The son of Newark mother Noemi Vazquez is one of 10 plaintiffs in a lawsuit called HG v. Harrington that was filed this week in Superior Court in Trenton, New Jersey.  Ms. Vazquez’s son, referred to in court documents as “E.P.,” as well as  nine other students who attend traditional public schools in N.J’s largest school district, are asking the Court to allow Newark Public Schools to bypass the state’s seniority laws and dismiss teachers based on classroom effectiveness. Defendants are N.J. Acting Education Commissioner Kimberly Harrington, the State Board of Education, and Newark Superintendent Chris Cerf.

The suit was organized by the advocacy group Partnership for Educational Justice.

Seniority-based lay-off decisions are arbitrary: there is little evidence that instructional excellence is tied to years on the job. How arbitrary? One of  the ten states that still cling to this archaic practice is Minnesota where school districts create their own methods for layoff decisions if two teachers started working on the same date. Milaca School District flips a coin; at Lakeview Schools, the teacher with the smallest last four digits in their social security number gets to keep their job.

Despite many studies that show that teacher quality is the most important in-school factor affecting student learning, N.J.’s tenure law forces schools to make staffing decisions without regard for classroom effectiveness  Teacher union leaders (including NJEA’s) argue that without LIFO (last in, first out) districts would summarily fire older teachers in order to save money. This premise ignores the fact that school districts are intently and appropriately focused on student outcomes and would never fire an effective teacher. In an article today in NJ Spotlight, Superintendent Cerf, well-acquainted with the damage done to student learning through the practice of LIFO, said, “this is one where I am going to get on my soapbox, because there is no moral justification for this. This is an act of political cowardice and giving in to interest groups. It’s no more complicated than that.”

New Jersey has recently battled over LIFO. At a Senate Education Committee hearing in March of 2012 legislators debated a new teacher tenure reform bill, During public comment, then-Newark Mayor Cory Booker, who is now a U.S. Senator, called the maintenance of LIFO “monumentally absurd” but legislators bowed to teachers union heads, including Joseph del Grosso, president of the Newark Teachers Union, who claimed that eliminating seniority-based layoffs would turn teachers into “serfs.” The final bill that Chris Christie signed extended the granting of tenure from three years on the job to four but left LIFO untouched.

Legislators’ fears of losing union support has had a disproportional impact on districts like Newark that face decreasing enrollment—and hence, decreasing revenue—as more parents opt for seats at public charter schools. Fewer students means fewer teachers. But the perpetuation of LIFO, according to the court filing, creates an unequal system, one that renders districts like Newark incapable of providing N.J. students with their constitutionally-mandated “thorough and effective education.”  LIFO, the lawsuit says:

forces Newark and similar districts to wrestle with two untenable options that damage every child in the district: either (i) lay off effective teachers pursuant to the mandates of the LIFO statute, while leaving ineffective teachers clustered in an already under-performing school district, or (ii) refuse to institute reductions-in-force (even when faced with decreased funding), retain ineffective teachers to save the effective and highly effective teachers, decline to hire new teachers, and cut spending elsewhere in the district’s budget. 

In Newark’s long-troubled district schools, 15 percent of teachers receive “ineffective” ratings yet can’t be fired. In fact, a lay-off simulation performed by Newark Public Schools (documented in the court filings) showed that 75 percent of teachers facing layoffs would be effective or highly effective, while only four percent of those laid off would be ineffective.

The lawsuit notes that Newark has its own “rubber room,” a warehouse for teachers designated unfit for teaching but still on the payroll during the long tenure removal process. The term was brought to public attention in a 2009 New Yorker article by Steven Brill on New York City’s “Temporary Reassignment Center,” which costs the city over $100 million dollars annually. Brill quotes then-NYC Schools Chancellor Joel Klein: “you can never appreciate how irrational the system is until you’ve lived with it.”

During the 2013-2014 school year, Newark’s “Educators Without Placement Site” (EWPS), maintained 271 teachers who performed clerical tasks or teacher aide duties and cost the district $22.5 million. In 2015,  Superintendent Cerf, laboring under intense budget constraints, had no choice but to“force-place” ineffective teachers in classrooms without principal consent.

The plaintiffs’ “prayer for relief” from quality-blind layoffs is a logical outgrowth of New Jersey’s highly-lauded Abbott rulings, which deemed that the state’s fragmented school system— 591 districts, more per square mile than any other state in the country—was so rife with inequities that 31 poor urban districts, including Newark, qualify for compensation in the form of free preschool, supplemental services, and extra money.

The elimination of LIFO in Newark, according to the plaintiffs, would be one more form of Abbott compensation.

The suit also notes a new development in the state’s education arena: Governor Christie’s appalling proposal to overturn the Abbott rulings by flat-funding all school districts at $6,599 per student, regardless of economic disadvantage. (For context, the State Department of Education lists Newark’s cost per pupil at $17,184). This proposal, which has as much chance of passing as Donald Trump being knighted by the Queen of England, would give the Commissioner of Education, a political appointee, the power to waive LIFO for the state’s neediest districts.. It would also cut Newark’s budget to crumbs, decimating a district already under fiscal distress. The parents of the plaintiffs in HG v. Harrington reject the governor’s proposal not only for fiscal reasons, but also because it would subject teacher layoff rules to political whims.

What does LIFO mean someone like Ms. Vazquez’s son E.P.?

At the school E.P.  attends, East Side High School (one of the district’s higher-performing schools), 13 percent of students reached proficiency targets in language arts and 6 percent met proficiency targets in math. Seventy-five percent of students failed the (relatively easy) state biology test. Sixteen months after graduation, only half of the school’s graduating class was enrolled in two or four-year colleges.

Superintendent Cerf recently noted that “for over 50 years, states — far from being laboratories of reform — have far too often been laboratories of stasis, interest-group politics and inaction, with truly tragic and deeply immoral consequences for the overwhelming majority of our urban poor, who, not coincidentally, are mostly children of color.”

He wasn’t just speaking of Newark and LIFO, but he could have been. With a guarantee of effective teaching, E.P. and his schoolmates would most likely demonstrate higher levels of achievement.  The plaintiffs argue that this pronounced lack of assurance is morally and legally wrong. Now it’s a question of whether the court buys the premise that teacher quality matters as much as money.