Students Matter founder David F. Welch.

A judge in Northern California on Monday denied the claims in a lawsuit that challenged school districts that don’t use student test scores as part of teacher evaluations.

Students Matter, the nonprofit organization that filed Vergara v. California, sued 13 California school districts last year, saying those districts were not in compliance with the Stull Act and their collective bargaining agreements explicitly prohibited the use of student standardized test scores in assessing teacher performance. LA Unified is not a party to the lawsuit.

In the case, Doe v. Antioch, attorneys for Students Matter argued that the Stull Act requires student progress to be included as part of evaluations of teacher job performance.

In a 40-page ruling, Contra County Superior Court Judge Barry P. Goode attempted to evaluate lawmakers’ intent when it amended the portion of the Stull Act in question in 1999.

“The statutory language is not crystalline,” Goode wrote.

The disputed language of the statute is: school districts shall evaluate a teacher’s performance “as it reasonably relates to (1) the progress of pupils toward … if applicable, the state adopted academic content standards as measured by (standardized tests).”

“The phrase ‘reasonably relates’ gives the school districts discretion to determine what is reasonable in this complex situation,” Goode concluded.

It is the second legal setback for Students Matter in recent weeks. Last month, the state Supreme Court refused to take up Vergara v. California, a landmark case that challenged teacher tenure and declared some school employment laws unconstitutional.

In this most recent ruling, Goode said there is not much legislative history to evaluate lawmakers’ intent when crafting the legislation. But he pointed to a number of related points, including the fact that the California Teachers Association supported the legislation. Students Matter pointed out that teachers unions generally oppose including student test scores as part of teacher evaluations, Goode said.

“Indeed, the legislative history of the 1999 amendments is silent on the issue here,” Goode wrote. “If those amendments made the major change in teacher evaluations urged by Petitioners, one would expect the legislative history to have discussed that. Instead, the statute passed with the support of one major teachers union and the opposition of none. That, too, is relevant.”

Goode also pointed to language the state adopted when it enacted standardized tests.

“The Legislature endorses many uses of (standardized) tests, including evaluating pupils, entire schools and local education agencies. But it does not say the results should be used to evaluate individual teachers. That omission is relevant,” Goode wrote.

Goode also pointed to evidence from the school districts that questioned whether or not student test scores should or can be used to evaluate teachers.

“No district appears to ignore the standardized test results of any particular teacher’s pupils,” he wrote. “Rather, each uses those test results in a way it judges to be reasonably appropriate given the problems with the data.”

A similar lawsuit, Doe v. Deasy, was filed against LA Unified in 2011 by EdVoice. Superior Court Judge James Chalfant agreed with the plaintiffs and ordered LA Unified to renegotiate contracts with its teachers union, United Teachers Los Angeles, to develop new evaluations based in part on student progress.

This lawsuit was brought against the largest California school districts that had bargaining agreements that prohibited student test scores in teacher evaluations, according to Students Matter: Antioch Unified, Chaffey Joint Union High School District, Chino Valley Unified, El Monte City School District, Fairfield-Suisun Unified, Fremont Union High School District, Inglewood Unified, Ontario-Montclair School District, Pittsburg Unified, Saddleback Valley, San Ramon Valley Unified, Upland Unified and Victor Elementary School District. The districts serve 250,000 students.

Attorneys for Students Matter said after the lawsuit was filed, nine of the 13 school districts changed their teacher evaluation policies, practices or collective bargaining agreements to include student test scores.

Students Matter called the ruling flawed in a statement.

“Ignoring the clear and unambiguous language of the state’s longstanding teacher evaluation law, the Stull Act, the court refused to compel school districts to take student test scores into account when evaluating teachers,” the statement reads.

A spokesman for Students Matter said the organization is reviewing its options with its lawyers regarding a potential appeal.

In a statement, the organization’s founder, David F. Welch, promoted a bill by Assemblywoman Shirley Weber, AB 2826, that awaits Gov. Jerry Brown’s signature. The bill encourages school districts to adopt guidelines for teacher evaluations to include a variety of measures like student achievement, surveys from parents and students, portfolios of students’ work and classroom observations.

“If the court will not enforce the Legislature’s clear and unambiguous intent in the Stull Act, then their refusal underscores the need for Governor Brown to sign AB 2826, clarifying the measures of student progress that must be used in the evaluation of educators,” Welch said.

Plaintiffs’ attorneys Ted Boutrous, left, and Josh Lipshutz, right, with Students Matter founder David Welch in the background.

As the California Supreme Court considers whether to take up an appeal of an appellate court ruling in Vergara v. California, which has been extended to Aug. 22, the advocacy group that brought the landmark case will be in a Northern California courtroom Friday for a hearing on a case involving teacher evaluations.

Last year Students Matter filed a lawsuit, Doe v. Antioch, against 13 California school districts, saying collective bargaining agreements in those districts violated the Stull Act by explicitly prohibiting the use of student standardized test scores in assessing teacher performance. LA Unified is not a party of the lawsuit.

The Stull Act, passed by the state Legislature in 1971, requires student progress to be included as part of evaluations of teacher job performance.

A similar lawsuit, Doe v. Deasy, was filed against LA Unified in 2011 by EdVoice. Superior Court Judge James Chalfant agreed with the plaintiffs and ordered LA Unified to renegotiate contracts with its teachers union, United Teachers Los Angeles, to develop new evaluations based in part on student progress.

After former Superintendent John Deasy opted to make student achievement account for 30 percent of teacher evaluations, UTLA filed an unfair labor practices complaint in 2013 against the district with the Public Employment Relations Board, or PERB. The union and the district had agreed to include student test scores as part of evaluations, but did not agree on a specific numeric requirement, union officials said at the time.

Attorney Joshua Lipshutz, of Gibson, Dunn & Crutcher, who is representing Students Matter said he will ask a Contra Costa County Superior Court judge on Friday to grant a writ of mandate, essentially a court order requiring the school districts to comply with the law.

Lipshutz said after the judgment was made in the lawsuit against LA Unified, he hoped other school districts would comply with the ruling on their own even though they weren’t required to. The districts didn’t, he said.

“The same system ruled to be illegal in Doe v. Deasy is the same thing that’s in place in all of these other districts,” he said.

Although different from Vergara, this lawsuit matches Vergara’s overall theme of ensuring teacher quality.

By challenging the state’s employment laws that safeguard ineffective teachers, Vergara is focused on a small number of “grossly ineffective” teachers, Lipshutz said.

Specifically, Vergara challenges the last-in, first-out statute dictating seniority-based lay-offs, teacher tenure and procedures for firing teachers. A state Superior Court judge ruled the laws violated students’ constitutional rights. An appellate court overturned the ruling in April. Students Matter then filed an appeal. The California Supreme Court has yet to decide whether it will take up the appeal. Earlier this month, it extended the time it will take to make its decision from the end of July to Aug. 22.

The Doe v. Antioch lawsuit is focused on enforcing the state law already in place on teacher evaluations.

“We think it’s very important to understand who are your good teachers and who are your less good teachers,” Lipshutz said.

The Stull Act requires that teacher evaluations include: pupil progress, instructional techniques and strategies used by the employee, employee’s “adherence to curricular objectives” and establishment and maintenance of a suitable learning environment.

Lipshutz said after the lawsuit was filed, several of the school districts amended their contracts to remove the language prohibiting the use of standardized test scores in teacher evaluations. He said in doing so, the districts were in effect admitting they were violating the Stull Act, but, he said, the districts are still not in compliance with the law because the evaluations have not changed.

He said both sides have held status conferences with the judge and the school districts have submitted documentation. Both sides agree on the facts of the case, Lipshutz said.

The lawsuit was brought against the largest school districts that had collective bargaining agreements that prohibited student test scores in teacher evaluations, Lipshutz said: Antioch Unified, Chaffey Joint Union High School District, Chino Valley Unified, El Monte City School District, Fairfield-Suisun Unified, Fremont Union High School District, Inglewood Unified, Ontario-Montclair School District, Pittsburg Unified, Saddleback Valley, San Ramon Valley Unified, Upland Unified and Victor Elementary School District. The districts serve 250,000 students.

He said the school districts have argued that they do take student scores into account, that the Stull Act gives districts discretion on using test scores — and they could opt not to use them — and there is no reliable way of using student testing data.

Lipshutz said he hopes to convince the judge otherwise and felt confident, given the writ issued in the Doe v. Deasy case, although that decision is not binding on other parties.

Lipshutz said there is no enforcement mechanism that monitors whether school districts are following the law. The California attorney general could enforce the law but so far hasn’t, Lipshutz said.

He said it is often pressure from unions in negotiating with the districts that compels the districts into putting in the clause prohibiting student scores in teacher evaluations.

“Really, we’re hoping the ruling will help the districts because it will give them another tool in bargaining with the unions,” Lipshutz said.

By Ben Austin

Last month, my organization, Students Matter, issued its support of California’s AB 934 – a state bill that, though imperfect, honestly attempted to address the grave defaults in the state’s teacher tenure, dismissal and layoff laws challenged by the student plaintiffs in Vergara v. California. (A 2014 ruling in that case sided with the students but was overturned by an appellate court earlier this year; the plaintiffs are now appealing to the California Supreme Court.)

Students Matter worked with California Assemblymember Susan Bonilla’s office for months to craft commonsense legislation that supported effective teachers and prioritized quality across California’s public education system. When introduced, the bill drew praise from parents, educators, community leaders and newspaper editorial boards across the state.

All that progress was eliminated last week with the strike of a pen.

Late last Tuesday night, Students Matter got notice of a new version of AB 934, revised in advance of an upcoming vote before the California Senate Education Committee. Watered down and gutted beyond recognition, the new AB 934 preserves the unconstitutional and unjustifiable disparities in students’ access to effective teachers caused by the current laws.

• Read more: Parents want legislature to act on teacher tenure

Rather than bring California in-line with the states making strides toward educational equity, AB 934 continues California’s decades-long tradition of robbing students of the quality education they deserve. In an about-face betrayal of California’s students and hardworking families who depend on our public schools, AB 934 now abandons California’s 6 million public school students and hard-working public school teachers by embracing a harmful, unpopular and unconstitutional “business as usual” mindset.

So what happened? A backroom deal that was manufactured by the state’s most powerful special interest groups, which swapped a promising bill out for a reinforcement of the status quo. And while the new AB 934 might work for those groups and their lobbyists, it’s a bad deal for California students, parents, teachers and voters, who trusted their elected representatives to serve and protect the people.

Specifically, the new AB 934 leaves in place California’s quality-blind “last in, first out” layoff criteria —  a system that 76 percent of public school teachers and 82 percent of California voters oppose.

In a review of California’s “last in, first out” process conducted over four years ago, the state’s own Legislative Analyst Office concluded that seniority-based layoffs lead “to lower quality of the overall teacher workforce” and recommended that “the state explore alternatives that could provide districts with the discretion to do what is in the best interest of their students.”

Additionally, instead of making teacher tenure an earned benchmark based on demonstrated quality of instruction, as teachers and policy organizations across the country strongly have advocated, AB 934 now doubles down on making tenure a time-based employment decision.

Combined with not requiring districts to use any evaluation system when making employment decisions, AB 934 treats all teachers as interchangeable widgets.

The new AB 934 also does nothing to streamline California’s arduous dismissal process, which entrenches grossly ineffective teachers in classrooms indefinitely. The amended version of AB 934 allows local districts and teachers unions to negotiate an alternative dismissal system, eliminating the bill’s previous language whereby an ineffective teacher could be dismissed with due process after two negative evaluations and a robust professional development program. AB 934 even adds to the bureaucratic red tape by forcing a patchwork of dismissal policies throughout the state, the success of which will depend on the status of the relationship between districts and their teachers unions.

But students cannot choose where to attend school based on the status of adult politics. All students in California deserve effective teachers, regardless of zip code or the health of their district’s labor relations.

In short, the gutted version of AB 934 adds insult to injury for millions of Californians and stands as the poster-child for the kind of politics that benefit powerful special interests at the expense of students, parents and all the rest of us. The Senate Education Committee must reject AB 934 when it comes up for a vote this Wednesday, June 29.

California’s hardworking families deserve leadership in tackling the greatest challenge the state faces today: preparing all students for successful careers and meaningful participation in the future of the state. Politics as usual like the kind that produced the new AB 934 will keep California’s dropout factories chugging along.

If the California Supreme Court was still debating whether or not to step in and review the Court of Appeal’s misguided reversal in Vergara, they now have their mandate.

Ben Austin leads policy development for Students Matter, a national nonprofit organization dedicated to sponsoring impact litigation to promote access to quality public education. Learn more at StudentsMatter.org. Prior to Students Matter, Austin served as the deputy mayor of Los Angeles and worked in the Clinton White House.

In 2014, Judge Rolf Treu struck down the current laws after ruling in favor of a group of California students who had sued the state and its two largest teacher unions, the California Teachers Association (CTA) and the California Federation of Teachers (CFT). The students successfully argued that the laws deprived them of a quality education by keeping bad teachers in the classrooms.

Treu’s ruling was stayed, pending the appeal, and should it stand, would require state lawmakers to draft new teacher employment laws.

“At its core, this case is about ensuring that every child, regardless of income, color or zip code, has equal access to the quality education they deserve. The trial court correctly found that striking down these laws as unconstitutional was necessary to vindicate the right to a quality education promised to all of California’s school children,” said Theodore J. Boutrous, Jr., lead co-counsel for plaintiffs, in a statement. “We look forward to oral argument in February.”

Union leaders in the state have painted the case an attempt by powerful interests to crush teacher unions. The plaintiffs in the case have been financially supported by the organization Students Matter.

“We should be clear that the deep-pocketed financial backers of Vergara have an anti-union track record and that this lawsuit is part of that long-term agenda,” CFT President Joshua Pechthalt said previously in a statement. “To suggest that education reform should be driven by how teachers get fired misses the reality of what’s really happening across the country.”

Student plaintiff Elizabeth Vergara at a press conference

A group of of education chiefs from around the nation, as well as some teachers, parents, student groups and business organizations, lended their official support to the Vergara lawsuit today by filing several amicus curiae or “friend of the court” briefs.

The briefs, which the group Students Matter reported were to be filed today, are documents submitted by individuals or organizations that are not party to a lawsuit but have an interest in its outcome.

“[T]here is no denying a teacher’s impact and no justifiable reason to not make every effort to improve in-classroom instruction, even while challenges remain outside the classroom,” said a group of current and former education leaders in one of briefs, according to Students Matter, the organization that funded the Vergara lawsuit. “While teachers as a whole certainly deserve due process, states must, and certainly may, strike a balance between such job protections and their responsibility to provide students with quality teachers and a quality education.”

The briefs’ authors include Louisiana State Superintendent of Education John White, former Tennessee Education Commissioner Kevin Huffman, former Louisiana State Superintendent of Education Paul Pastorek, New Mexico Secretary of Education Hanna Skandera and former State District Superintendent of Newark Public Schools Cami Anderson.

The Vergara v. California lawsuit was brought by a group of California high school students, including several from LA Unified, who successfully argued that the state was depriving them of a quality education due to the laws that guide teacher tenure, seniority and dismissal, which they said kept ineffective teachers in their classrooms.

Judge Rolf Treu’s ruling in June of last year is currently under appeal by the defendants in the case, the state and its two largest teacher unions, the California Teachers Association (CTA)  and the California Federation of Teachers (CFT). Treu’s ruling stayed any changes in the laws until the appeal is decided, which is expected sometime next year.

CTA has called True’s ruling “deeply flawed” saying it “would make it harder to attract and retain quality teachers in our classrooms and ignores all research that shows experience is a key factor in effective teaching.”

The Vergara case is also being closely watched around the nation, as several copycat lawsuits in other states, including New York, have been filed.

Today the group is claiming a partial victory over Assembly Bill 753 after the Assembly Appropriations Committee voted to hold it in committee, essentially killing it for the current session. The bill would have extended tenure protection to teachers who work in small school districts and certificated employees that work in non-teaching positions.

“AB 753 flew in the face of the Superior Court ruling in Vergara and defied all logic by seeking to expand the very system the court found to be unconstitutional and harmful to California’s students and teachers,” Students Matter Policy Director Ben Austin said in a statement.

Students Matter is the group that funded Vergara v. California, in which nine students successfully sued the state and California’s two largest teacher unions over laws governing teacher employment. It’s currently under appeal, but Students Matter said that AB 753 and three other bills were unconstitutional as they ignored the Vergara ruling.

Student plaintiff Elizabeth Vergara at a press conference

The non-profit group behind the Vergara lawsuit, Students Matter, went on the offensive today against three bills introduced recently in the California legislature that the group says are “anti-Vergara” as well as unconstitutional.

The bills, AB 753, AB 575, and SB 499, all work in direct opposition to the landmark Vergara v. California decision, Ben Austin, who leads policy development and advocacy for Students Matter, said on a conference call with reporters today.

“We are seeing bills debated on the floor, like Assembly Member [Jose] Medina‘s bill, and we see Assembly members who are wholly uneducated about the constitutional, legal and moral implications of the Vergara decision,” Austin said.

In the Vergara decision in June 2014, Los Angeles County Superior Court Judge Rolf Treu struck down California’s laws regarding teacher tenure, layoffs and dismissals by saying they deny students access to a quality public education, especially those from poor and minority families. In essence, Treu ruled that it’s too easy for a teacher to get tenure in California, too difficult to fire a bad teacher and too harmful to students to base teacher layoffs on seniority.

The state’s two largest teacher unions, the California Teachers Association (CTA)  and the California Federation of Teachers  (CFT), and the state, all defendants in the case, have appealed the ruling.

Treu’s ruling leaves the ultimate remedy to teacher employment laws to the legislature, and the lower court decision will not be implemented unless it is upheld by the appellate court.

Austin insisted that Vergara is still the “law of the land” and that the three bills Students Matter is opposing are unconstitutional.

AB 753 looks to expand tenure to teachers in districts with 250 employees or fewer, where it had traditionally not previously been extended.

“This conflicts with Vergara in the most fundamental of ways despite the Assembly member’s comments.” Austin said. “The court found that tenure in California… that system is unconstitutional.”

In a followup email to LA School Report, Austin said Medina’s bill “exemplifies the arrogance of the status quo to not only ignore this historic decision while on appeal, but also super majorities of the public as well as tenured teachers.”

Medina’s office did not respond to a request for comment.

The two other bills deal with amended rules regarding teacher evaluations, but Austin said they were problematic because they grandfather in an “unconstitutional” system, even though the Vergara ruling did not cover teacher evaluations.

“Evaluations were not technically at issue in the Vergara trial, but…. just about all of the legal and policy theory implicate it in the Vergara trial,” he said.

Austin also pointed to a recent USC-Los Angeles Times poll that found the majority of registered voters in California support the major tenets of the Vergara ruling and want to see a longer term for teachers before tenure, an easier system to dismiss underperforming teachers and a layoff system that does not only factor seniority.

“Nobody supports the current system except for CTA and their close allies,” Austin said.

Former LA Unified Supt. John Deasy testifying at the Vergara trial

The non-profit behind the Vergara lawsuit, Students Matter, is adding two former LA Unified lightning rods to their ranks. Ex-Superintendent John Deasy and founder of Parent Revolution, Ben Austin, are joining the advocacy group.

Students Matter successfully sued the state of California and its public school teachers unions, overturning five laws governing tenure, seniority and dismissal that the student plaintiffs argued kept ineffective teachers in their classrooms. The state and the unions have appealed, vowing to defend the statutes challenged in the case.

It’s the second job-related announcement this month for Deasy, who will be serving on the Students Matter advisory board. He was recently named a consultant for The Broad Center for the Management of School Systems as a “superintendent-in-residence.” Austin will serve as head of policy development and advocacy for Students Matter, leading the organization’s “Courtroom to Classroom” campaign.

“By hiring Ben Austin and adding Dr. John E. Deasy ’s expertise to our board, Students Matter is expanding its commitment to fighting for political change that focuses on the needs of our kids,” David Welch, the group’s founder and a Silicon Valley entrepreneur said in a press release today.

Austin stepped down last month as executive director of Parent Revolution, a group he founded six years ago to aid parents pushing for change in their children’s poorly-performing schools.  Under his leadership, the organization played a role in creating California’s parent trigger law and, later, helping three area schools use it. Three other schools used the threat of it to force changes.

Prior to that he served as a Deputy Mayor of Los Angeles under Mayor Richard Riordan and worked as a senior advisor to Rob Reiner and First 5 California. In 2010, he was appointed to the California State Board of Education.

Deasy resigned from LA Unified in October under pressure due to mounting criticism of his managerial style and several bungled technology initiatives. Since resigning, criticism of his three-and-a-half year tenure has continued, fueled by a federal grand jury investigation into his $1.3 billion iPad program.

It’s unclear whether he would be held accountable by the grand jury for any aspect of the iPad program, which sought to put an iPad in the hands of every LA Unified student and teacher.

During his years as superintendent, graduation rates rose along with student test scores, and dropout rates fell.

Student plaintiff Elizabeth Vergara at a press conference

With an umambiguous victory in the Vergara lawsuit last year, the advocacy group that supported it financially, Students Matter, has developed a blueprint for the new legislature in Sacramento to rewrite the laws struck down by the trial court.

Never mind that the case is on appeal by the defendants — the state and its two biggest teacher unions — which are seeking to keep in place laws governing tenure, dismissal and layoffs that the court ruled unconstitutional.

Students Matter is circulating a how-to guide for lawmakers to consider changes mandated by the lower court.

“Vergara laid bare the moral imperative to ensure that our kids are given every opportunity to succeed, including access to effective educators,” Dave Welch, founder of Students Matter, said it a press release. “While our legal fight continues in the courtroom, we anticipate that the Legislature will be under pressure from special interest groups to legislate cursory and superficial solutions to a truly broken system. Our kids deserve better. California needs a bold and forward-thinking new policies.”

The group’s “Policy Pillars” also include recommendations to address how California can evaluate teacher performance in the classroom as a critical component to ensuring quality teachers are in the classroom.

Vergara is expected to be heard by the California Court of Appeal later this year. Students Matter said it anticipates the state legislature will be under pressure from special interests to legislate a “Band-Aid solution” rather than overall reform, saying “the legislative changes demanded by Vergara to California’s laws cannot be cursory or superficial, and are in-fact solvable.”

“We urge the Legislature to weigh carefully any bills proposing minor tweaks to the laws challenged by Vergara,” said Welch. “The changes to our Education Code required by Vergara are clear, and anything less is contrary to the spirit of Vergara and will be strongly opposed by Students Matter and all those who know that it’s time to put our kids, and their future, first.”

Elizabeth Vergara, at the press conference

As lawyers in the Vergara v. California case made their closing arguments inside the court room for the benefit of an audience of one – Judge Rolf Treu – their dueling press conferences held outside were directed at a statewide audience, to be broadcast by a number of television cameras.

The state defense team got their side of the story out first at an early morning event with the message that state laws that offer employment protections for public school teachers help California public schools “keep the American dream alive.”

Dean Vogel, president of the California Teachers Association, did not mince words.

“Outstanding teachers, award winning school administrators and the best education policy experts in the country have made it absolutely clear that the plaintiffs in this case are absolutely wrong,” he said.

Kindergarten teacher Erica Jones agreed, despite having been a victim of one of the statute’s that the plaintiffs are hoping Treu strikes down. The Last In, First Out law, or LIFO, ensures teachers with seniority are spared from the lay-off guillotine in times of district-wide reductions.

Jones said she was laid off in March 2009 as a new teacher. “I did not get this pink slip because of ineffective teachers or effective teachers,” she said. “I got this pink slip because my school and the district was incredibly under-funded.”

With no hard feelings, Jones added, “Seniority was merely an organized way to distribute the pink slips.”

Jeff Seymour, a former El Monte Superintendent who had testified for the defense, said existing laws provide stability in schools and lead to a collegial atmosphere, one in which teachers are willing to collaborate

“If we took away these vital supports, I believe that would tear that team approach apart and we would revert to almost a ‘Hunger Games’ mentality,” he said.

The plaintiffs’ press conference, held midday, before the defense presented its closing, was better attended with people from the courtroom who were there intentionally and some who “just followed the crowd,” as one person said.

They also had twice as many speakers, including one of the girls whose name — Vergara — has become short-hand for the case.

Sixteen year-old Elizabeth Vergara, self-consciously addressed the crowd — though at not quite five feet, she was hard to see over the podium.

“I never thought I’d be talking to this many reporters,” she said nervously.

Vergara says she became involved in the lawsuit because she wants to have “good teachers who inspire us.”

“But right now we’re kids and we can’t do this alone,” she said.

She went on: “It was scary telling my story to a judge but I’m glad I did. And I’m glad about my sister Beatriz and the other plaintiff’s [were able to] tell their stories, too.

Being a part of this case has given me an opportunity to stand up for my education.”

Marcellus McRae, who had just ended a one-hour, fairly note-free presentation in front of Judge Treu, took the opportunity to repeat a refrain he said inside the courtroom: “You can’t make sense out of nonsense.”

The money man behind the student plaintiffs in the lawsuit, David Welch, founder of Students Matter, a nonprofit organization, spoke briefly saying, the nine-students who have become the face of the landmark suit are surrogates for all of the children in California, everyone of whom deserves access to high quality teaching.

Russlynn Ali, a Students Matter board member and former Assistant Secretary for Civil Rights at the U.S. Department of Education, said the case could have national implications.

“It’s important not just for California,” she said. “The ramifications will ripple far outside of our border. This has started a robust and needed conversation.”

Supt. John Deasy in his second day of testimony

Under cross-examination today, LA Unified Superintendent John Deasy faced pointed questions from attorneys representing California’s biggest teacher unions and the state in a controversial lawsuit that could turn the practice of teacher tenure on its head.

At issue in the landmark case,  Vergara vs. California, are five statutes that the nine students bringing the case contend protect ineffective teachers, thereby violating their constitutionally protected right to a quality education.

Under less friendly questioning than earlier in the day, Deasy responded in detail to questions posed by Jim Finberg, attorney for the California Teachers Association (CTA) and the California Federation of Teachers (CFT), who attempted to chip away at the argument that the current tenure and dismissal statutes hurt students, and that removing ineffective teachers is quite possible now.

Using statistics that showed the number of dismissals in LA Unified rose to 99 in 2011-2012 from 10 in 2009-2010, Deasy’s first full year as superintendent, Finberg suggested that the number of teachers offered tenure during that period decreased, reducing the number of grossly ineffective teachers who receive permanent status.

Without disputing it, Deasy said the numbers only represented his recommendations to the school board for initiating a dismissal process.

When Finberg asked Deasy if he agreed that other factors, such as family wealth and poverty, influence the success or failure of a student, Deasy said, “I believe the statistics correlate, but I don’t believe in causality (of poverty).”

Susan Carson, a supervising deputy state attorney general, arguing on behalf of the state, took up the questioning later about the timetable to determine whether a teacher is ineffective. Despite her suggestions that one year is sufficient to identify an ineffective teacher, Deasy countered that too many factors are involved to draw a conclusion after such a short time. In California, teachers are typically awarded tenure after 18 months.

Earlier in the day, under more friendly questioning from Marcellus McRae, representing the students, Deasy told the court that the cost of dismissing a “grossly ineffective teacher” can sometimes reach into the millions of dollars, impacting decisions as to whether to appeal a dismissal or leave a teacher in the classroom.

He also said the time it takes to build a case against an ineffective teacher, however lengthy, results in leaving students with ineffective teachers.

McRae asked Deasy if the high cost of removal has resulted in reaching settlement agreements with ineffective teachers. He answered by saying it’s part of the current cost analysis and sometimes is the most “cost effective way to exit a teacher.”

When questioned whether leaving incompetent teachers in the system harms the morale of the profession, Deasy said: “Morale is absolutely affected,” adding that teachers don’t want to be on teams with incompetent teachers.

Deasy also testified that the seniority statute, know as LIFO for “Last in, first out,” which favors seniority when layoffs are required, is harmful to both students and teachers.

He said seniority does not always reflect teacher effectiveness and seniority-based layoffs work against the best interest of students.

“I do not believe it’s in the best interest of students whatsoever,” Deasy said. “I have been very clear at indicating that the decision about who should be in front of students should be the most effective teacher and that this statute prohibits that from being a consideration at all. So by virtue of that, it can’t be good for students.”

When asked whether the seniority statute was necessary to recruit excellent teachers, Deasy said it has, in fact, the opposite effect. Teachers find it “unattractive,” he said, to come into a system where job competence is not considered when layoffs are required.

Deasy returns to the stand tomorrow, presumably to finish his cross-examination. He’ll be followed to the stand by Harvard economist Nadarajan (Raj) Chetty.

Previous Posts: Commentary: An effective teacher in every California classroom; Vergara suit on teacher dismissal opens, courtroom packed; Vergara trial set to begin: major test for CA teachers.

The lawsuit, known colloquially as the “Bad Teacher” lawsuit, has been brought by Students Matter on behalf of nine California students and seeks to strike down five state statutes that they contend deprive students of equal access to quality education by protecting ineffective teachers.

Lawyers for the defendants – the state, three school districts and the state’s two major teacher unions — are arguing that the court should reject those claims and dismiss the case.

The students’ lawyers, meanwhile, plan to argue that they have gathered more evidence over the last year, showing that the statutes cause grave and irreparable harm to students, a rationale to ask the court to deny the dismissal request.

This is the third time that the defendants have sought a dismissal without a trial using the same arguments. Judge Treu and an appeals court rejected the earlier efforts.

If a trial proceeds, it would start on Jan. 27.

Previous Posts: Olson Previews Arguments in Vergara ‘Bad Teacher’ Lawsuit; Unions Ask Court to Dismiss ‘Bad Teacher’ Suit; LA Unified Dropped as Defendant in Vergara Lawsuit.

LAUSD Supt. John Deasy, via KPCC

Whatever happens inside an LA Unified board room tomorrow, support for Superintendent John Deasy is building outside of it.

Education advocacy groups unified as Communities for Los Angeles Student Success today announced they are holding a rally tomorrow morning at district headquarters to encourage Deasy not to resign and to call for an end to the politics they claim are obstructing educational justice in the city.

CLASS said in a press release that Deasy’s reported resignation has “galvanized the largest and most diverse education coalition in recent memory in Los Angeles,” and noted that former LA Unified board members Yolie Flores and Caprice Young will attend the rally.

Another group of Deasy supporters — community leaders and business executives — has sent the seven board members a letter, imploring them to keep Deasy in his job.

They write: “Firing Superintendent Deasy, or making his life so miserable that he has no choice but to leave, is not in the best interests of the students of Los Angeles. We urge you to pull the board together and make every effort to retain one of the top Superintendents in the country.”

Yet a third group — this one of educators, philanthropists and people in the entertainment industry — wrote to board members expressing support for Deasy. They said, “While there are legitimate issues to be worked out with the initiatives the Superintendent has launched, one thing is crystal clear, John Deasy is the leadership that the students of LAUSD need.

And Students Matter, a national non-profit that litigates to achieve quality public education, began a petition drive saying, “The politically motivated decision to remove Dr. Deasy as superintendent would cause a devastating loss in momentum for the district, and the students are the ones who would suffer.”

*Adds a second group of supporters have written board members to keep Deasy.

Lawyers for the plaintiffs responded by calling the request a “sham,” arguing that the measure, AB 375, would do nothing to address dismissal and tenure laws that protect problem teachers and deny students a quality education — a guarantee of the state Constitution. The unions named in the case, Vergara v. California, are the California Teachers Association and the California Federation of Teachers.

“AB 375 has no impact on the legal claims” in the case, said Marcellus Antonio McRae, a lawyer for the plaintiffs. “Even worse, AB 375 does nothing to protect California’s children in the classroom.”

The bill before Brown would establish new protocols for dismissing teachers. But the plaintiffs contend that it would do nothing to change state laws that they contend give little weight to teacher quality in decisions regarding employment.

Critics of AB 375 also say passage would make it more difficult for school districts to remove teachers who sexually or physically abuse students.

The lawsuit is aimed at amending one law that grants tenure after just two years of teaching, three laws governing the rules of dismissal and one that invokes a last-in-first-out protocol for staff reductions.

Barring a decision by the court to throw the case out, a trial is scheduled to start in late January.

Previous Posts: First Hearing for Massive Lawsuit, Landmark Suit Inches Forward,
Union Intervention Could Delay Tenure Lawsuit

After a settlement agreement with the plaintiff, Los Angeles Unified was dropped as a defendant in a lawsuit that claims students’ rights to equal educational opportunities are being violated by state laws governing teacher tenure, job security and seniority.

The dismissal came Wednesday in a suit filed 16 months ago by the advocacy group Students Matter on behalf of Los Angeles Unified student Beatriz Vergara and eight other schoolchildren from around California.

Attorneys for Students Matter said yesterday that the Menlo Park-based nonprofit will continue to pursue the case against Gov. Jerry Brown, state schools Superintendent Tom Torlakson and the state Department of Education.

Read the story here.

Students Matters‘ David Welch, third from the left, surrounded by his legal team

Last week, the California Teachers Association (CTA) and the California Federation of Teachers (CFT) filed a motion to intervene in the lawsuit Vergara v. State of California, which seeks to overturn five education laws in California (seniority-based layoffs, teacher tenure, and three dismissal statutes that make firing a teacher so onerous).

“This lawsuit is baseless and meritless, and hurts student learning,” said CTA President Dean E. Vogel in a blog post. “It is the latest attempt by corporate special interests and billionaires to push their education agenda on California public schools.”

However, an attorney for the eight plaintiffs Marcellus McRae, told LA School Report that if the judge does allow the two unions to intervene it could delay the start of the trial.

“We’re focused on keeping this trial date,” he said. “We don’t want it derailed.”

The suit is being bankrolled by Students Matter, which was founded by tech entrepreneur David Welch. They’ve hired a team of lawyers that includes the two Teds — Boutrous and Olson — who recently argued against the constitutionality of Proposition 8 in front of the United States Supreme Court.

If the judge agrees with the motion, the two state teachers unions will join the State of California and the LA Unified School District as defendants in the suit, currently slated for trial in January 2014.

Plaintiff’s lawyer McRae said that he worries more defendants could complicate and even widen the scope of the trial.

“What happens, invariably, is that the more players you have, the more voices you have, the more issues you have,” said McRae. “Each side tries to say what the case is actually about.”

Previous posts: Landmark Teacher Dismissal Case Gets a Court Date, Landmark Suit Inches Forward, School Reform In The Courts

Filed on behalf of nine students by the non-profit Student Matters, Vergara v. California is taking on the state constitution. It alleges that five state laws which protect teachers, like offering teachers permanent tenure after 18 months, and laying off teachers based solely on seniority, have made firing ineffective teachers a difficult and expensive process. The plaintiffs argue that they thus conflict with a student’s constitutional right to an education. If successful, the case would affect all school districts in the state.

Read more about the lawsuit and its upcoming trial here.

LA School Report is increasingly being recognized for its coverage of critical Los Angeles education issues. The latest example is the site’s inclusion in the Students Matter newsletter for our story about SB 10, the resurrected version of SB 1530: Teacher Dismissal Bill, Redux.

Plaintiffs’ attorneys Ted Boutrous, left, and Josh Lipshutz, right, with Students Matter founder David Welch in the background

On Friday, the first hearing was held in Vergara v. California, a case that seeks to strike down five laws that could — for better or worse — end up being the most revolutionary education lawsuit in the history of California. 

“What plaintiffs are asking for is far beyond scope of what the courts have decided [in the past],”  said State of California lawyer Jonathan Rich.

The California Supreme Court has ruled previously that education is a fundamental right under the state constitution and that students deserve equality of access to education.

The plaintiffs in Vergara argue that the laws that protect “grossly incompetent” teachers violate the constitution, since students that are placed in classrooms with these bad teachers don’t receive the same access to education as other students

On Friday, the lawyer for the State of California, Jonathan Rich, argued that the plaintiffs were taking the constitutional protection of equality of education way too far.

“The plaintiffs are asking the court to go into uncharted territory,” Rich told the judge. “A court has never held there’s a certain level of quality of education guaranteed. You would be the first.”

Previous cases, such as Serrano v. Priest, “dealt with fiscal disparities… The Constitution does not prohibit all disparities.”

Ted Boutrous, the lead attorney for the plaintiffs, seemed pretty confident that the suit is going to be monumental in its impact.

“This is a major, high-impact piece of litigation that could revolutionize education,” he told reporters after the hearing.

Boutrous said that even though the trial is about a year away, there will likely be appeals, which could take it all the way to the State Supreme Court.

In other words, this could be years away from getting sorted out.

In a preliminary decision (here),  Judge Treu rejected the defendants’ request to dismiss the suit.

Previous posts: First Hearing for Massive Lawsuit, School Reform in the Courts

Brought about by an organization called Students Matter, which is funded by wealthy tech entrepreneur David Welch, the suit takes aim at five laws in California: one that grants tenure to teachers after 18 months, three that make it extremely difficult to fire teachers with tenure, and the so-called “Last hired, first fired” [LIFO] law that mandates seniority based firing. You can read the full complaint here. See also: Firing the Bad Teachers LA Weekly).

The State of California has filed motion to dismiss the suit, on which the judge is expected to rule on Friday. If the judge agrees to hear the case, the trial is probably still at least a year away.  LAUSD superintendent John Deasy, who was named as a defendant in Doe v. Deasy, gave a deposition in favor of the plaintiffs’ argument and, when we spoke to him in August, said he expected to be deposed in Vergara as well.

Previous posts: School Reform in the Courts