Vergara Decision Blames Teachers, Ignores Injustices for Students in Poorest Communities

Earlier this week California Superior Court Judge Rolf Treu struck down tenure and seniority protections for California’s K-12 school teachers.  This is the case of Vergara v. California.  The plaintiffs have said they will appeal.  According to Stephanie Simon, writing for Politico, “Judge Treu has tentatively decided to let the laws stay in effect pending that appeal… Judge Treu’s ruling is preliminary; he will take comments from both sides into account before issuing a final ruling within the next month.”

Nobody wants bad teachers in California’s classrooms or the classrooms in any other state.  On this particular issue Randi Weingarten, President of the American Federation of Teachers, declared she agrees with Judge Treu: “He argues, as we do, that no one should tolerate bad teachers in the classroom.  He is right on that.”

Treu’s decision explains that tenure protects bad teachers, that bad teachers are more often assigned to the schools serving California’s most vulnerable and disadvantaged students, and that the assignment of bad teachers (protected by tenure and seniority rights) violates the students’ civil rights under the equal protection clause of the state constitution. “Substantial evidence presented makes it clear to this Court that the challenged Statutes disproportionately affect poor and/or minority students.”

In his decision, Judge Treu quotes expert witnesses whose numbers are stunning. In one case the judge seems to have extrapolated from what he heard—from expert David Berliner, who is described to have “testified that 1–3 % of teachers in California are grossly ineffective.”  Treu continues, “Given that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250.”  The exact number of ineffective teachers is, of course, speculative.  Treu also quotes Harvard economist, Raj Chetty, who has authored an econometric report on the impact of bad teachers on students’ lives.  Treu writes, “Based on a massive study, Dr. Chetty testified that a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.”

Experts who did not testify in this court have warned against the use of such econometric studies as the sole basis for creating policy.  The American Statistical Association has warned, for example, about Value Added Model (VAM) econometric formulas for evaluating teachers: “The VAM scores themselves have large standard errors, even when calculated using several years of data.  These large standard errors make rankings unstable, even under the best scenarios for modeling.”  “…most estimates in the literature attribute between 1% and 14% of the total variability to teachers.  This is not saying that teachers have little effect on students, but that variation among teachers accounts for a small part of the variation in scores.”

Commenting on the danger of shaping day-to-day school policy on such statistical and econometric data, UCLA expert on teaching, Mike Rose has cautioned that such longitudinal extrapolating “requires that all other factors in the lives of the children and their schools remain the same: that the students maintain the same level of motivation, don’t get sick, don’t experience family disruption. That teachers are equally immune from life’s perturbations…. That the school-level leadership doesn’t change; that new policies aren’t enacted; that funding remains stable, that the community isn’t hit with economic hardship; and so on.”  Real life, of course, cannot be easily quantified.

The existence of massive inequality from school district to school district has been well documented, but was not questioned during the testimony in Vergara.  The American Federation of Teachers’ comment on the Vergara decision names many of the issues that were not raised in this case but that are known to violate the rights of children in the poorest schools across the states: “It is surprising that the court, which used its bully pulpit when it came to criticizing teacher protections, did not spend one second discussing funding inequities, school segregation, high poverty or any other out-of-school or in-school factors that are proven to affect student achievement and our children.  We must lift up solutions that speak to these factors….”

The Vergara case was clearly part of an orchestrated attack on teachers unions.  After all, nobody in this trial mentioned the problems of the young, two-year Teach for America recruits, trained for five weeks over the summer and placed—with only meager experience—in classrooms.  Nobody in this trial discussed the long-term substitutes too often left in charge of classrooms in poor schools.  Nobody mentioned the issues around school climate and the deplorable facilities that discourage teachers from seeking positions in the poorest school districts.

The Vergara case was launched by Silicon Valley telecommunications entrepreneur David Welch and the nonprofit he created to fund and publicize the case.  He hired as plaintiff attorneys former U.S. Solicitor General Ted Olson and Theodore Boutrous, Jr., a corporate attorney who represents Walmart and who represented George W. Bush against Al Gore in 2000, when the Florida recount reached the U.S. Supreme Court.  Peter Schrag, retired editorial page editor for the Sacramento Bee, described the case during the trial back in April: “The case, and the public relations effort accompanying it, is being bankrolled by a nonprofit called Students Matter, set up by Silicon Valley entrepreneur David Welch.  Welch is seconded by groups such as Ben Austin’s Parent Revolution and Michelle Rhee’s StudentsFirst, with funding help from Eli Broad and the Walton Family Foundation, all of which have battled teachers unions and supported charter schools and ‘transformational’ change in public education.”

Teachers deserve protection through due process to enable them to pursue stable careers. Teachers deserve ongoing support to help them improve their skills throughout their careers.  Children deserve expeditious processes by which struggling teachers can be moved out of the profession. Teachers and the children in our nation’s poorest school districts together deserve a change of political priorities around education.  Instead of federally-incentivized “turnaround” plans that emphasize firing teachers and principals, turning schools over to charter management organizations, and closing schools, our society must work to create the political will to improve and support the schools in our poorest big city neighborhoods. The census just demonstrated that total spending on education dropped for the first time in history in Fiscal Year 2012.  States persist in austerity budgeting.  The federal government cut education funding in 2012 by 19.2 percent from the previous year.

The Vergara attorneys sought to portray the needs of children as separate and very different from the needs of their teachers.  In fact, teachers and children in our poorest communities share the need for society to invest in improving their public schools.

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