Low-income parents vs. teachers unions on teacher layoff policies

Editor’s note: High-poverty schools and low-income families are hurt the most by last-in-first-out layoff policies for teachers. In Los Angeles, groups representing low-income parents filed suit against the practice – and so far, they’re winning. Berkeley law professor and redefinED host Stephen D. Sugarman writes in this post that low-income parents have the right to equitable treatment for their children.

Unions typically bargain for terms that protect current members and, if need be, give priority to members with more seniority than those with less. In hard times when an employer is downsizing, this “last in, first out” policy best serves the needs of longer-term union members who are most experienced and perhaps most economically dependent on holding onto a job they have done for some time. It also provides a routine practice that lies in contrast to what might be an employer’s desire to lay off those who are, say, the most expensive, the least productive, the most troublesome, or the most active union members.

This “last in, first out” plan is typical in union contacts with public school districts. What it means when teachers have to be laid off is that the least experienced in the district are the first to be let go. These teachers are generally the most recently trained and the least expensive. It is also typically the case that they are disproportionately employed in schools that have had the hardest time attracting and retaining effective teachers, schools that almost invariably contain a disproportionate share of children from low-income families and children of color. These are often under-performing schools as well, although in some cases they might have recently put into effect a promising school improvement regime with the cooperation of the in-place local teaching team.

Does this mean that, in times of economic downturn and curtailed school district budgets, high-needs schools end up with very few teachers and terrible student/teacher ratios? No. Union contracts and federal law require that student teacher ratios remain fairly comparable across the schools in a district. Instead, slightly more experienced teachers from within the district are meant to be shifted over to these teacher-short schools, either via transfer or after themselves being laid off and then re-hired. In theory, this could actually provide high need schools with more experienced teachers than they had before, and that could possibly be desirable for their students on the theory (generally supported by research) that brand-new teachers are generally less effective that those with three or more years of experience.

But on the ground, it often works out quite differently.

First, while there is some appeal to getting more experienced teachers, these teachers are usually ones who have already chosen not to teach at the sort of schools to which they are now assigned or eligible to apply. As a result, many will simply not take up these assignments or opportunities. Second, if they do, they might turn out to be quite ineffective with the sorts of students who are enrolled in those schools, even if they were more effective elsewhere. Third, even if as individuals these new arrivals have the potential of being reasonably effective, when there are a lot of them they can represent a huge disruption for the school if, as happened in some Los Angeles public schools, more than half of the teachers had been let go due to the application of the collective bargaining agreement. It will often take a great deal of time and effort to integrate so many new teachers into the vision and community practices of their new job location. Moreover, if downsizing happens a second and a third year, this churning of teachers makes it so much harder to develop an effective working community of teachers and administrators in the impacted schools. Fourth, principals and those teachers who have not been let go may be personally demoralized by losing energetic younger teachers they had specifically selected and brought along into the life of the school. Finally, because of practical administrative problems and hassles, often the teacher-short schools do not actually promptly get to hire or receive full-time replacement teachers, and instead often have to make do for long periods with a large and loose group of substitutes who can’t easily take ongoing charge of their classrooms.

In a case initially titled Reed v. State of California, civil rights and civil liberties groups brought a lawsuit on behalf of impacted families challenging the seniority feature of the Los Angeles Unified School District’s union contract. And so far they have won.

The trial judge agreed with lawyers from the Southern California ACLU, Public Counsel, and pro bono attorneys from the huge California-based law firm of Morrison and Forester that, as it operates in practice, the union contract in L.A. violates the California constitutional rights of children in the high-churn schools. And, said Superior Court Judge William Highberger, it is unconstitutional for the state to allow districts to enter into union arrangements that deprive children of their legal right to equal educational opportunity.

UTLA (the local teachers’ union), seeking to protect its seniority-based contract term and perhaps fearful that this case could open the door to other lawsuits attacking provisions of teacher collective bargaining agreements, is so far on the losing side of the legal claim.

After Judge Highberger made his ruling about the California constitution, the claimants reached a settlement with the L.A. Unified School District. Broadly put, the terms of the settlement seek to spread teacher layoffs across the district and not have them fall especially harshly on some schools – in effect, making the “last in, first out” principle applicable at the school level rather than at the district level. More precisely, 45 specifically identified schools were singled out for special protection against excessive turnover – schools, broadly speaking, that were identified as underperforming and difficult-to-staff schools, but which had shown some recent signs of academic success.

The union has appealed the case, seeking to have the settlement overturned and the former district-wide seniority regime put back in place. Briefs have been filed, including “friend of the court” briefs, and the case will be argued in due course. Meanwhile, the Court of Appeal rejected a request by the union to prevent the district from implementing the settlement while the case is on appeal.

This case is not about school choice. But it is about parents’ rights, especially the rights of low-income parents who are using urban public schools to have their children treated equitably when large-scale teacher layoffs are required.

They argue that it is quite unfair for their children to bear the brunt of the disruptive layoff practice as compared with parents who are likely financially more advantaged and whose children are already beneficiaries of what are probably more desirable public schools. Because this case pits the “have-nots” against the “haves,” and because it challenges teacher union power, the claimant side has won widespread bi-partisan political and legal support.

One of those “friend of the court” briefs filed on behalf of the victim families was signed by, among other people, former California Democratic Sen. Gloria Romero, who currently directs Democrats for Education Reform in California and is a board member of the American Center for School Choice.

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BY Stephen D. Sugarman

Professor of law, University of California at Berkeley, author with John E. Coons of Private Wealth and Public Education and Education by Choice