What’s Wrong with the Recent Court Decision for Teachers

BlueRobot / Foter / Creative Commons Attribution

By Jim Miller and Kelly Mayhew

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.

We have had our kid happily ensconced at a tremendous place–McKinley Elementary School in North Park. This is a traditional neighborhood school that has a staff of devoted, loving, highly skilled professionals, many of whom have dedicated most of their careers to this place.

Our son is terribly sad at the end of every spring when he has to move on to the next grade level and leave his teacher behind. We couldn’t ask for a better school for him. We don’t want to make it easier to fire his teachers, we want to thank them for the fine work that they do. It has helped our son grow and prosper.

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 schools like McKinley, 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. Some of the key blind spots in the “Vergara” ruling are:

1) The lawsuit ignores the real problems of public education

By focusing exclusively on tenure and seniority rights, the “Vergara” decision brackets off economic inequality, poverty, and the ongoing underfunding of our education system. The majority of schools in California are successes by most reasonable measures as studies show. Yet many of our poorest and at-risk students still fail. Why? The central factor that hurts poor children’s educations is not “bad teachers” but poverty itself and all the aspects of children’s lives that this affects from home environment, to health, to community support. Add to this the systemic underfunding of our education system and the ongoing problems of institutionalized racism and you have a much bigger problem than firing “bad” teachers. The “Vergara” decision ignores all of this.

2) Stripping teachers of their workplace professional rights will harm, not improve, student learning

The central myth promoted by the anti-public education “reformers” is that rules and regulations make it impossible to fire “bad teachers.” The facts suggest otherwise. Contrary to the corporate education reform propaganda, a teacher can be fired at any time during the first two years of his or her career. In the course of this lengthy probation period, administrators can fire them for any reason, or for no reason at all. After this probationary period, a teacher can still be fired if their administrator can document a problem necessitating dismissal and convince a panel of experts that the teacher deserves to be fired. Teachers aren’t guaranteed jobs for life, they have a right to a hearing and due process.

This process does not harm students but a system with a revolving door of new teachers would. Indeed, the problem we have in our K-12 system is not that we can’t fire “bad teachers” but that we are having trouble recruiting and keeping teachers, period. One of the bitter ironies of the “Vergara” ruling is that one of the teachers cited by the plaintiffs’ lawyers as “bad” was a recipient of a “teacher of the year” award in Pasadena and several others named had excellent performance records. And, as Michael Hiltzik reported, the Vergara sisters attend a pilot school where none of the teachers have the rights that their lawsuit seeks to end and two other plaintiffs attend a charter school where the same is true.

3) This attack on the teaching profession will make it harder to attract and retain quality teachers

As opposed to the myth that our schools are stacked full of overpaid, underperforming teachers keeping out a wave of eager, idealistic new teachers chomping at the bit to come save the world, attracting and retaining teachers has always been one of the biggest problems in the field of education. Teaching is hard, underpaid, and too often undervalued. Attacks like “Vergara” only make things worse. Most teachers leave the field within the first five years. And, as we see teaching college students, many of our brightest students look at the discourse surrounding education today and say, “Why would anybody want to do that?” Thus just as we most need to be encouraging teachers to enter the profession and stay we are consistently demonizing them. The laws targeted in “Vergara” simply provide due process when a teacher is accused of misconduct or poor performance, and objectivity in times of layoffs. They do not guarantee a teacher a job for life with no accountability but they do provide for basic fairness on the job that more, not fewer of us should have.

4) “Tenure” protects academic freedom

What most people call “tenure” is merely the right to a hearing before dismissal. This became law through the understanding that political pressures and the arbitrary actions of administrators could and often did destroy academic freedom. Academic freedom is the right to teach to academic standards and curriculum in a balanced fashion, with all points of view aired, rather than through one “approved” viewpoint. It protects the rights of teachers to raise difficult questions and challenge status quo thinking. This is a key aspect of education in a democratic society. Back in the “good old days” before academic freedom, teachers were fired for advocating for ethnically relevant curriculum for minority students, challenging McCarthyism, writing columns like this one, teaching classic literature deemed inappropriate by reactionary school board members, or simply being gay. The list goes on and on. So, if you value freedom of thought and teachers who challenge students to think, you should be concerned about the implications of this case.

5) Seniority is transparent and fair, and not the reason why layoffs occur

By focusing exclusively on seniority as the reason for layoffs of bright new teachers “Vergara” ignores the elephant in the room: underfunding. If our educational system was adequately funded, we would never have to deal with layoffs. But we all know it is not. While Proposition 30 stopped the bleeding of our education system in California, it did nothing to restore what had been cut over the last 20 years. And with much of Sacramento pretending that we no longer need to do anything else to fund our educational infrastructure for the future, it’s easier for some to look for cheap answers that don’t require us to face the funding issue. Enter “Vergara” and the assault on seniority. Seniority simply ensures transparency and fairness rather than the arbitrary authority of administrators to rule by whim. Most research shows that experienced teachers actually get better learning outcomes than inexperienced teachers but no one would deny the need for the new fresh energy that younger teachers bring to the classroom. So the bad old teacher versus the good new teacher frame is false If we want good education for our children the answer is to adequately fund our system so good experienced teachers can mentor new ones and we can have the best of both worlds. Getting rid of seniority does nothing.

6) The wealthy backers of this suit are not pro-public education; they are just anti-union

The funders of “Vergara” are not civil rights activists or defenders of public education. They are just using civil rights rhetoric to achieve their goal of destroying teachers’ rights. Consider who’s funding the suit. David Welch is a charter school entrepreneur and his allies include folks like Eli Broad of Parent Revolution and a who’s who of the usual anti-union, anti-public education suspects. Their “students versus teachers” rhetoric is a convenient mask for a privatization and union busting agenda.

While it was encouraging to see some reasoned responses to “Vergara” in places like the LA Times, the New York Times, and elsewhere, Robert Reich hit on the crux of the matter last week when he observed that, “It’s unfortunate the debate over how to improve schools pits those who seek more money against those who want more teacher accountability, because it’s both: We need excellent teachers but also higher salaries to attract talented people to the nation’s classrooms – and make sure poorer districts aren’t shortchanged. But since the wealthy don’t want to pay more taxes to finance better schools, they tend to focus exclusively on teacher accountability. Not incidentally, the California case was the work of David Welch, a Silicon Valley technology magnate, who spent millions to create a front group ‘Students Matter’ that brought the case, and to hire a team of high-profile lawyers. Welch is considering lawsuits in other states. Big money is not only taking over the elected branches of government but also our courts.”

Diane Ravitch similarly points out: “Unfortunately, the Vergara decision is the latest example of the blame-shifting strategy of the privatization movement. Instead of acknowledging that test scores are highly correlated with family income, they prefer to blame teachers and the very idea of public education. If they were truly interested in supporting the needs of the children, the backers of this case would be advocating for smaller classes, for arts programs, for well-equipped and up-to-date schools, for after-school programs, for health clinics, for librarians and counselors, and for inducements to attract and retain a stable corps of experienced teachers in the schools attended by Beatriz Vergara and her co-plaintiffs.”

Thus rather than looking at all the ways we can help make our schools better, we demonize teachers in the service of moneyed interests who cynically manipulate civil rights rhetoric to attack teachers with a well-funded lawsuit. Those same folks were nowhere to be found in the campaign to pass Proposition 30, indeed some of them were against it. Better to demonize teachers than share the wealth with students.