Kevin Welner, director of the National Educational Policy Center in Colorado, is both an education policy analyst and a lawyer. He read the Vergara decision and saw a bright side. While he was struck by the weak evidence for the judge’s conclusion, he thinks the case might open up an avenue to advance lawsuits based on the importance of equality of educational opportunity.
He writes:
“Although I can’t help but feel troubled by the attack on teachers and their hard-won rights, and although I think the court’s opinion is quite weak, legally as well as logically, my intent here is not to disagree with that decision. In fact, as I explain below, the decision gives real teeth to the state’s Constitution, and that could be a very good thing. It’s those teeth that I find fascinating, since an approach like that used by the Vergara judge could put California courts in a very different role —as a guarantor of educational equality—than we have thus far seen in the United States.”
The judge’s reasoning could be used, for example, to rule that tracking is unconstitutional.
“To see why this is important, consider an area of education policy that I have researched a great deal over the years: tracking (aka “ability grouping”). There are likely hundreds of thousands of children in California who are enrolled in low-track classes, where the expectations, curricula and instruction are all watered down. These children are denied equal educational opportunities; the research regarding the harms of these low-track classes is much stronger and deeper than the research about teachers Judge Treu found persuasive in the Vergara case. That is, plaintiffs’ attorneys would easily be able to show a “real and appreciable impact” on students’ fundamental right to equality of education. Further, the harm from enrollment in low-track classes falls disproportionately on lower-income students and students of color.”
Welner sees many areas where “judicial activism” could reverse policies that have a harmful impact on minorities:
“This type of analysis could be repeated for a wide array of other policies and practices, such as transportation, school choice, buildings, funding formulas, access to computer technology, enriched curriculum, testing and accountability policies, and segregated and stratified schools. If the relatively anemic facts and evidentiary record in Vergara support the striking down of five state statutes, it’s almost mind-boggling what the future may hold for education rights litigation in California (again, if the appellate courts use similar reasoning).”
Diane Ravitch's blog 
Hoist, Petard.
Petard, Hoist.
Vergara will be reversed. If it’s somehow affirmed, it will be distinguished down to a sliver.
Wishful thinking. Judgments like this are made for ideological reasons. The likelihood of finding a progressive judge willing to bend the judicial rules so obviously to promote their political agenda is not high.
Chetty’s evidence on which this extraordinary ruling is based hasn’t even appeared in any peer-reviewed journal – it was published as an NBER working paper. The charts he showed to the judge (see http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/10/a-california-judge-just-ruled-that-teacher-tenure-is-bad-for-students/) violate basic rules of scientific data presentation: the y-axes are all manipulated, the error bars and R-square values are missing. That a judge would accept such weak evidence to strike down statutes is disturbing and highlights the lack of scientific literacy of the judiciary. Maybe that too can be blamed on the teachers.
I am also concerned about the ideological repercussions of this decision on other states as well. It just gives more fodder for the “all teachers are bad” groups. See the ad from USA Today that Diane shows in another post. The vultures are swarming.
uarktransparency,
Last week, Diane posted that the VAM study by Chetty et al. was recently published as two separate papers in a scholarly journal. Both papers are in The American Economic Review, a peer-reviewed economics journal, of course. (Economists rarely publish their studies on education in peer-reviewed education journals,)
Here is the first paper:
Click to access w19423.pdf
uarktransparency,
Here is the second paper on the VAM study by Chetty et al. published in a scholarly economics journal:
Click to access w19424.pdf
Thanks. It has been stated before that the AER version wasn’t available yet. I am shocked to see that the charts are indeed included in the AER version without error bars. For this to be accepted in a scholarly journal is beyond belief. Unless the rules of standard science do not apply in economics?
I share this concern. The judge is statistically challenged. Why were no there no persuasive counter arguments to the phony-balony statistical inferences of Kane and Chetty?
Incompetent defense lawyers.
No matter how weak the legality or logic of this decision, in all likelihood it will be upheld, because it is a direct response to what’s “in the air” regarding education. In other words, it’s an affirmation of the ruling class consensus about the schools, which transcends political affiliation.
You want logic and legality? I offer you Bush v. Gore in 2000; this is going to play out similarly, though over a longer period of time. Meanwhile, ALEC-type legislation, no doubt already written, is going to be quickly submitted based on this decision, creating facts on the ground that will extremely hard to overcome, even in the unlikely event that it is overturned.
What’s the over/under on the filing date for the copycat case in NY? Bastille Day?
For sentimental reasons, I’ll say June 26th, the last day of school.
The Contra Costa Times had an article on 5/29/14 about how 11 student plaintiffs have filed a class action lawsuit against the state Department of Education. “The suit, filed in Alameda County Superior Court, cites a loss of valuable learning time due to a number of systemic failures, including a shortage of teachers and mental health counselors, and the failure to have class schedules ready at the beginning of the year.”
Also on May 29, Mr. Zuckerberg and Dr. Chan announced a pledge of $120 million to help Bay Area schools in low income areas. Part of the gift will be used for “initiatives that provide computers and connectivity in schools … ”
The saddest part of the article about the class action lawsuit is from a teacher who says, “Mental health is one of the greatest needs I see … My students on a daily basis know students who have been shot. I have homeless students who don’t have enough to eat and are still expected to take the tests and earn the grades to graduate, but they don’t have the support to do that. We need an investment of qualified and certified psychiatrists and counselors. We need wrap-around services which we don’t have right now.”
The teacher also comments that the school has vacancies for special education assistants that are not filled for an entire year.
http://www.contracostatimes.com/news/ci_25860895/oakland-richmond-students-file-class-action-lawsuit-against
How self-delusive can you get. Maybe next people will say things like, “Look at the bright side. Just think of all the money teachers will save in gasoline by no longer having to drive to jobs they no longer have.” Do any of you trust CTA to actually make a substantial appeal to Vergara. If so, why didn’t they get involved in the case before the cow was out of the barn and on to the next county? If what we do and what we say can be ignored with impunity, then it’s not worth saying. Litigation anyone?
At least the judge is honoring the concept that the low income kids deserve equity in teacher quality. Hopefully equity in principle quality and school facilities, but maybe the kids were content with those, so they didn’t sue.
The judge obviously doesn’t actually care about the quality of education that poor children receive, or he would have realized that this decision will cut down FAR more good teachers than poor teachers. In my experience, the reason that poor teachers hang on after five years is because they know someone in power. The destruction of tenure won’t do anything to fix that.
If he did care, charters would not be legal.
One thing that has bothered me since grad school is the fact that we have never embraced the concept of IGE (Individually Guided Education).
I understand that we have funding methods that are based on preconceived notions about grade levels and now about so-called AYP. This funding model has led us to group students by age rather than by skill. Then, when a child is “behind” he/she is labeled as deficient in some way. Likewise, we have “gifted” programs. We have IEPs and CSPs and all kinds of conditions that presumably “take care” of the differences among children. But what does that mean, really?
We have people who post about “catchment” areas for putting kids into a school. But what about grade levels? What makes us assume that all kids should be accomplishments at the same moment regardless of their developmental age, as if a range of ages is sufficient for making these assumptions.
Tests used to be “normed” for age discrepancies. That is somewhat sensible, but even that isn’t a perfect kind of test. These PARCC tests are absurd in that they make no attempt to include any kind of differences other than grade level and teacher. How useless is this? I mean, really, what kind of a mind looks at education in this manner? I know, a mind that is data driven…a mind that needs to quantify everything into neat little categories that mean nothing in reality.
Back to IGE schools. If all students were able to merely progress at their own rates in reading and math, they would be more likely to reach their individual potential on their own schedule. They would have sequential, systematic, progressive education rather than being labeled and grouped as in need of intervention or challenge. They would be able to achieve the intended goals of education – when they were ready to absorb it.
Educators cannot put the cart before the horse. But we have continued to follow this stream for years and Yeats, with expectations of promotion from grade level to grade level and graduation at an appointed time.
For this reason, I can see why some wantvti replace the current system with computer assisted learning. They have a point. But education is so much more than mere academic performance. Students need guidance, love, warmth, music, arts, life skills, socialization, communications, historical context, and scientific experimentation. Computers can’t achieve all of these goals.
Structuring schools around an IGE model for math and language arts skills using some computer assisted learning at their own skill level and pace is an appropriate use of technology. Testing students of different achievement levels using a standardized PARCC test makes no true sense.
This is no attempt to truly educate children. This is an attempt to control decisions based on inadequate data. But since data “prove” whatever they state that they want to prove, they are shoved as appropriate and sufficient. Why? Because it validates a way to depriciate teachers and privatize education. It devalues experience and educational theory. It brings teacher pay to that of entry level workers and keeps them at that pay. This saves money …which is then going into the pockets of privatizers and computer company businesses…insteadvof into the teachers who deliver the education. By eliminating all the extra essential enriching and affective domain goals that an experienced living human being can present to the students, they justify all their VAM idiocy. They have reduced education to 2 numbers. This is not what I perceive as beneficial education for America’s children.
As a college student, I was employed to teach Foundations math to students who had low ACT scores but wanted to attend college. Others had low scores in reading/English. I discovered that they could quickly learn what was necessary and what they needed to continue in college. They had not been remediated appropriately, but they were not unable to perform as needed. This led me to believe that many kids don’t necessarily have the chance to “catch up” to where they need to be in the area of basic math and basic reading skills when they are in elementary school. If they were given the one on one attention needed to reach mastery of basic skills before entering middle and high , they would continue forward on equal footing and better able to learn what is necessary to complete any task set before them.
I guess this post may ramble, but I am trying to assimilate all that I acquired and ingested from my years as a student, a college student, a teacher of adult basic education and foundational education, a grad student, an acting principal/head teacher, a teacher of grades 1-9 throughout many years, and as a post graduate consumer of additional education and professional development. I simply think that education needs to be approached FOR the child, not for the SYSTEM.
I agree that we put students in age tracks and have often suggested that it is a problem. Many here argue against the CCSS by saying various aspects are age inappropriate, but I have never seen a discussion of exactly how many students of that age would find the material child appropriate and how many would find age appropriate material in fact inappropriate.
In my family my foster son was able to find student appropriate classes in the local zoned high school largely because they were mandated by federal legislation. My middle son was only able to find student appropriate classes by taking at least some classes outside the local zoned high school.
My references are generally focused on K-5 students. Maybe K-6. I believe that once a student is actually ready with the basics for reading, math, writing, and spelling, he/she is “set” to find a course of interest and do well. The problem is that some students are ready before reaching 7th grade as prescribed by law at age 13. Others simply aren’t ready to tackle and use content until they are 15-16. We have stigmatized the whole process by sticking kids in specific grade levels according to age. Maturity needs to be factored in to the equation, yes, but if IGE schools were the norm, students would be on course when they are able to move forward.
I agree. My middle son skipped sixth grade. We would have preferred that he could move with his classmates into junior high, bet the consensus was that the elementary school had little to offer him.
The basic truths about standardized tests, is that they fall into the famous Mark Twain dictum about lies and statistics.
The people paid to formulate the tests, have a very good idea of how to create a test with a bell curve. This automatically assumes failure by a percentage of students.
Those in power, have control but no real scientific basis for being able to say “ALL students should be able to…” at any age (forgetting grade level for the moment). Let’s try this with something very basic – all students by age 3 should be able to walk. Except that we have students who will never be able to walk through no fault of their own. This doesn’t track totally with cognitive development, but it illustrates the point.
So once you have this power, and you’re going to evaluate teachers against whatever it is you say students “should do”, you have power over the outcome because you set the bar. The bar isn’t clear like with sales or programming or phone calls. Because they’re literally making up based on a very far fetched formula a virtual student to replace the one in front of the teacher and saying how little Johnny SHOULD perform in an alternate reality.
Now, alternate Johnny is going to be put against another bar – the virtual average teacher. Yes you have to make up a theoretical teacher who would teach the virtual student and project how BOTH should perform.
You can now tell any story you like and it will sound very scientific and logical. We objectively tested little Johnny who should have performed as X and instead did Y as we predicted, so the teacher is responsible for the remainder.
The tests are not objective, the bars are not objective, the virtual Johnny/Teacher representing those bars are not objective, and the cut scores representing the bars that little Johnny/Teacher have to clear are far from objective as they never were (see NY).
This is why the tests are shams and should not be used in the way they are being used. They do not work in a statistical sense to prove the causality implied by VAM formulas. They don’t even inform instruction as an ASSESSMENT does. An assessment provides information to the teacher to help improve the student, a test measures them with no educational purpose except for the system. It’s set up for students to succeed or fail, not to learn. This black and white continuum for tests that we know are not scientific must stop.
On the Regents exams in NY, when teachers scored their own students, it was noticed there was a bulge between 61-64 with a highly unlikely number of students getting 65s (passing) pushed up from those numbers. The reason for that aside from the perception of teachers saving their own numbers, is that teachers also know the test is imperfect, and the difference between a student with a 63 and a 65 is practically non existent one. In the “real world” we do have passing and failing bars on certification exams, but those are usually at the end of a complete course of study, not piecemeal on a yearly basis – and the goals of those exams is to hold the student accountable, not their teachers.
What we can also say about this testing process is that we are measuring what students learn in 1 year, but what we care about is the lifelong education of that student. What if they learn Global History one year and forget it the next? What’s the point of that? They passed the test – but can’t apply anything about those lessons learned directly to their lives because their goal was the test – once that’s satisfied they can forget what they learned. We don’t follow a more comprehensive evaluation process though, seemingly because we want to isolate the teacher and evaluate them, whereas a more comprehensive exam makes any causality data much messier (never mind students who come in, in the middle of a year, who come from a different educational background and trying to sort out THOSE variables). It’s for the system, not for the students.
At some point, we will recognize how much of a farce VAM is, how politically and economically drive this whole process is, how distorted all the educational numbers are, and how inept our method of remedying poor educational outcomes really is in addition to how it’s measured.
It took us decades to build up teacher voice, and now, seemingly due to the massive mistakes of the richest, who profited even from their own failure, teachers will by popularity lose their voice and much of their recruiting power because of popular dis-satisfaction sowed by the belief that it’s poor teachers causing the failure of students and society.
As we see the inequity grow, with pockets of success, at what point will these profiteers and politicians own the failures of their own policies that declare their own system a failure that’s even worse than the one they’re tearing down – harmful to students, society, the economy, but very very profitable for them.
Very true.
M,
TY 4 your response! 🙂
The decision was made by an ignorant or outright corrupt judge who, like 90-percent of the public, doesn’t understand the outrageous power imbalance principals have over teachers. That is because principals are basically unsupervised. This decision will make it a 100 times worse for teachers who are already being hounded by these sociopaths and nitwits without a clue. These cretins, in turn, are backed to the hilt by school districts and are next to impossible to fire, although that is starting to change. At least with these kangaroo hearings, it gave teachers some semblance of a level playing field, assuming their “union” isn’t colluding the district like mine did. There is NO real chain of command in education, unlike corporations, where an employee can “go over a supervisor’s head” if they don’t like what the supervisor is doing.
Principals have ALWAYS had the power to ruin teachers’ careers. In the old days, few of them did because they knew kicking teachers to the curb, apart from the most serious cases, undermined staff morale and students’ right to a stable learning environment. Just because “few” teachers were “dismissed” doesn’t mean they COULDN’T be “dismissed.” As we know, if any of you bothered to read my posts on the subject, since I know more about it than 99.99 percent of the public and 99 percent of the posters here, few teachers even opt for the termination hearings. They take the severance agreements that educrats call “settlements” in exchange for a promise not to sue a school district.
One thing the liars who hate “tenure” fail to note is the fact school districts play fast and loose with the terminology. The fact is the only teachers who are considered “fired” or “dismissed” in the educrat world are those post-probationary employees who actually bother to go through the hearings and “lose.” However, school districts get rid of vastly more people than those who go through the hearings.
Here are other instances where teachers are fired for all intents and purposes:
Teachers are forced to resign.
Teachers are forced into early retirement.
Teachers who are probationary and are not “renewed.”
Teachers who resign in “lieu of a dismissal”; i.e., those who take the severance agreements after the district has decided to terminate their employment.
Teachers who go through the sham tribunals and are “dismissed.”
The only instance where teachers are NOT fired but are let go is in the event of a layoff due to a position being eliminated or because of budgetary reasons. Those are called “reduction in force.”
Bill reforming teacher dismissals goes to governor
If you want to consider the equality or at least minimum needed level of funding for public schools across a state, you can go back to the precedent of Rose v. Council for Better Education in 1989, which led to the Kentucky Education Reform Act.