Archives for category: California

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.”

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.”

I was curious to learn whether the plaintiffs in the Vergara trial actually had “grossly ineffective teachers.” The answer is “no, they did not.”

Not only did none of them have a “grossly ineffective” teacher, but some of the plaintiffs attended schools where there are no tenured teachers. Two of the plaintiffs attend charter schools, where there is no tenure or seniority, and as you will read below, “Beatriz and Elizabeth Vergara both attend a “Pilot School” in LAUSD that is free to let teachers go at the end of the school year for any reason, including ineffectiveness.

It turns out that the lawyers for the defense checked the records of the plaintiffs’ teachers, and this is what they found (filed as a post-trial brief in the case): (See pp. 5-6).

“Plaintiffs have not established that the statutes have ever caused them any harm or are likely to do so in the future. None of the nine named Plaintiffs established that he or she was assigned to an allegedly grossly ineffective teacher, or that he or she faces any immediate risk of future harm, as a result of the challenged statutes. The record contains no evidence that Plaintiffs Elliott, Liss, Campbell or Martinez were ever assigned a grossly ineffective teacher at all. Of the remaining five Plaintiffs, most of the teachers whom they identified as “bad” or “grossly ineffective” were excellent teachers. Because none of the five Plaintiffs are reliable evaluators of teacher performance, their testimony about the remaining purportedly ineffective teachers should not be credited. Nor could Plaintiffs link their assignment to purportedly “bad” or “grossly ineffective” teachers to the challenged statutes. Not a single witness claimed that any of Plaintiffs’ teachers were granted permanent status because of the two-year probationary period, would have been dismissed in the absence of the dismissal statutes, or would have been laid off had reverse seniority not been a factor in layoffs. Indeed, Plaintiffs did not call any administrator of any of Plaintiffs’ schools to corroborate their testimony or in any way connect the teachers they identified to the statutes they challenge. Furthermore, any threat of future harm to Plaintiffs caused by the challenged statutes is purely speculative. Plaintiffs Elliott and DeBose are high school seniors who will almost certainly graduate in spring 2014. Plaintiffs Monterroza and Martinez both attend charter schools that are not subject to the challenged statutes at all. Beatriz and Elizabeth Vergara both attend a “Pilot School” in LAUSD that is free to let teachers go at the end of the school year for any reason, including ineffectiveness. As for the remaining three Plaintiffs, there is no concrete, specific evidence supporting any claim that they will be assigned to grossly ineffective teachers due to the challenged statutes; instead, their claims are based on pure speculation.”

One of the plaintiffs (Monterroza) said that her teacher, Christine McLaughlin was a very bad teacher, but McLaughlin was Pasadena teacher of the year and has received many awards for excellent teaching (google her).

Surely, there must be “grossly ineffective” teachers in the state of California, but no evidence was presented that the plaintiffs in the case had teachers who were “grossly ineffective.”

What about turnover of teachers in high-poverty schools in California:

Betty Olson-Jones, former president of the Oakland Education Association, testified: “Oakland has an extremely difficult time retaining teachers. The statistic that I was always struck with was of the beginning teachers in 2003, there were about 300 who began in Oakland, and by 2008 about 76 percent of those left. Generally, the turnover rate is about 50 percent, even higher among some — in some schools. I feel that part of the reason is that the conditions are very difficult, very high-poverty rate in Oakland, lack of support services. Oakland has very few counselors, nurses, one librarian left, high class size, high standard of living in the bay area. Children come with a lot of needs that aren’t fulfilled, and teachers are expected to make up that difference and are agonized often by their inability to do so because they lack the support and the conditions to do so.”

What about working conditions? Anthony Mize taught at the Vergara sisters’ school. He testified: “There was a back-to-school night where there was drive-by shooting 30 to 50 yards from behind my classroom. I remember talking with a mother at the time. And I was just about to say to the mom, ‘and your son has trouble paying attention,’ and seven to nine shots rang out.”

None of this testimony impressed the judge.

Judge Rolf M. Treu, who decided the Vergara case , declared that he was shocked, shocked to learn from Professor Raj Chetty and Professor Thomas Kane of Harvard about the enormous harm that one “grossly ineffective” teacher can do to a child’s lifetime earnings or to their academic gains.

How did he define “grossly ineffective” teacher? He didn’t. How did these dreadful teachers get tenure? Clearly, some grossly incompetent principal must have granted it to them. What was the basis–factual or theoretical–that the students would have had high scores if their teachers did not have the right to due process? He didn’t say.

The theory behind the case–as I see it–is that low test scores are caused by bad teachers. Get rid of the bad teachers, replace them with average teachers, and all students will get high test scores. You might call it the judicial version of No Child Left Behind–that is, pull the right policy levers–say, testing and accountability–and every single child in America will be proficient by 2014. Congress should hang its collective head in shame for having passed that ridiculous law, yet it still sits on the books as the scorned, ineffective, toxic law of the land.

You might also say that Judge Treu was regurgitating the unproven claims behind Race to the Top, specifically that using test scores to evaluate teachers will make it possible to weed out “bad teachers,” recruit and reward top teachers, and test scores will rise to the top. Given this theory, a concept like tenure (due process) slows down the effort to fire those “grossly ineffective” teachers and delays the day when every student is proficient.

Relying on Chetty and Kane, Judge Treu is quite certain that the theory of universal proficiency is correct. Thus, in his thinking, it becomes a matter of urgency to eliminate tenure, seniority, and any other legal protection for teachers, leaving principals free to fire them promptly, without delay or hindrance.

Set aside for the moment that this decision lacks any evidentiary basis. Another judge might have heard the same parade of witnesses and reached a different conclusion.

Bear in mind that the case will be appealed to a higher court, and will continue to be appealed until there is no higher court.

It is not unreasonable to believe that the California Teachers Association might negotiate a different tenure process with the Legislature, perhaps a requirement of three years probationary status instead of two.

The one thing that does seem certain is that, contrary to the victory claims of hedge fund managers and rightwing editorial writers, no student will gain anything as a result of this decision. Millions more dollars will be spent to litigate the issues in California and elsewhere, but what will students gain? Nothing. The poorest, neediest students will still be in schools that lack the resources to meet their needs. They will still be in schools where classes are too large. They will still be in buildings that need repairs. They will still be in schools where the arts program and nurses and counselors were eliminated by budget cuts.

If their principals fire all or most or some of their teachers, who will take their places? There is no long line of superb teachers waiting for a chance to teach in inner-city schools. Chetty and Kane blithely assume that those who are fired will be replaced by better teachers. How do they know that?

Let’s be clear. No “grossly ineffective” teacher should ever get tenure. Only a “grossly ineffective” principal would give tenure to a “grossly ineffective” teacher. Teachers do not give tenure to themselves.

Unfortunately, the Vergara decision is the latest example of the blame-shifting strategy of the privatization movement. Instead of acknowledging that test scores are highly correlated with family income, they prefer to blame teachers and the very idea of public education. If they were truly interested in supporting the needs of the children, the backers of this case would be advocating for smaller classes, for arts programs, for well-equipped and up-to-date schools, for after-school programs, for health clinics, for librarians and counselors, and for inducements to attract and retain a stable corps of experienced teachers in the schools attended by Beatriz Vergara and her co-plaintiffs.

Let us hope that a wiser judicial panel speedily overturns this bad decision and seeks a path of school reform that actually helps the plaintiffs without inflicting harm on their teachers.

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