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.


December 4, 2011

Education Headed in Wrong Direction

Education is one of the most instrumental parts of the polarization in our nation. Complaining about the ignorance of young people, adults manifest great ignorance themselves. The “historian,” Newt Gingrich, has said that the French Revolution is responsible for all these ignorant liberals who are driving the country in the wrong direction. At the Iowa Thanksgiving Family Forum, he asserted “what we have now [in American society] is an outgrowth of the French Revolution,” which the former House Speaker defines as the wholesale “rejection of the larger world in favor of secularism.” This is the same anti-faith decadence that pollutes the U.S. court system, Hollywood, public education, and so on, Gingrich insisted.

Grant Robertson is far more on target. A sophomore at Sunset High School in Beaverton (OR), he wrote in an op-ed piece, “Events leading up to the French Revolution parallel the social and economic concerns we’re facing in our country today. In modern America, as in historic France, an unequal tax system, in which the middle class pays more effective taxes than the rich, has created a barrier of wealth between the rich and the poor. In part because of this system, middle-class citizens today feel little hope of reaching the desired upper-income tier, much like the Third Estate felt going in to the French Revolution.”

Gingrich’s information is as invalid as that provided on the Fox network. A survey in New Jersey by Fairleigh Dickinson University found that people who watch Fox News are 18 points less likely to know that Egyptians overthrew their government than those who watch no news at all and 6 points less likely to know that Syrians have not yet overthrown their government than those who watch no news. This is only one of several surveys that show how ignorant the one-hundred-million Fox watchers are about news.

Perhaps the scariest misinformation about education for young people is that standardized tests should be used to evaluate students and schools. The No Child Left Behind Act of 2001 decided that guidelines of schools could be determined by a number of criteria with standardized test scores dominating in these. Now schools may opt out of these requirements, but Obama’s administration developed the Race to the Top with $5 billion of grants being awarded to states if they would have more privately managed charter schools, teacher evaluation by test scores, and bonuses for higher student test scores.

What many people don’t know is that the United States has 50 distinct definitions of “proficient” on standardized tests for students, one for each state. Last summer the National Assessment of Education Progress released a study that found students described as “proficient” by a state standard might be ranked as “basic,” defined as “partial mastery of knowledge and skills fundamental for proficient work at each grade,” by a national test. Thus test scores used for not only teacher hiring and firing but also school funding are subjective, based on individual state determination. The lowest standard in 2009 for fourth-grade reading was inTennessee, whereas Massachusetts had the highest. In eighth-grade reading,Missouri had the highest standard, although its proficiency rating was well lower than the national test standard, while Texas had the lowest bar for proficiency. In Arkansas a fourth-grader might be proficient in reading but fail if s/he moved to Missouri.

The federal No Child Left Behind law mandates that 100 percent of students must be “proficient” under state standards by 2014, a goal universally described as impossible to reach but easier in some states than others. With the emphasis on standardized tests, teachers in many school districts around the nation may provide the test and the answers to their students. They may also change the answers on the tests to guarantee right answers. Those schools that don’t go that far are concentrating only on math and English basics to the exclusion of even science and social studies. Fine and performing arts classes disappeared in many places long ago.

Over ten years ago, Alfie Kohn published an article in Education Week  about what’s wrong with standardized tests. That was a year before the No Child Left Behind Act, and things have gotten worse since then. Following is a short summary of this article.

1. Students are tested to an extent unprecedented in our history and unparalleled anywhere else in the world. Few countries use standardized tests for children below high school age—or multiple-choice tests for students of any age. (This remains true.)

2. Instructional factors account for only 11 percent of the variance among test scores. A study of math results on the 1992 National Assessment of Educational Progress found that the combination of four such variables (number of parents living at home, parents’ educational background, type of community, and poverty rate) accounted for a whopping 89 percent of the differences in state scores. Other studies during the last decade continue to show this trend. Research a decade after this article was written shows that the most consistent predictor of test scores is family income. Children living in economically secure homes show a much greater readiness to learn than those who lack the basic necessities of life—including a home.

3. Norm-referenced tests were never intended to measure the quality of learning or teaching. The Stanford, Metropolitan, and California Achievement Tests (SAT, MAT, and CAT), as well as the Iowa and Comprehensive Tests of Basic Skills (ITBS and CTBS), are designed so that only about half the test-takers will respond correctly to most items. The main objective of these tests is to rank, not to rate; to spread out the scores, not to gauge the quality of a given student or school.

4. Standardized-test scores often measure superficial thinking, correlating results with a shallow approach to learning. (Now standardized tests are generally multiple-choice, and teachers are discouraged from providing any other education to students because they need to practice for the test.)

5. Virtually all specialists condemn the practice of giving standardized tests to children younger than 8 or 9 years old. The author could not find a single reputable scholar in the field of early-childhood education who endorses such testing for young children.

6. Virtually all relevant experts and organizations condemn the practice of basing important decisions, such as graduation or promotion, on the results of a single test. These tests, however, determine not only the future of the students but also the teacher and sometimes the school itself.

8. The time, energy, and money devoted to preparing students for standardized tests requires that schools reduce or eliminate programs in the arts, recess for young children, electives for high schoolers, class meetings (and other activities intended to promote social and moral learning), discussions about current events (since that material will not appear on the test), the use of literature in the early grades (if the tests are focused narrowly on decoding skills), and entire subject areas such as science (if the tests cover only language arts and math).

8. Educators are leaving the field because of what is being done to schools in the name of “accountability” and “tougher standards.” (Ten years after this article was written, new teachers stay in the field no more than an average of five years.)

9. The tests may be biased. Many standardized tests are unfair because the questions require a set of knowledge and skills more likely to be possessed by children from a privileged background especially with norm-referenced tests.

10. More affluent schools can afford to purchase test-prep materials. If poorer schools decide to do this, they give up books and other educational resources that they need.

11. Standardized tests tend to measure the temporary acquisition of facts and skills, including the skill of test-taking itself, more than genuine understanding.

12. Poor scores may come from lack of resources, particularly in schools with poor and minority students. Explanations about very real obstacles such as racism, poverty, fear of crime, low teacher salaries, inadequate facilities, and language barriers are frequently written off as mere “excuses.”

Diane Ravitch, a former U.S.assistant secretary of education, points out that students came in 12th out of 12 on international testing in 1964, the first year that this test was given. Like many other educators, she says that our country may have succeeded because of “the freedom to create, innovate, and imagine,” a freedom that is rapidly disappearing in favor of test scores. The anti-regulation conservatives should consider this possibility as they bemoan the loss of creativity from dreaded regulations.


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