Could Vergara Happen Here? (Part 2)

/ 18 June 2014 / Shawna

Michael Diedrich, Education Fellow, Minnesota 2020, June 17, 2014

Yesterday, I discussed Vergara v. California in detail. Today, I’ll examine whether a similarly argued case would be successful in Minnesota.

The _Vergara _ruling found that the California statutes for granting tenure, dismissing teachers, and using seniority in layoffs violated the state constitution and will need to be rewritten (if the ruling survives appeal). The ruling mostly argued that the statutes contribute in some way — not always made explicit — to the number and unequal distribution of “grossly ineffective” teachers.

Whether a similar ruling is possible here depends on the similarity of both states’ constitutions and tenure statutes, as well as the broader logic used to connect tenure systems to teacher distribution.

On education and equal protection, California and Minnesota have fairly similar constitutions. Both require a public school system and equal protection for all. While Minnesota’s constitution lacks an explicit equal protection clause, past rulings have found that, “Equal protection is an inherent but unenumerated right found and confirmed in Minnesota’s state constitution.”

So, students in Minnesota and California can be assumed to share similar rights to an equitable education. How do the tenure statutes compare?

One major difference between California and Minnesota is the period of time before a teacher can be offered tenure. California requires teachers to be granted tenure after their second year, with the decision made mid-year. This is particularly problematic since California’s induction program for new teachers makes final credentialing recommendations after the end of the second year of teaching. This has produced cases of tenure being given to teachers who wind up uncredentialed, which understandably came under fire in the _Vergara _ruling.

Minnesota’s tenure process (described in 122A.40, subd. 5 and 6), by contrast, requires teachers to be untenured for three years, during which time they must be evaluated three times a year by administration and participate in a peer review process agreed to by the district and the local union. Minnesota’s system appears to avoid the _Vergara _ruling’s criticisms.

California’s system of due process for dismissing tenured teachers includes three statutes challenged in the _Vergara _case. The judge found this trio of rules excessive, although he still found due process rights — including notification of the proposed termination, explanation of the reasons for it, a copy of the charges and materials being brought, right to respond, and access to an appeals process — appropriate.

Although it can be difficult to tell from statutory language alone, Minnesota’s process as laid out in 122A.40, subd. 7 and 14, appears simpler. One additional component in Minnesota’s laws that does not appear to have an analogue in the challenged California statutes is the identification of “inefficiency in teaching,” as assessed by an evaluation system, as grounds for termination (122A.40, subd. 9). The language governing evaluation systems also includes the following language [122A.40, subd. 8(12)]: “[The evaluation process] must discipline a teacher for not making adequate progress in the teacher improvement process…that may include a last chance warning, termination, discharge, nonrenewal, transfer to a different position, a leave of absence, or other discipline a school administrator determines is appropriate.”

While it is unclear if the judge would have found Minnesota’s dismissal system too burdensome, at appears at the least to be less burdensome than California’s. It’s also worth noting here that the connection between the legal process for termination and what administrators think is the legal process for termination can be somewhat fuzzy.

When it comes to layoffs, both Minnesota and California statutes rely on seniority as the determinant of layoff order (in Minnesota, that’s 122A.40, subd. 11). However, many Minnesota districts have negotiated alternative layoff plans (including, for example, exceptions for Montessori and bilingual teachers working in those programs). Still, it is likely that the state law as written would be criticized by the logic of the _Vergara _ruling, which was at its least flexible when discussing seniority with respect to layoffs.

All of which leaves us back at the question: Could _Vergara _happen here? The short, obvious answer is, “No,” or at least, “Not exactly.” Our statutes, especially with respect to the granting of tenure and the incorporation of an evaluation process, are different enough from California’s that they would seem to escape the majority of the judge’s objections, with the possible exception of the use of seniority in layoffs.

However, this would not keep the same overarching logic from causing trouble in Minnesota. While the _Vergara _judge found particular reasons to dispute each of the challenged statutes, ultimately his ruling rested on the disparate impact of (a) grossly ineffective teachers existing in the first place, (b) students of color and students from under-resourced backgrounds being more likely to have a grossly ineffective teacher, and (c) the existence of laws governing teacher tenure that could be construed as potentially affecting the number and distribution of grossly ineffective teachers.

Minnesota has already been mentioned as among the states likely to face Vergara-style lawsuits. While our laws, for the most part, escape the particular criticisms of California’s in the _Vergara _ruling, the reasoning used to connect statutes to outcomes could still be used against Minnesota’s system. We should be ready for the conversation about teacher tenure to grow louder during the next legislative session, if not sooner.