As a California wildfire, the California Superior Court’s recent decision in Vergara v. State of California, et. al., is likely to be catching and may have resounding implications on similar laws in Pennsylvania.
Tenure Arguably May Limit Education
In Vergara, nine California public school students, funded by a Silicon Valley millionaire, argued that California’s teacher tenure, dismissal, and furlough laws “result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominately low-income and minority students.”
This, they argue, violates their fundamental right to equality of education by “adversely affecting the quality of the education they are afforded by the state.” The Superior Court for the County of Los Angeles agreed and struck down the challenged statutes as unconstitutional on grounds that they violate the equal protection clause of the Constitution of California. There is speculation that the State will appeal the ruling.
What Does This Mean for PA?
Even if the Court’s decision is upheld, it does not establish any legal precedent in Pennsylvania. This decision does, however, indicate that Pennsylvania’s teacher tenure laws with their many similarities to those challenged in Vergara, are vulnerable to constitutional challenges.
The more immediate impact of this decision, however, is likely to be seen in the Pennsylvania Legislature in that it provides additional leverage to legislators pushing for education reform.
In Pennsylvania, according to the Teacher Tenure Act, a temporary professional employee satisfactorily completing a three year probationary period will automatically achieve tenure or professional employee status. California law provides that tenure is not automatic, but the decision to not reelect must be formally communicated to the teacher on or before March 15 of the second year of the teacher’s employment.
The Court rules that the California law does not provide “nearly enough time for an informed decision to be made regarding the decision of tenure” and that “both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statute.” This is an argument that could easily be applied to Pennsylvania’s statute.
Also challenged was California’s teacher dismissal law. In its written opinion, the Court cites evidence that the time and cost constraints cause districts to be very reluctant to even commence dismissal procedures. The Court cites evidence that it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion under the Dismissal Statutes. This process, the Court rules, violates the rights of children to constitutionally mandated equal educational opportunities.
Pennsylvania’s teacher dismissal laws are exposed to a similar constitutional challenge as they are equally restrictive and make firing of tenured teachers a very expensive and time consuming process.
In the aftermath of Vergara, perhaps most vulnerable is Pennsylvania’s furlough procedure. As in California, Pennsylvania has a statutorily mandated “last in, first out” policy when it comes to lay-offs. There is no exception or waiver based on teacher effectiveness.
Tenured teachers are also the first to be recalled if a position opens up based upon seniority and certification. Interestingly, this ruling came down days after the Pennsylvania House Education Committee advanced a bill (HB 1722)that would require performance ratings to determine teacher furloughs, not seniority.
Since tenure laws do little more than ensure a level of due process protection, it is doubtful that modification or even elimination of Pennsylvania tenure laws will make a significant impact in ensuring teacher effectiveness in light of the multiple layers of legal protection that already guard teachers’ jobs. The U.S. Constitution provides basic due process protections to public employees. The host of federal and state anti-discrimination in employment statutes creates a kind of penumbral tenure. As a practical matter, the grievance arbitration of teacher dismissal allowed under Pennsylvania law poses a far greater obstacle to removal of ineffective teachers than tenure laws.
The Bottom Line
It remains to be seen whether this bill will garner the support necessary to pass and what impact the Vergara ruling will ultimately have on education in Pennsylvania. The attorneys in the Education Law Practice Group at KingSpry are monitoring this issue closely and will issue updates.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
