Teacher Tenure and Seniority Lawsuits: A Failure of Logic

New Jersey's teacher tenure and seniority lawsuit continues to grind away. Part of a trio of suits here and in New York and Minnesota, these lawsuits are all being brought to the various state courts by the Partnership for Educational Justice, Campbell Brown's secretly funded organization.

Their Minnesota lawsuit was thrown out of court last fall; in New Jersey, however, we had to wait for a state Supreme Court ruling on a Christie administration motion to tie tenure and seniority laws to school funding. The Court ruled it wasn't going to opine on these laws until a lower court takes up the PEJ's case. So now we wait for that ruling -- and the PEJ continues its public relations campaign against tenure and last in-first out (LIFO) seniority rules.

To their credit, PEJ has posted all of the filings in the case. But it's clear after reviewing them that PEJ doesn't have a leg to stand on. Not to say they won't prevail: bad legal reasoning didn't stop Judge Rolf Treu in California from issuing a terrible ruling in Vergara, which was inevitably overturned on appeal. Similarly, the only way PEJ can win here in New Jersey is if the lower court hearing the case sets aside all logic and reason...

Because the PEJ's case simply makes no sense.

When a group like the PEJ goes before the courts to get a statute overturned as unconstitutional -- by which I mean in violation of the state's constitution, not the federal Constitution -- the burden of proof is on them. They may have a problem with the NJ tenure and LIFO statutes, or any other law on the books, but getting the court to overturn a law isn't simply a case of arguing against the law's merits: they have to show how it violates the state's constitution.

The constitution states (Article VIII, Section IV): "The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." Unless and until the PEJ can demonstrate to the courts that tenure and LIFO laws violate this clause, the courts cannot act.

In a long-running series of cases involving school funding in New Jersey, the NJ Supreme Court found the systemically inadequate and inequitable funding of schools was in direct violation of the education clause. Although the litigation has a long and complex history, the basic premise of the lawsuits is comparatively simple: at-risk children need more funding to equalize educational opportunities, the state's system of school funding makes it impossible for those children's communities to raise adequate funds on their own and, therefore, the state needs to intervene.

In contrast, the challenge for the PEJ is to show how tenure and LIFO laws similarly violate the education clause; even the PEJ's own filing concedes this point. The problem is that right after stating what their legal argument should be, they completely ignore the task. 

Yes, they make the case districts with larger proportions of at-risk children show fewer gains in academic outcomes; no one disputes this. Yes, they make the case teachers matter; no one disputes this (although the canard of teachers being "the most important in-school factor" for student achievement is wrong: the student is the most important "in-school factor," not the teacher). Yes, they make the case ineffective teachers should be dismissed; no one disputes this.

They even go further and argue that the quality of teachers suffers in districts that serve many at-risk students. Certainly, there's strong evidence students in these districts are more likely to have less qualified teachers, as judged by their credentials, experience, or scores on knowledge tests (teacher scores, not students). 

But none of this speaks to the central argument PEJ is trying to make:

Hill: The Newark Teachers Union says — about the comment like that — these folks who are tenured, they’ve been through a certain process and if the process determines that they’re no longer an effective teacher, the process has a way of dealing with them. You say? 

[Ralia] Polechronis [PEJ Executive Director]: So, that’s not entirely what we are talking about here. What we’re talking about in LIFO are terminations and layoffs that have to happen only during budget cuts. So that process, that dismissal process, isn’t really at play. We’re talking about a situation when the district is in such dire financial constraints and is having such a problem figuring out its budget that they have to go to teachers, they have to go to laying them off and they have to make that decision, according to the law, by the level of seniority instead of thinking about the great teachers that are in the classroom and that should stay there.

Think about what Polechronis is assuming: that a district like Newark has the ability to differentiate at a very fine level the effectiveness of individual teachers, and then act accordingly in high-stakes decisions.

Let's be very clear: There is no evidence -- none -- that teacher effectiveness can be measured reliably and validly at a level that allows for high-stakes decisions to be made regarding teachers who have already been found to meet a minimal level of effectiveness.

What PEJ argues implicitly is that the Newark Public Schools can simply use its observation rubrics and Student Growth Percentiles and Student Growth Objectives to calculate an overall measure of teacher effectiveness, and then apply that measure to fairly determine who gets the boot when budgets cuts "must" be made. But this contradicts everything we know about measuring teacher effectiveness.

Yes, principals can identify their very worst teachers; they are incapable, however, of differentiating the effectiveness of the vast bulk of teachers in the middle. The phony precision of observation protocols like the Danielson Model have led some to think we can validly use the resulting scores to accurately rank and order teachers; that is a mistaken belief grounded in innumeracy. In the same way, the error that is an inherent part of standardized tests makes the use of SGPs in decisions like this invalid (among many other reasons). And SGOs are, to be blunt, a joke.

The plain truth is that even if PEJ got its way and teachers could be dismissed without regard to seniority, there is no reliable and valid way to evaluate the majority of teachers who are dismissed in reductions-in-force. Yes, we can identify the worst performers; we can and should either get them remediation or remove them from their classrooms. But there's simply to reason to believe Newark, or any district, can accurately rank all teachers by their effectiveness.

But that's not the only failure of logic in PEJ's case. Because even if districts could make accurate decisions based on effectiveness -- again, they can't, but play along -- they would still have to show that districts like Newark were disproportionately affected by LIFO laws.

Unlike school funding -- which, despite all of the lawsuits, is still inequitably distributed across the state -- tenure and LIFO laws apply to every district equally. Newark and more affluent Millburn both have to operate under tenure laws; Camden and more affluent Haddonfield both have LIFO. Yes, the cities have had to make cuts in staff, in large part because charter schools, imposed by the state, have gobbled up more students and more resources. But that's not a function of tenure or LIFO laws; how could it be?

Reading through the PEJ's filings, it's clear they are unable to make a case that urban students have suffered disproportionately by tenure; in fact, as NJEA points out in one of its briefs, there isn't even evidence that any of the plaintiffs' children suffered from having a bad teacher who was spared dismissal by the LIFO laws, calling into question the plaintiffs' standing.

What is clear is that Newark's schools have suffered from inadequate and inequitable funding; even the plaintiffs acknowledge students have suffered from losses of staff like librarians and guidance counselors (p.9-10). But they put forward no argument that removing LIFO laws would have saved those jobs; again, how could they?

Some have argued that dismissing senior, higher-paid employees frees up more funds for lower-paid, less senior staff, thus leading to fewer reductions. This assumes that teacher effectiveness is evenly distributed across experience, which we know is not true -- when you cut experienced teachers, you're more likely to cut effective teachers (and again: we're setting aside the problem that you can't rank and order the vast majority of teachers by effectiveness anyway).

It also assumes that there is so much inefficiency within urban schools that they can cut staff and retain programming and class size. Empirically, however, we know that NJ's urban schools are not systemically its most inefficient ones. We also know that funding adequacy correlates with staff per student in various educational programs, which means the problems of cutting staff and programming have much more to do with inadequate funding than they do with tenure and LIFO -- policies, again, which are enforced in all districts.

Finally, it's important to remember that teachers value tenure and LIFO. If the state gets rid of it, that decreases the overall compensation, momentary and otherwise, of teachers. Are the taxpayers of New Jersey willing to fork over more money to make up for this loss in incentives? Or do they want to see a less qualified pool of prospective teachers enter the profession?

The backers of these lawsuits will make occasional concessions to the idea that schools need adequate and equitable funding to attract qualified people into teaching. But they never seem to be interested in underwriting lawsuits that would get districts like Newark the funds they need to improve both the compensation and the working conditions of teachers.

Instead, they waste their time with lawsuits like this -- suits that fail on legal, empirical, and logical grounds. Suits that do nothing to help deliver the resources all students need to equalize educational opportunities. Suits that do nothing to improve the effectiveness of New Jersey's teaching corps, or the efficiency of its school system. Suits that only serve to further dishearten the people who go to work in public schools every day on behalf of the taxpayers and students of this state.

Maybe one day Campbell Brown and the PEJ will stop trying to take away the hard-fought rights of teachers, and take up the real fight for our state's deserving children.

Jeff Parker

ADDING: As if on cue:

ATLANTIC CITY — The school district advertised three times for a certified chemistry teacher last summer and fall, and three times they failed to get a candidate to accept the job.

So they turned to Edmentum, a provider of online courses, to fill the gap. This year, four classes at the high school are being taught via the online course, with backup support from a teacher.

[...] 

The statewide shortage makes the position competitive. At least three area school districts are looking for chemistry teachers next year.  

Ralph Aiello, principal at Cumberland Regional High School, said he’s looking for a combined chemistry/physics teacher for next year. So far, he has had just two applications. 

Linda Smith, president of the New Jersey Science Teachers Association, said she is working with colleges to develop programs that recruit former or retired scientists into teaching as a second career.

“People can just make more money as scientists than they can as science teachers,” she said. “Some do want to teach. But they need training and mentoring. People who are good at science are not always good at explaining it.” [emphasis mine]

Terry Moe, hardly a friend of teachers unions, states: "...most teachers see the security of tenure as being worth tens of thousands of dollars a year.” So please, PEJ: Explain to us how eliminating tenure and LIFO will help recruit better candidates into a profession that is already suffering from serious shortages.

(This should be good...)