Disastrous Ruling In California Education Trial Makes ‘Reformers’ Giddy — For Now

California Superior Court Judge Rolf M. Treu just handed down a devastating ruling that could reverberate nationally and bolster the drive to destroy public education as we know it. If you’re not familiar with Vergara vs. California, a little background:

The lawsuit is funded by a group called Students Matter, which is headed up by Silicon Valley entrepreneur David Welch and counts among its supporters notable figures in the anti-union, pro-charter, school privatization movement such as Michelle Rhee of StudentsFirst and Eli Broad. Students Matter has brought on the legal team headed by Ted Olson, best known for being President George W. Bush’s Solicitor General and winning the Perry v. Schwarzenegger case that overturned Proposition 8 and restored marriage equality to California. It seeks to overturn five basic laws that allow teachers to be flexible and dynamic in the classroom, including tenure protections and the right to a fair hearing in case of accusations of misconduct. The suit alleges that these laws violate the California Constitution by denying children in public schools their constitutionally given right to a quality public education.

In recent years there has been a concerted effort to privatize public education. People like David Welch, Michelle Rhee, Eli Broad, and the Walton family have spent millions of dollars attempting to do two things: 1) convince the public that there is a “crisis in education”; and 2) hang the blame for said crisis squarely on the shoulders on teachers. Why? Because teachers and, more importantly, teachers’ unions are the single biggest obstacle to their vision of market-driven, privatized public education.

At the heart of Vergara  is the contention that granting teacher tenure after just two years on the job makes it impossible to rid schools of “ineffective” teachers. Further, they contend that these ineffective teachers are disproportionately found in schools serving low-income and minority students.  Let’s break this down.

In actuality, California does not have true “tenure” for teachers. The due process afforded these teachers protects them against dismissal for capricious reasons such as speaking up for students or teaching controversial subjects. The law requires they be granted a fair hearing during which they can present their own side of the case, and that the final decision be made by an objective third party. In other words, California teachers can be fired, but they have the right (after two years of service) to fair adjudication. 

How do we define an “ineffective” teacher, anyway? The plaintiffs in this case base their label upon student performance. (And some shaky research purporting to quantify the impact on students by, for instance, affixing a dollar amount on the difference in their lifetime earnings from just a single year with an “ineffective” teacher. Unfortunately, Judge Treu bought that contested research hook, line, and sinker.) More compelling studies demonstrate that up to two-thirds of the factors affecting student achievement are outside the control of the teacher, and that these factors are prominent in schools serving low-income students.   

Students living at or near poverty struggle with school due to high stress levels, household instability, lack of early childhood education, lack of after-school and summer enrichment programs, and hunger.  They suffer from a lack of resources at home which other students take for granted. (Books, computers, internet access, a parent who isn’t so exhausted from working multiple minimum-wage jobs that she can help with homework.) Basic logic should tell you that these students won’t perform at the same level as their more comfortable counterparts.

To gauge teacher performance this way is highly unfair. It also makes it more difficult for these schools to attract experienced, quality teachers. After all, it’s emotionally draining, day in and day out, to deal with students whose problems go way beyond their next standardized test. To add the prospect of dismissal on a whim can only make things worse.

What these schools and students actually need are additional resources to help bridge these gaps. But Schools Matter, its supporters, and the plaintiffs in Vergara aren’t interested in filling those needs. They’re interested in demonizing teachers as a means of breaking the unions and further depressing teacher pay. This is because the “education reform” movement’s puissance comes from the pairing of Silicon Valley billionaires who believe technology can do what teachers can’t and hedge fund billionaires salivating over the billions of dollars spent annually on public schools.

Schools Matter and its allies are not looking to improve quality in the schools of the 9 students they convinced to bring this suit, or any other California schools, for that matter. David Welch’s plan is instead to roll-out this same legal challenge in other states.  Eli Broad, for his part, recently contributed $1 million to defeat a California ballot measure to better fund schools. (One which he publicly claimed to support.) Poster child of the movement Michelle Rhee, who turns out to have been a mediocre teacher at best and as Chancellor of DC Schools turned a blind eye to cheating and perpetrated fraud,  seems to simply be milking the thing for profit and fame these days, if it was ever about anything else.

Having thoroughly reviewed Judge Treu’s decision, I find it lacking. Judge Treu repeatedly cites plaintiffs’ arguments and evidence as undisputed fact, while blithely dismissing defendants’ concerns. Treu’s legal analysis is poorly reasoned, the evidentiary record is sparse, and the entire decision seems unbalanced. In other words: the plaintiffs lucked out and found a sympathetic judge. The question now is whether the decision will hold up on appeal. Even some “reform” advocates see little chance of that, with some even questioning whether Treu’s rhetoric will come back to haunt them.

By: Sandi Behrns

Sandi Behrns is a noted policy nerd, new media & web developer, and consultant to progressive organizations and campaigns. She is a senior contributor to Liberaland, and the Executive Editor of Progressive Congress News.