In 2010, when San Diego Unified was in the throes of a budget crisis and staring down a round of layoffs, school board trustee Richard Barrera told U-T San Diego, “Pink-slipping disproportionately affects poorer schools – absolutely.”

Now, that argument is the basis of Vergara v. California, a case that could blow up deeply rooted protections for California teachers. Barrera, who is now the leader of the San Diego Imperial Counties Labor Council, which includes the teachers union, changed his tune when he testified in the case.

Teachers see the policies that force the youngest teachers to bear the brunt of layoffs as the fairest possible, he argued. Replacing it with a system that requires administrators to make value judgments would erode trust as teachers vied for their spots, he said.

Along with attorneys from the state and the California Teachers Association, Barrera pointed to San Diego Unified as proof that a district can succeed because of the current policies – not in spite of it.

The case is the product of Students Matter, a group founded by Silicon Valley business mogul David F. Welch, a group of California students and a heavyweight cast of attorneys. They initiated the suit and claim the teacher protections violate students’ constitutional rights to equal access to quality education.

California law makes it nearly impossible to dismiss a bad teacher once he or she has received tenure, they argue, and last-hired-first-fired layoff policies disproportionately impact schools in high-poverty areas because they’re more likely to have less experienced teachers. Layoffs at these schools, then, create more turnover and worsen the experience for students.

But Barrera said that because San Diego Unified has had a good relationship with its teachers union, it’s been able to avoid mass layoffs in the first place.

In the grip of the budget crises, about 1,100 teachers were issued pink-slips in 2011, and all but 200 of those were rescinded, he said. And when 1,500 teachers were laid off in 2012, everyone was invited back.

Josh Lipshutz, an attorney for the plaintiffs, told VOSD he found this part of Barrera’s testimony bizarre. “Look, nobody wants layoffs. But layoffs are reality,” Lipshutz said.

“We’re not arguing that teachers should be laid off.  But in speaking with administrators we heard over and over that everybody knows who the worst teachers are. All we’re saying is that in a layoff environment, why would you not want to include those teachers?” he said.

And avoiding layoffs in dark budget times also comes at a very real cost.

At this week’s school board meeting, trustee and fiscal wonk Scott Barnett castigated the rest of the school board for promising teachers pay raises that it couldn’t afford and selling off real estate to make up the difference.

Even though the district got money from Prop. 30, a voter-approved statewide measure meant to stave off drastic cuts to schools, San Diego Unified is facing a $100 million budget shortfall.

“Guess what? The proposed hole is bigger next year than this year because of this board’s inability to have any semblance of control,” Barnett said.

Holding Up San Diego as a Model

Barrera said that the idea that layoffs disproportionately impact poor schools doesn’t capture reality.

He said Central Elementary in City Heights, the school that Superintendent Cindy Marten once ran, is a good example of how a school can create a culture where teachers want to stick around.

Barrera said a school like Central is possible because teachers share strategies for what works in the classroom. In other words, if a district were to try to measure which teachers were better, teachers might be afraid to share what works with a competitive colleague.

“If we replace the seniority system – one which most people tend to see as fair – with one that teachers see as unfair or arbitrary, we’re going to dramatically hurt trust between teachers and their principals,” he said.

Still, schools like Jackson Elementary in City Heights, now Fay Elementary, might say the problem is a little bit more serious. During the budget crises, high-poverty schools like Fay – which had less experienced teachers – were hit hardest by last-in-first-out layoff policies.

In 2008, 24 out of its 26 teachers received layoff notices. Most of those ended up being rescinded, but in 2011, when 25 out of 27 teachers got pink slips – it was deja vu all over again.

“The reality is,” Lipshutz said, “that once the pink slips go out, the damage is already done.”

Teachers will often look for positions in more stable districts, and “it’s very discouraging to be treated as a number, to be told that you don’t have value beside your hire-date,” he said.

Barrera doesn’t disagree. “That’s all the more reason that we need to do what we can to avoid pink slips and layoffs,” he said. “Pink slips are disruptive, yes, but what’s more disruptive is laying off teachers and having huge class sizes.”

So What’s a Good Teacher?

Barrera said the major hole with the Vergara plaintiffs’ case is that they never clarified what, exactly, makes a teacher ineffective. In fact, the defense led with that point in its closing brief.

Of course, rebooting the criteria to measure teacher performance depends on whether the plaintiffs can persuade the judge that measures like test scores can be considered.

Plaintiffs leaned on Harvard researcher Thomas J. Kane, who said black and Latino students in Los Angeles Unified were more likely than their white and Asian peers to be taught by the worst teachers.

Kane reached his conclusion by looking at teacher effectiveness through a value-added formula, which measures improvements in student test scores over time.

To be sure, value-added formulas aren’t universally accepted. Critics like education historian Diane Ravitch have railed against them for years. Another said they resulted in “mathematical intimidation” from school administrators.

One problem, Barrera said, is that the scores appear objective, but fail to account for poverty, or other factors that influence learning. He said he isn’t opposed to all changes to the evaluation system, but they should begin a conversation about the real goal: quality teaching.

“From a policy level, you think we’d start with questions about what’s working and how we could do more of that, instead of trying to force these blunt instruments in through the court system,” Barrera said.

Lipshutz said poverty was a theme woven throughout the trial.

“To us, that’s a red-herring. We don’t dispute that poverty is a factor in student learning,” he said. “The question to us is whether the laws that are in place are harming students and preventing them from getting the best education they possibly could. And we showed very clearly that the answer is yes.”