Opinion > Commentary

Vergara ruling’s strong words in the end will make little difference



Peter Schrag

From the start, the Vergara case (Vergara v. California) was more significant for its political implications than for the possible benefits it would gain for the poor and minority students on whose behalf it was purportedly brought.

And unfortunately Superior Court Judge Rolf Treu’s frail, awkwardly written though unequivocal decision Tuesday didn’t help. It provided no examination of the data, no analysis for his conclusion that California’s teacher tenure and seniority laws violated the state constitution, and no guidance on how they could be brought into compliance.

What it did provide, at least for the moment, was a clear win for the school reformers, not all of them conservatives, who backed the suit (and for the lavishly compensated corporate lawyers behind the faces of the kids who were the named plaintiffs).

More important, it was a sharp rebuff to the teachers unions that have been the unwavering defenders of those laws and, were they only sensitive to it, an embarrassment to state Superintendent of Public Instruction Tom Torlakson and the other Sacramento politicians allied with the unioins.

If those politicians were as deeply concerned about the state’s poor and minority schoolchildren as they claim to be, they would not wait for all appeals of Treu’s decision to be exhausted, a matter that will take years.

Instead, they’d make diligent efforts now to amend or replace the statutes that Treu found unconstitutional. They can be fixed without gutting the important job protections that an effective, motivated teaching force requires. But as they stand now, those laws deprive countless poor and minority children of a chance at a decent education as Treu said in the well-worn phrase he used, that does “shock the conscience.” Among those statutes:

  • The law under which schools must make tenure decisions after a novice has been on the job less than two years – in reality 16 months.
  • The cumbersome and expensive dismissal procedures required to fire even the most flagrantly incompetent or dysfunctional teacher.
  • The LIFO (last in, first out) seniority system that requires districts, faced with tight budgets, to lay off the last teacher hired, regardless of his or her competence and performance.

Unfortunately, given the political forces at play in Sacramento, real reform of the tenure laws may be a pipe dream. The same groups that defended the three sets of statutes and have resisted reform in the Legislature before are still in play.

Just a month ago, the State Board of Education, siding with Torlakson, refused to grant the San Jose Unified School District a minor waiver for a contract supported both by the district and its teachers union allowing it, in a few cases of uncertainty, to extend the probationary period for new teachers from the current two years to three.

Tuesday, shortly after Treu’s decision was released, Torlakson put out a statement that it “may inadvertently make this critical work even more challenging than it already is.” Meaning, most likely, that the state will stick to its guns. But if it survives the appellate process, maybe even before it runs through that course, Treu’s fragile 16-page opinion is likely to encourage the broader political attack on teacher and other public sector unions that began most famously in Wisconsin three years ago and has been rolling through Tennessee, Ohio and other states in the years since.

Given the rigidity that the National Education Association and its state and local affiliates, among them the California Teachers Association, have too often displayed in response to even the most reasonable school improvement efforts, the hostility in recent years to teachers unions is hardly surprising. And since the NEA is also the biggest backer of Democrats in national politics, it’s even less surprising.

The teachers unions, however, still remain the most committed and effective defenders of public education in this country against the increasingly well-funded attacks from privatizers and other conservatives – which of course is a major reason for the assault on the unions. When budgets are debated in the Legislature, teachers are the most vigorous advocates for adequate funding.

More immediately, the laws themselves, for all the harm they sometimes cause, have a lot of history behind them – as protection against the personal, gender and racial biases that for generations led to teacher firings without legitimate reason; as guarantees of academic freedom; as inducements to cooperation among teachers rather than hostility among competitors for advancement.

Without some guarantee for seniority, what would keep districts in tight times from laying off experienced teachers with the highest pay? Who will judge the competence and effectiveness of teachers?

Many of those questions can be answered satisfactorily without the rigid procedures in place now, but it will require a lot of work. Sadly, on that score, Treu’s opinion was of little help.

Vergara is a hybrid. Silicon Valley scientist-entrepreneur David Welch is the deep-pockets founder of Students Matter, the official sponsor of the Vergara suit, and also a major contributor to the Natural Resources Defense Council. If he has any political credentials, they tend to be liberal.

At the same time, Students Matter also got support from Michelle Rhee’s union-bashing Students First organization, and from Eli Broad and the Walton Family Foundation, all of which are strong backers of charter schools and other privatization efforts. And while U.S. Secretary of Education Arne Duncan applauded the decision, the cheers in California came mostly from the state’s Republicans.

But for the named student-plaintiffs of the suit and the hundreds of thousands of other young Californians stuck in inadequate schools – schools without counselors, with demoralized and ineffective teachers, without librarians or labs – and the thousands of others without decent preschools or no preschools at all – Vergara is a thin reed.

Peter Schrag is the former editorial page editor and columnist of the Sacramento Bee. He is the author of “Paradise Lost: California’s Experience, America’s Future,” and “California: America’s High Stakes Experiment.” His latest book is “Not Fit for Our Society: Immigration and Nativism in America” (University of California Press).

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Filed under: Commentary, Pay and Tenure, Teaching

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38 Responses to “Vergara ruling’s strong words in the end will make little difference”

  1. FloydThursby said

    on June 12, 2014 at 12:03 pm

    Peter, one does not negate the other. Yes, we need to improve parenting, though I don’t see a significant movement on either side focused on that, yes we need more funding, but bad teachers were significantly damaging children and this is the beginning of the end of that. This case states that children, all children in public schools rich and poor, are more important than adult job security.

    A few teachers will be fired, most will just work harder. I have to say, if the union were at all reasonable on this as their backers seem to imply in all the responses I see, claiming they have a system to fire bad teachers, then they would have won the case. This case one precisely because the union was basically using questionnaires and donations to ruin any candidate who didn’t strictly adhere to all the policies they support. For SF School board they ask do you support merit pay, do you support LIFO, etc. and if you say no, they make sure you don’t win.

    Here are reasons why the union was not moderate and reasonable:

    1. They allowed 12% of teachers to call in sick the Tuesday before Thanksgiving just years after adding that day as off at the request of teachers, in SF, and the union leader made a joke about taking a day off because others didn’t agree with him.

    2. They defended Mark Berndt and forced LAUSD to pay him 40k. They really should have let that go, that made many anti-union.

    3. They not only require all the steps listed to fire a bad teacher, but they are there in force at every step making it difficult, telling people at PTA meetings to be quiet, telling principals to not push it, demanding evidence they’ve already seen. The union makes firing even more difficult than the rules.

    4. They defend teachers who they know are bad and all agree are bad, in a knee jerk fashion. They don’t analyze the individual case.

    5. They use power to threaten politicians and make them afraid of reform, including Brown.

    These are the facts, and they are undisputed.

  2. Frances ONeill Zimmerman said

    on June 12, 2014 at 12:11 pm

    Peter Schrag is cogent and thoughtful and, unfortunately, entirely correct in this bleak assessment.

    There just has to be a will to change this untenable status quo and it is absent from every quarter, even
    the knows-better very-smart Governor who is riding to an unprecedented fourth term with CTA $upport.

    Rheepeople are crowing; the CTA is digging in; lawyers are getting rich; children and families make do with what they have. I despair.

  3. Gary Ravani said

    on June 12, 2014 at 12:42 pm

    “And unfortunately Superior Court Judge Rolf Treu’s frail, awkwardly written though unequivocal decision Tuesday didn’t help. It provided no examination of the data, no analysis for his conclusion that California’s teacher tenure and seniority laws violated the state constitution, and no guidance on how they could be brought into compliance.”

    Well, yes, Mr Schrag, it was a weak and awkward ruling that “provided no examination of the data, no analysis for his conclusion that California’s teacher tenure and seniority laws violated the state constitution.” But, in the face of that, all of judges conclusions should be acted upon anyway? Lets just call that line of reasoning “weak and awkward.”

    The judge couldn’t support his conclusions because no support for the conclusions was provided in court. I once wrote an editorial about “reforminess,” a play off of Stephen Colbert’s “truthiness:” truth based not on facts, but on gut feelings. What we have here is is a case of “ruliness,” a ruling based on self-styled reformers feelings about an issue and not on facts presented in court or analysis or any even minimally established cause and effect relationship between the statutes ruled unconstitutional and any negative impacts on students. The “bad” teachers identified in court who testified turned out to have outstanding evaluations and one was a “teacher of the year.”

    There are many high achieving districts in the state of CA and they operate under the same laws governing permanent status (“tenure”), seniority, and due process as low achieving districts. They draw from the same teacher pool. There is no evidence the quality of teaching is different aside from low performing districts having higher percentages of newer, less experienced teachers. More experienced, more effective teachers leave certain districts and schools because of poor leadership and lack of resources. How did this judgement deal with those issues or any other real education issues in the state?

  4. el said

    on June 12, 2014 at 12:53 pm

    So this is not quite how the LIFO system works:

    The LIFO (last in, first out) seniority system that requires districts, faced with tight budgets, to lay off the last teacher hired, regardless of his or her competence and performance.

    Faced with tight budgets, the first thing that happens is that district administrators look for programs and services that can be cut. LIFO would only come into play if you were say reducing 1 FTE of high school math and your district has 10 math teachers qualified and currently providing that service… then your most recently hired math teacher is the one that has to be cut, assuming no one else in this group elects to resign or retire.

    But, the English teacher you hired yesterday is not vulnerable unless the person you are cutting also has a credential qualifying him to teach English.

    As an administrator, you could also choose to protect your math department by eliminating the librarian position or the reading specialist or perhaps the French department, if you still have any of those.

    LIFO in no way prevents administrators from taking action against more senior teachers and removing them if they are not doing the job. These two actions can occur in parallel. LIFO simply says that if you’re laying off for financial reasons, this is the way to do it.

    • FloydThursby replied

      on June 12, 2014 at 9:43 pm

      LIFO cost districts an opportunity to minimize the pain of the drastic cuts in 2008 by laying off the weakest teachers in the district and instead forced them to actually lay off some pretty good ones. If students come first, this is the wrong way to go about things. In large districts, every principal has teachers who they know are lemons, poor performers. Parents request not to get them if they are in the know, other teachers know who they are. It would have benefitted children to keep hiring new teachers and lay off the bottom 5%. It would have benefitted children enormously.

      • TheMorrigan replied

        on June 12, 2014 at 10:03 pm

        Just so you know, Floyd:

        In my 25+ years as a principal, LIFO issues came up a total of three times. In the long run, LIFO reform will not fix what happens in our inner cities.

  5. Gary Ravani said

    on June 12, 2014 at 1:18 pm

    Layoffs are triggered by chronically low education spending, CA being in the bottom ten of the 50 states for many years now, and then severe budget crises like the last one triggered by malfeasance/misfeasance on Wall Street and the financial industry. (A little “accountability” there, please!), Districts, during layoffs have the ability to protect vital programs and personnel, as seen by the district’s governing board, by utilizing a “skipping” process. This allow a district to skip over a less senior teacher if that teacher has special qualifications and layoff a more senior teacher without the qualification. Other than that, seniority is found to be the fairest system that keeps districts from letting go more senior, more expensive teachers, or just letting people go based on a whim.

    • el replied

      on June 12, 2014 at 2:24 pm

      It also makes the layoff process more cost-effective and understandable. It’s not possible to accurately stack-rank a group of 100 teachers, and if you tried to do so in a time of layoffs, it would be expensive and time consuming… ironically forcing more layoffs.

      Layoffs without a reduction in demand for services are themselves harmful and any time that LIFO would be invoked to respond to them, students are being harmed regardless of which teachers get the pink slips.

      • FloydThursby replied

        on June 12, 2014 at 9:45 pm

        Let principals decide. Then when a principal calls a teacher into a meeting and says were you really sick the Tuesday before Thanksgiving? What do you think of this parent’s complaint? I observed you and you don’t seem to be focused? Why are your students not improving as much as Ms. so and so’s students on the test? Why are you not doing school loop on time and other teachers are? When this happens, they’ll take it seriously. They’ll improve. They’ll be nervous. They know that a wrong response may cost them their job. It’s like any other job. Principals will have power, and that will cause better work. Now teachers can ignore it.

  6. tom said

    on June 12, 2014 at 2:59 pm

    Both Gary and El are focusing on layoffs when they happen for financial reasons, and of course, this leads to the union argument that Districts could use layoffs to remove more expensive, experienced teachers. This does happen in business sometimes, and businesses get sued for that reason. I dare say that teachers have a very strong and well financed union to prevent this kind of action, or at least sue and make the affected individual whole again. I consider it a red herring.

    The Vergara lawsuit was about the difficulty and high cost of laying off tenured teachers, and the deleterious effect it has on the students. Peter Schrag is critical of the judge’s lack of analysis of the data etc, but if you read some of the coverage of the trial, there was plenty of data provided by the plaintiff and their witnesses, e.g. the dismissal rate of teachers is 4,000 times less than in the private sector! The numbers are 0.002% vs. 8% annually, respectively. Out of a teacher workforce of 300,000, only an average of 9 dismissals per year in the last 10 years. Obviously, there is a problem, no work force is that good.

    In Peter’s article, I find it more alarming that State Ed Board rejected San Jose Unified’s proposal to make some changes that even the teachers agreed with! On the one hand, Brown and Torlakson roll out Local Control FF and LCAPs, but then reject a Districts local decision – ridiculous.

    Finally, I’m hopeful this a start of some changes. We need to make better use of the money we have. For example, a lot of money can be saved by changing the high cost of capital improvements by doing away with prevailing wage laws – at least for school projects. These wages are very, very inflated and not prevailing at all. Of course, this means going against the unions, but isn’t it time to focus on the kids??

    • el replied

      on June 12, 2014 at 3:55 pm

      By definition, “laying off” is about removing staff solely as a downsizing move. It is not about removing people for cause or because they are bad workers.

      The processes are quite different, wholly separate, and appropriately so.

    • el replied

      on June 12, 2014 at 4:02 pm

      The dismissal rate for teachers cited only involves people who fought to the bitter end of the dismissal process. It does not include people who were dismissed while probationary nor does it count people who elected to resign rather than face the dismissal process.

      San Jose’s proposal was to give teachers that it would otherwise choose to dismiss an extra probationary year. I am unconvinced that teachers who were unimpressive in their first year and a half teaching would be high quality teachers in their third year. Note that of its probationary crop this year, San Jose elected to retain 118 teachers, dismiss 5, and wanted a waiver to give two teachers an extra year. Hardly revolutionary.

      • Gary Ravani replied

        on June 12, 2014 at 5:36 pm

        Dismissal cases in LAUSD filed by the board, and this includes dismissals as well as resignations to “avoid dismissal” track as follows:
        2005-6=16 

        2006-7=18
        
2007-8=61

        2008-9=69 

        2009-10=19
        2010-11=161
        
2011-12=221

        This is the “record” of LAUSD’s mighty struggle with the “overly complex” due process procedures. This what made testimony of LAUSD officials so ludicrous.

        During the “discovery” period of the case it became clear that in most cases statewide teachers resigned prior to going to a hearing so the “costs” were zilch. When looked at in the “mode,” the most frequent cases and not some outlier extreme, the average time for a dismissal case was several months and the cost was tens of thousands, not years and hundreds of thousands. As the CA Auditor showed, when delays occurred it was most often because the district’s attorneys requested the delay.

        Teachers resigned, so I am told, because they were close to retirement anyway. Does this fit the alleged pattern of districts dismissing senior teachers as a budget move? You be the judge.

        It should be noted that CA is facing a demographic “mass” of senior teachers, the tail end of the boomers, who are about to retire. Many fewer teachers are entering credential programs and the CTC predicts a coming teacher shortage. Young people looking at the ongoing witch hunts and political attacks on public education and teachers are unlikely to be drawn to the profession. I suspect that is part of the plan.

        Extremely wealthy persons trying to protect their tax breaks and/or investments in private sector charter operations have helped create an environment where about half of new teachers leave the profession within the first five years. CA has a problem keeping teachers, not getting rid of them.

        • FloydThursby replied

          on June 12, 2014 at 9:52 pm

          Yes, we’ll have to pay teachers more. Taking away the benefit of a lifetime job will require higher pay and attract better people. Some of the costs will pay for themselves. Until now, the union has opposed merit bonuses and attendance bonuses, said state law disallows them, they divide teachers, or educators. Imagine if instead of an across the board increases, you give an opportunity to gain extra money. Say you tackle the problem of higher absenteeism with a $2,000 bonus for perfect attendence and $1,000 for 3 or fewer, in a district with an average of 11. Every bonus gives the teacher a chance to earn more and afford expenses, but pays for itself as it cuts sub costs. Until now such creativity was unthinkable. Teachers will have to work harder, but they will end up earning more, afford expensive Cities, so it will be good for teachers overall as working harder and having to fear a boss are good for your character and make you self-improve into a better person. It’s good for the soul.

    • FloydThursby replied

      on June 12, 2014 at 11:06 pm

      Kids over unions, agreed. It is a red herring and it’s wrong. I don’t buy this individualization thing. The judge should have analyzed this fact more. Do you think we’re kindergarteners? He could have included a 10 page analysis of this and you’d not even not it, but be criticizing something else. You’re just looking for something to make it seem invalid. I would submit that there is no way this judge could have ruled for the plaintiffs on all 5 cases without you guys automatically, knee-jerk, complaining about something. I don’t buy that if only the judge had addressed one issue you’d be agreeable about this. I just don’t buy it at all. You would have opposed it no matter what! The only thing he could have done to satisfy you is say go ahead and keep this blind seniority system forever no matter how many kids it hurts. I’m glad he didn’t satisfy you and so are my children. My 6 year old son didn’t deserve to have a teacher show up 50 of 180 days, refuse to resign and cause a series of subs, and be seen in cafes on days she called in sick. The union defended her like it was a noble cause, just as they defended Berndt. I know I keep going back to that but if they’d just said hey Berndt, the evidence is in, to hell with you, we’re not backing you, they’d have gained a lot of credibility. Defending Berndt showed how automatic it is.

  7. Don said

    on June 12, 2014 at 3:01 pm

    Mr. Schrag, I believe the most committed (albeit less effective) defenders of public education are the million of families and their children who attend the public schools, not the teacher’s unions whose interest and effectiveness is aimed at defending public sector jobs by funding political campaigns with monies raised from union dues emanating from tax revenue generated to educate California’s children. The unions and its members are often hailed as defenders of public education, but it is a union’s mission to defend its members. The source of public education is the public that pays for it and the purpose of public education is the betterment of the students who attend it. We honor the teacher in their public service, but we silent majority of parents and students are the foundation that is so often ignored due to our lack of political power within the education industrial complex.

    In terms of rewriting the laws, your criticism of Treu’s lack of help in that regard seems unfounded. That would be legislating from the bench. He made a decision on the constitutionality of the contested statutes as was asked to by the plaintiffs.

    As far as your assertion – “They (statutes) can be fixed without gutting the important job protections that an effective, motivated teaching force requires”, it is not clear that such protections are consistent with Constitutional law. The current ones were found not to be and future attempts to ride a thin line between protecting employees versus students may prove not to pass judicial review either.

  8. Peter Schrag said

    on June 12, 2014 at 4:12 pm

    No, the judge can’t legislate from the bench. But he could certainly have indicated what parts of these laws are unconstitutional and what makes them so. Certainly teacher tenure is not unconstitutional per se as the New York Times seemed to suggest in its Wednesday story. Nor did Treu cite , much less refute, any of the arguments of the defense. In effect, he echoed the plaintiffs’ case without analysis and padded the rest of his incredibly brief opinion — 16 pages — with a truncated history of other cases, from Brown to Butt. At one point he made a distinction between the dismissal procedures for classified and certificated employees. Would he accept a substitution of the one for the other? Does protection for seniority have any merit? And what of all the states that have probationary periods of three years or more and have less cumbersome dismissal procedures than California’s? Are their schools wall-to-wall with effective teachers? Do poor and minority kids in Texas, which doesn’t have real tenure for teachers, get treated more fairly than those in California? Poor and minority kids get screwed in all sorts of ways. Treu cut a very complicated problem into an over-simplified decision. The seniority and tenure system needs fixing but this decision doesn’t provide much help.

    • FloydThursby replied

      on June 12, 2014 at 11:19 pm

      This is a shell game. You’re pretending you’d respect his opinion more if he’d detailed everything, but the truth is the union’s lawyers would have combed through it looking for minor errors to individualize and appeal on rather than focusing on the big picture, that tenure, seniority and LIFO damage millions of children, not just poor and minority but white and Asian and middle class too. Letting principals fire the worst teachers will help children. I don’t believe you that you would respect it more if he gave more detail. You want him to give more detail so you can complain about minor mistakes you’ll catch if you force him to write 80 pages instead of 16. Even with the 16 the union is finding things to nitpick about. They have so much money they’re almost guaranteed to win on appeal and use that money to intimidate legislators into silence. This whole line of reasoning is disingenuous. He’s damned if he doesn’t, but what you fail to mention is he’s also damned if he does. You’d be harping either way. The system wasn’t going to be fixed without this decision.

  9. Andrew said

    on June 12, 2014 at 6:54 pm

    We’ve been hearing about an impending teacher shortage for years and years, when boomers all retire en mass, but the shortage never seems to arrive. The only teachers I know of who have abandoned their profession in recent years are young disillusioned teachers frustrated and changing careers because they couldn’t get teaching jobs anywhere, as all such jobs are firmly locked up by long tenured teachers who make more than twice as much as starting teachers.

    Is a teacher with 30 years of experience worth twice as much pay as a teacher with 5 years, the result with many present pay scales? Neurosurgeons 30 years out of residency aren’t worth more than neurosurgeons 5 years out of residency and it would be hard to convince me that teaching is more complex and difficult to learn than neurosurgery. With the present inequitable pay scales, each long tenured teacher clinging to a high paying job regardless of competence precludes the hiring of two newer highly qualified teachers. Shouldn’t a principle of equal pay for equal work apply?

    Some complain that making it easier to fire tenured teachers would result in districts trying to save money by firing more expensive older teachers. That is an easy fix. Pay all teachers equitably for their work and effort, not by duration of tenure. Then no teachers will be fired because they are more expensive.

    • navigio replied

      on June 12, 2014 at 9:51 pm

      equal pay for equal work applies no where else, why should it apply here?

      anyway, are you suggesting that budget concerns should trump teacher quality concerns?

    • Floyd Thursby replied

      on June 13, 2014 at 9:27 am

      I agree. The differences are way too much and are designed to empower the union, not attract new teachers. This flexibility will make it easier to attract younger teachers. After 5 years, good teachers reach the productivity of teachers with 30 years’ experience. There should be very little difference between 5 and 30, and this will get more young people into the profession because most young teachers don’t think 30 years out, they think 5-10. Especially if there are ways to get merit pay for the best teachers based on test scores, perfect attendance reducing sub costs, etc. Because of LIFO, teachers have way higher absentee rates despite working about 3/4 the days as most professions. I think you could legitimately expect most teachers not to miss any days most years because they have so many days naturally off, they can use those for personal chores and most of us need a day off or Saturday for that. Most of the students have to work weekends to get good enough grades to end up in a UC, so teachers should be able to organize to do their personal business on days they have off anyways including Saturdays. Reduced sub costs and more flexibility is tue unspoken benefit. Subs really hurt education a lot. The kids often learn very little wiht a substitute. This will be severely reduced.

      • mike keil replied

        on June 14, 2014 at 7:22 pm

        Floyd,

        I thoroughly disagree with the mechanistic notion that at 5 years, one has reached the equivalent of 30 in terms of productivity. At 5 years, a real teacher begins to realize that they’re not as good as they thought. Hubris should give way to doubt as one enters one’s early 30′s, extensive outside study should lead the developing teacher to the conclusion that their knowledge base is thin as very well may be their ability to apply that body of knowledge to life. At 15 years, you realize you don’t know everything and that much of the noise around is just that, noise and trend. At 25 years, you’ve spent the best years of your career tuning out the naysayers and re-reading notes of thanks and emails from kids you’ve helped, and at 30 years you’re thankful you’ve hung around that long to know what real learning is. At 35 years, you say a silent thanks to the thousands of souls you’ve shared your love of learning with, and pray that this country can extricate itself from its kneejerk persecution of its teachers as you slide off into retirement.

    • navigio replied

      on June 13, 2014 at 10:31 am

      Pay scales are not legislated rather are a function purely of ‘local control’. Apparently local school boards feel that is the best way to retain quality teachers.

      • FloydThursby replied

        on June 13, 2014 at 1:06 pm

        School boards are terrified of upsetting the union. You are vastly underestimating the tremendous pressure unions put on candidates. They ask all candidates to fill out questionnaires on merit pay, LIFO, seniority, tenure, and if you don’t answer 100% along with the union orthodoxy, they don’t endorse you, donate to your opponents, say bad things about you, and make sure your career in politics doesn’t start. Many legislators start out on school boards. Many of SF’s Supervisors started there. Over 70% of Californians oppose LIFO, and I’m sure a school board only considering the best way to retain quality teachers neutrally, purely based on that, would come to a different conclusion than one bullied by the union. In SF, if you come out for that, they donate hundreds of thousands against you. Most people don’t pay much attention so they get a newspaper endorsement (based on the union) or a card in the mail endorsing a candidate or group based on their pledge to union orthodoxy, and that’s enough to win.

        That’s why a court case or a ballot initiative is needed. If you try to count on legislators it will never happen. They are all severely intimidated and bullied. Being afraid to speak out is not the same as agreeing with something.

  10. Publius the Younger said

    on June 13, 2014 at 8:30 am

    I agree with nearly everything in this article, except for the notion that teachers should get “tenure” in order to enable academic freedom. The employees of the school system neither have nor need academic freedom. The concept is reserved for university professors.

  11. S Nelson said

    on June 13, 2014 at 8:47 am

    I liked the author’s analysis (once I got past the introduction). Brown vs. Board … established that social data on the outcomes of de jura segregation was a valid legal tactic. The five statutes, as a whole, have sufficient information against them that shows the same tactic was valid here. Preponderance of evidence. I think the legislative/judicial review will go quickly – why? Serrano vs. Priest took years because the basic trial court decision was overturned (after going all the way to the CA Supreme Court). This decision only has to be upheld on appeal. Two steps. It does not force particular legislative action – only ‘change it, fix it’. I’d ‘predict’ it does not have to go back to the trial court! This gives the Legislature/Governor the latitude it needs to act quickly!
    Teachers can easily live with a ‘less than 5% (x%) dismissal rate” for tenured teachers (and a three year tenure cycle). Even the vaulted “HP way” of treating valued tech-industry employees worked that way during the height of that company. I’ve seen the very ‘profession-like’ stance of the SJUSD teachers union (against the CTA) and the surveys of my own teachers in Mountain View (MVWSD). Teachers are professionals – and many know the professional staffing world standards.
    So, as a public school district trustee – I can really live with this reform!

    • Don replied

      on June 13, 2014 at 9:42 am

      What should be the takeaway lesson of Vergara for the teaching profession given that reasonable revisions of statutes at the ballot box may have preempted a decision that has stripped teachers of the protections of those 5 statutes and leaves them in a much more precarious position with no law at all?

      The plaintiffs were able to appear to be the protectors of students and the public by asking for only another year or two before granting permanent teacher status and for wider latitude on evaluations. Neither of these two reforms to current law would have fundamentally changed the landscape for the vast majority of solid competent teachers as (I believe) S. Nelson points out above. Had the unions not opposed all efforts to any changes before trial, the plaintiffs could not have characterized them as protectors of a failed status quo – an image that reverberates unpleasantly in the electorate with all the negative media on public schools. Had they been willing to allow more latitude to remove the lowest 1-3%, they wouldn’t now be faced with the prospect of having to rely on an election for a new law all altogether as the California Constitution can only be created or amended through the ballot box. It will be much more difficult to get a better outcome for teacher protections by starting over than it would have been had they been willing to negotiate the current law at the ballot box.

      Teachers should ask themselves – are we getting good representation for our money (read dues)? The answer is no. The reform movement has grown wings because the old hen refuses to budge from that rotten egg beneath her. The world is changing around her and she is clinging to old and staid institutions of a bygone century.

    • Gary Ravani replied

      on June 13, 2014 at 4:15 pm

      The irony, of course, is Brown v. was a ruling involving segregation. This was actual segregation, not the metaphorical kind the judge and plaintiffs invoke. As the Civil Rights Center at UCLA has frequently pointed out CA, particularly southern CA, has some of the most intense geographic and economic segregation to be seen since the time of the Brown decision. There is actual, not symbolic segregation in the state having negative impacts on poor and minority students and this lawsuit and ruling did nothing to deal with it.

      CA has other real problems in education: the lowest per student funding in the nation, the largest class sizes, the fewest nurses, counselors, and librarians in the nation. A lawsuit intended to actually help poor and minority students would have addressed some or all of these issues. This lawsuit and this ruling did not address these issues because helping students was not the intent.

      • don replied

        on June 13, 2014 at 4:21 pm

        Where is union’s suit to do what you ask?

        • navigio replied

          on June 16, 2014 at 8:43 am

          There is no constitutional guarantee of quality so there is no legal basis to challenge the fact that it does not exist.

  12. Richard Moore said

    on June 13, 2014 at 11:59 am

    As one who has been free with my criticism in the past, may I say that this column is outstanding — one that I am sharing widely. Thank you, Mr Schrag.

  13. CarolineSF said

    on June 13, 2014 at 3:43 pm

    Reality shows that this is simply not true: “Those laws deprive countless poor and minority children of a chance at a decent education…”

    As veteran teacher spokesman Brian Jones wrote in the New York Times: “If teacher tenure is an important obstacle to achievement, Mississippi (with no teacher tenure) should have stellar schools and Massachusetts (with teacher tenure) should have failing ones. Instead, it’s the other way around. Correlation is not causation, of course, but across the country the states without tenure are at the bottom of performance rankings. States with the highest-achieving public schools have tenure (and teacher unions).”

    And as anyone familiar with high-poverty schools can tell you, the great challenge is the difficulty of keeping teachers, not the difficulty of getting rid of them.

    • Gary Ravani replied

      on June 13, 2014 at 4:02 pm

      Good points, Carolyn. Neither the plaintiffs, nor the judge in his ruling, were ever able to establish why the statues negatively affected “poor and minority students” more than they would any other student. All districts, whether middle-class and high performing, or poor and minority and low performing, operate under the same statutes. What is different about these districts and the outcomes does not relate to the statutes. The same can be seen in those high performing states that have teacher collective bargaining as well as “tenure,” and the lowest performing states that do not have collective bargaining or “tenure,” as you point out.

      As Schrag points out, nowhere did the judge establish a causal relationship between any of the statutes and struggling districts for the very good reason there isn’t any.

      • CarolineSF replied

        on June 13, 2014 at 6:04 pm

        I’m still baffled by the fact that some, perhaps most, of the plaintiffs attend schools where teachers do not have tenure. Doesn’t that very fact disprove the plaintiffs’ entire case?

        • Gary Ravani replied

          on June 14, 2014 at 12:27 pm

          One would think so, if the judge’s ruling was based on the merits of the case as provided by testimony in the court.

          I find it interesting that the judge found it necessary to assert that he had “left his politics at he door” when he oversaw this case. Why would someone have to assert that if he didn’t realize that would come into question?

  14. Floyd Thursby said

    on June 13, 2014 at 4:06 pm

    As I’ve posted before, California is behind a lot of non-union states, and considering we were once #1, have so many Asians, and are so wealthy with so much technology, we should be at or near the top.

    No one is saying all teachers are bad, but there are a lot at the worst schools. When the SF school board tried to suspend seniority for the 12 SZ schools, the union went crazy and tried to get them all to lose. The union influences elections, they try to control who gets onto boards with questionnaires, which nixes any bonuses based on attendance or merit or other things which help children. It discourages any employee to be paid the same no matter what. More compressed pay would get more younger teachers to take it up.

    Caroline, as with many comments on this issue, both are issues and one doesn’t negate the issue. It’s hard to get rid of the few bad teachers and it’s also hard to keep good ones. Maybe offering them more money because they are good will help. Now they only get more by aging.

    The report also ranks states: Maryland bested all others for the fifth year in a row, scoring a B-plus. Maryland was closely followed by Massachusetts, New York, and Virginia, which received B’s. Completing the top 10 were Arkansas, Florida, Georgia, New Jersey, West Virginia, and Kentucky. On the other end were seven states that came in at C-minus: Arizona, Montana, D.C., Nebraska, Alaska, Mississippi, Idaho, and Nevada. California, which educates one-eighth of the nation’s students, came in at a C. South Dakota came in dead last, getting D-plus.

    • TheMorrigan replied

      on June 13, 2014 at 7:06 pm

      Floyd,

      I wasn’t aware that CA was ever #1. Could you point out when and what CA was #1 in?

      I noticed that you forgot to include the following to your list of what makes California California: last or almost dead last in education spending; the highest number of illegal immigrants in the nation; one of the top five states with the highest income inequalities; and often listed as a top ten state with financial irregularities when it comes to education spending.

      And when you look at the data for Education Week’s State Report Cards, you notice that CA lost a lot because of school finance/ education spending and K-12 Achievement (status). CA, as I mentioned above, always has been low on education spending and educational finances. And CA has NEVER done well on the NAEP.

      When you look closely at the data, none of it addresses LIFO nor seniority. CA gets dinged for having large class sizes, though.

  15. don said

    on June 13, 2014 at 4:40 pm

    Parent complaints at higher performing schools result in teachers leaving to take jobs elsewhere in the district, the schools where it is hard to retain teachers. Anyway thats how it works in SFUSD. Mwny of these teachers shouldnt be working in education and it is a downright shame they end up being concentrated at low performing schools.

    But not all ineffective teachers get sbuffled into poorer schools. Some go into administration. Witbout bad teachers who will run our schools?

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