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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