Nel's New Day

June 20, 2014

Judge Overturns Tenure with Flawed Evidence

A little-noticed court decision last week amid the Iraq controversy was a California trial court ruling that five state statutes protecting teachers’ jobs discriminate against poor and minority children. Judge Rolf M. Treu argued that the 1 to 3 percent of teachers estimated to be “grossly ineffective” cluster in high-poverty schools resulting in harm to students that “shocks the conscience.” The decision in Vergara v. California evokes Brown v. Board of Education in condemning tenure, due-process laws, and policies that protect senior teachers.

Silicon Valley mogul David Welch bankrolled the lawsuit with a group called Students Matter. Because of his ownership of both charter and cyber-charter schools, Welch can financially benefit from the destruction of teacher tenure and unions. He also has a connection to the $9 billion-per-year textbook and testing giant Pearson. Welch’s non-profit organization, StudentsFirst, has a goal of privatizing all schools. Getting rid of tenure means that owners of charter schools can hire teachers cheaply and control what curriculum materials they use.

Because Welch lives in the most expensive zip code in the United States, he had to find nine children from low-income communities in his claim that teacher job protections harm their ability to get their constitutionally-guaranteed education. He didn’t do a very good job of picking them. Two attended charter schools with no teacher tenure or seniority, and two others attended a pilot school where teachers could be dismissed for any reason. One of the “bad” teachers had been named “teacher of the year” by the Pasadena school district; others had excellent records.

Fortunately, Welch had the money to hire a legal team co-headed by George W. Bush’s Solicitor General Theodore Olson. The law firm, known for a number of conservative causes, is representing Walmart in a gender discrimination suit, Chevron in its environmental dispute with Ecuador, and the Dole Food Company in a lawsuit involving allegations that pesticides used by the company caused sterility in farm workers.

Former DC schools chancellor Michelle Rhee, another StudentsFirst leader, lauded the decision. Her obsession with standardized testing led the country to first declare her as “America’s most famous school reformer” before she parted ways with the District of Columbia, and they dropped her programs. Her results there were a disastrous “revolving door” of personnel as newly hired teachers left at much higher rates than nationally while students showed little or no gain in academic achievement.

At this time, 46 states grant teacher tenure, much to the displeasure of Secretary of Education Arne Duncan. Students Matter, the group that filed the lawsuit, includes people from his department including Russlyn Ali, assistant secretary for civil rights who is also in charge of ensuring equal federal funding reaches schools, and Ted Mitchell, nominee for the position of under-secretary of the Obama administration and president and CEO of NewSchools Venture Fund. Democrats for Education Reform, whose board of directors holds a statewide list of former governors, state senators and city mayors, were also early supporters of Students Matter.

Also participating in the lawsuit was the California Charter Schools Association. The parent of one of the co-defendants in Vergara, Karen Martinez, ran for the school board of the town of Alum Rock and eventually unseated one of the main opponents of charter school growth in the district.

According to Dr. Kevin Welner, head of the National Policy Center of the University of Colorada, the ruling “attacks teachers and teacher unions instead of addressing the root of opportunity gaps.” The lawsuit didn’t address what drives educational inequality and what policies get teachers into the classroom. At least half the variation in educational outcomes is correlated with childhood poverty and family background. Educational inequality tracks more closely with rising income inequality than any other reason. Treu failed to mention these factors although the two legal precedents he cites deal with these inequalities. He can’t rule that poverty is unconstitutional, so he blames the teachers.

California declares tenure at 18 months as compared to the national average of 3.1 years and the 5 years that teachers find reasonable. As Penn Graduate School of Education professor Dr. Richard Ingersoll, author of many studies on student staffing and turnover, pointed out, there may be some validity to changing the length of tenure. Treu’s ruling, however, has thrown out all tenure. Ingersoll explained that the problem is more with the working conditions than the need to eliminate teachers. The best educators would be attracted through job protections, better pay, and workplace autonomy.

The judge quoted David Berliner, emeritus professor of education at Arizona State University, as saying that 1 to 3 percent of the teachers in the state were “grossly ineffective” and calculated that this would be thousands of teachers. Yet Berliner stated that his figure was a “guesstimate” and not based on any specific data. He said:

“I pulled that out of the air. There’s no data on that. That’s just a ballpark estimate, based on my visiting lots and lots of classrooms.”

During the trial, he also never used the term “grossly ineffective,” and he does not support the judge’s belief that teacher quality can be judged by student test scores.

Even if the “guesstimate” were anywhere near true, about 25 percent of teachers at the most disadvantaged schools leave each year. This demographic, in itself, damages the student population. Fast-track, limited-commitment programs such as Teach for America have made the turnover even worse, resulting in an average 50-percent annual turnover rates. When Ingersoll was asked to testify in a different lawsuit two years ago about exempting some Los Angeles schools with younger staff, he found that as many as 30 percent of teachers were already leaving these schools every year.

The teacher accountability movement has not made the profession more rewarding or the working conditions more stable—two necessary factors to attract and retain good teachers. High-stakes testing policies in urban schools, which cause centralized curriculum, teaching to the test, etc., also erode teachers’ discretion and autonomy. Teachers leave, and Vergara’s ruling won’t solve these problems.

The evidence in Vergara did not connect “bad” teachers to tenure statutes. One of the “grossly ineffective” teachers cited was a substitute employed at will without tenure. Even people opposed to teacher unions stated that the judge did not have any evidence for his ruling.

The judge’s ruling is so flawed that it might be overturned on appeal. Yet the opportunists who make money off standardizing testing and privatizing education are just starting. Students Matter has said it is considering filing similar lawsuits in New York, Maryland, New Mexico, Connecticut, Oregon, Kansas and Idaho, as well as any other states that may be responsive. They have no concern for quality education. Once again, it’s just a matter of “follow the money.”

For a picture of education in the 21st century, read this article from an award-winning teacher about why he has decided to leave his career and how people can change the educational system.



  1. This one is forwarded to teacher friends. In service and retired. Thanks so much. Jeanette


    Comment by Jeanette Daane — June 22, 2014 @ 9:29 AM | Reply

  2. Thanks for explaining this–I knew it must be a dirty, rotten, corporate education scheme, but didn’t know the details. Makes me absolutely ill to see what’s happening to the whole education system.

    And thanks for doing this blog–I don’t often respond, but I depend on your research and writing to explain some of the mysteries of the political/corporate world.



    Comment by jstjohn1 — June 20, 2014 @ 8:56 PM | Reply

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