State of California Bypasses Public School Pension Guarantees By Other Means.

By Brian Crowell

This article is based on a 7 plus year quantitative study on teacher discipline as it relates to age race and gender in the State of California. This article attempts to identify a nexus between the Stat of California no longer wanting to guarantee teachers pensions (Cal STRS) and African American, veteran teachers forced to retire with reduced pensions. While disparate treatment of African American’s is not part of this series, this article will specifically focus on age disparities.

Taking it straight from the California State Constitution (Article 1, section 9)

“A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” In laymen’s terms the state may not break its contractual relationship with its employees (in this case public sector teachers) by breaking the consideration after offer and acceptance of of a pension promise. This rule was upheld by the State Supreme Court in Kern v. City of Long Beach (1947) 29 Cal.2d 848. In (Kern) the State Supreme Court ruled that “As we concluded, allowing a last minute repeal of pension rights “would defeat one of the primary objectives in providing pensions for government employees, which is to induce competent persons to enter and remain in public employment,” because “the promise of a pension annuity would either become ineffective as an inducement to public employees or it would become merely a snare and a delusion to the unwary.”

In this discussion, myself and other teachers, the assertion that through various statutory schemes in the California education code,(44500,44939,44932) has allowed the state to “escape” some of its pension obligations with its teachers. (We note in the Kentucky strike pension reform was a hot button issue during their strike ;https://www.cnn.com/2018/03/09/us/teachers-union-movement/index.html)

With over 7,000 teachers sampled state wide we need not take the reader down the hyper technical rabbit hole of various statutory schemes. We will begin with something simple: The revocation of teaching credentials in the State of California. California Education Code 44421 mandates the revocation and or suspension of teacher licensing after “accusation” from the employer.

(Footnote 1: We note that the California Rules of evidence in particular Evidence code 702 and 1200 hearsay rules do not apply. In other words a statement that was made by someone other than the witness who is testifying, and that is offered to prove the truth of the content of the statement. Hearsay is generally inadmissible in court, but allowed in the Kangaroo Courts of the Office of Administrative Hearings; See Miller v Chico https://law.justia.com/cases/california/supreme-court/3d/24/703.html)

When sampling by age 5,374 teachers from 2012–2020 we note a heavy age bias when compared to the state total of the teachers in the same age range. Analyzing the data to see if in fact this statute is subject to equal protection and constitutional scrutiny shows a disturbing trend. Data collected via public records request shows persons over the age of 46 disciplined by the CTC compared with the state total in the same age range show a standard deviation of 7.80.Teachers over the age of 55 compared to the total population of teachers the same age rate showed a standard deviation of 16.50.(https://static1.squarespace.com/static/594addf4e3df28c2d6be15db/t/5f5e4fa71dbe6930fb42c0d2/1600016297314/CCTC+2012+thru+2020+Age+Discrimination.pdf)

(Footnote 2: As a parallel example; See Griggs v. Duke Power Co., 401 U.S. 424 (1971) see also Hazelwood School District v. United States, 433 U.S. 299 (1977) In Hazelwood the United States Supreme Court declared that: “It involves calculation of standard deviation as a measure of predicted fluctuations from expected value of a sample Using 5.7 figure as a basis for calculating the expected value the expected number of Negroes on the Hazelwood teaching staff would be roughly 62 in 1972–1973 and 70 in 1973–1974. The observed number in those years was 16 and 22, respectively. The difference between the observed and expected values was more than 6 standard deviations in 1972–1973 and more than 5 standard deviations in 1973–1974. Th court in Castaneda noted that as a general rule for such large samples, if the difference between the expected value and the observed number is greater than 2 or 3 standard deviations, then the hypothesis that the teachers were hired without regard to race would be suspect.” (Emphasis Mine.)

Said another way, the higher up on the salary schedule by year, step and column a teacher becomes the more in danger a teacher is exposed to arbitrary discipline by the state through failing evaluations and other disciplinary schemes.

In the same calculation the Cal STRS system rewards teachers a 2.0 multiplier to their pension at age 60 and a 2.4 multiplier at age 63. The classic hockey stick of “benefit” at Cal STRS mirrors the “hockey stick” discipline of teachers revocation shown in the CTC. We note from above, credential revocation more than doubles at age 55 for teachers at the CTC. Without a credential, teachers can no longer pay into the Cal STRS system, and can no longer work in public schools in the State of California. Also of note this occurs within 5 years of a teacher vesting in the 2.0 multiplier (which is called short timing in the teacher profession), which I argue is a last minute repeal of a pension promise by the State of California. In addition, teachers at this age 46 and over who are locked out of the public education and pension system are most definitely forced to “cash out” their STRS if they are not 55 years of age or take a reduced retirement.

(Footnote 3: https://www.calstrs.com/sites/main/files/file-attachments/mh_2017_your_retirement_benefit.pdf)

I note in all seriousness this article is not an article to defend felons, teachers of poor moral character and teachers will remedial skill in the classroom. However, I can speak with authority of the arbitrary disciplinary schemes proffered by employers to weed out minorities, union activists, and teachers over a certain age. (See PERB Dec. #2411E;Crowell https://perb.ca.gov/wp-content/uploads/decisionbank/decision-2411E.pdf)

Just last year the Alameda County Sheriff’s Union went to the State Supreme Court to Defend their pensions (and hats off to the Sheriff’s Union for vigorously representing their members https://law.justia.com/cases/california/supreme-court/2020/s247095.html) , however the Sheriff/Police system does not have such a subjective standard of discipline as does the California Education Code. Teachers do not have body cameras on in their classrooms. Nor do I accept what seems to be the counter argument that “when teachers near retirement they acquire amnesia and forget how to teach.” I also note that “age” is not a detriment for judges in the State of California particularly in the Superior, Administrative and Appellate Court Venue. However for teachers, with a profession constituting a majority of women the misogyny of how teachers are treated must be taken into account. I bring this example to light because it demonstrates the power organizing when members rights are affected.

Qualitative testimony from dozens of teachers throughout the state who were forced into “early retirement” are well known to educators, now the quantitative data supports the qualitative declarations. Healthy vibrant teachers over 50 should be allowed to remain in the profession as long as they wish and not be forced out because the state wants to break their promise.

(Footnote 4: We note that California previously had a mandatory retirement age in the past that was later repealed Ca Ed Code 44906 “Except in districts situated wholly or partly within the boundaries of a city or city and county where the charter of the city or city and county provides an age at which employees, including certificated employees of the districts, shall be retired, when a permanent or probationary employee reaches the age of 65 years, his permanent or probationary classification shall cease and thereafter employment shall be from year to year at the discretion of the governing board.”)

In summary, it is time for teachers and their representatives to perform a wider quantitative analysis of “whom” is getting disciplined in the profession and its direct connection to retirement security. In particular the cursory and fraudulent evaluation process that leads to the discipline must be undone by legislative means.

Brian Crowell; email:crowell.brian809@gmail.com

Oakland Education Association Grievance Committee Member

Oakland Education Association Co Chair Crisis Action Team Standing Committee

note: This statements are my own and are not intended to be the Official Position of the Oakland Education Association.