Vergara v. California: The Agendas, the Facts, and Recommendations for California Law

Ted Boutros believes corporations that destroy lives with reckless policies should suffer minimal financial penalties in court.  Boutros’s partner, Marcellus McRae, proudly defends white-collar criminals.  Eli Broad pretended to support Proposition 30, a ballot initiative designed to prevent massive cuts to public education, while secretly funding the No on 30 movement.  All three of these individuals and the rest of their well-funded legal team, however, hope their deployment of nine California students as the listed plaintiffs in Vergara v. California will convince a judge that they care about the plight of low-income children.  Their narrative self-serving and convenient, they argue that the massive income inequality they actively exacerbate has nothing to do with the achievement gap, that it is instead “grossly ineffective teachers” who ruin poor kids’ lives.

The original complaint in Vergara, filed on May 14, 2012, contains a number of factual errors.  As one example, the plaintiffs contend that “schools that serve predominantly minority and economically disadvantaged populations…have a disproportionate share of grossly ineffective teachers” when their own expert for the trial, Raj Chetty, has acknowledged since that “the quality of teaching…does not differ substantially across schools.”  In addition, the research summaries and numbers the complaint presents are rife with the type of statistical misinterpretation and manipulation I’ve discussed previously.  Unfortunately, far too many people who care about low-income students have fallen for the plaintiffs’ inaccurate narrative and support their efforts in Vergara.

The case challenges three aspects of teacher employment law in California’s Ed Code: permanent status (commonly referred to as tenure), the teacher dismissal process, and seniority-based layoffs (commonly referred to as LIFO, which stands for “last in, first out”).  Elements of all these laws need improvement, but education “reformers” have frequently misled the public about their purpose and propose changes unlikely to improve teacher quality.  An analysis of each policy, the rationale behind it, and a more sensible revision proposal reveal that the agenda in this case is more about dismantling employee workplace protections than it is about improving the lives of low-income students.

Permanent Status (Tenure)

Current Law: Teachers begin their employment with a school district with probationary status.  The school district must decide, by March 15 of a teacher’s second school year, whether or not to grant the employee permanent status.  Before that point the district may non-reelect (fire) a probationary teacher without having to provide a specific reason.  “Permanent status” is actually a misnomer because teachers with permanent status aren’t permanently guaranteed a job; teachers who have been granted permanent status are only afforded due process rights when an administrator deems them unfit to teach.  Teachers with permanent status may be dismissed (fired) if they are unwilling or unable to address an administrator’s stated concerns.

Current Law’s Rationale: Tenure was originally established at the university level to ensure academic freedom – granting academics tenure enabled them to pursue research without fear of political retribution from major donors.  California’s permanent status statute was likewise adopted to safeguard teachers from arbitrary firings.  California Teachers Association (CTA) members, over the course of the organization’s history, have fallen victim to dismissals based on nepotism, political patronage, political bias, racism, sexism, personal vendettas, a desire to replace higher-salaried teachers with lower-salaried replacements, and other capricious reasons unrelated to a teacher’s ability to effectively educate students.  Teachers with permanent status can advocate for the interests of their students and teach potentially controversial topics like evolution without fear of retribution from school or district administration or parents.  Since principal turnover is also fairly common, permanent status can prevent a short-term administrator from drastically overhauling a staff, an important protection for students given the negative impact teacher turnover has on student outcomes.

How to Improve the Law: As the plaintiffs’ note, probationary teachers can sometimes secure permanent status after “a cursory performance evaluation, or sometimes none at all.”  That statement, however, is an indictment not of permanent status, but of both teacher evaluation practices and administrator incompetence.  Instead of ending permanent status, California should adopt the type of comprehensive teacher evaluation system, supported by teachers unions, that provides meaningful feedback to teachers, helps support ineffective teachers in addressing growth areas, and trains administrators on how to give productive feedback.  The legislature should then consider changing the timelines for permanent status.  When a district remains on the fence about a probationary teacher after two years, the district should be allowed to extend the probationary period an extra year.  And if a probationary teacher has a well-documented, amazing first year, that teacher should have the opportunity to earn permanent status early.

The Dismissal Process

Current Law: If a school district deems a teacher ineffective, the district must provide the employee with “written notice of the unsatisfactory performance [and 90 days] to correct his or her faults.”  Should the employee’s performance remain unsatisfactory following these 90 days, the school district must give the employee notice of its intent to dismiss the employee.  The employee may then request a hearing with the school board and, if desired afterwards, a subsequent hearing before a Commission on Professional Competence.  The Commission’s decision may be appealed to higher courts.

Current Law’s Rationale: The requirement that school districts provide employees with the opportunity to improve performance before potential hearings extends the 14th Amendment’s due process requirements.  But when someone is accused of doing something wrong, especially someone who has received at least two years of satisfactory evaluations from the same employer, that person should have the opportunity to hear the accusation, address it, and have a neutral party evaluate the accusation’s legitimacy.

How to Improve the Law: Incompetent and/or poorly-intentioned professionals exist in every profession and teaching is no exception.  All self-respecting teachers and unions believe colleagues who sleep during class or otherwise ignore students should be dismissed.  The plaintiffs surprisingly acknowledge, though, that these situations are anomalous: “the majority of teachers in California are providing students with a quality education” and even “grossly ineffective teachers [are often] well-intentioned.”  Not only is it unethical to fire well-intentioned people without giving them the opportunity to improve, teacher turnover, as mentioned above, is bad for students.  The focus of reform efforts, therefore, should be on teacher support initiatives like instructional coaching first and dismissal processes second.

That said, the dismissal process takes far too long and involves a plethora of potential appeals that can prove costly for both unions and districts.  To streamline dismissal of a teacher unable or unwilling to improve after provided with ample support, the evidence of both the teacher’s unsatisfactory performance and the support provided to help the teacher improve could be presented directly to a state oversight panel, similar to the current Commission on Professional Competence, consisting of three teachers and three administrators.  For the dismissal to move forward, a majority of both the teacher and administrator members of the panel would need to approve it.  The panel’s decision would not be subject to appeal.  Such a system would preserve due process, maintain the employer’s responsibility to help support struggling veteran employees, and reduce the timeline and cost of dismissing truly ineffective teachers.

Seniority-Based Layoffs (LIFO)

Current Law: When a district faces budget cuts and decides to reduce the number of teachers as a result, it is bound by the following section of Ed Code:

[The] services of no permanent employee may be terminated…while any…other employee with less seniority…is retained…[However,] a school district may deviate from terminating a certificated employee in order of seniority [if the] district demonstrates a specific need for personnel to teach a specific course or course of study…or to provide services [for which a] certificated employee has special training and experience…which others with more seniority do not possess.

Current Law’s Rationale: Though the exception for cases in which the district “demonstrates a specific need” is notable, the main benefits to seniority-based layoffs are the predictability and stability they provide for both employees and students.  While teacher experience correlates to some degree with effectiveness, this policy is the least sensible of those challenged in Vergara v. California.

How to Improve the Law: Most new teacher evaluation systems currently rely on unreliable and invalid student test score data and are thus inaccurate indicators of teacher effectiveness.  While seniority also fails to capture teacher effectiveness accurately, we should not replace one faulty system with another.  Instead, legislators should develop budget mechanisms that prevent teacher layoffs.  At the same time, legislators should implement the type of comprehensive, thorough teacher evaluation system discussed above and apply it when layoffs are inevitable.

The beginning of the first sentence regarding the dismissal statute in the plaintiffs’ original complaint reveals the true motive behind their opposition to these policies: “Unlike employees of private companies, public employees in California must be afforded certain due process rights.”  Since the large corporations represented by Boutros’s and McRae’s firm frequently underpay workers and illegally fire employees, these corporations view due process and other worker protections anywhere as a threat to exorbitant corporate profits everywhere.  They hope their ostensible compassion for students (some of whom were likely recruited by cold-calling TFA corps members; a 2010 TFA alum and friend of mine was called to see if he could recommend any students for the lawsuit) will provide cover for their overt attempt to undermine organized labor.

Opening arguments in the 20-day Vergara v. California trial began in downtown Los Angeles on Monday, January 27.  The plaintiffs have asked the court to act in the best interests of low-income students; Judge Rolf Treu should do so by rejecting the plaintiffs’ deceptive arguments and ruling in favor of the state of California.  Legislators should then work with teachers unions to enact evidence-based reforms that empower teachers to continue to hone their craft and improve their students’ lives.

21 Comments

Filed under Education

21 responses to “Vergara v. California: The Agendas, the Facts, and Recommendations for California Law

  1. Awesome work, Ben; thank you. You’re a leader in factual discovery of political purpose that lies in order to dictatorially force policy onto the public. Your documentation is clear and professional. Welcome to the ranks of “hobbyists” who see exactly what you see in oh so many crucial areas.

    We the People suffer under propagandists who do not serve democracy (educating and then representing the public in good faith). Your work, Ben, is leadership that educates, provides choice, and must be done if education is to have facts drive what we do.

    If enough people choose this paper-thin propaganda over reason, then the trends we all see will continue.

  2. I mainly agree with your recommendations, and I agree that Vergara seems to be a proxy war fought by national conservatives against union interests. But, why do you think the kind of common sense reforms you’re talking about don’t tend to actually happen? There’s a long history of missed opportunities for the unions to make those reforms happen. The excesses and echo chambers of the ed reform movement have made it easy to paint them as the villains, but I’m not sure I see a true commitment on the part the unions to face up to THEIR excesses. It’s true that incompetent or just plain unbalanced administrators are common enough that teachers need protections. But the labor rules you describe above are one (of several) factors that make the principalship a nearly impossible job, and most locals are dug in behind them as if they’re birth rights. I don’t think it’s productive, or intellectually honest, to conflate the people behind Vergara with educators who start charter schools because they think they can do a better job supporting teachers than the combo of unions and central offices. We need to be able to say there is a better path forward without saying that either side has a monopoly on the truth.

    • Horace you answered your own question. Common sense does not exist and is further clouded by the “money people” with their own off-target agendas.

    • Duane Swacker

      “But the labor rules you describe above are one (of several) factors that make the principalship a nearly impossible job”

      Nonsense, I’ve never seen due process rights (and it is not “tenure” as it is known in post secondary education) be a hindrance to a principal “firing” anyone ever. All the power is still on the side of the administration and I’ve seen it used unjustly many a time. Any supposedly “bad/incompetent” teachers still around to have due process rights are due to administrative blunders and not the unions.

    • At the very least those who start privately managed charters do have a monopoly on revenue streams from reactionary billionaires who also support Vergara. Your false dichotomy about this being about the plutocracy against unions ignores the reality that this the plutocracy against all working class peoples.

  3. Unions shoulder some responsibility for the lack of good reforms, but I believe much of their resistance stems from the dominance of the negative teacher narrative and a long history of abuses by school districts. I’ve generally written that I believe people need to start working together more, and I wouldn’t say any “side” has a “monopoly on the truth,” but I would say that the typical union narrative is generally more accurate than the typical reform narrative. I wrote a little more on that idea when I wrote about TFA and about data – check out http://34justice.com/2013/11/08/working-together-for-educational-equity-whats-missing-from-the-tfa-debate/ and http://34justice.com/2013/12/25/approaching-education-data-the-nate-silver-way/ if you’re interested.

    I also want to be clear that I believe most people who work for charters are well-intentioned, and that they are considerably different than the people behind Vergara. I wrote a little bit about charters a few months ago (http://34justice.com/2013/09/09/the-teach-like-a-champion-paradigm/) and have a problem with the charter paradigm, but I think you’re absolutely right that we shouldn’t lump people who genuinely want what’s best for low-income kids in the same bucket as those behind this lawsuit.

    Also, I agree with you that being a principal, especially for a large school, is insanely difficult. I sincerely admire the people who do the job well.

    Thanks for reading and commenting!

    • Wow, John; strong stuff! Thank you for your voice of clarity! Yes, it’s a political attack using orchestrated lies of omission and commission. You didn’t ask, but here’s what I see as the policy objective that this strategy forwards: our oligarchic 1% dark-side brethren have to silence teachers in order to control the future.

      History is never over; we repeat basic patterns of oligarchic control, and well, duh, if they don’t stop independent teaching voices like ours then eventually our facts will crush their propaganda.

      It’s education, and perhaps ~100 other areas of similarly game-changing importance where we’re spewed with this garbage posing as professional factual argument.

      For whatever reason, that’s the Big Game in education: will facts prevail?! Stay tuned, and keep playing. We’ll discover that answer together.

      • John Thompson

        Last week I went to a campaign event for Oklahoma City mayoral candidate Ed Shadid. His cousin was the reporter Micheal Shadid who died in Syria and his uncle was the “Doctor for the People” who set up a cooperative medical system back when Oklahoma was a Socialist stronghold. I saw all these dynamic progressives trying to reclaim OKC from the Tea Party and this week I was reunited with many colleagues who I met there. Often, we filled each other in on our careers since the 70s and 80s. Even though we were in very different positions, we kept completing each others’ sentences regarding the same patterns we saw in medicine, law, and government. I’m going to turn them on to your blog.

      • Awesome – thanks so much! I look forward to being in touch.

  4. Yes, John: I have the same experience with friends/colleagues with intellectual integrity and moral courage to say what they see.

    Project Censored is now a consortium of over 20 universities that use their Journalism schools to punch through these areas of propaganda, including in education for Ben’s direct interest. If helpful for anyone looking for good reporting, I’ll also give three additional sites I find useful:

    http://www.projectcensored.org/
    http://www.globalresearch.ca/
    http://www.wanttoknow.info/
    http://www.washingtonsblog.com/

    • John Thompson

      Thanks. I’ll pass them on. I can’t believe how many new types of news reporting formats are popping up.
      When I was a kid, it was easy to identify corruption when they robbed you with a fountain pen. Every time we entered church, my dad would rib my mom about the name of the Sunday School classroom and how it was named for an OK Supreme Court judge who was routinely bribed. Every eight miles the paving changed, showing a different company got the job after a different payoff. We still had Prohibition!
      But, now they can rob you in the lines of the computer programing code, or the tax code, or many other hidden ways. That makes reporting so much more challenging.

  5. John, your Ed Week post is awesome; thank you. In teaching US Government and Economics, I tell students that corruption around our most important policies is beyond what I am able to communicate because it’s not just worse than students imagine, it’s worse than they have the capacity to imagine. But I can point to the facts and encourage those with heart and curiosity to see for themselves.

    Education deals with facts. In essence, we’re engaged in some kind of test (perhaps a final exam) whether leadership on this beautiful planet will emerge with facts to drive policy, or we will devolve into manipulated plutocracy to control the general population as little more than work animals.

    We’ll see. Game on.

  6. Hi, I do think this is a great blog. I stumbledupon it ;) I am going to
    come back yet again since i have book marked it. Money and freedom is the greatest way to change, may you be rich
    and continue to help others.

  7. Ben, any comments about the effectiveness of instructional coaching? Your link notes that no randomized control-group studies have been done to demonstrate the effectiveness of coaching, yet it’s been widely implemented by districts large enough to do their own randomized control groups. Does this hold significant promise for improving instructional quality? I suspect, like most things, that the devil’s in the details and that I haven’t seen this implemented well.

    • Hey Nick,

      I’m obviously somewhat biased on this question, but I do think instructional coaching holds a lot of promise for two primary reasons. First, Jim Knight’s research in Kansas suggests that coaching cycles are considerably more effective than other forms of professional development. You make a good point that controlled experiments haven’t really been done, though, and I hope that somebody conducts one soon.

      Second, my experience with coaching and Curriculum and Instruction’s data from coaching camps have both been very positive. While teacher attitudes about whether or not coaching has contributed to improved instruction aren’t a perfect proxy for whether it actually has, I believe teacher support is an important part of instructional growth and that most teachers are pretty perceptive about their practice. Hoover and Lincoln teachers and teachers at the sites we hold coaching camps have reported strong beliefs that their work with coaches has improved their instruction.

      The delivery of instructional coaching matters a lot, and I think your point about implementation is an interesting one. SJUSD does a better job than TFA with implementation but we still suffer from caseloads that are too high – coaching cycles need to be done consistently and with a fast turnaround time to maximize their effectiveness, and that’s impossible to do with all of the teachers we support. I’ve recently switched to a “cohort” model where I focus on a much smaller group of teacher volunteers during a six-week period and the feedback has been really positive so far. I’m thinking that approach (at least until we get enough funding to put one coach at each site with 10 teachers max and limited additional responsibilities) may be the way to go.

      I’d love to speak with you more in detail if you’re interested. Just let me know!

      Ben

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