California Teacher Tenure Seen Doing Permanent Damage

California laws allowing highly ineffective teachers to keep their jobs impair students for life and should be thrown out, a lawyer told a judge at the end of a two-month trial over whether tenure protections violate a constitutional right to an education.

“Education is the gateway to success,” Ted Boutrous Jr. said in his closing statement today in Los Angeles, asking Superior Court Judge Rolf Treu to strike down five state laws in what the attorney has described as the broadest legal challenge ever undertaken to statutes protecting teachers from being fired after a probationary period.

A group of students backed by Silicon Valley entrepreneur David Welch’s nonprofit organization claim the statutes give job security to inept teachers and violate children’s right to a basic education, especially in poor and minority schools. Welch is the president and co-founder of Sunnyvale, California-based Infinera Corp., a maker of optical networking gear.

Citing an expert’s estimate that about 3 percent of public school teachers in California are “highly ineffective,” Boutrous said that adds up to 8,250 bad teachers in the state teaching 206,250 students every day. The estimated loss in lifetime earnings for those students because of their poor education is $11.6 billion, the lawyer said.

Better Pay

Saying that most teachers in California are hardworking and deserve better pay and benefits, Boutrous argued that California laws are irrational and arduous when it comes to firing bad teachers. At the same time, school administrators have no trouble identifying which teachers perform well and which don’t, according to lawyers for the students.

“It’s not rocket science,” Boutrous said. Most states with teacher tenure require a longer probationary period than California, according to Boutrous. Three to five years would be preferable to the current two years -- in effect 18 months -- teachers now have to prove they are able to do the job, he said.

James Finberg, a lawyer for the California Teachers Association and the California Federation of Teachers, said in his closing statement that poorly run school districts, not the statutes, are the reason inefficient teachers are allowed to remain in their jobs.

No Problem

Properly managed districts, working under the contested laws, have no problem identifying probationary teachers that shouldn’t get tenure in 18 months, he said. Nor is it costly or burdensome for well-run districts to dismiss, or secure the resignation of, substandard tenured teachers who fail to improve, Finberg said.

“Plaintiffs create a false dichotomy between the interest of students and teachers,” the lawyer said. “Students thrive when teachers are provided with good working conditions.”

The anecdotal evidence of the nine plaintiffs about grossly ineffective teachers was disproved by the testimony of the teachers and school principals who said that none of them would have been fired even if they had been at-will employees, Finberg said. One of the teachers in question was named Pasadena teacher of the year last year, he said.

There had been no evidence that the nine students got stuck with a grossly ineffective teacher because of the laws they’re seeking to overturn, Finberg said.

Treu will decide the outcome without a jury. The judge gave the lawyers until April 10 to file summaries of their cases, after which he will have 90 days to issue a ruling.

“The court has much to consider and will consider it deliberately and thoroughly,” Treu said.

Second Biggest

Welch’s group, Students Matter, sponsored the 2012 lawsuit by parents on behalf of the nine students, who were as young as 7 at the time of the filing and enrolled in public schools in Los Angeles, Oakland and other California districts. Los Angeles is home to the biggest public school district in the U.S. after New York City’s.

Welch, who said in a newspaper commentary last year that “impact litigation” will be a more effective way than politics to bring about change, has joined other business leaders in a nationwide fight with teachers’ unions over how to better educate students and prepare them for employment.

Billionaires including Microsoft Corp. Chairman Bill Gates, homebuilding and insurance entrepreneur Eli Broad, and Wal-Mart Stores Inc.’s Walton family have been pushing for public schools to be run more like businesses. Charter schools, independent of local school districts and typically free of unionized teachers, have been one of their favorite causes.

Former California Governor Pete Wilson, a Republican who championed reduction in class size to improve schools, was among the spectators in the courtroom today.

The students are represented by Boutrous and his firm Gibson Dunn & Crutcher LLP. Boutrous helped Wal-Mart win a 2010 U.S. Supreme Court ruling that barred a nationwide sex-discrimination lawsuit on behalf of 1 million female workers.

The case is Vergara v. State of California, BC484642, California Superior Court (Los Angeles).

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