Archives for category: California

In an interview in Salon, UCLA law professor Jonathan Zasloff says that Judge Rolf Treu’s decision against tenure and seniority was weakly reasoned. If it were a paper in one of his law school classes, he would give it a B-.

Among other curiosities, the decision represents an aggressive sort of judicial activism, which conservatives usually deplore. Zasloff says: “When we find a ruling we don’t like, we call it judicial activism; and conservatives banged on this drum for years and years and years, and are staying on it even in the wake of Bush v. Gore … But this is certainly a very, very aggressive decision and an example of judicial activism.”

Another curious aspect to the decision is that it embraces “disparate impact,” which conservatives typically oppose.

Zasloff says: “But as with all of these things, it really depends on whose ox is getting gored. And if this means that the California Supreme Court, [if it upholds the ruling], is now saying that as part of California’s equal protection law is that you can entertain things on a disparate impact theory, that would make California in a lot of ways quite progressive, judicially. Justice Robert Jackson famously talked about an area of law having invisible boomerangs. This could be one of them.

“One of the things, of course, if California uses a disparate impact theory for its equal protection claims, and does some very aggressive, progressive moves on that (if we’re gaming this out several years in the future), you could then see conservatives going to the federal Supreme Court and saying, “California using disparate impact in state equal protection law is itself a violation of federal equal protection law principles.” So there are a lot of moves to be made in the wake of this one.”

The decision is not only poorly reasoned but has a weak factual basis, says Zasloff:

“If [Treu's] ruling is going to be upheld, and if he’s going to make a case for it, he needs to find a lot of facts. There was a trial here, there was testimony here; but there seemed to be very few facts that the judge explicitly relied on for his decision. So, he says, “Well, we know that there are a lot of grossly inadequate teachers in the system, and we know that at least some of these grossly inadequate teachers are going to go to low-performing schools, so that means that it’s a constitutional violation.” Wait a minute. There are six or seven different steps in there that you’ve got to make. The teachers’ unions argued, “Wait a minute — the reason the teachers might be grossly inadequate is because of the schools that they’re in, not because of the teachers themselves.” You can think that that’s right, you can think that that’s wrong, you can think that that’s true, you can think that that’s false; but it would seem to me that you’ve got to make an argument as to why you think … these teachers are grossly inadequate. What in fact is going on there? What is going on in these schools? That is the kind of thing a trial judge can and should be doing, and the judge here just didn’t do it.”

Mother Crusader, written by New Jersey parent Darcie Cimarusti, determined to find out who was putting up the millions to beat teacher tenure and seniority in California. She examined the 990 tax forms for “Students Matter, the organization that led the battle against the California Teachers Union.

Students Matter spent more than $3 million from 2010-2012; the amount spent in 2013-14 has not yet been reported.

“The 990’s also reveal that the money behind the suit wasn’t Welch’s alone. The two largest contributions did indeed come from Welch; $550,000 from “The Welch Trust” and $568,357 from “LRFA, LLC” which is some sort of business entity that links directly back to Welch’s Infinera.

So that’s well over $1M from Welch.

The next biggest dollar amount came from none other than Eli Broad, who kicked in $200,000 to buy the Vergara ruling.”

“The next biggest dollar amount, $100,000, came from “Tammy and Bill Crown.” It took some digging around to figure out that William H. Crown, who seems to split his time between Chicago and Portola Valley, CA, is one of the heirs to Chicago billionaire Lester Crown’s fortune.

“Lester Crown, 80, chairman of Henry Crown & Co., the privately held company that is the vehicle for much of the family’s investments

“William H. Crown, 41, general partner in Henry Crown & Co.; president and CEO of another family-run investment company, CC Industries Inc. (son) Bucks: Regulars on Forbes’ billionaires list, Lester Crown and clan ranked 52nd this year with an estimated net worth of $4 billion.”

And then there is this: “A $30,000 donation from the Emerson Education Fund may be one of the most interesting, however. The Managing Director of the Emerson Education Fund is Russlynn Ali, who also just happens to be on the Students Matter Advisory Board.” Ali was at Education Trust before she became Arne Duncan’s Assistant Secretary of Education for civil rights. Recall that school segregation has been soaring in the past decade. Could it be because the U.S. Department of Education believes that tenure is a greater threat to civil rights than segregation?

Darcie likens Vergara to the Parent Trigger, which brings disruption to communities, not much else, and she concludes:

“It’s my greatest hope the Vergara decision does not spread to other states, and is overturned in California on appeal due to pressure from the actual parents, teachers and students who would be affected but this reckless ruling. I don’t know about you, but personally I’m pretty sick and tired of monied interests buying legislation, and now a court decision, that could potentially impact my (and your) kids and their teachers.”

Gary Rubinstein notes that the two expert witnesses for the plaintiffs were Raj Chetty, the nation’s leading advocate for VAM (basing teacher evaluation on student test scores) and Thomas Kane, who led the Gates’ Measures of Effective Teaching study.

Chetty throws in his speculation about how much money an entire class loses by having even one “ineffective” teacher, and Kane speculates that students learn nothing when they have an ineffective teacher. Neither the judge nor the experts cared that there was no testimony showing that any of the nine plaintiffs had any ineffective teachers, not even one.

Rubinstein wonders in this post about Kane’s definition of months of learning. He thinks that even the judge found it hard to accept his extreme views and ignored some of them.

EduShyster has figured out who were the real winners in the Vergara trial.

First, of course is the public relations firm behind Students Matter, which is now the go-to group for civil rights issues, just as if the Brown decision had a PR firm and was bankrolled by one wealthy guy. Then there are the lawyers, who will clean up as litigation to replicate Vergara moves from state to state. Also the Billionaires who love low-income children more than those who actually work with them every day. Lots of winners. Oh, yes, and students, although it is not so clear what they won.

Walt Gardner questions the validity of the Vergara decision. Like others, he notes the weak evidence on which the decision rests. A witness for the defense guessed that 1-3% of the state’s teachers were ineffective, and the judge cherry picked that offhand assertion as a fact.

Gardner believes the decision is a giant step toward busting unions and privatizing schools. Of course, this is exactly what the “reformers” want, although they prefer to hide their reactionary goals behind the false rhetoric of civil rights. Imagine how Dr. King would feel about a decision that attacked workers’ rights, using students as pawns. Exactly what will change for students if their teachers can be fired more easily? Is there a long line of superstar teachers waiting outside the doors of L.A.’s schools?

John Merrow says that the laws struck down by the Vergara decision are indefensible.


Teachers get tenure after 18 months, but in most states it takes three or four years.


Seniority, he says, discourages young teachers, who are first fired.


The process of removing an ineffective teacher is far too complex, requiring some 70 steps.


My view: The legislature should promptly remedy these defects in the fairest way possible to assure that it is not easy to fire teachers, but that teachers who face charges get a fair and timely hearing. I agree with Merrow that it should take 3-4 years to get tenure, not 18 months. As to seniority, I defer to the wisdom of David B. Cohen, who explained why seniority matters and how it can be improved.


All that said, the decision did not prove that these laws, whatever their defects, discriminate against minority children.


In a footnote, Merrow notes that California spends less on public education than almost every other state, at least 30% less than the national average. Let us see if Students Matter fights for adequate funding of the state’s public schools. I doubt it.


If we seek to remedy the needs of minority children, abolishing tenure outright is not a logical starting point.


Jordan Weissman, a business correspondent for Slate, read the Vergara decision and noted that the judge’s conclusion hinged on a strange allegation. The judge quoted David Berliner as saying that 1-3% of the teachers in the state were “grossly ineffective.” The judge then calculated that this translated into thousands of teachers, between 2,750 and 8,750, who are “grossly ineffective.”

Weissman called Professor Berliner and asked where the number 1-3% came from. Dr. Berliner said it was a “guesstimate,”

He told Weissman, “It’s not based on any specific data, or any rigorous research about California schools in particular. “I pulled that out of the air,” says Berliner, an emeritus professor of education at Arizona State University. “There’s no data on that. That’s just a ballpark estimate, based on my visiting lots and lots of classrooms.” He also never used the words “grossly ineffective.” And he does not support the judge’s belief that teacher quality can be judged by student test scores.

Dr. Berliner mailed Weissman a copy of the transcript to show that he did not use the term “grossly ineffective.”

Weissman then called Stuart Biegel, a law professor and education expert at UCLA, to ask him “whether he thought that the odd origins of the 1–3 percent figure might undermine Treu’s decision on appeal. Biegel, who represented the winning plaintiffs in one of the key cases Treu cited, said it might. But he thought that the decision’s “poor legal reasoning” and “shaky policy analysis” would be bigger problems. “If 97 to 99 percent of California teachers are effective, you don’t take away basic, hard-won rights from everybody. You focus on strengthening the process for addressing the teachers who are not effective, through strong professional development programs, and, if necessary, a procedure that makes it easier to let go of ineffective teachers,” he wrote to me in an email.”

This is a debate about the Vergara decision in the New York Times “Room for Debate,” featuring Eric Hanushek and Michael Petrilli supporting the decision, and Brian Jones and me criticizing it.

Brian Jones, by the way, is running for Lieutenant Governor of New York on the Green Party ticket, with Howie Hawkins running for Governor.

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).”

In an article in The Atlantic, Dana Goldstein explains the reasons for tenure–mainly to protect against politically motivated hiring and firing–and she assesses the likely effects of the decision.

She agrees that California’s current timeframe for tenure decisions is far too brief. Teachers need at least three years to demonstrate that they are qualified for the protection of tenure.

But “Is the premise of Treu’s ruling correct? Will axing tenure and seniority lead directly to better test scores and higher lifetime earnings for poor kids?”

She concludes that: “Getting rid of these bad laws may do little to systemically raise student achievement. For high-poverty schools, hiring is at least as big of a challenge as firing, and the Vergara decision does nothing to make it easier for the most struggling schools to attract or retain the best teacher candidates.”

And she nails her argument here:

“The lesson here is that California’s tenure policies may be insensible, but they aren’t the only, or even the primary, driver of the teacher-quality gap between the state’s middle-class and low-income schools. The larger problem is that too few of the best teachers are willing to work long-term in the country’s most racially isolated and poorest neighborhoods. There are lots of reasons why, ranging from plain old racism and classism to the higher principal turnover that turns poor schools into chaotic workplaces that mature teachers avoid. The schools with the most poverty are also more likely to focus on standardized test prep, which teachers dislike. Plus, teachers tend to live in middle-class neighborhoods and may not want a long commute.

“Educational equality is about more than teacher-seniority rules: It is about making the schools that serve poor children more attractive places for the smartest, most ambitious people to spend their careers. To do that, those schools need excellent, stable principals who inspire confidence in great teachers. They need rich curricula that stimulate both adults and children. And ideally, their student bodies should be more socioeconomically integrated so schools are less overwhelmed by the social challenges of poverty. Of course, all that is a tall policy order; much more difficult, it turns out, than overturning tenure laws.”


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