Evidence

Students matter. And so does the evidence.

During oral argument in the appeal of Vergara v. California, attorneys for the State of California and the State’s two largest teachers unions made a number of statements that directly contradict the evidence.

Here, we respond with the facts.


DURING ORAL ARGUMENT

THE COURT: “Plaintiffs had to show that facially neutral statutes inevitably cause disparate treatment. Has that been shown by the evidence? Has it been shown that the consequences are so pervasive, clear, and unavoidable that discrimination occurred?”
STATE’S COUNSEL: “It has not, your honor.”

THE FACTS

Evidence from trial:

  • California Department of Education (Defendant): “Unfortunately, the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthy peers to attend schools have a disproportionate number of…ineffective teachers and administrators. Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequalities”1
  • Dr. Arun Ramanathan: “[R]everse seniority layoffs simply exacerbate a terrible situation. They result in… often your least effective teachers being placed in your highest poverty schools.”
  • Dr. Thomas Kane: “[T]here is a mechanical relationship between premature tenure decisions, difficult dismissal decisions, and the accumulation of ineffective teachers” in low-income and minority schools.
  • Dr. Dan Goldhaber: Analyzed thousands of seniority-based layoff notices and found that “African-American students were disproportionately likely to have their teachers receive a [layoff] notice” relative to other students.

StudentsMatter Testimony 1


DURING ORAL ARGUMENT

UNIONS’ COUNSEL: “In no district is there the so-called ‘Dance of the Lemons.’”

THE FACTS

According to the Superior Court ruling in Vergara v. California:

  • “The evidence was also clear that the churning (aka ‘Dance of the Lemons’) of teachers caused by the lack of effective dismissal statutes and LIFO affect high-poverty and minority students disproportionately.”

Evidence from trial:

  • California Department of Education (Defendant): “[T]ransfers often function as a mechanism for teacher removal” and “poorly performing teachers generally are removed from high-income or higher-performing schools and placed in low-income and low-performing schools.”2
  • Dr. Thomas Kane: “[L]ess-effective teachers tend to be shifted into those schools where there are more vacancies. And those are the schools where there are disproportionate numbers of African-American and Latino Students.”
  • Assistant Superintendent Mark Douglas (Fullerton School District): Principals “use dance of the lemons” to “mov[e] people of less skills, poor performance” to predominately low-income and minority schools.
  • Principal Bill Kappenhagen (San Francisco Unified School District): Ineffective teachers in San Francisco “get shuffled around from school to school to school,” often ending up at schools serving high-poverty, high-minority communities.

To learn more about the Dance of the Lemons, see this helpful infographic.

StudentsMatter Testimony 2


DURING ORAL ARGUMENT

STATE’S COUNSEL: “My colleague shared a number of troubling anecdotes, and I think everyone in this room can agree, that there’s ample room for improvement of our education system.”

THE FACTS

We agree that there is considerable room for improvement in our education system and believe that an essential step in ensuring this result is to provide all kids with access to effective educators. Research shows that quality teachers make the difference — not only in students’ academic performance, but also in their lifetime success.

Evidence from trial:

  • According to the testimony of Dr. Thomas Kane, a student assigned to a grossly ineffective math teacher in Los Angeles loses 11.73 months of learning per year compared to a student assigned to a teacher of average effectiveness.
  • According to the testimony of Dr. Thomas Kane, a student assigned to a grossly ineffective English Language Arts teacher in Los Angeles loses 9.54 months of learning per year compared to a student assigned to a teacher of average effectiveness.
  • According to the testimony of Dr. Raj Chetty, a student assigned to a single grossly ineffective teacher loses $50,000 in potential lifetime earnings compared to a student assigned to a teacher of average effectiveness.
  • According to the testimony of Dr. Raj Chetty, a classroom of 28 children taught by a grossly ineffective teacher loses $1.4 million in lifetime earnings. If 3 percent of California’s 275,000 teachers are grossly ineffective, as the State’s own expert witness testified) and each grossly ineffective teacher has a class of 25 students per year, this means that California students lose $11.6 billion in lifetime earnings each year.

StudentsMatter Testimony 3


DURING ORAL ARGUMENT

UNIONS’ COUNSEL: “These statutes actually were designed and have the effect of improving the overall quality of the teaching pool, because they make the teaching profession more attractive.”

THE FACTS

Testimony from teachers during trial showed that high-quality teachers do not enter the teaching profession because of the promise of permanent employment:

  • Maggie Pulley, Teacher, Los Angeles Unified School District: “I was going into the profession because I thought it would be a good fit, meaningful, challenging. I wasn’t looking for a guaranteed job.”
  • Jonathan Moss, Teacher, Compton Unified School District: “I became a teacher because I wanted to teach. I wanted to impact my students. I knew that I was becoming a teacher because my students needed me. It had nothing to do with job protection. It was because I wanted to provide a service to those that I had felt…didn’t have opportunities that I had growing up.”
  • Most states have far better teacher employment laws than California with less burdensome, less costly and more streamlined dismissal policies, and those states are still able to attract and retain high-quality teachers.3
  • According to a recent Teach Plus poll, 63 percent of California principals believe that the state’s seniority-based layoff system is viewed negatively by people who are considering joining the teaching profession.

StudentsMatter Testimony 4


DURING ORAL ARGUMENT

UNIONS’ COUNSEL: “[W]e don’t know what grossly ineffective means…”

THE FACTS

STUDENTS’ COUNSEL: “Counsel just mentioned that we don’t know what grossly ineffective teachers are. We do. The Governor knows. The Department of Education knows. The unions know. Everybody in the courtroom knew, we asked every witness, and everybody agreed that it was teachers that were not advancing learning in students. Everyone agreed that there were grossly ineffective teachers in the system.” Theodore J. Boutrous, Lead Counsel for student plaintiffs

Evidence from trial:

  • Jonathan Raymond, Sacramento City Superintendent: There are objective ways to measure teaching impact on student learning by “looking at student work through the use of rubrics, looking at assessment data, both formative and summative assessment data.”
  • Dr. John Deasy, LAUSD Superintendent: LAUSD uses “myriad … sources to make judgments on a teacher’s overall effectiveness,” including Academic Growth Over Time, an “algorithm [that] measures student learning gains” and accounts for “other factors so that those students’ learning gains … can be attributed to the teacher.”
  • Dr. Susan Moore Johnson (witness for Defense): “Student test scores should be used in assessing teacher effectiveness to confirm other means of assessing a teacher’s performance.”
  • State’s Counsel: “But of course the state would concede. There are 277,000 teachers in the state. There will be a wide variety of teacher effectiveness with such a large teacher workforce…”

StudentsMatter Testimony 5


DURING ORAL ARGUMENT

STATE’S COUNSEL: “Even if we were to assume for the sake of argument that some school districts were saddled with some number of ineffective teachers, there’s no inherent reason why they couldn’t assign those teachers to white or affluent students as opposed to poor or minority students, or evenly distribute them among their district.”

THE FACTS

There was no evidence presented at trial that districts can effectuate large-scale involuntary transfers of teachers between schools; to the contrary, the evidence showed that involuntary transfers of teachers lead to grievances and litigation.

 

  • According to the testimony of Dr. John Deasy:
    • Q: “[T]he district can require the teacher to transfer, correct, for educational program — for the best interest of the educational program of the district were?”
    • A: “I believe the answer is that the district could exercise its right and it has been aggressively grieved in the past… A grievance has been filed when you force a teacher to go where a teacher does not wish to go.”
  • According to the testimony of Dr. John Deasy:
    • Q:  “I wanted to know if there were any other limitations on the ability of LAUSD to simply transfer teachers from one district, or one school, rather, to another within the district in order to try to close achievement gaps other than what you’ve testified to?”
    • A:  “Well, one of the — I don’t know if I testified to this, but the obvious limitation is you have to have a spot to transfer the teacher to.  We are a declining enrollment district, which means we are not increasing teaching positions, they are decreasing because you have less students.  The second limitation is one that is — one that deals with environmental context, and that is parents frequently are extremely upset when a teacher is either moved from their school to go to another school or a teacher is sent to that school whom they do not want to come to that school, so that every one of these usually results in some kind of community protest.”
  • According to the testimony of Mr. Troy Christmas, Director of Labor Strategy for the Oakland Unified School District, Oakland “would use a provision in [its] collective bargaining agreement to involuntarily transfer [poorly performing teachers] to other schools,” but this still did not allow the “district to remove all grossly ineffective teachers” because “there were simply more than [the district] w[as] able to either transfer, get to retire… it’s a constant balance.”

 

  • The evidence also proved that the Challenged Statutes lead to a pernicious and well-documented phenomenon known colloquially as the “Dance of the Lemons.”  Because dismissal is not a viable option for districts, principals seeking to improve the teaching staff at their own schools are forced to try to transfer ineffective teachers to other schools within the district.
  • Unfortunately, the schools that bear the brunt of these transfers are schools serving predominantly low-income and minority students, for two reasons: (1) Those schools typically have more vacancies to fill, in part because of the LIFO Statute, and  (2) Students at those schools typically have “families who aren’t used to the education system… don’t know what to look for in a great teacher… [and] won’t complain,” according to testimony from Fullerton Unified School District Asst. Superintendent Mark Douglas.
  • Dr. Thomas Kane testified that the Challenged Statutes “function like a lemon accumulation machine” in high-vacancy, high-minority schools because “districts have to make tenure[] decisions prematurely and… it is difficult to make dismissal decisions later.”
  • In a published report, the California Department of Education itself admits that administrators “encourag[e] … poorly performing teacher[s] to transfer” to other schools because teacher dismissal proceedings have “a very limited likelihood of success” and transfer is therefore “the most practical course of action at the individual school level.”


1 Evaluating Progress Toward Equitable Distribution of Effective Educators
2 Evaluating Progress Toward Equitable Distribution of Effective Educators
3 http://studentsmatter.org/case/vergara/permanent-employment/
4 http://www.teachplus.org/sites/default/files/publication/pdf/not_so_golden.pdf