David B. Cohen is a teacher who is a leader in the teaching profession in California. In this post, he offers a calm, thoughtful appraisal of the Vergara decision. While not agreeing with the decision, he points out ways in which the issues can be resolved in the future.
He acknowledges his outrage towards the group that brought the case, which dared to call itself “Students Matter”::
“I’m suspicious of wealthy and powerful individuals and groups whose advocacy for children leads to “reforms” that won’t cost a cent, but will weaken labor.
“Students matter – but apparently, California’s shamefully inadequate funding levels don’t. That’s the status quo they accept; teacher protections are apparently the status quo to fight. In many funding categories, California is at or near the bottom of the state rankings. Students Matter has done nothing that will put a needed book or computer in a school. Not one wifi hotspot. Not one more librarian, nurse, or counselor. Not one more paintbrush or musical instrument. Not one hour of instructional aide support for students or professional development for teachers. They don’t have any apparent interest in the more glaring inadequacies that their considerable wealth and PR savvy could help. But forming a non-profit organization for litigation purposes and calling it “Lawsuits Matter” wouldn’t be as catchy. Their arguments regarding education problems and policy were flawed and unconvincing. Their standing in the case may be legal, but has the look of opportunism, with some incredible wealth and some powerful connections to education “reform” and charter school interests permeating the organization.”
He goes on to analyze the decision with care. On the subject of the time frame for tenure, he notes that he and other teachers had previously proposed that the probationary period should be extended to three years. He gives a spirited defense of seniority, saying it is the fairest way to handle the pain of layoffs.
He concludes with an appeal for calm:
“Judge Treu’s ruling closes by invoking Alexander Hamilton on the topic of separation of powers; he reminds us that judging and legislating are separate functions, and that the legislature must remedy what the court finds unconstitutional. Therefore, with years of appeals ahead, and then a legislative process to follow, I think it’s too soon for teachers or unions to begin talk of disaster. Mine is an admittedly amateur reading, but it would seem possible to under this ruling to pass constitutional muster with laws that make the following changes:
“Permanent status awarded in third year rather than second year
Streamlined (not eliminated) due process laws
Seniority used as one factor rather than the sole factor in layoffs
“Don’t get me wrong: just on principle, I’d rather see the whole case rejected on appeal. But if the ruling, or parts of it, should stand several years from now, then teachers still have room to advocate for a strong profession. Let’s stay informed and engaged. Stay vigilant, even adversarial as necessary – but calm.”
Diane Ravitch's blog 
As I understand the California law, school administrators can deny tenure and keep teachers on probationary status whenever desired. Tenured teachers also can be dismissed – even though the public mistakenly thinks tenure confers lifetime employment.
I smell a rat in the judge’s decision since several of the plaintiffs were in charter schools that do not grant tenure and since another plaintiff accused a teacher-of-the-year of being grossly ineffective. It appears the judge had his own agenda.
This was a trumped-up trial backed by plutocrats with the sole purpose of effecting a political change.
Step right up and buy your justice here, folks!
It is so blatantly so that this case simply reinforces the belief to which many are coming that the fix is entirely in, that we live in a banana republic in which our courts and administrators and legislators are simply windup toys and sock puppets for a handful of oligarchs. The whole thing stinks to high heaven.
Can you say Soviet show trial???
Courts in the US have assumed a level of legislative power that no judicial system in history has ever wielded. A small group of mostly unelected judges who are very unrepresentative of the general population have the power to direct things in whatever direction they happen to favor regardless of what most people might want.
I wonder how long this will last. The judiciary lacks physical power and is dependent on a general perception of their legitimacy. But the continuing abuse of their power on the part of the judiciary may ultimately destroy that perception. If that happens the judges will find that they do not have the bayonets to back up their decisions.
Here’s the definition of “strict scrutiny” (from the Cornell Legal Information Institute) cited in the post:
“Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is “strict in name, but fatal in practice.
“For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.”
I’m was an English teacher–not a lawyer–but why is the burden on the defense? According to this definition, don’t the plaintiffs have to either show that a fundamental right has been significantly abridged, or that the law creates a “suspect classification”? Even if the defendants are expected to show that the law passes “strict scrutiny,” why wouldn’t a real-world examination of the facts be an effective defense against, say, the abstruse and unprovable testimony of VAM advocates?
David B. Cohen rightly makes the case that the judge’s ruling appears to be based on an abstract and theoretical understanding of the issues. If the defense had built a real-life narrative about actual teachers and students in actual schools, maybe it would have stood a chance.
I have a feeling, though, that this outcome wasn’t in the cards. It’s not that hard to prejudge an issue and justify a decision after the fact. In this case, the judge’s reliance on the Chetty study and similar “research” suggests to me that either the judge had his mind made up early on, or the defense didn’t do the dishes. That’s just the impression i get from the Ravitch and Cohen posts I’ve read. The judge’s logic, which sounds a lot like the “reformers'” party line, seems shaky at best.
Randal Hendee.. great points! Especially…”I [m] was an English teacher–not a lawyer–but why is the burden on the defense…”
Also not a lawyer but your words resonate! So true.. shouldn’t the plaintiff’s have had to prove overwhelmingly that tenure is the reason for bad teachers and secondarily that one bad teacher adversely effects the life of a student? How could the judge find something so “unprovable” and vague as the Harvard professor’s research which gives an actual loss amount in earnings years down the road for a person who has had a bad teacher??? Am I missing something? Where are the plaintiff’s witnesses who had “that bad teacher” proving their salaries were impacted? Also, those bringing forth the lawsuit.. have they been harmed by this tenure? It seems outrageous or the very least suspect that they are not even being taught by tenured teachers and yet brought this lawsuit to court.
I just read a comment from the Valerie Strauss blog worthy of a read as it brings up some great points… It is made by “labor lawyer”
“…Although the decision’s legal analysis is wrong on many issues, I think the most important defect is the decision’s implicit factual finding that the dismissal statute is causing many students to have bad teachers. Yes — the dismissal statute prevents the principal from immediately discharging bad Teacher A. But — a competent principal would be able to get bad Teacher A out of the classroom reasonably quickly and would be able to get Teacher A discharged without the govt spending hundreds of thousands of dollars. In other words, the delay/cost involved in discharging a bad teacher is largely the result of poor management, not the dismissal statute.
And, even assuming that the dismissal statute is causing many students to have bad teachers, the issue is whether eliminating the dismissal statute would significantly decrease the number of students who have bad teachers. If there is no dismissal statute (and the principal can discharge at will), then in many cases incompetent/insecure principals will discharge competent teachers who challenge the principal and replace the competent teachers with incompetent teachers who kiss up to the principal. Similarly, if there is no dismissal statute, many competent teachers/potential teachers will leave the CA school system/not apply to teach in the CA school system in the accurate belief that they will have no job security and can be discharged at will by incompetent/insecure principals. The schools most likely to lose competent teachers for these reasons will be the low-SES schools.
The judge’s analysis completely ignores these real-world considerations.
I agree–the judge’s analysis completely ignores the real world. As a high school teacher who has seen all manner of principals come and go in a short span of ten years, the court erroneously assumed that principals are rational people while teachers are irrational renegades. Yet, no one seems to be able to provide a definition of a “bad teacher” or the numbers of them who might be derailing the educational system. As a student in LAUSD four decades ago, I saw good teachers who did not politically agree with the senior staff find their teaching careers grinding to a halt.
Here is Karen Lewis excellent analysis. Please tweet it from the Youtube site, and share it on blogs and facebook.
It’s pretty simple to me. The defendant’s lawyers were/are incompetent.
Not to mention a completely incompetent (or bought off) judge.
Due to the new evaluation system, I think districts will severely cut continuing contracts – so they will not have to deal with them anymore. All they will have to do is make sure the teacher’s rating is not “skilled” – which, believe me, is not hard to do at all. Some of our teachers had good test scores (on the 50%), and then they were being marked down on the other 50% because they did too much direct instruction (which got them the good test scores.) Believe me – I think many districts will begin to put unfair practices in place to make sure teachers do not get tenure. Tenure can still be there, but not many teachers will get it. As you see the older teachers leave, their continuing contracts will go with them.
To get a continuing contract in this new world of education, I think the teacher will have to be in the principal’s inner circle, one of the principal’s favorite teachers. The normal teacher, working his/her heart out – but not in the principal’s inner circle – will always come up short to get that continuing contract. No one in their right mind will invest a college education in this nonsense – when you make little money and have absolutely no job security. We are observing the last days of public education as we know it now.
I think David Cohen is on the money. This is not the time to panic but to place in
motion counter moves that will demonstrate our power. As someone who voted for
Obama twice and who considers him a decent President–some pressure should be brought to bear in terms of removing Duncan and making it clear to the President and
Demo party that we feel betrayed by Duncan and by all who Duncan speaks for.
Okay, first, I am not a lawyer although I do teach Government including at an AP level, but it seems to me that the entire case should have been tossed based on the lack of standing. Apparently NONE of the plaintiffs could demonstrate actual harm that would rectified by the decision in this case. Absent a real harm there is no standing to bring the case. One would hope the appellate court system in California recognizes that.
The best part of Mr Cohen’s blog post…
“I’m not sure teachers are well-served by alarmist social media messages suggesting Treu’s ruling would leave us without due process.”
Bingo. Many here should take heed.
I am a supporter of teachers and a member of teacher unions for 24 years at the K-nd12 and higher education level. Also, I served as a school administrator for 21 years in k-12 and 9 years as department chair and 1 year as a Dean, I recognize that a few teachers contribute to large numbers of student failure. I spent four years as Chair of a Joint Intervention Team Chair and I learned that a few teachers may contribute to large portions of student failures. Teacher unions must be proactive and provide districts with a method to remove inadequate teachers. One option is to Use Joint Intervention Teams to observe classes and identify inadequate teachers. Once identified by JIT members, teachers would have one year to show significant improvement or lose their license.