Why Students and Teachers Won When the Vergara Decision was Overturned
By Jim Miller
Last week I reviewed Thomas Frank’s Listen Liberal: What Ever Happened to the Party of the People? in which he lambastes professional-class Democrats for thinking that there is “no social or political problem that cannot be solved with more education and job training.” This makes perfect sense because, as a class, professionals are “defined by educational attainment, and every time they tell the country that what it needs is more schooling, they are saying: Inequality is not a failure of the system; it is a failure of you.”
But, Frank contends, the only problem with education, for the professional crew, is that it is “not meritocratic enough.” Thus, all that needs to be done is bust the teachers’ unions (whose sin is their outdated belief in solidarity), open charter schools, test our kids to death, and give tax breaks to “innovators.”
Nothing is more illustrative of this aspect of Frank’s critique than the way so many Democrats lined up to support the Vergara decision in 2014 even against the interests of a key Democratic constituency and key Democratic electeds.
What was the Vergara Decision?
Nearly two years ago, a Los Angeles-area judge struck down the due process rights of California’s K-12 teachers in what many educators like myself found to be a distinctly bad ruling. As Kelly Mayhew and I wrote at the time:
Last week’s decision in the Vergara v. the State of California lawsuit that undermined tenure and seniority rights was a profound slap in the face to teachers who have committed their careers to improving the lives of our children. It was yet another significant victory for those who are seeking to impose corporate education reforms by pitting teachers against children in a cynical, destructive, and utterly counterproductive fashion.
As tenured professors in the community college system, union members, and parents of a child in California’s public school system, we have a unique perspective on this matter. Although the “Vergara” decision has no effect on our jobs at San Diego City College, it does affect the professional lives of the educators who teach our son and it will do them, and him, more harm than good . . .
Pitting our child against his teachers, as the “Vergara” lawsuit seeks to do, is a fool’s errand. It destroys any sense of community in our schools and heaps scorn on the very people we all want to trust with our children’s futures. The interests of teachers and students are not diametrically opposed, as so many in the corporate education reform industry would have us think, but rather inextricably linked. When we disrespect teachers, we demean our education system and do nothing to help students.
San Diego is full of [good] schools . . . as is the rest of the state. If you read much of the news media, however, you’ll believe differently given the endless drumbeat of education “reformers,” who often hide their true agenda of privatization and union busting behind a deeply dishonest rhetoric of “saving children” from “bad teachers.”
More specifically, with regard to the “Vergara” decision, David Welch, a conservative Silicon Valley millionaire and corporate education reformer who has been funding a group called “Students Matter,” won the opening salvo in a battle to deprive teachers of their constitutional due process and seniority rights.
The suit, which hid behind a group of poor and minority students, several of whom did not even attend schools where the teachers had tenure or due process rights, alleged that California’s teacher workplace rights infringe on the constitutional rights of students to an equal education–basically saying that hard-won job security, due process (i.e. that teachers cannot just be fired without a process), and seniority adversely impact low-income and minority students by keeping on “bad” teachers and too-often sticking inexperienced teachers in low-performing schools.
The problem with this argument and the “Vergara” decision (which will be appealed) is that it is based on fundamentally false premises and substitutes ideology for evidence.
A little over a week ago the appeals court agreed, noting that the plaintiffs had failed to show “that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students.” In fact, the unanimous decision argued, “the statutes do not address the assignment of teachers; instead, administrators – not the statutes – ultimately determine where teachers within a district are assigned to teach.”
The court’s ruling is spot on. As Michelle Chen reports in The Nation, a recent analysis of teacher qualification data by the Economic Policy Institute noted that “the density of teachers’ unions has no apparent connection” to the allocation of quality teachers. More significant than union density, Chen points out, is poverty.
Thus this ruling was, as the California Federation of Teachers observed, a decisive rejection of an essentially meritless lawsuit:
In a sweeping victory for students and educators, the California Court of Appeals today reversed a lower court decision in the deeply flawed Vergara v. California lawsuit. The unanimous appellate opinion is a stinging rebuke to Judge Rolf M. Treu’s poorly-reasoned ruling, and to the allegations made and millions of dollars spent by wealthy anti-union education reformers to bypass voters, parents, and the legislature with harmful education policy changes. The reversal affirms the arguments of educators, civil rights groups, legal scholars and education policy experts that the state statutes affirming educator rights do not harm students.
Over at Crooks and Liars, Karoli Kuns agreed:
It’s a good day for teachers and students in California! A California appellate court has overturned an egregious decision which would have stripped California teachers of tenure and due process rights.
You may recall the Vergara lawsuit, where a group of right-wing Silicon Valley millionaires concocted a bogus civil rights suit claiming that teacher tenure violated the civil rights of children in low-income districts.
Their argument went something like this: Tenured teachers who demonstrated low competence were transferred to low-income school districts, violating the rights of children in those districts to get an equal education to children in other districts.
Today, the appellate court ruled for the teachers and overturned the entire ruling. Characterizing teacher transfers as “staffing decisions,” the 3-judge panel unanimously agreed that there was no civil rights violation in the tenure rules or in the statutes protecting teacher tenure as currently written . . .
This three-judge panel has now righted that wrong, and acknowledged that teachers are entitled to due process and tenure protection, and that by so doing, students also benefit, making it win-win for both sides.
This lawsuit was brought to the court in order to break the teachers’ union and also to break the school systems so that charter management organizations could profit from our children’s education. So if there’s a loser in all of this, it’s the millionaires who funded it.
For students and their teachers, it’s a big win!
The prominent education historian, Diane Ravitch also saw the suit and the attack on teacher tenure as “part of the larger corporate reform effort to cripple teachers’ unions and to make it easy to fire teachers without due process,” noting how former TV commentator Campell Brown and her big money backers had filed similar suits in New York and Minnesota.
More interestingly, however, Ravitch’s subsequent blog posts dealt with one of the central enablers of bad corporate education reform efforts—mainstream media bias against teachers and unions along with their blindness to the influence and predatory nature of moneyed interests posing as “reformers.”
Ravitch has a little fun with the New York Times in the post “Assignment: Do a Close Reading of this Article About Vergara” where she challenges readers to move beyond the “four corners” of the “Common Core standards” and do some critical thinking by drawing upon “their background knowledge to interpret the text, authors’ intentions, and missing information and context.” Noting “what is written” but also “what is omitted” matters because most of the folks who will read about Vergara in the nation’s paper of record will never “read the decision or understand the background.”
What are some of the unanswered questions that the New York Times and most of the rest of the mainstream corporate media never ask? Ravitch has a list:
Why do philanthropists want to end teachers’ job protections? Why do billionaires like Eli Broad and the Walton family want to get rid of job protections? Did the plaintiffs prove that the children’s teachers were ineffective? Or did they just use test scores as “evidence”? Which states allow teachers to have due process rights? Which do not? Does the latter group of states–which have no job protections–have better schools than the former group? What is the Partnership for Educational Justice? What is its goal? Does a district attract better teachers when it does not have job protections? Why has recruitment of new teachers plummeted in recent years?
And because these questions are never asked we don’t learn that the persistent drumbeat for education reform is funded by the corporate sector with direct interests in “disrupting” education for profit. You also never hear that the best schools in America are in heavily unionized states and some of the worst are in right to work states. And you certainly don’t get the word that the constant demonization of teachers along with deteriorating working conditions has led to a teacher shortage that is a looming crisis.
And it’s not just crazy anti-union right wingers like Scott Walker and the corporate media driving this “reform” train but also the same technocratic professional-class Democrats that Thomas Frank discusses in Listen Liberal whose “meritocratic” ideology leads them to be suspicious of the egalitarian leanings of teachers’ unions and the notion that education is anything other than another technical problem that can be solved by imposing a business model on it.
As Jeff Bryant observes:
This cult of efficiency currently dominating the left is what has led to education policy driven by what Strauss called an “obsession with standardized test scores.”
Eventually, the cult of efficiency spawned in economic think tanks persuaded advocates in the civil rights movement to join in “a motley alliance,” to use the words of University of Texas education professor Julian Vasquez-Heilig , to impose new teacher evaluation systems and a way of thinking about teachers as the chief engineers of students’ education destinies.
This alliance has the support of the federal government and rich private foundations, as well as venture capitalists who paid for the Vergara lawsuit and other efforts to attack teachers unions. Yet it has produced little if any progress in achieving education equity for children, despite the stated intent.
Why? Perhaps such policies are driven not by knowledge but by the unexamined assumption that the problem of inequality in education is not a result of historic economic inequality in our society but rather the fault of bad teachers and their students who just need to be more thoroughly disciplined by sterner administrations and a heavy-handed testing regimen, even if there is no evidence to support that position.
As Bryant puts it, “Another easy answer for why teachers’ unions have fallen out of favor with some liberals is that when education policy is the matter at hand, they don’t know what they’re talking about.”
Thus, as Michelle Chen argues, we need to change the narrative around how to create quality public education for all children in the United States:
When education reformers go after teachers’ labor protections, their seemingly morally unassailable line of attack is, “But what about the children?” It’s an alluring idea—don’t all children deserve a good education?—wrapped around a pernicious attack on labor rights: less union protection, ergo more “meritocracy” allowed to flourish in the education workforce. Labor advocates, however, challenge the reformers’ seemingly pro-student rationale with a more expansive definition of civil rights in schools: making a school community equitable and inclusive is a democratic project, not a mere matter of supply and demand.
So perhaps, rather than attacking teachers, progressives need to start addressing the deep inequalities that have and will continue to threaten our democracy on many levels. Simply put, it’s not about the need for more “meritocracy” and market-based solutions, it’s about the necessity for more resources and, at base, more solidarity and democracy.