in California to address the judge’s objections.
“It’s a California case that’s on appeal, as I understand it, so there doesn’t seem to be any meaning for New Jersey at this time,” wrote Steve Wollmer, the NJEA’s communications director.
“Not only that, but it appears that legislation is working its way through the California legislature on tenure reform that bears a strong resemblance to the New Jersey law enacted in 2012 – which is really where these kinds of issues should be addressed.”