Vergara: Ten Years In The Rearview

This article originally appeared in For Kids and Country. 

It has been a decade since the landmark Vergara lawsuit was filed, and its denial in the courts has led to ongoing failure in California schools.

Back in 1975, I lost my 6^th-grade teaching position in New York City. As a newbie, it was explained to me that this happened because the city was going bankrupt, and had to lay off several thousand teachers as part of the corrective process. I was told that the reason I was being shown the door had nothing to do with the quality of my teaching, but rather it was due to the seniority or last-in first-out system insisted upon by the United Federation of Teachers which was spearheaded by teacher union godfather Albert Shanker at the time.

In the 1990s, I was teaching again in Los Angeles at a Westside middle school with a mostly inner-city student body. A majority of the teachers were good people and hard workers, but there were a few who weren’t. Bill, a PE teacher, had an interesting ritual between classes. He would go to his car, parked on campus, and open his trunk where he kept a large cache of hooch. By the end of the day – every day – he was obviously pickled. But he knew that no matter how slurred his speech may have been, getting plastered daily was an activity he could indulge in without professional consequence.

Harold was a nice old gentleman and a lawyer with a J.D. Unfortunately, whatever skills he may have possessed in the courtroom did him no good in the classroom, which often resembled a British soccer riot – pure mayhem. As testing coordinator, I had occasion to visit his class several times and invariably regretted not wearing a flak jacket. To maintain order, he resorted to showing film strips, pretty much daily. The kids didn’t learn much, but at least the janitors had less to clean up at the end of the day.

Leah, an English teacher, was a mean one; she rarely smiled and was antagonistic to a fault. During lunch period on a warm late spring day, she decided she was too pale and headed out to the athletic field to catch some rays. She proceeded to lie on her stomach, take off her blouse and unstrap her bra. (Ladies, you know how unsightly those tan lines can be!) As Leah’s glamor gambit was seen by kids, a few teachers and the plant manager, denial was not an option. However, she did not lose her job. Instead, she was transferred to a nearby elementary school which was run by a woman, known by many as “the principal from hell.” I have no idea what has become of Leah, but I’m sure she went on to infect many more kids with her bile and bad judgment.

And then there was Roy. One day, this 8^th-grade English teacher allegedly touched a female student inappropriately. There were witnesses, but the student involved would not press charges so they put him into the district office for a while – the so-called “rubber room” or “teacher jail.” Since firing him was not a viable option, the powers-that-be decided to transfer him to another school, where he was accused of fondling another student. So he was sent back to the district office, where he whittled away his paid vacation ogling porn. Busted, he was transferred to yet another school, where he got caught sharing his smut with some of his female students.  He was then returned to the district office, where the last I heard, he was waiting for his next assignment, courtesy of his union lawyer.

My principal at the time explained that because the collectively bargained dismissal statutes are so laborious that many administrators don’t even bother trying to navigate the 10-step process that must be taken before a dismissal is finalized. The process is also very expensive. Mark Berndt, a 2^nd-grade teacher got away with doing unspeakable things to his students in Los Angeles for over 20 years. Even after learning of the teacher’s horrific deeds, the school district couldn’t get rid of him without going through a lengthy appeals process costing over $300,000. When his crimes were fully exposed, Berndt gamed the system by accepting a $40,000 bribe and retiring – but only after racking up another year of credit toward his pension, before – finally – starting a lengthy prison sentence.

Hence, almost no teacher who achieves tenure – actually called “permanent status” for k-12 teachers – loses their job for any reason. It is much easier for administrators to simply “pass the trash” – the colloquial term for this insanity.

So just 10 years ago, in May 2012, I was very pleasantly surprised to learn about Vergara v. the State of California and the California Teachers Association, a lawsuit that had just been filed on behalf of eight California students claiming that provisions of state’s education code – rigid tenure rules, a seniority-based firing system that ignores teacher quality, and a “due-process” system that makes it all but impossible to remove incompetent or criminal teachers – violate student rights. “As a result of these arbitrary distinctions” in hiring and firing,” the complaint read, “children of substantially equal age, aptitude, motivation, and ability do not have substantially equal access to education. Because education is a fundamental interest under the California Constitution, the statutes that dictate this unequal, arbitrary result violate the equal protection provisions of the California Constitution.”

Students Matter, a nonprofit founded by Silicon Valley entrepreneur David Welch, filed the lawsuit. The student plaintiffs attended school in four districts, though the complaint targeted only two – Los Angeles Unified and Alum Rock Elementary Unified in San Jose. Other named defendants included California governor Jerry Brown, Superintendent of Public Instruction Tom Torlakson, the state of California, the state Board of Education, and the state Department of Education. Students Matter was determined to ensure “that the policies embodied in the California Code of Education place the interests of students first and promote the goal of having an effective teacher in every classroom.” To that end, the group joined forces with some heavy hitters in the education-reform world at the time, including Michelle Rhee’s Students First, Democrats for Education Reform, Parent Revolution, and the New Schools Venture Fund. The lead lawyers handling the case were Ted Boutrous (from law giant Gibson, Dunn and Crutcher) and Ted Olsen, U.S. Solicitor General under George W. Bush.

Essentially, the litigation wanted to make teaching a job whereby the good ones stayed and the bad ones were shown the door, just like in the private sector. Just to show how skewed and screwed up the system was at the time (and still is), on average, just 2.2 of the state’s 300,000 teachers (0.0008 percent) were dismissed for unprofessional conduct or unsatisfactory performance in any given year. This compares to 8 percent of employees in the private sector dismissed annually for cause. Applying the 8 percent number to teachers, that means 24,000 bottom performing teachers per year should be let go.

The California Teachers Association, which considers itself “the co-equal fourth branch of government,” per former Democratic State Senate leader Dom Perata, and was dubbed “The Worst Union in America” by Troy Senik, wasn’t going to shrink into the night, however. They countered with standard union bilge:

CTA: The problems we face with layoffs are not because of Education Code provisions or local collective bargaining agreements, but lack of funding.

Reality: No, the problem is who is getting laid off; we are losing some of the best and the brightest, including teachers-of-the-year, due to ridiculous seniority laws.

CTA: The lawsuit ignores all research that shows teaching experience contributes to student learning.

Reality: Not true. Studies have shown that after 3-5 years, the majority of teachers don’t improve over time.

CTA: The backers of this lawsuit include a “who’s who” of the billionaire boys club and their front groups whose real agendas have nothing to do with protecting students, but are really about privatizing public schools.

Reality: Nice try to misdirect, but that is a dark red herring. It’s not about rich people, but rather more about poor kids who are most likely to be stuck with failing teachers.

After all the legal wrangling and union palavering, Judge Rolf Treu issued an unequivocal decision on June 10, 2014. In his 16-page ruling – a resounding victory for students and a crushing defeat for the teachers unions and the California governing elite – Judge Treu did not mince words. He found that the plaintiffs met their burden of proof on all the issues, writing, “The evidence is compelling. Indeed, it shocks the conscience…” He concluded with, “All Challenged Statutes are found unconstitutional….”

Well, the education establishment in California just could not abide the decision. In August 2014, at the behest of Gov. Jerry Brown, Attorney General Kamala Harris filled a one-page notice of appeal  indicating that the state would fight the Vergara ruling. And not surprisingly, the California Teachers Association followed suit. In typical gaslight style, CTA President Dean Vogel asserted, “We work with these kids every day and know best what they need to succeed. So we stand up for them in our schools, our communities, in the legislature and in our nation’s capital even if it’s not the most popular stance. And the very statutes challenged here are the ones that allow us to fight for our students and their needs without reprisal of those in power.” State Superintendent of Public Instruction and teacher union lapdog Tom Torlakson incoherently claimed that the ruling unfairly “lays the failings of our education system” at the feet of teachers and added that teachers deserve “our admiration and support.”

Then in April 2016, the Court of Appeals shocked the plaintiffs by overturning the original decision. Some of the wording in the ruling was quite interesting: “Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.” As Reason’s Brian Doherty pointed out, “The core of the new decision, which seems to this non-lawyer (and non-teacher, and non-student) to be saying that if the crummy policies are as near as we can tell causing equal harm to all California students rather than special harm to an identifiable group, then the Court feels powerless to overturn them.” Or in plainer English, “All kids are hurt by crappy teachers, so get over it.”

It was a three-round fight, however. To be sure, the state and the unions were victorious in Round 2, but the plaintiffs won the first round and would appeal to the California Supreme Court which would ultimately decide the winner.

And sadly, on August 22, 2016, California’s highest court declined to review the case in a 4-3 split decision, thereby upholding the challenged statutes. In its denial, the four-justice majority did so without comment, other than issuing a statement that “an order denying review represents only a determination that, for whatever reason, a grant of review is not appropriate at the time of the order.”

So where are we now? Just 34% of California 4^th-graders scored proficient in math on the 2019 National Assessment of Educational Progress (NAEP), placing the state 44^th nationwide. And now, due to the teacher union orchestrated school shutdowns, math scores of California’s average eighth graders score on standardized tests in 2021 were in line with the knowledge and skills of fifth graders, according to an analysis of the state’s Smarter Balanced tests. Also, just 30 percent of California eighth-graders scored proficient in reading on the pre-pandemic 2019 NAEP.

At least one poll suggests that people are starting to wake up to the damage California has inflicted on school children. Voters in the state were the least supportive of local teachers unions than voters in any other state polled – with 29% of voters viewing teachers unions negatively compared to 27% nationally. According to Murmuration, 17% of voters in California view local teachers unfavorably compared to just 9% in Missouri and 7% in the District of Columbia. A quarter of voters in California view school administrators unfavorably, while only 15% do in D.C.

Also, California’s student enrollment has dropped by 110,000 students, a 1.8% dip from last year. Part of the reason for the exit is that families are leaving the state, but many of those who remain have taken to alternatives – charters, private schools and homeschooling. For the first time in over 20 years, the state has dipped below the 6 million student mark. While the leavers’ reasons vary, many are just fed up with the malign influence of the teachers unions.

One bit of good news: A proposed ballot initiative sets stage to define “high-quality’ education” in California. David Welch, the Silicon Valley entrepreneur behind Vergara, is now supporting a constitutional amendment aimed at requiring California to provide high-quality public education for all students. As John Fensterwald explains, “The current wording of the Constitution guarantees Californians only a ‘free public education.’ The Legislature and the courts would have to define what constitutes ‘high quality.’ But adding that phrase as a constitutional right would ‘finally empower public school parents with a seat at the table’ to advocate for students, the proponents said in a statement preceding the amendment.”

The initiative, originally targeted for the ballot this year, has now been moved to 2024. Thus, CTA and their bought-and-paid-for legislature have plenty of time to consider their strategy to deny that students have a “right to a high-quality education.” If nothing else, their responses will be disgraceful.

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