Lessons From Vergara v State of California: “It Shocks the Conscience”

Teachers unions are furious, reformers are happy -- but it could all flip on appeal

The landmark decision in Vergara v State of California will ... No, wrong Vergara!
The landmark decision in Vergara v State of California will … No, wrong Vergara!

I’ve been struggling all day to put together a cohesive narrative about this landmark decision. (I suggest reading the decision itself. It’s short, well-written, dramatic.) But there are so many aspects to it, and so many things I think you should read about it, that I’ve scrapped all that and will instead scattershoot, hitting on the major points I want to make. Yes, it’s lazy. I’m fine with the C- grade you’re already scribbling on this post, so long as you read on.

First, the background for those of you not following along. The first couple graphs of this Politico story give a neat summation of the decision and its educational/political reverberations:

A court ruling on Tuesday striking down job protections for teachers in California deals a sharp blow to unions — and will likely fuel political movements across the nation to eliminate teacher tenure. Los Angeles Superior Court Judge Rolf M. Treu found five California laws governing the hiring and firing of teachers unconstitutional. But it was his language, more than the ruling itself, that will shake the political debate.

Treu found that the statutes permit too many grossly incompetent teachers to remain in classrooms across the state — and found that those teachers shortchange their students by putting them months or years behind their peers in math and reading. He ruled that such a system violates the state constitution’s guarantee that all children receive “basic equality of educational opportunity.” In a blunt, unsparing 16-page opinion, Treu compared his ruling to the seminal federal desegregation case Brown v. Board of Education, decided 60 years ago last month. “The evidence is compelling. Indeed, it shocks the conscience,” Treu wrote.

Exciting, no? Okay, to my points:

1. What does this have to do with North Texas/Dallas County schools? If you believe reform happens in a vacuum, nothing. There is much discussion of the money behind this lawsuit (more on that soon) funding similar lawsuits in other states, but that’s not going to happen in Texas — the unions aren’t strong enough here to need busting, and the laws protecting seniority and tenure in California were much easier to attack from a legal standpoint. But to say a possible wave of reform-minded lawsuits arguing similar things — that such inequity is at least in part caused by an inability to fire what the judge called “grossly ineffective” teachers — wouldn’t affect reform efforts in Dallas is wrong. It would be like saying that the wave of gay-marriage ban laws being struck down had nothing to do with Minnesota declaring gay marriage legal in 2013. Far-reaching court decisions like this can have a domino effect. In fact, I happened to be in Mike Miles’ office when a staffer read to him a summary of the news story about the Vergara v. Calif ruling. There was much nodding and smiling around the table. The implication was clear: Every high-profile victory for reform helps his efforts to transform DISD.

2. Why do reformers like Miles (and the evil billionaire cronies who support him!) feel like this court ruling matters? Well, for one reason, a judicial ruling carries so much more weight with moderate observers than does a political argument. The EduWonk post on this makes the point very well:

That’s why today may be recalled as the day when reform seriously shifted to the courts. Reformers struggle in the hothouse of politics. The education system is decentralized, the special interests organized and strong, the public somewhat disengaged. And reformers aren’t all that good at politics anyway – and their opponents are.  The lesson many will take away from today’s events is that you’re better off in the courts than the arena.

3. Is this another blow for unions? Yes, of course. A lot of people think I’m anti-union, and that I would rejoice over this. Not true. My grandfather was in a steelworkers’ union, my former father-in-law a union foreman in a welding company. I loved talking to them about how important unions are in protecting workers’ rights and pay. And let’s give them equal voice here. First, from the L.A. teacher’s union:

This decision today is an attack on teachers, which is a socially acceptable way to attack children.

From the NEA president:

Today’s ruling would make it harder to attract and retain quality teachers in our classrooms and ignores all research that shows experience is a key factor in effective teaching. … Let’s be clear: This lawsuit was never about helping students, but is yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education.

And from the ATF president:

Today, as the Vergara decision was rendered, thousands of California classrooms were brimming with teachers teaching and students learning. They see themselves as a team, but sadly, this case now stoops to pitting students against their teachers. The other side wanted a headline that reads: “Students win, teachers lose.” This is a sad day for public education. … It’s surprising that the court, which used its bully pulpit when it came to criticizing teacher protections, did not spend one second discussing funding inequities, school segregation, high poverty, or any other out-of-school or in-school factors that are proven to affect student achievement and our children.

4. Do the unions have a point? Yes — but only one. (Although it’s a BIG one.) As you may have guessed, I fully understand the effect immense poverty has on education. However, as Miles told me yesterday, he never hears great teachers complain about how poor the kids are. That may be overstating it, but throwing out the “other factors” excuse in the AFT response is a red herring. Sure, there are many factors that contribute to inequitable opportunity for education, but if the judge thinks the protection of “grossly inadequate” teachers is a crucial one, then the ruling isn’t absurd. (Did he have enough evidence to think this? Another question entirely, which we’ll get to.)

Also, this sentence drains me of all life force: “[Y]et another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education.” It’s silly and absurd. Yes, Bill Gates is the problem. Yes, Todd Williams is the problem. Yes, the Rachofskys are the problem. Please. And, yes, I know that this lawsuit was funded by an organization started by a billionaire. Guess what? Billionaires are fed up with crappy public schools, just like most people, and they have the money to do something about it. Good on ’em.

And the idea that good teachers may not want to stay in education now? True and not true. Some good experienced teachers I’m sure rightly feel like that they are the baby being thrown out with the bathwater. Why are they losing their hard-earned rights? But advocating a merit-based system will always get you a new crop of people who feel their excellence will be recognized.

5. So where do the teacher’s unions have a point? When they call the decision “poorly reasoned.” And celebrating a poorly reasoned judicial argument, just because it gets you an outcome you like, is always dangerous ground.

The best analysis of this by far has been the work of Kevin Welner. If you don’t know him, get his work on your radar. He’s a former attorney, the director of the National Education Policy Center, and a general smart-thinking all-around badass. (Watch the YouTube on the link for his operating principles.) And he has a wonderful takedown of Judge Treu’s legal reasoning. You should read the whole thing, but let me give you a few choice bits:

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.

Okay, why is it weak?

The weakness of the evidence is part of what makes yesterday’s decision so intriguing. (The other part, concerning the legal standard applied by the judge, is discussed below.) Even with such a poor evidentiary record, the court was willing to strike down a set of laws passed by the legislature and signed by the governor. Note in particular the court’s willingness to find a causal link between the five statutes and the employment of several thousand “grossly ineffective” teachers.

In other words,

Other judges would have certainly resisted, for example, reaching a finding that a specific statute can or should be identified as having caused “grossly ineffective” teachers to be in the classroom. While it is easy to see how any one of these rules could result in an inferior teacher in a given instance being employed, it’s much harder to see causal proof that the effect of the statute, “viewed as a whole,” would result in more such teachers.

6. If the causal link was as weak as Welner claims, then won’t it be overturned on appeal? Quite possibly. Then all this joy from reformers and anger from teachers union will be flipped. (Which is why the reaction from reformers today is a little too LeBron punching Wade in the chest circa 2011.) But Welner says it’s just as likely that this could lead to a slew of activist decisions from judges who see it as the courts place to guarantee educational equality state-by-state. Even though Welner thinks this is bad lawyering, he’s hopeful the result would have a silver lining:

Would this be a bad thing? In my view, not necessarily. Courts play an extremely important role: protecting political minorities from the tyranny of the political majority. When they relinquish that role, stepping aside and granting discretion to the executive and legislative branches, the easily foreseeable consequence is that laws and rules will disadvantage that minority. The Vergara plaintiffs and Judge Trea, whether intentionally or unintentionally, are pointing us to a different model—what is sometimes denounced as “judicial activism.” But active engagement of courts to demand that the educational opportunities of minorities are protected could be a crucial step forward toward meaningfully closing opportunity gaps and thus achievement gaps. These days, we need all the silver linings we can find.

7. Finally, what did the feds think of this? Secretary of Education Arne Duncan was, as you may have guessed, very happy:

The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices, and systems that fail to identify and support our best teachers and match them with our neediest students. Today’s court decision is a mandate to fix these problems.

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