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California Supreme Court Strikes Down Vergara Appeal

Here’s an axiom of California politics. When it’s the teachers union against everyone – that’s right, everyone else – the teachers union wins. Yesterday’s decision by the California Supreme Court to not hear the Vergara case is just the latest example.

Prior to losing on appeal, which brought the case to the attention of the State Supreme Court, the original Vergara ruling upheld the argument of the plaintiff, which was that union supported work rules have a disproportionate negative effect on poor and minority students. As reported in the Los Angeles Times in June 2014:

“Los Angeles Superior Court Judge Rolf M. Treu tentatively ruled Tuesday that key job protections for California teachers violated students’ rights to equal educational opportunity. Treu struck down state laws that grant teachers tenure after two years, require seniority-based layoffs and govern the process to dismiss teachers. He ruled that those laws disproportionately harmed poor and minority students… [writing:]

‘All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school. Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.'”

And the evidence was indeed compelling. Watch these closing arguments in the case, and note that the plaintiff’s attorney used the testimony of the expert witnesses called by the defense attorneys to support his arguments!

But it isn’t just the union’s hand-picked experts who are against the teachers unions, when they reveal under cross-examination that union work rules indeed harm students, and disproportionately harm low-income and minority students. It’s every interest group, every stakeholder. Why, for example, would a teacher want to work in an environment where you come in and you care about students and you’re talented and you work very hard to get through to all of your students and get good educational results, and in the classroom right next to you somebody just shows up every day and doesn’t do anything? They make as much money as you do, and if they stick around, they get increases every year just like you will. If they are incompetent, they will not be fired. And if there’s a layoff, if they’ve been on the job one year longer than you, they’ll stay and you’ll go.

No wonder there’s a teacher shortage. Consider these statistics that measure teacher sentiments regarding the work rules that were challenged by the Vergara plaintiffs:

  • Teacher effectiveness should be a factor in granting tenure:
    72% of teachers agree, 93% of principals agree.
  • Students’ interests would be better served if it were easier to dismiss ineffective teachers:
    62% of teachers agree, 89% of principals agree.
  • Students’ interests would be better served if layoff decisions took teacher effectiveness into account:
    67% of teachers agree, 83% of principals agree.

Then there’s the social agenda of the teachers union. Their social agenda, in essence, is to indoctrinate California’s students – most of whom are people of color, and millions of whom are members of recent immigrant families – into believing they live in a racist, sexist nation, where they are condemned to lives of discrimination and thwarted achievement, when precisely the opposite is the reality. In reality, America is the most tolerant nation in world history, rejecting sexism and racism, and has provided opportunities to people of all backgrounds in measures that dwarf all other nations and cultures. But not according to the teachers union.

But this is California, and what the teachers union wants, the teachers union gets.

One small encouraging sign is the fact that two of the three dissenting justices are Brown appointees. The fight is bipartisan. It’s disappointing that judges appointed by Wilson and Schwarzenegger ruled against the plaintiffs, and it is possible that part of their motivation was judicial restraint, i.e., to not legislate from the bench.

Which leaves the legislature to change these rules that are destroying public education in California – jobs for life after two years, nearly impossible to fire incompetents, and seniority over merit in layoffs. Virtually any honest legislator in Sacramento will admit, off the record, that they don’t agree with the agenda of the teachers union. Plenty of retired democrats, including Gloria Romero, former Senate Majority Leader, and Antonio Villaraigosa, former Mayor of Los Angeles, have leveled withering criticism at the teachers union. But active politicians are targeted for political destruction if they stand up to the union machine, and they toe the line.

Parents, students, judges, legislators, and teachers themselves are all subordinates of the teachers union. It will take an extraordinary combination of bipartisan cooperation and raw political courage to change the status quo. But let’s be clear – the teachers union has won again, and everyone, everyone, was on the other side.

 *   *   *

Ed Ring is the president of the California Policy Center.

RELATED ARTICLES

Calif. Justices Won’t Hear Appeal in ‘Vergara’ Teacher Tenure Case
Ben Hancock, August 22, 2016, The Recorder

State Court Upholds California Teacher Tenure Laws
By Hillel Aron, August 22, 2016, LA Weekly

Vergara ends — California Supreme Court refuses to take up teacher tenure case
By Sarah Fovot, August 22, 2016, LA School Report

Two denials of review, five separate statements, in education cases
August 22, 2016, At the Lectern: Practicing before the California Supreme Court

 

Earthquake Could Alter Education Landscape in California

Latest temblor to hit the Golden State is a lawsuit that could result in a major tectonic shift in education.

In September of 1975, due to New York City’s dire fiscal situation, I was laid off from my teaching position at P.S. 125 in Harlem. I lost my job not because I was a bad teacher, but because I was hired a few months after the teacher in the room next to mine…who was a lousy teacher. Using seniority, or last in/first out (LIFO), as a way to determine who keeps their job is wrong. It stank 37 years ago in New York and it’s no better in California in 2012.

Thirty-three other states leave these kinds of staffing decisions to local education agencies, but in California, LIFO is written into the state education code. However, this and more may be about to change. If successful, a lawsuit filed last week in Los Angeles by Students Matter would shake up the way California conducts much of its educational business. John Fensterwald writes,

Students Matter is the creation of David Welch, co-founder of Infinera, a manufacturer of optical telecommunications systems in Sunnyvale. The new nonprofit filed its lawsuit in Los Angeles Superior Court on Monday on behalf of eight students who attend four school districts. A spokesperson for the organization told the Los Angeles Times that Los Angeles philanthropist Eli Broad and a few other individuals are underwriting the lawsuit. They have hired two top-gun attorneys to lead the case: Ted Boutrous, a partner in the Los Angeles law firm of Gibson, Dunn & Crutcher, and Ted Olsen, former solicitor general for President George W. Bush.

The lawsuit asserts that five “outdated statutes” prevent administrators from making employment decisions in students’ interest. The tenure statute forces districts to decide after teachers are on the job only 18 months whether to grant them permanent job status. Once granted tenure, they gain due-process rights that make it expensive and difficult to fire them even if they’re “grossly ineffective.” And then, when an economic downturn comes – witness the last four years – a Last In/First Out (LIFO) requirement leads to layoffs based strictly on seniority, not competency.

Organizations that have signed up for the suit as advisors are major players in the educational reform world. They include:

Democrats for Education Reform
Education Trust-West
New Schools Venture Fund
Parent Revolution
Students First
Students for Education Reform

Of course California shouldn’t need a lawsuit to end such an onerous system. But the sad fact is that it does for the simple reason that too many people in power have become way too comfy and have too much invested in the abysmal status quo. The teachers unions’ raison d’être will suffer if teachers started being treated as professionals and not interchangeable widgets. School boards will have to stop being doormats for their local teachers unions, take more initiative and come up with evaluation systems for teachers that have teeth. And school administrators will have to conduct teacher evaluations that ensure the best ones keep their jobs and the bottom performers are shown the door. Principals need to know that if they don’t accurately assess teachers, they could be out of a job. In short, there will be real accountability for all the players.

So far, very little has come out of the teachers’ and principals’ unions about the Students Matter lawsuit and the California School Board Association has also been mum. At this point, the only recorded comment on the lawsuit has come from the California Teachers Association president who in typical union fashion tried to redirect the conversation and duck any responsibility for the educational mess we find ourselves in. Dean Vogel said,

…the debate about teacher tenure and dismissal is being driven by the state’s economic crisis, which has drained education funding and resulted in waves of layoffs.

No Mr. Vogel, the debate has been brought to a head by the economic crisis, but is driven by people who actually care about how children are educated and miseducated in California.

In addition to LIFO, the suit attacks tenure which can be attained in California after just two years, essentially guaranteeing a 23 year-old teacher a job for life. Over ninety-eight percent of teachers in California get tenure, and once it’s granted, getting rid of a teacher is just about impossible. Fensterwald again,

The protection of ineffective teachers “creates arbitrary and unjustifiable inequality among students,” especially low-income children in low-performing schools, where less experienced teachers are hired and inept veteran teachers are shunted off, under a familiar “dance of the lemons” since they can’t be fired. Because education is a “fundamental interest” under the state Constitution, the five statutes that “dictate this unequal, arbitrary result violate the equal protection provisions of the California Constitution” and should be overturned.

According to Troy Senik in the Los Angeles Times,

… teachers in California — even terrible ones — are virtually never fired. A tiny 0.03% of California teachers are dismissed after three or more years on the job. In the last decade, the L.A. Unified School District, home to 33,000 teachers, has fired only four. Even when teachers are fired, it’s seldom because of their classroom performance: A 2009 expose by this newspaper found that only 20% of successful dismissals in the state had anything to do with teaching ability. Most involved teachers behaving either obscenely or criminally.

The lawsuit includes a chart which shows the ridiculous lengths that a school district must go through to get rid of an underperformer or a teacher involved in criminality once they have attained tenure.

Interestingly, another lawsuit, filed last year, has a court date in a few weeks. If successful, this litigation, which concerns itself with the state’s 40 year-old Stull Act, would be something of a companion to the Students Matter case. While the Los Angeles Unified School District is targeted in the Stull suit, if it flies, there would be statewide ramifications. As I wrote in January,

For nearly 40 years, the Los Angeles Unified School District has broken the law—and nobody seemed to notice. Now a group of parents and students are taking the district to court. On November 1, a half-dozen anonymous families working with EdVoice, a reform advocacy group in Sacramento, filed a lawsuit in Los Angeles Superior Court against the LAUSD, district superintendent John Deasy, and United Teachers Los Angeles. The lawsuit in essence accuses the district and the union of a gross dereliction of duty. According to the parents’ complaint, the district and the union have violated the children’s “fundamental right to basic educational equality and opportunity” by failing to comply with a section of the California Education Code known as the Stull Act. Under the 1971 law, a school district must include student achievement as part of a teacher’s evaluation. Los Angeles Unified has never done so: the teachers union wouldn’t allow it.

Thus, if the Stull lawsuit is successful, each school district in the state will be required to come up with its own method of evaluating teachers, but they all must use evidence of student learning via a standardized test as a component. If the Students Matter case then succeeds, there will already be evaluation systems in place to supplant LIFO. Incidentally, none of this is exactly revolutionary. At this time, 23 states currently use student performance on standardized tests as part of a teacher’s evaluation.

While the Students Matter case would go a long way toward getting California up to speed, even more would need to be done to restore the Golden State’s once great public education system. But as RiShawn Biddle says, there can be no denying that this lawsuit “is another important step in developing new strategies for advancing systemic reform.” This suit will bring up issues that the entrenched special interests don’t want to discuss. But their tired old spin will give way to the shakes as the earth begins to realign itself and the educational landscape changes.

About the author: Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.

Tenure for Teachers: Enough is Enough

Every year untold thousands of school kids are harmed by teachers who shouldn’t be allowed in a classroom. Parents must be given an opportunity to send their children elsewhere.

A teacher arrives at work high on drugs…daily.

A teacher regularly flies into rages, terrifying kids and coworkers.

A teacher talks in explicit terms about sex to the students.

A teacher makes constant sexual advances to other teachers.

A teacher doesn’t teach her students anything.

These are a few of the teachers that new Perth Amboy schools superintendent Janine Caffrey has to deal with on a daily basis. She is quick to point out that most teachers are committed and talented, but there are a few….

The evil here is tenure or permanence, which in New Jersey bestows a position for life on teachers after just three years on the job. (It’s even worse in other states – in California, for example, a teacher can get into the untouchables club after only two years.) Tenure for teachers would be nothing more than a bad joke if it didn’t destroy the education experience for tens of thousands of children who are subjected to incompetent/cruel/perverted people on a daily basis.

The cases that Caffrey is dealing with are not all that uncommon. In my 28 year teaching career, I saw all the above and then some – like a teacher at my middle school who on a warm day at lunch decided to go topless on the athletic field. Admittedly guilty, the consequence of her action was to be transferred to a nearby elementary school. Another teacher regularly went to his car between his P.E. classes and got plastered. No consequence for him.

The proponents of tenure are typically bad teachers and their protectors — the teachers unions. They claim that tenure is nothing more than due process, and incompetent administrators are the ones to blame if a bad teacher is allowed to stay on the job.

Wrong. As Caffrey says,

“Proponents of tenure will tell you that any school or district can remove a teacher by the due-process system that the tenure law affords. That may be the intent of our tenure law, but it certainly doesn’t work that way.”

The truth is that the system is rigged, plain and simple. A chart supplied by the Education Action Group shows the Byzantine two-to-five-year roadmap that must be followed to get rid of an incompetent teacher. What the chart doesn’t tell you is the procedure’s astronomical cost to the taxpayer. In Los Angeles recently, the school district tried to get rid of seven stinkers — after five years and a cost of $3.5 million, they managed to get rid of four, while two accepted buyouts and one reportedly was reinstated.

Then there is the case of Gabrielle Leko, a teacher in the La Caňada school district in California who, according to many reports, regularly hurls insults at her students dating back to at least 1997. Calling her students such terms of endearment as Jew Boy earned her a brief stint in a sensitivity class. And while the school board and superintendent are figuring out what to do with her, Leko, unchastened, goes to work every day and does what she has always done. And whatever is decided – the next event is a school board meeting on December 21 – Ms. Leko’s fate will be kept under wraps. So even if she does lose her job in La Caňada, she will probably be free to continue foisting her insults on unwitting students in another school district, should she decide to stay in the field.

While tenure laws have been in effect just about everywhere in the country for far too long, there is some good news. There are states – Illinois, Indiana and Florida, to name a few — that have succeeded in moderating or eliminating this abomination. This is all well and good, but until tenure is completely eradicated, children will be continue to be damaged (and in some cases, abused) by teachers who shouldn’t be allowed anywhere near them.

Also, Hoover Institution scholar Eric Hanushek claims that if we just got rid of the bottom performing 5 to 7 percent of teachers – a common practice in the private sector — our education system could rival that of Finland’s world class system.

Ultimately, the most realistic way for parents to successfully protect their children is to give them an option to remove their kids from harm’s way via a voucher. Parents should be allowed to take the money that as taxpayers they are paying to educate their child in a public school and apply it to enroll their children elsewhere – in a traditional public, charter or private school. Any school of their choosing.

And to the whiners amongst us who say, “But that could drain money away from public schools,” I say YES, it will! But the good news is that wherever students have been given a choice where to go to school, public schools have actually improved, even with less money. Yes, competition even works in the wacky world of public education.

One final note – if tenure is a disease that we absolutely must eradicate, perhaps political correctness is a close second. You may have read the story about a 9 year old boy in North Carolina who got suspended from school by the principal for two days because he told his teacher she was cute. Yes, he was accused of “sexually harassing” her. A nine year old! Fortunately, his mother decided to fight back – the story went viral, became national news and the boy was reinstated by district officials with an apology. Jerry Bostic, the principal who ordered the suspension, didn’t get off so easy. Downgraded to Assistant Principal, he refused the demotion and retired instead. He thought that after 43 years of service to his school district he deserved better. And maybe he did, but his judgment in this situation was appalling.

In any event, it’s time to give parents a choice where to send their children to school. The traditional forced-zip-code method hasn’t worked well for children, their families and taxpayers for decades.

All need to mark their calendars for January 22, 2012 – the start of National School Choice Week – which will provide a concentrated focus on the need for effective education options for every child. To learn more and get involved, please visit the NSCW website.

About the author: Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.