June 16, 2014

Vergara Fallout

By Bellwether

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Almost a week after the Vergara decision debate about what it means, doesn’t mean, and what should happen next continues.  You can group the reactions into a few buckets:

Salvation!/Armageddon!  For the salvation crowd this is the greatest decision by a court in education history – perhaps in all of history! Yes, it’s significant but it still must survive appeal, the legislature must satisfactorily fix the problems if it does, and in other states with less favorable constitutions advocates must still win case after case. Why? Because this case seems unlikely to unleash a political change.

Key piece of evidence? Almost no one thinks these laws make much sense. Even most legal scholars arguing it was wrongly decided still caveat their analysis by saying these laws are substantively awful before discussion the contested issues of constitutionality.

In addition, given the lack of capacity in the system around effective human resources and evaluation reformers should be sobered by the prospect of designing effective post-Vergara policies. The laws need to go but they also need to be replaced by something that works better.

The armageddon crowd is arguing about everything (billionaires, privatization, corporations, respect for teachers, etc…) except what was actually at issue in the courtroom. The press releases are comical in their disconnect from the legal issues.

The legal analysts: These people are worth paying attention to because the legal issues are complicated and unsettled.  Noah Feldman and Ben Riley offer two of the best cautions (by the way, to beat a dead horse, when teachers’ union flacks are pointing to Feldman’s piece as a strong defense it shows how bankrupt these laws are, he quickly distances himself from defending the laws on their merits in the first grew grafs). It’s still possible that this could end with a ruling holding that these are dreadful policies, but not unconstitutional ones. Constitutionality is a high bar, many other equity issues would be in the realm of the courts if it wasn’t. So pay attention.

The ‘it’s not a silver bullet’ crowd: Many of the same people who have spent a decade or more chiding reformers for championing silver bullets are now cautioning against Vergara because it won’t solve every problem.

For instance Dana Goldstein makes some good points in Slate about the contextual issues here and challenges of staffing low-performing schools (but she fails to note that there is ample evidence that school district hiring timelines and work rules (including aspects of what was at issue in Vergara) cause high-poverty districts to lose teachers to surrounding area). Still, you have to start somewhere.

Rick Kahlenberg says that Vergara misses the mark because it doesn’t address school segregation (Crazy idea: Both school segregation and the polices at issue in Vergara are problems).

Comprehensiveness is the wrong standard here. Pretty much everyone agrees a host of changes and supports are necessary.  The standard is whether these California policies and their brothers and cousins elsewhere lead to more effective schools.

Theory meets practice: 

Diane Ravitch and others argue that absent these tenure provision teachers will be thrust into a Hobbesian work-enviroment. They seem not to be familiar with all the various employment protections workers in California enjoy thanks to federal and state laws. Workers everyone do not enjoy all of those protections – and opponents of current teacher tenure policies must engage with that reality. But California is not a strong test case for the idea that absent the current due process system school administrators suddenly behave like White Walkers.

There is also concern that absent tenure teachers will lose academic freedom. That’s a fundamental misunderstanding of tenure in the K-12 sector. Teachers, by signing their contract, are under state control in terms of curriculum, standards, and so forth. It’s why a teacher can’t just  decide to teach creationism, for instance. What “tenure” really refers to in K-12 is due process protections. In Vergara the judge said these protections had evolved into uber due process. And that’s the crux of the tenure issue – what should due process look like not whether teachers should have it. The judge was clear on that point.

In The NY Times Jesse Rothstein – who under oath as a defense witness in Vergara ended up agreeing with key contentions of the plaintiffs during cross-examination – makes two interesting points. First he argues that tenure actually usefully ties school district hands and forces them to make consequential decisions or take a draw from the applicant pool for a new teacher. The problem with this argument is that tenure is not a meaningful bar – in California or elsewhere even where there are sufficient timelines to make a meaningful decision. There is a compelling argument to be made to make the tenure point professionally and financially meaningful for teachers — but with a longer timeline and a high-bar.  Yet Rothstein talks in terms of  ”attentive districts.” Unfortunately, they’re as common as snow leopards right now – The Widget Effect laid that out. It’s why there has been such emphasis on evaluation.

Second, he argues that “firing bad teachers actually makes it harder to recruit new good ones, since new teachers don’t know which type they will be.” That finding is based on a recent study. Yet Rothstein doesn’t tell readers it wasn’t a study based on actual behavior, it was based on a model he built with assumptions built in. Models are important social science tools but the assumptions matter. In this instance if you assume employees care most about job security and wages then those two issues will interact with each other a lot.

In practice, we don’t actually know the effects of all these policies and their interaction or all the intangible and should be humble about the limits of what we do know. We’re frequently wrong: In the 1990s education’s wise men and wise women were certain Teach For America could never grow beyond 1,000 corps members – the models showed it. It’s five times that now.  We keep hearing about how today’s policies will drive teachers from the field but there isn’t evidence that’s happening other than anecdotally.  We’re constantly told how this or that approach can’t work and yet there it is working in different places.

In this case, when you are hiring you don’t want hubris in a candidate but you do want confidence that they will be great at the job. Characteristics like that matter a great deal to success (TFA, which intentionally screens for certain attributes like tenacity and sense of agency, produces teachers who are modestly more effective than average).  In other words, the teachers that don’t think they know which type they will be may not be the ones who will succeed in a challenging job anyway. They might be ones you want to signal away rather than attract.

It’s a microcosm of the broader post-Vergara environment (assuming these suits spread as they seemed poised to). Pretty much everyone not paid to defend them thinks the current set of personnel laws is broken. How to fix them is a more complicated (and interesting) basket of problems. So beware hubris but also beware those who would keep states and districts from trying new ideas to learn what can work a lot better.

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