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.”
Diane Ravitch's blog 
We’ll find out this Thursday if I will get accepted into the law school I applied at. If I do, I will be pursuing a career of resisting this reactionary, right-wing means of using the law to harm students, educators, and communities.
Extremists Eli Broad, David Welch, Ted Boutrous, and Ben Austin even mentioning the phrase “civil rights” is both repugnant and revolting. If their horrible Vergara decision stands, it means the very teachers that have consistently defended our student’s rights to appropriate IEPs, language programs, culturally sensitive curricula, and so on will be persecuted and culled. The timing of pushing corporate curricula like CCSS simultaneously with using legal tools to silence the voices of professionals isn’t coincidental. These people have a lot of time, and even more money on their hands.
Agree. I wish you the best. My niece is finishing up law school after she completed a forensic science degree in 3 years. She is smart and articulate and I keep trying to convince her to take up the cause!
Where are the law students–this is an opportunity for someone to get their name out there.
Here’s hoping you are accepted into law school!!
We need more heroes like you.
There are a lot of civil rights violations in low income schools, but the vast majority of them are perpetrated by people well above the pay grade of a teacher. Administrators do what the communities will let them get away with, whether that is allowing ineffective teachers to continue impacting kids, not being hands on enough to know the difference between a truly ineffective teacher and one that simply needs support, depriving students of their Special Education services or meaningful ESOL programs, making budgetary decisions that result in enormous class sizes, creating a school climate that drives good teachers out and disengages the ones who stay, labeling school staff as “troublemakers” or “insubordinate” when they try to involve and educate parents, etc.
This is the most frustrating and tiresome aspect of school reform for me. All this money and effort is so misguided. When a corporation performs poorly, the CEO is accountable. When the military experiences setbacks in Afghanistan, nobody spends billions of dollars trying to blame or discharge the poor soldiers on the ground who are often hastily prepared and lack the necessary equipment to do the job. People look to the President and the top brass.
From a purely cynical perspective, these reformers aren’t getting a whole lot of return on investment spending all this money trying to make it easier to fire teachers, when half of them will quit on their own in the first 5 years due to the fact that the job, as it is today, sucks. Anyone who spends any time at all in low performing, high poverty schools knows that the one person who can really make a difference (other than a parent) is the principal.
Did my piece in the San Francisco Chronicle make it to you?
Sent from my iPhone
No, David Kirp. Please send.
I have in mind three contributions to the discussion on this blog of the Vergara decision. This is the first. They will be lengthy [tedious, I know, for many] but, IMHO, they provide crucial information, links, and context in a relatively brief space.
Before I begin: a moment of respectful silence for three brave young men—Michael Schwerner, James Chaney, and Andrew Goodman—genuine heroes of the real civil rights movement. Today is the fiftieth anniversary of their assassinations at the hands of cowards.
LATIMES, “Readers React,” 6-21-14:
“The elephant in the classroom that Hiltzik ignores is that before this court decision, any teacher in the Los Angeles Unified School District who managed to get through less than two years on the job would be virtually impossible to fire unless they actually committed a crime.
Hiltzik admits that up to 3% of teachers should probably be fired, but he doesn’t think this is a big deal. In fact, 3% of 275,000 teachers in California is 8,250 who are too incompetent to be in a classroom.
How would removing protections for these bad apples make it harder to recruit and keep good teachers?”
Link: http://www.latimes.com/opinion/readersreact/la-le-0621-saturday-teacher-tenure-20140621-story.html
The impact on the general public of the Vergara decision is felt directly here. Much to digest. For the moment let’s just go with the 3% argument. From the article referred to in the above, the last six paragraphs:
[start quote]
Among the remarkable features of Judge Treu’s ruling is the absence of any understanding of how to provide better teachers to students more consistently, or even how to measure quality. He seems to think it’s a simple matter of pointing at “bad” teachers and running them out the door.
Treu barely acknowledges the tools administrators commonly use to deal with problem teachers, other than lengthy and costly firing procedures. He glosses over the statistic mentioned in his own courtroom that the number of “grossly ineffective” teachers in California–he doesn’t specify how they’re defined–amount to 1% to 3% of the total. In absolute terms that may be a big number in a state with 275,000 teachers, but it’s hard to see how, even if they are all ineffective and all concentrated in the disadvantaged districts he says he cares about, it rises to the level of a constitutional offense warranting removing job protection for all teachers.
Treu places great faith in a study by a group of Harvard researchers led by Raj Chetty that purported to show that bad teachers produced a lifetime deficit in earning among their pupils, while good teachers pointed them to financial success. But he didn’t acknowledge that the Chetty study has come under widespread criticism, not only for its statistical analysis, but for its reliance on test scores as a measure of teacher quality.
And that’s the key to all these issues of teacher quality: How do you measure it? Eviscerating the due process protection of teachers on the job won’t guarantee quality; it will only give administrators more leeway to harass or promote teachers for any reasons they choose.
What’s sad about this lawsuit is that it offers parents who are justly concerned about their children’s futures a remedy of pure snake oil. As Cohen pointed out, Treu’s ruling won’t burden the wallet of David Welch–it might even lighten the strain.
But it will make good teachers harder to recruit and harder to keep. And it will ensure that the real causes of California’s educational decline–causes that require money to solve–will go utterly unaddressed. Arne Duncan and John Deasy should be very pleased.
[end quote]
Link: http://www.latimes.com/business/hiltzik/la-fi-mh-why-that-ruling-20140611-column.html#page=1
inquiring minds want to know: just where does this supposedly precise and indisputable 3% talking point originate?
From the judge’s decision in the Vergara case, first full paragraph on p. 8 (16 total pages):
[start quote]
There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms. Dr. Berliner, an expert called by State Defendants, testified that 1-3% of teachers in California are grossly ineffective. Given that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250. Considering the effect of grossly ineffective teachers on students, as indicated above, it therefore cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said teachers hold their positions.
[end quote]
Link: https://www.documentcloud.org/documents/1193670-tenative-vergara-decision.html
So its 1-3% not 3%. But no matter: it came out of the mouth of “an expert” called by the defense. It must be pure gold aka $tudent $ucce$$.
As the tortoise might have said to the hare: N-o-t s-o f-a-s-t!
[start quote]
This seemed like a fairly important piece of the decision—if you’re going to argue in court that a state law is dooming children to second-rate educations, you ought to be able to quantify the problem. Politically, it also seemed liked a pretty awful indictment of the state government if officials knew for certain that so many useless teachers were lounging around California’s classrooms. But where did this number come from?
Nowhere, it turns out. It’s made up. Or a “guesstimate,” as David Berliner, the expert witness Treu quoted, explained to me when I called him on Wednesday. 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.”
The phrase appears to have been Treu’s shorthand to describe teachers whose students consistently perform poorly on standardized tests. But Berliner is a well-known critic of using student test scores—or “value-added models,” in the parlance of education experts—to measure teaching skills. In part, that’s because research suggests that teachers don’t really control much of how their pupils perform on exams; according to the American Statistical Association, they influence anywhere between 1 percent and 14 percent of the variation in students’ scores. As result, teachers often don’t deliver the same results year after year.
Still, if you look at enough data, there are always a few teachers who consistently underperform on test results. “There’s an occasional teacher who shows up really good a few years in a row,” Berliner said. “There are a few who show up really bad.” And that’s where the now-infamous statistic comes in. During a deposition, Berliner told me, the plaintiffs’ lawyers asked how many teachers deliver low test scores year after year. He didn’t have a hard number, so he said 1 percent to 3 percent, which he thought sounded suitably small.
[end quote]
Link: http://www.slate.com/articles/business/moneybox/2014/06/judge_strikes_down_california_s_teacher_tenure_laws_a_made_up_statistic.html
I provided extended excerpts because: 1), I don’t want the shills and trolls who visit this blog to accuse me of their tactics, i.e., not providing context, lying by omission, and torturing and massaging numbers; and 2), I will be referring to them again in other contributions.
Bottom line: the very precision of the 3%, or 1-3%, is in stark contrast to its unfounded accuracy that is extremely misleading. I humbly ask viewers not to castigate David Berliner, a true friend of public education, but to consider a genuinely disturbing fact: why didn’t the judge ask where Berliner got his number? In the entire 16 pages of the Vergara decision this number of “grossly ineffective teachers” is labeled “significant” and I do not not think it is an exaggeration to assert that if you took out the paragraph on p. 8 that contains the number—you have come close to eviscerating the entire factual and logical basis of the decision, not to mention its emotional appeal and utility as a bludgeon against public schools and staff.
I end by returning to the “Readers React” piece with which I began. That 1-3%/3% is what Joel Best calls a “mutant statistic,” i.e., “one garbled almost beyond recognition.” [DAMNED LIES AND STATISTICS: UNTANGLING NUMBERS FROM THE MEIDA, POLITICIANS AND ACTIVISTS, updated edition, 2012, p.4]
The best [worst?] example he cites started with the Children’s Defense Fund’s THE STATE OF AMERICA’S CHILDREN YEARBOOK—1994: “The number of American children killed each year by guns has doubled since 1950.” This mutated into the following: “Every year since 1950, the number of American children gunned down has doubled.” Leaving aside contextual factors like increase in population [so that there are more children in 1994 than in 1950] the two statements mean very very different things. Basically, the second means that EACH year the number doubled: “By 1995, when the article was published, the annual number of victims would have been over 35 trillion—a really big number, of a magnitude you rarely encounter outside economics or astronomy.” [For all quotations and information, see the above work by Joel Best, pp. 1-3]
Does the 1-3%/3% qualify displace that? Nope. But it’s a whopper, but without the beef and lettuce and tomatoes, nonetheless.
This particular mutant statistic deserves a two-fer.
For the judge:
“He uses statistics as a drunken man uses lamp posts — for support rather than for illumination.” [Andrew Lang]
But he’s up-to-date because he doesn’t just rely on what used to work in the good old days so he supplemented a very old practice with numbers:
“In ancient times they had no statistics so they had to fall back on lies.” [Stephen Leacock]
😎
TO BE CONTINUED
What percentage of teachers are falsely accused or are the victims of vindictive, petty and tyrannical administrators and/or school boards?
“I humbly ask viewers not to castigate David Berliner, a true friend of public education, but to consider a genuinely disturbing fact: why didn’t the judge ask where Berliner got his number?”
Treu’s opinion may be terrible, but it’s not the judge’s job to interrogate witnesses. The defendants had the chance to ask Berliner that question. They also had the chance to tell the judge what the numbers were based on in the post-trial briefing.
It’s possible that the full transcript would provide some insight on the source of the 1% to 3% figure. In the tiny excerpt Berliner sent to Salon, Berliner testified that it was “correct” to say that “it would be reasonable to estimate that 1 to 3 percent of teachers . . . consistently have strong negative effects on student outcomes no matter what classroom and school compositions they deal with.”
FLERP!: yours is a helpful observation.
I left out a word: “why didn’t the judge ask HIMSELF where Berliner got his number?” [The “himself” is important because, IMHO, mathematical intimidation and obfuscation—aided by innumeracy—is clearly at play in the judge’s Vergara decision.]
The transcript I used is dated 1/30/2014; it is clearly marked right at the beginning of 191 pages “UNCERTIFIED, ROUGH-DRAFT TRANSCRIPT.” It is basically witnesses for the plaintiffs, including Dr. Raj Chetty. It does not include the disputed testimony of Dr. David Berliner so both the date and the aforementioned are a clue to the fact that it is not a complete record of all testimony.
And I agree on the need for all of us to have the full transcript in hand [better, a file that sits nicely on our computer’s desktop!] so as to be able to see exactly who said what.
Thanks for the heads up.
😎
Do you have a link to the transcript you refer to? I don’t think I’ve seen it.
FLERP!: as requested—
Link: http://www.vergaratrial.com/storage/documents/2014.01.30_Rough_am_session.txt
Again, this is neither the official “gold standard” transcript nor is it complete. *I just went page-by-page and please correct me if I am wrong but the whole 191 pages is the January 30, 2014, AM session, testimony of Dr. Chetty. I actually regard this as a strength, since it is so focused on one of the outstanding VAM defenders of the pro-charter/privatization movement.*
If you happen to come across a PDF file or the like of the testimony in the entire trial, please pass along the link.
😎
I do believe that this is a case with the kind of magnitude that requires a trial judge to “bullet-proof” his opinion by demonstrating his analysis and the facts he considered. The trial court decisions I’ve read from the school finance cases — which are Vergara’s ancestors — generally were bullet-proofed and arguably overstuffed at 50, 60, 70 pages long.
I’m continually amazed at the mentality of those who feel ‘data’ is needed to support propositions/conclusions offered as ‘obvious’! It seems all too often those presenting unbiased data or ‘peer reviewed studies’ to support one side or the other select ‘articles’ bought and paid for by special interests, whether under contract or as pay back for funding or their school or department.
Of course their are many reasons kids fail in school. Protesting the end of tenure and termination standards are we know them is ‘obviously’ not in ‘the kids’ best interests.
P.S. We have too many lawyers and decisions based on biased interpretations of the law as it is. Everyone’s interests can’t be protected all the time. Let’s simplify rather than complicate the issue and put the interests of the kids first, once and for all.
LAUSD does whatever the heck it wants to when it comes to spending, hiring, firing, etc. The bureaucratic abuse has become particularly obscene under John Deasy and the Broad of education. The ipad debacle is enough for even the dumbest of taxpayers to figure out exactly what the district is all about. Individual and groups of teachers need to hire lawyers to sue UTLA and CTA for their lack of representation. California taxpayers need to sue LAUSD for misappropriation of funds. You cannot win unless you know how to play the game.
This is all part of the master plan to make privatization of public education occur more smoothly. It gives corporations the right to hire “at will employees” and fire the old more highly paid ones without a hassle. http://teachersdontsuck.blogspot.com/ http://wsautter.com/
You know, it’s funny. We keep hearing about teachers only needing two years of employment to get “tenured,” but who in California ever gets placed on the tenure track the minute they’re hired?
Unless you’re a high-demand math or science teacher, no one. All new teachers are hired as long term subs in California, and then — if they’re lucky, and they’ve been rehired for the next year, and their employer follows the Ed Code — then they might get on the two-year track, in a couple of years…
Usually the school districts try to keep the new teachers as LT subs for as long as they can get away with it!
So in effect, it takes at least four years for a new teacher to get tenure. And of course “tenure” is not tenure at all. Only some university professors get actual tenure. In California’s K-12 system tenure is just due-process discipline.