John Thompson: Who Is Supporting the Original Vergara Decision?

Two legal scholars replied that they aren’t anti-teacher, and their brief is limited to a specific aspect of California constitutional law. I wonder if they would follow the same logic and write an amicus brief in support of a narrow point in the Citizens United case. After all, Vergara is just one part of a corporate assault on unions, collective bargaining and traditional public education governance; Citizens United was a similar attack on traditional electoral politics. But here is the vexing problem: legal scholars would never come out in support for Citizens United without conducting a careful review of the facts as well as the legal logic of the case. I wonder how many Vergara supporters have even read the evidence presented by the plaintiffs at trial. Had they done so, I wonder if they would see the disconnect between the experts’ narrow research methodology, their broad expressions of personal opinions on the witness stand, and the real world.

The amicus brief says that five challenged statutes should be stricken because “they guarantee education ineffectiveness without regard to the educational rights of students.” “Guarantee” is a strong word. My view is that the striking of those statutes would virtually guarantee the acceleration of the exodus of teaching talent from inner city schools. And, that gets to the heart of the issue. The case is based on opinions versus opinions. I think it is fair to say that the beliefs of the noneducators behind Vergara are held by a minority of scholars, and that the preponderance of evidence is that the contested statutes are imperfect but basically beneficial to poor children of color. I wonder if the amicus signers are aware of the huge body of social science and education history that argue against the plaintiff’s claims. But, the amicus argues that it is the state law, not the hypotheses of corporate reformers, which must carry the burden of “strict scrutiny.”

I wonder if the amicus signers are aware that the Vergara trial was fundamentally a venue for market-driven reformers’ high-dollar, anti-union publicity campaign, which presents adorable images of students who they claim are victims of the due process rights of teachers. Expert witnesses, like the Gates Foundation’s Tom Kane, presented theoretical research (mostly dealing with average outcomes) that had little or no relevance to the policy questions at hand. Their regression studies were basically props, providing numbers (of dubious relevance) for beautiful multi-colored graphics. The plan is to take their well-funded dog and pony show across the nation. For them, it’s a win-win, political hardball strategy. If they lose at trial or on appeal, teacher-bashers, like the Vergara II campaign known as Campbell Brown’s The 74, can continue with their meme, that supposedly it is “bad teachers,” protected by bad unions that keep poor children of color down. If they win, two of the nation’s largest unions are crippled, meaning that the coalition which seeks to stand up to the One Percent is undermined.

Much of the problem is rooted in segregation. There’s a huge gulf between life in the Ivory Tower and the inner city. I wonder if the signers would support a corporate effort to strip college professors of tenure. Public school teachers don’t have the same free speech rights on the job as university professors, but we need the due process rights which allow us to speak up for our students during special education IEP meetings, in student disciplinary hearings, and in debates over policy. These legal scholars not only poo-poo the claim that public school teachers have First Amendment rights, but would strip us of our legislative victories that protect the clash of ideas in the urban classroom.

I suspect the amicus signers sent their kids to elite schools where nobody would try to silence teachers defending the rights of affluent students to receive a holistic education, not just bubble-in malpractice. I wonder if they are aware of the pro-testing litmus tests that the corporate reformers who push Vergara have helped impose, such as “exiting” teachers in SIG schools who don’t pledge fidelity to teach-to-the-test under the pretense that they are “culture-killers.” Do they understand that the challenged laws have helped California resist this destructive micromanaging? Don’t they realize that striking down those laws could virtually guarantee the victory of the test, sort, reward, and punish school of output-driven reformers?

I also wonder if the signers would question their assumption that they are on the side of justice if they read Tom Kane’s latest piece which, like so many other expressions of his opinions, actually argue against Vergara. Kane argues that the education problem “is state law, combined with teacher’s employment preferences.” The Court must disregard teachers’ employment preferences because, he says, it would be too expensive to recruit and retain teachers in high-need districts. Even a $20,000 bonus has been shown to be an inadequate incentive for moving top teachers to the inner city. So, the Court must undermine duly-enacted protections against forced transfers of teachers.

That raises the question of why Kane doesn’t insist that the best and the brightest, i.e. elite college professors, be forced to transfer to the urban classroom. After all, if they have the intellect (and the interpersonal skills?) to earn tenure at elite universities, those professors must surely have the talents that would lift children in the toughest schools out of poverty.

I kid Kane, but he’s awfully disconnected from reality. His arguments make it sound like a key purpose of Vergara is to justify his pet project, his persuading of Bill Gates and the federal government into coercing more than 40 states to adopt his dubious test-driven approach to teacher evaluations. When not campaigning for Vergara, Kane repeatedly protests his mandates for value-added evaluations weren’t a fiasco, and others should be blamed for their costly failures. Now, the economist says that the Court of Appeal incorrectly ruled: “Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers.” But, Kane still ignores the costs of his alternative in terms of driving teaching talent out of the profession in response to taking away our hard-earned legal rights.

Kane then shows how he misunderstands the nature of public education when criticizing the Court’s “view of the crux of the case” by concluding. “Plaintiffs still could have demonstrated a facial equal protection violation, however, by showing that the challenged statutes, regardless of how they are implemented, inevitably cause poor and minority students to be provided with an education that is not ‘basically equivalent to’ their more affluent and/or white peers.”

Once again, Kane remains oblivious to the myriad of ways that his next argument undermines Vergara’s logic. Rather than articulate a facial equal protection violation, he asserts “the challenged statutes “inevitably cause” poor and minority students to be provided with a lower quality education” in two ways:

The negative impact can take two forms, depending on the district leadership’s response to the statutes: First, if the district leadership chooses not to intervene in the flow of teachers moving between its own schools and between districts.

The second way in which the negative effects can be felt, however, is when district leaders do take counter-measures.

Kane further complains that “often collectively bargained, school districts cannot simply force effective teachers to move to high-needs schools to take the place of their less effective colleagues.” It never occurs to the economist that the personalities, backgrounds, and people skills required to teach in the inner city may be very different than those of teachers in low-poverty schools.

Let’s think for a second what Kane is saying. The life of a policy-maker is hard. Problems are complex and intertwined. The preferences of employees can’t simply be ignored because they still would have the freedom to quit and move elsewhere. So, the Court should order lawmakers to accomplish that task. Legislators should then mandate the crafting of a whole new set of laws that impose Kane’s metrics that are inherently biased against inner city teachers in order to attract more talent to the inner city!?!?