Appeals Court Hears Vergara Case

BY HANK REICHMAN

In June, 2014, California Superior Court Judge Rolf M. Treu overturned California statutes guaranteeing due process protections for K-12 teachers with more than two years experience (so-called “teacher tenure”) and layoff by seniority.  The case, Vergara v. California, was the topic of a number of entries on this blog.  The basic argument of Treu’s ruling was that teacher tenure laws violate the equal protection provisions of the U.S. and California Constitutions by compelling poor and minority districts to retain poor teachers, who the judge opined are inordinately concentrated in such schools.  The decision was appealed to the California Court of Appeal.  The AAUP joined an amicus brief on behalf of the appeal.

Treu found that teachers earn strong job protections too quickly — within two years. And he found the process for firing them “to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.” He also threw out rules under which teachers are laid off based on a seniority system, rather than on performance.  The judge also accepted the argument that these rules favored by teachers unions disproportionately harmed minority students — a status quo that, he said, “shocked the conscience.”

Today the Court of Appeal heard arguments in the case and it would appear that the justices were not terribly sympathetic to the decision.

“No state has the combination of egregiously non-student-protective statutes that California has,” argued Theodore Boutrous, an attorney for the plaintiffs. “The evidence is overwhelming,” he said, that those laws “compel districts to leave grossly under-performing, ineffective teachers in the classroom” and that “low income and minority students are feeling this brunt.”

But, according to a report in the Sacramento Bee, “the justices pressed for evidence that California’s rules directly or inevitably lead poor teachers to be concentrated in disadvantaged schools. They probed how much authority local school officials wield when it comes to hiring and firing teachers.”

Whether statutes “tie local administrator’s hands” is crucial, Justice Brian M. Hoffstadt said, adding that the plaintiffs had to prove that “the control local administrators have is not going to be sufficient” to overcome detrimental laws.  “At least some of the school districts have been able to apply the statutes in a way that doesn’t result in this unlawful concentration” of ineffective teachers Hoffstadt said.

“Is it the statute or how they are administered?” asked Justice Judith Ashmann-Gerst. “Don’t the administrators have the ultimate power” over where teachers are assigned?

“These statutes don’t dictate how districts assign teachers to schools or classrooms,” Deputy Attorney General Nimrod P. Elias said on behalf of the state and other appellants. “District administrators have complete discretion to assign their teachers and workforce to classrooms as they see fit,” so “it cannot be inevitable that these statutes cause these harms.”

An attorney for the California Teachers Association (CTA) joined California’s attorney in making arguments.  Current tenure rules and a thorough dismissal process “have the effect of improving overall quality of the teaching pool because they make the teaching profession more attractive,” Michael Rubin argued.  “The mere fact that there are students who at some point in their career have been assigned to a bad teacher” shouldn’t force California to discard those rules, he said.

In an op-ed piece in the New York Daily News, University of California, Irvine Law School Dean Erwin Chemerinsky urged reversal of the decision:

The problem of inner-city schools is not that the dedicated teachers who work in them have too many rights, but that the students who go to them are disadvantaged in many ways, the schools have inadequate resources and the schools are surrounded by communities that are dangerous, lack essential services and are largely segregated both by race and class.

Taking the modest job security accorded by tenure away from teachers will address none of these problems.

The causal relationship alleged by the plaintiffs in these lawsuits — that teachers’ rights cause minority students to receive substandard educations — is belied by readily available empirical evidence.

If the plaintiffs were correct, similarly situated students in states with weak protection of teachers — such as Texas, Alabama and Mississippi — would have higher levels of achievement and the racial achievement gap would be smaller in those states. But there is no evidence that minority students in Houston, Birmingham or Jackson outperform those in Los Angeles or New York.

In fact, a study published in the Harvard Educational Review found a significant positive relationship between rates of unionization (and accompanying job security) and student scores on the SAT and ACT.

Every year, the states with the highest student performance are those with robust protections for teachers — places like Maryland and Massachusetts. One of the key reasons they are successful is that these states do a better job at getting resources to the neediest students and creating a climate where teachers have the support needed to succeed and therefore stay in the profession. . . .

In the California anti-tenure litigation, the judge found that between 1% and 3% of teachers in the state are grossly ineffective. They, of course, should be replaced. But the evidence also showed that it is possible to do so while respecting basic protections teachers have under law.

The reality is that job security and protection against arbitrary treatment are terms and conditions of employment that, like higher wages, attract good people into teaching and keep them in the classroom.

In a piece reposted today from the time of the trial teacher-activist David Cohen identifies eight flaws in the decision:

    1. Plaintiffs misunderstand the challenges facing California public schools. Our state’s spending on education is dismal – nearly the worst in the nation. Our students have disturbingly little access to nurses, libraries, librarians, and counselors, and our student-to-staff ratios are also rather high for both teaching and administrative staff. The measures used to argue school failure are also more apt to show the effects of poverty and language acquisition – and we are a state with high percentages of children living in poverty, and learning English as a new language. . .  .  If there are problems in California public schools that rise to the level requiring a constitutional challenge, those problems are not caused by ed. code provisions relating to teacher hiring, layoffs, and employment status.
    2. Plaintiffs rely inappropriately on standardized tests to identify problem schools and supposedly inferior teachers. Wealth is the number one predictor of relative performance on standardized tests. Here and around the world. Period. . . .  The use of test scores and value-added measures in school personnel decisions is not supported by any research. [On this research see this 2014 piece by Valerie Strauss in the Washington Post.]  . . .
    3. Plaintiffs emphasize variability among districts as the reason to litigate, but that variability shows that state level remedies are unnecessary. . . .
    4. Plaintiffs actually seek to make California more like the lowest performing states in the nation. If the ed. code provisions in question are the source of our problems, why are  states with similar provisions, and strong unions, clustered in the upper end of the performance spectrum, while states without those protections, and weaker unions, are clustered among the lowest performing states? . . .
    5. Plaintiffs misunderstand the workplace. They hope that eliminating seniority as a consideration in layoffs will improve schools, ignoring how it will destabilize schools and set off internal competition among teachers in areas that anticipate declining enrollment or significant budget cuts leading to layoffs. . . .
    6. Plaintiffs misunderstand the work force. To the extent that stronger schools have stronger teachers, it’s a function of pay and work environment. . . .  Changing the procedures for firing or laying off teachers is not going to address the reasons that good teachers generally leave those schools, nor will teachers who are more competitive in the job market be drawn to struggling schools in any case.
    7. Plaintiffs cherry pick the facts about “getting rid of bad teachers.” . . . .
    8. Plaintiffs are indifferent to the likely negative effects on schools should their lawsuit succeed.

The Vergara suit was filed on behalf of nine students but initiated and supported financially by a group called Students Matter, founded by Silicon Valley entrepreneur David Welch.  According to a 2014 report,

Welch and his nonprofit play a special role among a group of other nonprofits and personalities whose legal actions, school board campaigns, op-eds and overlapping advisory boards suggest a highly synchronized movement devoted to taking control of public education. The David and Heidi Welch Foundation, for example, has given to NewSchools Venture Fund, where Welch has been an “investment partner” and which invests in both charter schools and the cyber-charter industry, and has been linked to the $9 billion-per-year textbook and testing behemoth Pearson. Welch has also supported Michelle Rhee’s education-privatizing lobby StudentsFirst, most recently with a $550,000 bequest in 2012.

StudentsFirst also turned up on an early list of Students Matter’s “advisory committee” that included ardent education privatizers Democrats for Education Reform, Parent Revolution and NewSchools Venture Fund. Both StudentsFirst and NewSchools Venture Fund also appear on a list of Vergara supporters that includes the California Charter Schools Association, along with Los Angeles Unified School District superintendent (and onetime Vergara co-defendant) John Deasy and former Oakland Unified School District superintendent Tony Smith.

At one point Students Matter boasted among its supporters Dolores Huerta, legendary labor leader and civil rights activist as well as former teacher.  In a video and press release issued last month by the group Huerta is quoted as saying, “I think it’s awesome that the Vergara lawsuit was filed…There is no excuse why we can’t have equality in education. I think we have the resources to do it, we’ve just got to have the will.”

But today, Huerta joined teachers and community members in a press conference organized by the CTA in opposition to the Vergara ruling.  What happened?  Well, one can judge from this letter Huerta sent to Students Matter:

Huerta_letterThe three-judge panel has 90 days to issue an opinion.

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