Marcellus-McRae

Marcellus McRae

In California – and in many other states – the Legislature has proven devastatingly ineffective at ensuring equal educational opportunity in our public schools and protecting the fundamental rights of students.

Fortunately, our government has another branch – the judiciary – whose express purpose is to protect constitutional rights, to step in when popular will or an ineffective legislature tramples the rights of the voiceless and the powerless. It is in the courts where legal challenges to statutes that infringe on constitutional rights can be resolved, free from powerful special interests and lobbyists.

Vergara v. California, the lawsuit filed last year against the State of California by nine public schoolchildren and sponsored by the nonprofit organization Students Matter, challenges the outdated teacher tenure, dismissal and layoff system in California that entrenches grossly ineffective teachers in classrooms while pushing highly effective, but less senior, teachers out. Because these laws keep ineffective teachers in schools, especially when there are effective teachers willing to take their places, these laws violate students’ fundamental right to equal educational opportunity.

This week, Plaintiffs – public schoolchildren from all over California from 8 to 17 years old – filed with the court a mountain of evidence demonstrating that the statutes violate the Equal Protection Clause by forcing school districts to keep failing teachers in the classroom year after year, with devastating consequences for the students assigned to their classrooms. The state and the teachers unions that intervened to justify the statutes, on the other hand, asked the court in September to summarily dismiss Plaintiffs’ claims without any trial at all. This week, I and the other attorneys on the case, Theodore B. Olson and Theodore J. Boutrous, filed a motion full of compelling evidence to demonstrate how the State of California is knowingly forcing school districts to keep ineffective teachers in the classroom, and the real-world consequences that this has on students.

In a Los Angeles Daily News article about the Vergara lawsuit, a representative of the California Teachers Association accused the Plaintiffs of “circumventing the legislative process to strip teachers of their due-process rights.”

This accusation is simply not true. The uncomfortable truth for many is that this suit merely seeks determinations that are consistent with what the Constitution demands; namely, that teacher employment provisions take student educational needs into account. Rather than attempting to subvert California’s constitution, this suit is aimed at enforcing the constitution’s guarantee of equal educational opportunity.

The role of the courts and impact litigation in education reform is far from new. A long line of cases has paved the way and laid the foundation for the Vergara challenge today.

Perhaps the most famous education equality lawsuit, Brown v. Board of Education, decided in 1954, ended the forced segregation of public schools in America, establishing that separate is not equal.

It is hard to imagine now that some opposed the Supreme Court’s ruling in Brown v. Board of Education as an improper exercise of judicial power. It is even harder to imagine where we would be as a nation had the Supreme Court declined to act. Yet it did, and in doing so, it educated the nation that fundamental interests trump fear of change, ignorance and the misinformed view that constitutional provisions are mere suggestions rather than rights. Just as we cannot countenance statutes that engender racial marginalization, we cannot countenance statutes that engender educational marginalization of any child, let alone our most vulnerable children.

The landmark California state case Serrano v. Priest, litigated in the mid-1970s, challenged the system of funding school districts through property taxes, claiming the vast differences in the personal wealth of families living in different districts resulted in wide discrepancies in school funding that jeopardized the quality of public education in poorer districts.

The Serrano case recognized that a child’s right to an education is a fundamental interest guaranteed by the California Constitution.

And in Butt v. State of California, decided in 1992, the California Supreme Court ruled that “the State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.” Laws that inflict a “real and appreciable impact” on the fundamental right to education and that are not narrowly tailored to serve a compelling state interest are unconstitutional.

We know now that educational quality depends on more than just curriculum and a classroom. Just as students have a fundamental right to access facilities and educational resources that meet a basic threshold of quality, students have a constitutional right to equal access to an effective teacher.

Children do not have a voice in the legislative process, a seat at the bargaining table or vast amounts of funds to lobby lawmakers. The challenge to California’s harmful and outdated teacher employment system must be brought to the courts. When decisions made above children’s heads violate their fundamental right to have an equal opportunity to learn – denying many of them their only shot at elevating themselves out of poverty – the only recourse these children have to defend their fundamental rights is the courts. It is the judicial enforcement of these rights that will compel legislatures in California and other states to fulfill their obligation to respect the educational rights of all our children.

•••

Marcellus Antonio McRae, a partner in the Los Angeles office of Gibson, Dunn & Crutcher, is currently representing nine California public schoolchildren in the statewide education equality lawsuit Vergara v. California, sponsored by the nonprofit organization Students Matter. Mr. McRae is a member of Gibson, Dunn & Crutcher’s Litigation, White Collar Defense and Investigations, International Trade Regulation and Compliance, and Media and Entertainment Practice groups.


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  1. Andrew 3 years ago3 years ago

    Chuckle, Navigio, if California high school teachers were incarcerated prisoners, it probably would be considered to be a violation of their civil rights and inhumane to force them to teach double what the rest of the nation considers to be an appropriate number of students as a full time load. But alas, they are technically not incarcerated and the problem may not reach a constitutional level within the state.

  2. Paul 3 years ago3 years ago

    The goal of this lawsuit, plainly, is to make all public school teachers (not just those in substitute or temporary status; those otherwise new to a district; those working part-time; and those working for charter schools) into at-will employees. Making school staffing even less stable than it already is will not improve the quality of the teacher workforce. The idea presupposes a boundless supply of more-effective teachers. It also creates constant churn. Don't like a teacher? … Read More

    The goal of this lawsuit, plainly, is to make all public school teachers (not just those in substitute or temporary status; those otherwise new to a district; those working part-time; and those working for charter schools) into at-will employees.

    Making school staffing even less stable than it already is will not improve the quality of the teacher workforce. The idea presupposes a boundless supply of more-effective teachers. It also creates constant churn. Don’t like a teacher? Fire her! There must be someone better waiting in the wings. Don’t like him? Dump him, too. There’s bound to be someone even better. Oh, wait, she isn’t perfect either? …

    I pulled the original claim a few weeks ago. It was long on allegations but short on evidence. I didn’t see a single teacher evaluation. I didn’t see any attempt to quantify the alleged problem of “grossly ineffective” teachers. I didn’t see any specific differentials in student achievement. All of these elements should have been easy for such prestigious lawyers to find, especially if the problem were as severe and as widespread as these “public interest” lawyers allege.

    Replies

    • navigio 3 years ago3 years ago

      Maybe more importantly, it also did not show how the law was the actual cause of ‘the problem’.

  3. Andrew 3 years ago3 years ago

    Federal courts intervene in California prison administration with court orders to ensure that there are an adequate number of prison physicians relative to the inmate population. As I pointed out in another post under this article, California high schools have half ratio of teachers per students relative to the rest of the nation. Specifically, the entire United States average is one high school teacher for every 12.4 high school students. This is … Read More

    Federal courts intervene in California prison administration with court orders to ensure that there are an adequate number of prison physicians relative to the inmate population. As I pointed out in another post under this article, California high schools have half ratio of teachers per students relative to the rest of the nation.

    Specifically, the entire United States average is one high school teacher for every 12.4 high school students. This is comparable to the average liberal arts college, which has one faculty member for every 11.7 students. Average staffing ratios in US high schools are comparable to the colleges that the high schools hope their students will ultimately attend.

    California has one high school teacher for every 23.7 high school students. This is worst ratio in the nation, double the national average. If the average US high school is staffed like a college, the average California high school is staffed like a warehouse.

    High achieving Vermont has one HS teacher for every 8.7 students, Wyoming has one for every 7.8 students.

    http://nces.ed.gov/pubs2012/2012327.pdf

    Without question there are incompetent tenured teachers in California who should never be teaching. Other teachers know who they are and would not want their own children in the classrooms of such individuals. But when the system allows all teachers to be so overburdened and ultimately burned out, how do you distinguish an incompetent teacher from a teacher that an inhuman system has simply prematurely and perhaps temporarily burned out? In many instances, it is the most conscientious teachers who burn out first and most because they work so hard.

    Apparently the powerful California teachers unions, working with the supposedly sympathetic Democrat controlled legislature and governorship, can’t seem to bring about better than worst in the nation in this regard. Maybe there is a role for the courts and court orders, and for attorneys such as Mr. McRae,to ensure some equality relative to the rest of the nation and with states like Vermont and Wyoming. Worst in the nation in teacher ratios is not equality. Why doesn’t the lawsuit in question embrace this aspect as well?

    Replies

    • navigio 3 years ago3 years ago

      This is a great point Andrew. The answer is that courts intervened in prisons because civil and/or human rights were being violated. Unfortunately, there is no legal guarantee to a quality education, just something we call education and equal protection under the law. Note as well that we only even define the right at the state level (every country in the world, except South Sudan, Somalia, and, yes, you guessed it, the US is party … Read More

      This is a great point Andrew. The answer is that courts intervened in prisons because civil and/or human rights were being violated. Unfortunately, there is no legal guarantee to a quality education, just something we call education and equal protection under the law. Note as well that we only even define the right at the state level (every country in the world, except South Sudan, Somalia, and, yes, you guessed it, the US is party to convention on the rights of the child, which codifies human rights as it relates to education. A valid defense to that, however, may be exactly that education is a state issue in the US).

      Ironically, as part of the equal protection effort for undocumented students, at least one state did or was preparing to remove this right altogether (you dont have have to have equal protection if there is no law–not sure what became of that).

      Although I would love to see not just a guarantee, but a guarantee of quality, I am not holding my breath. Education has not yet reached that level of importance in our culture, and given our extreme economic diversity, it is unlikely taxpayers would ever be willing to fund what we’d consider quality.

      Related to teacher quality, I think focusing on the tenure policy is mistaken. Hire good admins and give them reasonable working conditions and problem teachers will be dismissed, to the extent they exist. I think, however, there is a more important wave coming related to teacher quality and it involves the explicit mention and integration of technology by and into common core. Up until now, it has been possible to be a teacher without needing to be versed in technology or even basic computer usage (even though being so was a definite advantage). Mandating proficiency there is likely to be the one of the biggest changes to the face of teaching in the coming years (imho). We need to make sure we keep our eye on that ball because it is going to change what we consider quality.

      • Paul 3 years ago3 years ago

        Hi, Navigio. I wanted to ask about the technological skills issue. How bad is the problem? What are some solutions? Changes to state law, CTC regulations, and teacher preparation program accreditation standards have increased technological skills requirements substantially over the past decade. I think any problems have to do with: 1. An unsophisticated candidate base. Young people with technological skills gravitate to professions where they can parlay those skills into more job opportunities, higher pay, and better working … Read More

        Hi, Navigio.

        I wanted to ask about the technological skills issue. How bad is the problem? What are some solutions?

        Changes to state law, CTC regulations, and teacher preparation program accreditation standards have increased technological skills requirements substantially over the past decade. I think any problems have to do with:

        1. An unsophisticated candidate base. Young people with technological skills gravitate to professions where they can parlay those skills into more job opportunities, higher pay, and better working conditions. Public school employment offers few opportunities and no tangible rewards for those with strong technological skills. In many cases, parents, administrators and senior colleagues view tech-savvy teachers with suspicion.

        2. An unsophisticated trainer base. For all but the youngest education faculty members, mentor teachers, and school administrators, extensive use of computers in the classroom was an option, not an expectation or a common practice. It can be said that the “computers in education” actually reached a plateau at some point. There was substantial, systemic activity in the Apple II, MECC and LOGO era, but as personal computers became cheap commodity products, the market fragmented. Cuts to budgets for hardware, software, and support dealt a final blow. In many California public school classrooms today, we’d be lucky to find two working electrical outlets, a non-code-compliant extension cord, an overhead projector with a bulb that hasn’t burned out, and one or two dusty eMacs in the corner.

        Interestingly, only two groups of California teachers normally demonstrate technological proficiency through testing: S.B. 57 Early Completion Option interns and traditionally-prepared teachers arriving from outside California. These candidates take the CST – Preliminary Educational Technology. Other candidates take a rather pedestrian university course.

        Technology is addressed in a general way in the Teaching Performance Assessment (TPA), completed at the close of the preliminary credential program, and in Formative Assessment (FAST), completed during BTSA induction.

        • navigio 3 years ago3 years ago

          Hi Paul. My personal take is that the problem is bad, but most of my evidence is circumstantial. The first, and most obvious problem is that a significant number of our current teachers have been around for a long time. If tech in prep programs only started a decade ago, then there many who will have missed that cutoff. But personally I am not sure how much stock I'd put into what such a program could offer, … Read More

          Hi Paul. My personal take is that the problem is bad, but most of my evidence is circumstantial.

          The first, and most obvious problem is that a significant number of our current teachers have been around for a long time. If tech in prep programs only started a decade ago, then there many who will have missed that cutoff.

          But personally I am not sure how much stock I’d put into what such a program could offer, tech-wise. Ironically, it is some of our youngest teachers that seem to display the most familiarity, and–to be honest more importantly–comfort with technology. My expectation is that this has more to do with having been more exposed to it culturally than in a prep program.

          Imho, tech is a special beast. I think the level of understanding needed to be a teacher who not only uses it but teaches it is underestimated. I don’t think that can be taught as a PD topic a couple days a year (it is in this regard where I think we are currently making a mistake). And if you are a person who is not comfortable with, or even fears technology, then forget it. And there are a lot of those out there.

          On top of that, both the things you mention are true.

          We are going from a situation where tech was essentially non-existent in most schools, and in some areas simply missing in a child’s in and out of school life, to a situation where we want it not only to be ubiquitous but we even want teachers to be able to impart those skills. This latter point is extremely important; it’s not just about using computers, rather common core expects computer proficiency to be a by-product of the classroom experience, even to the point that other, traditional elements are achieved via the use of computers. Common core has a ton of overlap in all the single subjects with what we do now. But technology is completely new in that realm.

          Anecdotally, I know many teachers who I would consider excellent in both process and content, but who are going to have real problems adapting to a tech-based teaching environment, let alone one in which they are the ones who will be teaching tech proficiency.

          I would love for you to convince me that I’m wrong. Perhaps it would be easier to convince me that my expectations are too high. But I won’t be happy about that either. 😉

          I am interested in your sb57 point. Are you saying there is a requirement there that does not even exist in the traditional program?

          • navigio 3 years ago3 years ago

            By the way, one other subtle point: one of the byproducts of not having any requirement related to computers or technology has been that districts are not required to staff teachers with that ability. This has allowed parent groups to fund computer labs and computer teachers without stepping on any toes. Once we make technology and computers an aspect of the curriculum this is going to become part of the teacher domain. This means … Read More

            By the way, one other subtle point: one of the byproducts of not having any requirement related to computers or technology has been that districts are not required to staff teachers with that ability. This has allowed parent groups to fund computer labs and computer teachers without stepping on any toes. Once we make technology and computers an aspect of the curriculum this is going to become part of the teacher domain. This means that not only will parent groups probably be unable to fund and staff computer labs, but that districts are going to have to take over that responsibility and are going to have to do so at a level that matches or even exceeds what was provided previously. I expect it’s going to require some ‘proactivity’ to ensure that that actually happens.

        • el 3 years ago3 years ago

          Technology is something that moves very quickly and is also very much a use-it-or-lose-it kind of activity. Anyone I know who uses technology in their job is constantly learning new skills and adapting to new software, new technology, new paradigms, new options. These are not skills you learn per se in university and then coast along. Maybe you took a class in Word and Excel but the software keeps evolving, and classroom exercises rarely relate to … Read More

          Technology is something that moves very quickly and is also very much a use-it-or-lose-it kind of activity. Anyone I know who uses technology in their job is constantly learning new skills and adapting to new software, new technology, new paradigms, new options.

          These are not skills you learn per se in university and then coast along. Maybe you took a class in Word and Excel but the software keeps evolving, and classroom exercises rarely relate to the actual things you’ll need to do even 5 years later, let alone 20.

          Our teachers have no time to learn these skills. They aren’t given paid time and they don’t have enough personal downtime during the school year to sit with it. I’m not just talking about a few days of professional development; I’m talking that they take an hour or two a day for months to really come up to speed… and that time doesn’t end. That is, by the time you’re really comfortable that you’ve addressed your problem with technology, there’s a new place you want to apply it and new skills to learn. They don’t have a lot of time to play on their own and they don’t have a lot of tolerance for difficulty in a classroom situation. If you’re an actuary and you lose an hour to sussing out a problem in excel, it’s not that big a deal. If you’re a high school teacher and it happened in classroom time, it’s a disaster.

          Creating some model/pilot programs that really work with very clear recipes for duplicating them would help teachers build these programs and experience success with them. We’re also going to need to accept that every school needs to have IT staff in house if we have hundreds of users depending on the systems every day.

          For more on this, go back to the top of the comments and read the story navigio linked to about teacher burnout and La Bestia – a quirky, malfunctioning, unreliable copy machine that relentlessly wasted teacher time.

  4. Jeffrey Edom 3 years ago3 years ago

    Because a lawsuit must be the answer… if you’re a lawyer. I challenge counselor Mcrae to spend a year in a classroom and then come and tell me how to do my job. Until he’s standing in a classroom of 45 students who may or may not be prepared to learn, and held “accountable” for his test scores I suggest he go back to chasing ambulances.

  5. GeorgeHuff 3 years ago3 years ago

    Mr. McRae, Please do your homework. Quote the applicable sections of the CA Ed. Code that state the reasons for which a public school teacher may be dismissed, with due process assured. The existing public school governance structure does allow districts to dismiss incompetent tenured teachers! One of the many official reasons already on the books for dismissal is Insubordination. Due to the potential abuse of this section, teachers absolutely need the assurance of due process, guaranteed … Read More

    Mr. McRae,

    Please do your homework.
    Quote the applicable sections of the CA Ed. Code that state the reasons for which a public school teacher may be dismissed, with due process assured.

    The existing public school governance structure does allow districts to dismiss incompetent tenured teachers! One of the many official reasons already on the books for dismissal is Insubordination. Due to the potential abuse of this section, teachers absolutely need the assurance of due process, guaranteed by a tenure policy.

    There are also Ed Code sections that allow for circumventing bumping activities by senior employees. Administrators, who are paid more than teachers, are expected to do some of the heavy lifting, and to counsel teachers out of the profession, when necessary.

    Your indictment of seniority shows a gross misunderstanding of tenure. Tenure has never been intended to protect criminals or incompetence, from teachers or administrators. The sensational tragediesthat LAUSD seems to thrive on, should have thrown in jail the administrators who colluded to ignore all the signs. Minimally, they should give back their salaries.

    This lawsuit smacks of slick corporate-sponsored union-busting, nothing of conscience for kids

  6. Replies

    • Floyd Thursby 3 years ago3 years ago

      El, don't focus on Students Matter, you're individualizing it. Be part of the solution. We all know there are ineffective teachers whose termination would benefit children, those who pretend to be sick when they're not and don't do a good job. Help create the system, don't put the pressure on others, if you have expertise, be part of the solution. I think most pretend to say they could do it a … Read More

      El, don’t focus on Students Matter, you’re individualizing it. Be part of the solution. We all know there are ineffective teachers whose termination would benefit children, those who pretend to be sick when they’re not and don’t do a good job. Help create the system, don’t put the pressure on others, if you have expertise, be part of the solution. I think most pretend to say they could do it a better way, but secretly want to maintain the status quo exactly as is, costing over 100k to dismiss an ineffective teacher.

  7. Joan Brownstein 3 years ago3 years ago

    Tenure is not the problem. The problem with the system of evaluating teachers lies with the individual school board, its superintendent and its principals. If those people were doing their job of supporting, mentoring, evaluating their staff, we would have fewer teachers leaving the system unhappy, more teachers getting the support and training they need to be effective in the classroom and more teachers who are not effective and unable to change leaving. Tenure … Read More

    Tenure is not the problem. The problem with the system of evaluating teachers lies with the individual school board, its superintendent and its principals. If those people were doing their job of supporting, mentoring, evaluating their staff, we would have fewer teachers leaving the system unhappy, more teachers getting the support and training they need to be effective in the classroom and more teachers who are not effective and unable to change leaving.

    Tenure is in place to ensure all employees in a school system are treated fairly under the law, that no one is dismissed without cause. It took more than 20 years for California teachers to obtain this right.

    Much can be done to improve our educational system but attacking teachers is the least effective way.

  8. el 3 years ago3 years ago

    The problem is less that the layoff system is broken, but that we had layoffs at all, at a time when needs for services did not decrease. I think there is a lot we can do to make the teacher dismissal system more streamlined, more responsive, and more fair to all parties. I think, however, that it is a wholly separate issue from layoffs. And finally, I dispute that "Students Matter" has any idea which teachers are … Read More

    The problem is less that the layoff system is broken, but that we had layoffs at all, at a time when needs for services did not decrease.

    I think there is a lot we can do to make the teacher dismissal system more streamlined, more responsive, and more fair to all parties. I think, however, that it is a wholly separate issue from layoffs.

    And finally, I dispute that “Students Matter” has any idea which teachers are “highly effective” and which are not.

    Replies

    • Floyd Thursby 3 years ago3 years ago

      El, don't focus on Students Matter, you're individualizing it. Be part of the solution. We all know there are ineffective teachers whose termination would benefit children, those who pretend to be sick when they're not and don't do a good job. Help create the system, don't put the pressure on others, if you have expertise, be part of the solution. I think most pretend to say they could do it a … Read More

      El, don’t focus on Students Matter, you’re individualizing it. Be part of the solution. We all know there are ineffective teachers whose termination would benefit children, those who pretend to be sick when they’re not and don’t do a good job. Help create the system, don’t put the pressure on others, if you have expertise, be part of the solution. I think most pretend to say they could do it a better way, but secretly want to maintain the status quo exactly as is, costing over 100k to dismiss an ineffective teacher.

      • navigio 3 years ago3 years ago

        No, we don’t all know that. What we do know is IF that’s the case, there are incompetent administrators who are definitely not doing their jobs.

  9. Replies

    • el 3 years ago3 years ago

      Wow, that’s a great link, navigio. I urge everyone to read it.

    • Andrew 3 years ago3 years ago

      Always appreciate your astute observations, Navigo. The commentary in the link you provide and the burnout it highlights is understandable in view of the fact that California has the worst ratio of high school teachers to pupils in the nation, about half the number of high school teachers to student population relative to the rest of the nation. http://nces.ed.gov/pubs2012/2012327.pdf While as an attorney I would like to see a less burdensome but still fair process for … Read More

      Always appreciate your astute observations, Navigo. The commentary in the link you provide and the burnout it highlights is understandable in view of the fact that California has the worst ratio of high school teachers to pupils in the nation, about half the number of high school teachers to student population relative to the rest of the nation.

      http://nces.ed.gov/pubs2012/2012327.pdf

      While as an attorney I would like to see a less burdensome but still fair process for dismissing problem teachers, I have to ask how the average California high school teacher can be expected to teach effectively when burdened with double the load of the national average. Teacher performance should be assessed under reasonable work loads.

      • Ken Berg 3 years ago3 years ago

        YES! Give teachers the digital aides they need to complement their teaching genius with a brain to brain, teacher/learner connection system thus amplifying what they’re always done–supporting the needs of learners with best available resources.

        Overcrowded, ill-equipped classrooms are not conducive to teaching/ learning excellence. Thus contributing to the drop-out cohort, which includes many gifted students!

  10. Paul Muench 3 years ago3 years ago

    We’ll need to address this issue with LCFF. Do we give districts a chance to implement this first before we decide its incompatible with existing law on teacher employment?

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