What’s Wrong with the Recent Court Decision for Teachers

by on June 16, 2014 · 7 comments

in Civil Rights, Education, History, Labor, Under the Perfect Sun

BlueRobot / Foter / Creative Commons Attribution

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.

{ 7 comments… read them below or add one }

Katydid52 June 16, 2014 at 5:10 pm

Teachers should be evaluated every year by everyone they come in contact with; other teachers, staff, parents, students, etc. If no one approves of this teacher, they are out. I have witnessed teachers who had been teaching for 25 years who were awful. Why do they deserve tenure?

Why would a professional want to be paid from a chart instead of negotiating their salary based upon their experience, references, awards, etc? Many of us would love to pay fantastic teachers more money, but when the increases are across the board, and include the mediocre-at-best teachers, we refuse.

More than rich people pay property taxes, and many are weary of paying more and more into a system that focuses on PCness and social issues instead of math, science, English, and history.

I do not advocate drastic cuts to education, but there is zero connection between per-pupil-spending and outcomes.

California, and most other states, had “better” educational systems many years ago when education was a priority in the home for most families, not just a few. How much money is being spent on the students in the bottom 50% who do not care about school, are unmotivated and disruptive, and interfering with the education of others?


Aging Hippie June 20, 2014 at 11:43 am

Education Week proves that you are wrong, there is strong correlation between per student spending and educational outcomes.



peachy June 20, 2014 at 11:45 am

As for your claim that “there is zero connection between per-pupil-spending and outcomes,” take a look at just a small portion of the credible peer-reviewed research:

See: http://educationopportunitynetwork.org/dirty-secret-in-the-education-wars-money-matters/

An excerpt from the article (which contains links to all the sources):

Why Money Matters

Baker’s report cited above also made a strong case for the critical role that funding adequacy and fairness have in academic achievement. “A body of literature has now shown the positive effects of equity and adequacy improvements of the prior 40+ years of school finance reform,” he contended.

One of the studies Baker cited, was a new working paper public policy researchers from Northwestern University and the University of California-Berkeley that examined the effects of court orders that attempt to equalize funding for poor and wealthy school districts.

According to a report at Vox, the researchers found, “Spending more money on educating children in poor districts can dramatically change the trajectory of those children’s live.”

After comparing students in school before fair funding reforms were implemented to students who were in school after the reforms were passed and students who went to school after the reforms, the analysis found, “A 20 percent increase in per-pupil spending could make a big difference for students from poor families … The additional spending had virtually closed the high school graduation gap between poor students and their wealthier peers. High school graduation rates increased 23 percentage points for poor students, and those students attended school or college for another year on average.”

Another recent study, this one conducted by the Boston Consulting Group for Advance Illinois, investigated the relationship between the way each of the 50 states funds K-12 public education and that state’s student outcomes on the National Assessment of Educational Progress for 4th grade reading scores and 8th grade math scores from 2003 to 2011. According to an article at Education Week, the analysis found, “How much state governments spend per pupil and how they spend it does in fact have a significant correlation with achievement, particularly for the low-income students.”

According to the findings, adequate funding mattered a lot. The researches found, “A $1,000-per-pupil funding increase is correlated with a .42-point increase in NAEP scores for low-income 4th graders [and] an increase of 20 percentage points in the state share of spending correlated with a 1-point improvement in the 8th grade math scores of low-income students.”

Funding fairness mattered even more as, “An improvement in the equity of funding across a state can improve academic performance without any additional spending overall. And the effect is significant: For example, a 20-point improvement in the equity ratio, holding all other factors constant, is correlated with nearly 2 point improvement in 4th grade NAEP reading scores for low-income students, equal to a roughly 1 percent gain.”

George Sheridan
Garden Valley, California

(This is one of the problems with non-professionals’ pontificating on matters outside their area of expertise.)


unwashedwalmartTHONG June 16, 2014 at 5:21 pm

This is one of the best articles the Rag has ever published. Informed & articulate.
The education system, like other aspects of our society, is now under assault by right wing forces, right wing money, brown shirted forces & money. Look what happened to New Orleans school system. If we want to educate our children, teach them how to think, teach them to become non-prejudicial, then we need to become pro-active for them & not reactive when the right takes aim at something they loathe.
Read more Diane Ravitch for accurate information.


J.Stone June 18, 2014 at 10:27 am

Tenure was bargained for to stop unpopular political views of educators being cause for firing without cause. It has absolutely nothing to do with cost. California schools were better before the draconian cuts to education, to deny that is rewriting history.


peachy June 20, 2014 at 11:34 am

Great article. Unwashed says it.


peachy July 1, 2014 at 10:22 am

On the “research” behind “…there is zero connection between per-pupil-spending and outcomes,” “Hanushek … does eventually concede that the key issue is not that all increased spending is useless.”

“The flat out assertion that school funding doesn’t matter is based on the very flawed “research” by Eric Hanushek, an economist with no background in education. (By the way, he is NOT affiliated with Stanford Univ [as is often claimed], he works for the right wing think tank The Hoover Institute, which is housed on the Stanford campus). Hanushek’s method was “vote counting” – pitting studies which concluded that increased school spending DOES matter vs studies with the opposite conclusion. He got the result desired by his employers: more anti-spending studies than pro-spending studies. My recollection of having looked at several of these studies was that they were not done by well informed education researchers who knew how schools operate.

“To give some credit to Hanushek, he does eventually concede that the key issue is not that all increased spending is useless, but that money must be spent on effective things. He just doesn’t trust the public ed system to spend effectively. Of course, he is uninformed about which things are effective (he opposes teachers’ salary increases, class size reduction, etc and devalues teacher experience, among many other factors)

“I agree that just pouring money into schools without allowing experienced educators decide HOW to use that money is ineffective. That’s what we’ve had traditionally, and even more so now, with the billionaires and their puppet politicians forcing us to spend on test-prep and test prep technology, and test prep oriented, top heavy administration. More spending without allowing teachers to guide how to spend is and will continue to be fruitless.

“By the way, real research shows what educators have always seen: poor kids don’t do well in school because of POVERTY, not so much because of school factors (see David Berliner’s article below)
Here are some links to the scholarly discussion on school spending:



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