LIFO - FIREPROOF JOB INSURANCE

Preface

Long before I went back to school for a teaching credential, when I was 15 and half years old to the day, I got my California driver's permit in what was then and is still today a teenage rite of passage. Since then, I've had the good sense not to drink and drive, but if I hadn't that sense, a driver's license wouldn't have granted me a lifetime guarantee behind the wheel of a car any more than having my teaching credential should guarantee me a lifetime place at the teacher's desk in a public school classroom. We expect drivers to continue to drive responsibly as long as they get behind that wheel and we codify driving standards  for the public safety, just as we  require minimum competencies to practice medicine or to practice the Law and most other jobs that share a compelling public interest.  That's not the case with public school teachers. Year after year, thousands of derelict teachers are given what amounts to a license to deprive students of their constitutional right to an "equal" public education.

Underperforming Teachers
 

That is true thanks to five California statutes that make it practically impossible to dismiss even the most woefully underperforming teachers. For too long powerful teacher unions have kept thousands of inept teachers on the job, holding those teachers' jobs sacrosanct and the respective students' education hostage, subservient to a system controlled through political patronage. Beholden to unions and inured to the plight of California's public school children,  (a class of minors without legions of lobbyists in the halls of the Capitol), the State's education establishment effectively grants teachers an ironclad assurance of a job due to the practical impossibilities of dismissal. The aging, sclerotic and outmoded hiring/firing paradigm allows the people of the State of California to employ new teachers, but never to dismiss incompetent ones. This has strapped hundreds of thousands of public school students with underperforming teachers who fail to provide an education that is equal in quality to the education the majority of students get from  better-performing teachers and it has enabled private and  charter schools to thrive in the void left by bad public policy and worse public schools.

Parents want the best and most affordable education possible for their children and when they are confronted with a public school model in which the adult's financial interests trump the child's educational interests, they vote with their feet. The exodus from traditional public education is a harbinger of the need for reform, albeit the teacher quality issue is not the only factor that is driving down achievement in our schools, it is certainly one of the most important inhibitors of achievement. Increasing the quality of education at the school site is a multi-faceted process that begins, first and foremost, with quality teaching in the classroom. And it is of no small significance that updating teacher quality standards and employee dismissal laws are among the most financially feasible reforms that would have immediate  payoffs for student achievement in a state where already high taxation and vast state retirement obligations make it difficult to raise additional funding for education.


The Legal Sand Trap
 

Vergara vs. California,  a constitutional challenge of  five contested teacher employment statutes sponsored by the reform organization Students Matter, hinges upon navigating an old and established sand trap for education reformists. Apportioning responsibility to teachers for the academic outcomes of their students has been a long and slippery slope. Accountability of this sort is hard to pin down with any precision by researchers and administrators alike with little to no agreement on who's responsible for the widespread failure in large swaths of public schools. Lacking any hard and fast documentary proof for assigning blame, no court to date has found teachers individually culpable for their student's lack of progress.  

There's no shortage of research on the subject of  teacher performance relative to student academic achievement, despite the lack of agreement as to how to quantify the degree to which student achievement can be attributed to teacher quality. Nevertheless, everyone except the most hardened union voices agree on the point that there's surely some degree of responsibility for teachers, though there's no general agreement on the larger question of what constitutes academic achievement, that is, what it means to be educated in this society at any given school age. Is it standardized test scores, student grades or even, as some would dubiously argue, attendance as well as suspension and expulsion rates? (See a previous post "Are Suspensions and Expulsions the New Measure of Student Achievement?" on this blog.) It stands to reason that if teachers are important in a student's progress, they can be for the better or for the worse.

When unions parade out actors and other celebrities before the cameras to pay homage to teachers who've figured large in their lives, they undermine their own  credibility in court, for if teachers can be credited for their successes they also can be blamed for their failures. And they cannot have it both ways in the public's eye. Such stories raise awareness of the  fine work of all the excellent school teachers and that's a good thing. But such high-profile antics belie the legal stance of the unions vis-à-vis teacher quality and student performance, which is to deny any profound causality between the two, to confound any agreement on their relationship and to keep the argument mired in discord as hedge in court.   

In the meantime and to muddy the waters further, both teachers and administrators have criticized NCLB for its narrow focus on achievement and the way in which standardized tests measure it, a point that is well received in educational circles. NCLB critics make a good case for returning to a more holistic and creative pedagogy, one that doesn't apply only high-stakes testing as the litmus of what it means to be educated.  More nuanced instructional approaches and evaluative techniques are by definition less measurable and this would make it all the more difficult to quantify teacher performance. So the rejection of NCLB by the unions may have  a valid foundation in theory as well as practice, but it also plays to their hand by further obfuscating the relationship between teacher and student outcome.

Unions have other ammunition to perpetuate the seeming scholarly confusion over teacher quality. It is well-established that family life/socioeconomic factors are the dominant influences on a student projected outcome. That is to say,  a teacher's ability to exact progress is limited to within the confines of what a student brings to the classroom from home and the community or culture from which he derives. And it's undoubtedly true when viewed through the prisms of achievement and demographic statistics as surely will be demonstrated by the defendants at the Vergara trial. There's no argument that the majority stake in student academics is  the advantages or disadvantages a student carries with him to school. What professional or casual observer of student achievement can honestly expect a student without any advantages to academically outshine another one with every advantage, regardless of the quality of teaching? The intrinsic disadvantages are real, but doesn't that make reform schools all the more necessary? And given those disadvantages for some, what happens when these underperforming students are strapped with underperforming teachers at underperforming schools year after year? The results are compounded and catastrophic.

The union's position on teacher influence is based on the self-serving and cynical notion that all student underperformance is a function of the drag of low socio-economic factors and is virtually unrelated to teacher quality.  The union's answer to underperformance can be summed up in a word - poverty. But low SES Asians are an exception as they score much higher and that blows a hole in the poverty-only cause of low achievement. The union viewpoint is akin to that of a doctor's influence on a patient's health. The doctor can provide excellent care, but if the patient  doesn't have healthy habits the doctor is limited in her ability to prevent the kinds of health conditions that often stem from bad habits. Yet, the Asian example exposes that theory as questionable since not all low-SES students bring bad habits. Nevertheless, if  we conclude that it is impossible to educate some students due to social-economic factors, should we rethink the purpose of public education for our most underperforming students? 

The answer is a resounding no. The union position is untenable on its face. If it wants the public to believe teachers can do nothing to change what it considers to be a forgone and negative educational outcome for poor students, why are many schools  able to buck the underperforming trend?  They do so because of highly effective teachers and instructional programs. And how can teacher's claim to be universally successful if they believe in a strict interpretation of the predictive power of demographics? How can they be successful when their students fail?

With "value-added" measures of teacher effectiveness, measures that take various factors into consideration, teachers can be held partially responsible for relative academic progress within the context of each student's own abilities, and such an acknowledgement of accountability can be a driver of greater productivity.  Across the country districts have instituted enhanced teacher evaluations and have shown that it is indeed possible to craft evaluative tools that apply multiple strategies in ascertaining teacher quality, most of which include peer review (teachers reviewing one another) and spur student achievement, the ultimate goal. 

This doesn't stop critics of enhanced teacher evaluations who claim they allow teachers to be used as scapegoats in a blame game. They miss the point for ending LIFO. Having professional standards will strengthen the integrity of the teaching profession and give new and promising teachers an  opportunity to develop their craft while weeding out those who consistently fail their students.  Teachers  claim they already have professional standards, but that's like saying we have already have laws without any system of  enforcement.  It is essential to remove those who  habitually fail and to nurture the next generation of promising teachers. At present many newer teachers cannot remain employed due to LIFO requirements of law.  Having real standards and real consequences will motivate teachers to do their best and to seek improvement when necessary - to continue to hone their craft and employ best practices in order to maintain their good standing within the community of their schools for the benefit of their students, their colleagues and society in general.  The fact is that there's no incentive at present built into a system which effectively grants de facto fire-proof job insurance for the best as well as the worst teachers  and everyone in between.

Some legal observers maintain that Vergara must establish a causal relationship between teacher quality and student quality, something which has never been done at trial. Why is this obvious relationship between teacher and student so illusory? No one doubts the parent's influence on the child, but many students spend more time with their teachers than their parents.  To acknowledge that teachers are a primary influence on students is a no-brainer for students, parents and administrators alike, but somehow it's an impossibility for the courts to assess, as if the smoking gun of the derelict teacher is just a figment of the imagination of the whole school community. 

Trying to calibrate a specific degree of influence,  that is, documentary proof of influence, is the straw man in the debate over teacher evaluations. It's a game with no winner. The truth of the matter is that teacher influence on student outcomes is not quantifiable nor does it need to be in the strict sense.  How teachers impact students varies tremendously from school to school and person to person and there's no doubt that evaluating effectiveness is a difficult business. But why are we are attempting to drill down and assign a number to quantify quality, looking for a mythological Atlantis in the halls of Academia, while failing teachers stand out at their schools like sore thumbs?

No doubt courts see these issues such as teacher culpability through a very different lense than those of parents or  educators.  Former reformist litigation (Reed, Deasy) attempted to prove to the court that the constitutional rights of students are violated through individual teacher incompetence  and the courts have rejected teacher culpability for lack of evidence, ignoring the sore thumb or the legal "smoking gun". But this time around the plaintiffs have found another way around the sand trap of teacher accountability. For LIFO to be overturned their case depends on the success of this strategy.  

Hard-to-Staff Schools

The  way around this problem is to focus on teaching staffs rather than individual teachers, showing how seniority and LIFO exacerbate teacher programmatic quality issues at hard-to-staff schools by laying off better teachers and keeping the worse teachers, en masse.  The thinking goes like this: since underperforming schools typically have less senior teachers on staff  these schools are disproportionally affected by teacher layoffs due to the last-in, first out (LIFO) statute and when layoffs happen it is not uncommon for a huge percentages of such teachers to be dismissed, breaking the continuity of  the school's year over year instructional program. Such large scale layoffs are well documented to have significant negative consequences for students at the affected schools and there is no disagreement on the negative academic impact of those consequences. Moreover, the  consequences are not strictly teacher quality-dependent. For this reason Vergara may be able to convince the court of a different causal relationship between teacher and student quality, one of general staffing rather than an individual quality. And there are legal precedents that support the student rather than the teacher in the hard-to-staff school situation.

In addition, not only are low performing schools and their students subjected to constant staff changes, the revolving door also figures largely and detrimentally in retaining teachers in hard-to-staff schools. By making it difficult for new and successful teachers to maintain gainful employment as a result of LIFO, we are damaging the longer term prospects for quality teaching staffs in this state and we are doing that so  we can keep underperforming teachers on the job. To succeed at trial, Vergara must make hey of that problem which is profoundly convoluted and anti-student, particularly if faced with the uphill challenge to "prove" the teacher/student relationship.

The public accepts the idea that most teachers perform to acceptable standards and many excel, but at what point does the minority of underperforming teachers affect the majority? Typically teachers may work alone in the classroom, but schools are a team effort and weak teachers often break the link in the chain. One or more weak teachers, especially in succession, can cause a student years of delayed progress, according to recent research. Here the 80/20 percent rule is in effect. Sometimes a small group can have a large impact on the whole, for better or for worse.  This is often the case with underperforming teachers as they adversely impact the school as a whole.  Schools with larger numbers of such teachers are hit hardest of all.

Some have suggested applying the "50% rule" to remedy the hard-to-staff school problem. I'm no legal expert, but common sense tells me that constitutionality shouldn't hang on a fraction. Under that remedy, if 49.9% of staff remains intact, LIFO is discarded, but if the retention rate is above 50% LIFO  is preserved. In other words, one teacher more or less may determine whether the everyone is retained or removed by LIFO under such a scenario. Even more importantly, the 50% rate is instructionally arbitrary. Any teacher will tell you that a 50% layoff rate is extremely destructive to the instructional continuity at a school, though 80% is certainly worse and akin to a school consolidation, a near total staff replacement. An organization that replaces half of its staff is usually an organization that is failing, especially when such staff changes are commonplace.

It's clear that 50% rule is a strategic maneuver that when legally applied  might be an acceptable compromise in court for unions in strategic retreat from a potential loss of LIFO in its entirety, but when practically applied in schools it would be a less than effective tool for closing the revolving door,  maintaining instructional continuity and the development of interpersonal relationships forged through hard work between teachers, students and families. Codifying the 50% rule would end up institutionalizing a slightly-improved but ultimately less than adequate solution to underperforming school staffing problems associated with LIFO.  If we want to support underperforming schools it is necessary to maintain staff at those schools with as little turnover as possible and definitely at a figure far below the 50% mark.  Last-in first-out should be entirely discarded as constitutionally unequal treatment.


Conclusion

Legal protection for teachers to the detriment of students must end. Tenure and  LIFO reform are essential to raise student achievement in a state with the strongest employee protections and among the worst student  results.  Ask any parent if there's cause for debate on the teacher quality issue and you'll be hard pressed to find anyone who thinks teachers are not a major factor in the education of their children. Not burdened as researchers are with the exertions of assigning proportional influence through statistical analysis, almost every parent can tell a personal story of a "bad" teacher and in the vast majority of cases those  teachers are roundly criticized in the school community by students, parents, teachers and administrators alike.  

There really is no way to quantify the exact degree of ownership of individual educational outcomes and its unlikely there ever will be. It isn't the lack of an answer that deters us from meaningful reform, but the fact that we are asking the wrong question. We shouldn't be asking how to find a magical number that will quantify  a teacher's effect on her students, but what it is we can do to better that teacher's effect?  Not everything in this world can be proven, but most things can be improved.  If the justice system is held hostage looking for an impossible and fleeting proof, like a dog chasing its tail, then surely there is no chance to make the necessary changes that are staring us and the future of our students in the face.