Such dissents often come from the most distinguished jurists. Benjamin Curtis, for instance, was the first formally trained lawyer on the United States Supreme Court. In 1857, he dissented from the Dred Scott case that eviscerated the civil rights of African Americans, arguing that: “free persons, descended from Africans held in slavery, were citizens of the United States.” John Harlan dissented in Plessy v. Ferguson (1896) with the following famous lines:

“Our constitution is color-blind, and neither knows nor tolerates classes among citizens. … The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

Justices Curtis and Harlan were vindicated by history, as were Justice Louis Brandeis in Olmstead v. United States (1928) regarding the right to privacy, and Justice Harlan Stone in Minersville School District (1940) regarding freedom of religion.

Today, justices unable to persuade their peers write for history, as in the 2011 dissents of Justices Ruth Bader Ginsberg (the Dukes v. Walmart case regarding workplace rights of women) and Sonia Sotomayor (the United States v. Jicarilla Apache Nation case regarding the rights of the Apache Nation).

These examples come to mind in light of recent news from California, the nation’s largest state, and education reform, which the Urban League’s Esther Bush and many others have called the greatest civil rights issue of our time.

As background, in 2012 public school student Beatriz Vergara and 8 other schoolchildren sued California for violating their constitutional rights by providing them with systematically inferior education. In 2014, Superior Court Judge Rolf Treu agreed with the students, ruling that the California educational system “shocks the conscience” in its mistreatment of students of color. Judge Treu’s decision met with immediate and widespread approval from almost every major newspaper editorial board of the left, right, and center, as well as longtime progressive education leaders such as California’s former Congressman George Miller.

Unfortunately, three California appellate judges, led by Justice Roger Boren, made a clearly flawed decision to overturn Vergara.

As I wrote at the time, I was confident that the California Supreme Court would overturn Justice Boren’s clearly flawed ruling, in part because of my confidence in two of the individual justices of that court: Goodwin Liu and Mariano-Florentino Cuéllar. Both Liu and Cuéllar have sterling reputations and have been discussed as future justices of the United States Supreme Court.

Unfortunately, Liu and Cuellar were not given the chance. In a shameful abdication of duty, 4 of the 7 California Justices refused to even listen to the arguments of Beatriz Vergara and her fellow plaintiffs. Those four justices, Carol Corrigan, Kathryn Werdegar, Tani Cantil-Sakauye, and Leondra Kruger, thus join the ranks of names such as those of Roger Taney and Henry Brown that will be forever tainted by their defense of a brutal and discriminatory system.

Fortunately, California’s rules allow dissents even in cases of accepting or denying a petition for review. Thus, Justices Liu and Cuéllar, had the opportunity to keep hope alive for future petitioners. Justice Liu’s dissent included the following language:

“One of our criteria for review is whether we are being asked “to settle an important question of law.” Under any ordinary understanding of that criterion, our review is warranted in this case. … The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state’s highest court. … [The case asks] whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall. This issue is surely one of the most consequential to the future of California. Despite the gravity of the trial court’s findings, despite the apparent error in the Court of Appeal’s equal protection analysis, and despite the undeniable statewide importance of the issues presented, the court decides that the serious claims raised by Beatriz Vergara and her eight student peers do not warrant our review. I disagree.”

For his part, Justice Cuéllar wrote:

“What Beatriz Vergara and eight of her fellow public school students allege in this case is that they, and vast numbers of children in our state’s public schools, are burdened by certain statutes governing teacher dismissal, retention, and tenure that create a surplus of grossly ineffective teachers. … Nothing in California’s Constitution or any other law supports the Court of Appeal’s reasoning. … Even if one ignores the appellate court’s inconsistency with settled law, the question its approach begs is as simple as it is important: Why? … Beatriz Vergara and her fellow plaintiffs raise profound questions with implications for millions of students across California. They deserve an answer from this court. Difficult as it is to embrace the logic of the appellate court on this issue, it is even more difficult to allow that court’s decision to stay on the books without review in a case of enormous statewide importance. … There is a difference between the usual blemishes in governance left as institutions implement statutes or engage in routine trade-offs and those staggering failures that threaten to turn the right to education for California schoolchildren into an empty promise. Knowing the difference is as fundamental as education itself. Which is why I would grant review.”

Beatriz Vergara has reached the end of her K-12 career, and thus the damage to her (and millions of other students) has already been done. For future students, however, Justices Liu and Cuéllar have done a vital service. For all the hundreds of millions of dollars that education bureaucrats spend every year to lobby against education reform, they cannot win if they keep losing the moral high ground. When justices such as Liu and Cuéllar, who have been known throughout their careers as among the most inspiring, moral, and thoughtful members of the bar write such compelling dissents, other courts in other states will take notice. The first legal victory for these students will not come in California, but it will come.

Dmitri Mehlhorn is a Democratic businessman, attorney and senior fellow with both the Progressive Policy Institute and the Johns Hopkins Institute for Education Policy. He also co-founded and served on the boards of Hope Street Group and StudentsFirst (now part of 50CAN). 

David Welch, StudentsMatter founder, speaking at a press conference after a Vergara decision.

The attorneys involved in Vergara v. California, a landmark case that challenged teacher tenure laws, announced Tuesday they have filed a federal lawsuit in Connecticut challenging that state’s laws that they say restrict school choice options.

The lawsuit comes on the heels of the California Supreme Court’s decision Monday to decline to review an appellate court ruling that overturned Vergara v. California, effectively putting an end to that case’s four-year journey through the courts. The battle now moves to the California Legislature.

In the new case, Martinez v. Malloy, the plaintiff attorneys argue that the state laws violate equal protection and due process clauses of the U.S. Constitution.

The lawsuit names 11 students and parents as plaintiffs. Connecticut Gov. Dannel Malloy and other state leaders are named as defendants.

“These inner-city children are compelled to attend public schools that the State knows have been failing its students for decades—consistently failing to provide even a minimally adequate education,” attorneys write in the lawsuit. “Yet, at the same time, Connecticut has taken steps that prevent these poor and minority children from having viable public-school alternatives— knowingly depriving low-income and minority schoolchildren of the vital educational opportunities available to their more affluent and predominantly white peers.”

The attorneys cite three categories of laws that are being challenged: the state has put a moratorium on new magnet schools, “arcane and dysfunctional” laws that govern public charter schools and the state’s inter-district open choice enrollment program that penalizes school districts that accept students from inner-city school districts.

“Federal courts have a proud tradition of recognizing and protecting our most cherished fundamental rights — particularly when our children’s futures are at stake,” said Joshua Lipshutz, co-lead counsel for the plaintiffs. “It is time for the federal courts to step in and stop states, like Connecticut, from forcing inner-city children to attend failing schools.  Under the U.S. Constitution, every child deserves a chance to succeed in life.”

“As urban parents, we have to work ten times as hard, be ten times as engaged, and be ten times as savvy about the system to give our children even a slim chance of getting into a quality school,” said Jessica Martinez in a statement, the mother of one of the plaintiffs. “Connecticut’s laws hurt and impede, rather than help us.”

StudentsMatter is sponsoring the lawsuit. They say tens of thousands of poor and minority students in Connecticut are harmed by the laws.

“Every child deserves access to a quality education and the opportunities it provides, but the state is effectively limiting that access for some children — a direct violation of their Constitutional rights,” said StudentsMatter founder David Welch, a Silicon Valley entrepreneur. “This case is about parents standing up and demanding answers for a broken and harmful system.”

Assemblymembers Shirley Weber, left, and Susan Bonilla.

In the wake of a crushing defeat for a landmark challenge to California’s teacher tenure laws, the battle for change has shifted from the courts to the state Legislature.

While most parties agree that the inequities brought to light during the Vergara v. California trial must be righted, there’s a difference of opinion from those inside and outside the Legislature about whether that’s possible in the current political landscape in Sacramento, where teachers unions are among the most powerful lobbying groups.

Marshall Tuck, a former Los Angeles charter schools executive who ran unsuccessfully for state superintendent in 2014, credited Vergara and its nine student plaintiffs for the change he’s seen in the halls of the capitol.

“There’s real momentum that’s been built around these kids and the support they got,” Tuck said. “I believe that the momentum will hopefully continue and that we’ll get these changes.”

Assemblywoman Susan Bonilla, D-Concord, takes an opposite view.

“There’s no momentum. It’s the reverse,” she said. She pointed out that the California Teachers Association has racked up three wins since spring, with the appellate court’s unanimous ruling to overturn Vergara, the Supreme Court’s decision this week to decline to review the case and the thwarting of her own bill that would have made changes to teacher tenure and dismissal procedures.

“That’s the reality. It gets harder with every defeat,” she said.

Bonilla agrees it’s the Legislature’s job to make these changes.

“That’s why I carried my bill. The Legislature needs to take action. They shouldn’t abdicate their responsibility to the children of California.”

Even though Bonilla’s AB 934 was defeated after initial backers withdrew their support and lobbied against the final watered-down version, Tuck said the bill showed that the Legislature has made progress.

“Really for the first time, you saw a Democrat introduce meaningful legislation that addressed a lot of the areas that Vergara sought to address,” he said. “That, to me, really shows progress.

“Four years ago, there was zero dialogue about improving these laws,” he said.

Silicon Valley entrepreneur David Welch who founded StudentsMatter, which sponsored the Vergara lawsuit, said the organization will now turn its attention to the Legislature to seek the changes the lawsuit fought for.

“We hope the Legislature is listening,” he said Monday after the Supreme Court declined to take up the case. 

CTA’s political action committees gave about $250,000 to the chair of the Assembly Education Committee, Patrick O’Donnell, D-Long Beach, in his 2014 reelection bid. It was about one-third of the funds spent by that PAC in that election cycle. 

The CTA PACs also contributed campaign donations in 2014 to other members of the Assembly and Senate education committees, including Connie Leyva, Kevin McCarty, Tony Mendoza and Kristin Olsen, state campaign finance records show.

With the current legislative session wrapping up by the end of the month, little progress will happen immediately. Tuck hopes that the November elections, and victories for the Democrats in state races backed by education reform groups, will shift the Legislature even further.

“It’s more about how do we get people elected that are independent of special interests, that are really committed to solving these tough challenges that face our public schools,” Tuck said.

Bonilla is less hopeful.

“The support isn’t going to be there. What you saw happen with my bill is embracing the status quo,” she said.

Bonilla is termed out of the Legislature this fall, as are Carol Liu, D-La Cañada Flintridge, chairwoman of the Senate Education Committee who supported Bonilla’s bill, and Loni Hancock, D-Berkeley, also on the Senate Education Committee and a supporter of Bonilla’s bill.

“I think it’s great to see members come in and really be pursuing solutions and not beholden to the teachers unions. … (But) I don’t think it’s enough to get any legislation passed,” Bonilla said.

One piece of legislation that did make it through the Legislature this session was Democratic Assemblywoman Shirley Weber’s bill, AB 2826, which now awaits the governor’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.

The CTA remained neutral on the bill.

A spokesman for Weber said the assemblywoman is committed to engage with stakeholders on dealing with the broader scope of student outcomes.

“With or without the existence of Vergara, our office is planning on moving forward to address the problem of education inequity and overall improving student outcomes,” Weber spokesman Joe Kocurek said.

Fidelia Muralles, a mother of four who was active with Parent Revolution in its attempt to take over South Los Angeles’ 20^th Street Elementary School, said she was saddened and disappointed by the Supreme Court’s decision.

“What can we expect if we can’t rely on our courts to actually lead the way in making sure our kids get an education?” Muralles said in Spanish through a translator.

Muralles said she felt her children experienced a lack of preparation at the elementary level.

“It’s going to have a real impact for kids and families who don’t have access,” she said of the decision.

Lisa Snell, director of education at Reason Foundation, a nonprofit, nonpartisan public policy research organization, said she thinks it will be “extremely difficult” to get the changes Vergara sought through the Legislature, especially considering its track record.

“Every attempt to make even just the most moderate changes to these laws has been unsuccessful,” she said.

One way forward, she said, could be through a ballot initiative and appeal to the voters with the stories of students who are receiving an inadequate education in California public schools. But she pointed out that a statewide ballot initiative to change teacher tenure, Prop. 74, was defeated in 2005 by a 55-to-45 vote margin. 

“I think somehow they’re going to have to show more harm and have their storytelling be even better,” Snell said.

By Lindsay Sturman

The epic battle over how to improve public education in California grew more stratified last week when a bill to mildly reform California’s onerous teacher employment laws was gutted beyond recognition and quickly died. With it went the hope that our elected officials would finally decide the question which is at the heart of the debate: Is there a fair way to fire a teacher? 

Assembly member Susan Bonilla’s AB 934 was meant to address (and head off) the issues raised in Vergara v. California, a lawsuit brought by nine students who argued the laws are too protective. A Los Angeles Superior Court judge agreed; an appeals court did not. Now the state Supreme Court is expected to decide this summer whether to take up the case. While both sides agree there are ineffective teachers in our public schools, and they are concentrated in low-income communities, they can’t agree on what to do about it. Unions say there is no objective way to evaluate teachers, arguing principals can be biased and incompetent, and test scores are influenced by factors outside of a teacher’s control (such as poverty). The default system is that teachers get almost no scrutiny, and terrible teachers are left in the classroom indefinitely because no one is identifying the bad ones.

No one, that is, except for parents.

When a teacher is mean, lazy, chronically drunk in class or “grossly ineffective,” the parents know immediately. They know from their friends, from their kids or simply from observing a class. What has been overlooked by all parties in the debate is that in the absence of workable teacher dismissal laws there is an outsize role parents play in what happens to truly bad teachers. In affluent and high-performing schools, PTA parents — with booster club money, political clout and enough free time — will march into the principal’s office, file petitions with the district and protest until someone does something about a poorly performing teacher. That something is coaching (or nudging) the teacher to improve, and if that doesn’t work, “coaching them out.”

The phenomenon of “coaching out” is when administrators are forced to work around the stringent dismissal process, which can take a decade and cost $250,000, and convince incompetent teachers to leave on their own. Teachers only agree to this when there is another job waiting for them. That job is very often in a low-income, low-performing school, where turnover and vacancies occur more frequently. This shuffle of teachers is known as the “Dance of the Lemons” and was part of the testimony in the Vergara trial.

But the parent part of the equation went unnoticed amid bigger headlines (such as teachers calling students racial epithets and slurs such as “whore” and no one doing anything about it, and that students can lose nine to 12 months of learning from one year with a grossly ineffective teacher). Mark Douglas, assistant superintendent of personnel services at the Fullerton School District, referenced the role of parents. He said the Dance of the Lemons results in the transfer of less effective teachers to economically disadvantaged schools because an “(ineffective) teacher can exist without parent pressure at a lower-end school.”

In other words, bad teachers cannot survive in affluent and high-performing schools because they can’t survive the parents. Empowered parents will hold everyone’s feet to the fire until a poorly performing teacher gets support, improves or moves on. If parents are constantly pressuring a school to stay on its toes and strive for excellence, is it such a surprise when affluent students do well? It’s important to note that parents in low-income and low-performing schools do protest and fight to get rid of ineffective teachers, but their voices go unheard in the same way voices from low-income communities across the country go unheard. Just look at Flint, Mich.

Unions have won protection for teachers from unfair administrators (by insulating them from all administrators), but they can’t protect every bad teacher from every angry parent fighting to protect their kids. When problem teachers do move jobs, it isn’t a “dance,” which conjures up the image of ineffective teachers bouncing from school to school in neighborhoods across a city, rich and poor and middle class — Pasadena to Venice to downtown, Studio City to Brentwood. The evidence shows it’s a settling, with the least effective teachers moving to lower performing and more economically disadvantaged schools.

The story of a teacher at Walgrove Elementary that parents accused of reeking of alcohol on the job provides a recent example. Activist parents in an affluent part of Mar Vista reported that along with smelling alcohol on him at school, the teacher was verbally abusive to kids, made students cry and helped them cheat on the state standardized test. Parents spent months speaking up — to the principal, the superintendent, the district and the board of education — even threatening a school boycott. He finally left, only to move to a low-income school in a historically black neighborhood in South LA.

The system we have inadvertently sends the weakest teachers to the lowest performing schools that disproportionately serve low-income students, students of color and English language learners, compounding the very real challenges of racism and poverty. And if this weren’t bad enough, the lemons drive out the good teachers who can’t stand the dysfunction. This was testified to in Vergara by Maggie Pulley, a Stanford alum who taught in South LA but left her job because she couldn’t stand the “screamer” next door who was causing trauma and stress disorders to the kids she would inherit the following year.

Both sides of the debate agree that poverty can impact a child’s ability to learn, and test scores are highly correlated with family income. Which leads to the assumption that the cause of low test scores is poverty. But correlation is not causation. What if the correlation is related to the phenomenon of active and empowered parents pushing the worst teachers out of high-performing schools, who are then placed in low-performing and low-income schools, coupled with a system that can’t fire a teacher? What if “drop-out factories” are where lemons settle and push out the good apples, creating a vicious cycle? What if this quiet shuffling is exacerbating the “Scarsdale to Harlem” achievement gap? We need to ask the question: Would all children succeed if given excellent teachers?

We need to fix poverty. We need to support teachers with comprehensive professional development so they can improve and excel. We need all schools to value collaboration, a nurturing school culture, the arts and the whole child along with achievement. We need to give low-income communities an equal voice. And we can’t just “fire our way” to successful schools. But we have to admit that the status quo is harming our most vulnerable students. Rather than hyper-focusing on the question, Is there a fair way to fire a bad teacher, we should be asking: If rich parents won’t tolerate a lemon, why should poor kids have to?

 Lindsay Sturman was part of the founding team of six parent-initiated charter schools in Los Angeles with the mission to provide a progressive education to a socio-economically and racially diverse community of students.

(Photos courtesy of iStock)

The first half of 2016 brought high stakes and high drama to Los Angeles’ education scene, from dire budget predictions to heated charter debates to attempts at overhauling teacher tenure laws.

There were anniversaries to celebrate along the way — 25 years for both charter schools nationwide and Teach For America — and comings and goings of superintendents, plus the glimmerings of electoral races to come (for the school board’s members and president, LA City Council, mayor and even governor) that promise a starring role for education.

NEW SUPERINTENDENT

The new year started with the announcement that Michelle King had been chosen by a unanimous vote of the school board to be LA Unified’s next superintendent, the first black female ever to lead the district and the first woman since 1929. The three-month nationwide search had ended at home, with an LA Unified “lifer” who was educated in the district and has worked for it for nearly 30 years. King replaced Ramon Cortines, who stepped down at the end of 2015.

King had to immediately grapple with how the district would co-exist with the growing number of charter schools and the school board’s opposition to a plan to significantly increase their numbers. In fact, the day she was confirmed by the board was also the day of the unanimous board vote against an early draft plan to expand charters.

King called for healing, and in her first community town hall she stressed, “It’s not us versus them.” She met three times with the new head of the nonprofit formed to lead the expansion of the city’s high-quality schools, Great Public Schools Now Executive Director Myrna Castrejon, who, like King, was announced in January, is a minority woman and single mother, and stands to have significant impact on the shape and state of education in LA.

King also took on the plummeting graduation rate as well as predictions of a massive deficit within three years, holding a series of special board meetings in May and June to address the predictions and as well as recommendations outlined in a November report by an independent financial review panel.

She presented her first budget in June, which most board members praised, but noted there was much work yet to be done.

“Are we there? No, we’re not there, but we are on a path moving forward in the right direction,” King said as she presented the budget to the board.

“In general, I think that your staff and you have done a good job of trying to meet the needs in the district with the limited funds we have,” board member Monica Ratliff told her.

BUDGET GLOOM

“The future is dire,” is what King heard at the outset of the special meetings on the fiscal health of the district.

Internationally renowned education expert Pedro Noguera of UCLA, hired by the district to advise King and the board and facilitate the special meetings, warned that unless more serious measures are taken, the nation’s second-largest school district is destined to lose more students.

The challenges LA Unified is facing, Noguera said, include declining enrollment because of the growth of charters and demographic shifts, chronically under-performing schools, structural budget deficits and the need to increase public support for schools.

The details were daunting: the budget deficit was projected to reach nearly half a billion dollars in three years; a district audit showed LA Unified debt outstripped assets by $4.2 billion; unfunded pensions topped $13 billion and have more than doubled since 2005; per-pupil funding had doubled but the district still faces financial crisis; and plans for a turnaround included boosting enrollment but not cutting staff. Indeed, even though the district has lost 100,000 students in the last six years, its certified administrative staff has increased 22 percent in the last five years.

While the board in June passed a $7.6 billion balanced budget for 2016-17, it included $15 million for “housed” employees, which have increased to 181. These “teacher jails” are for staff members who are being paid to essentially do nothing while awaiting internal investigations about alleged misconduct, while the district has to hire substitutes to do their jobs.

CHARTERS

The tensions over charters grew increasingly more heated after January’s unanimous vote by the board to oppose the charter expansion plan.

Charter operators contended the district had turned up the heat on them by making charter approvals and revisions increasingly difficult and documented that investigations into charters had increased. The board openly pondered whether the district is unfair to charters.

In May a study funded by the LA teachers union claimed that independent charter schools drain half a billion dollars a year from LA Unified, but the district disputed the report, and its own numbers show LA Unified actually makes money from charters.

The union, UTLA, also stepped up pressure on charters that are co-located on traditional school campuses, with a UTLA-led rally at a school in Chinatown and organizing other rallies districtwide.

Charters and their growth were a recurrent theme at board meetings, as were responses and reports by the California Charter Schools Association, including one that charter schools in the state are excelling at getting historically disadvantaged students into college over traditional schools.

Meanwhile, the district was offering up its own plans to stem declining enrollment, focusing in large part on its popular magnet schools. The board approved a $3 million expansion of magnets, delved into why charters were attracting more federal dollars than magnets and voted unanimously to seek help from outside the district to replicate high-achieving schools, including magnets.

In June Great Public Schools Now revealed its long-awaited plan to increase access to high-quality education for tens of thousands of low-income students in Los Angeles and announced its first three grants, though none directly went to district schools. More grants are expected to be announced in the fall.

GRADUATION RATES

In her first month, King declared it was “all hands on deck” in an internal memo that revealed that only 54 percent of seniors were meeting their A through G requirements and on track to graduate.

A $15 million credit recovery program started in the fall that included online classes and staff interventions was credited with raising the projected rate to 74 percent by the end of the term, topping last year’s rate of 72 percent, while California graduation rates also rose to a new high of 82 percent.

But questions remained about the quality of those online courses, and about the worth of high school diplomas statewide. And while there was much celebration over the improved numbers, still a quarter of all LA Unified seniors, perhaps as many as 10,000, would not celebrating in commencement ceremonies and would be facing uncertain futures.

Even of those graduating and heading to college, a rising percentage find themselves required to take remedial classes, setting them back financially and increasing the likelihood of dropping out.

ACCOUNTABILITY

A three-year dearth of state data on schools continued to have ramifications and cause deep consternation throughout California.

Most responsible for the dearth is Gov. Jerry Brown, who has been one of the foremost critics of federally driven efforts to use data to improve education — leaving researchers and policymakers in the dark and setting up the possibilities of significant consequences for defying federal guidelines.

Felt most notably is the absence of a single-score method of ranking schools. The Academic Performance Index (API), which reported a single score, was discontinued after 2013 as the state transitioned to the Common Core-aligned Smarter Balanced tests, which debuted last year.

Then a new accountability system was released in February, but LA Unified said it wouldn’t even consider it, even though it was one of the six school districts that developed it.

The School Quality Improvement Index was developed by the California Office to Reform Education (CORE) and is a significant jump away from API scores because it represents a far more complex and intricate way of ranking schools and incorporates more than just test scores while also valuing how well the neediest students are performing.

Because the state is developing its own guidelines in the wake of new federal legislation, the CORE data will not be reported again after its initial year, but its creators hope that it will influence the state process.

But the data revealed a trove of insights, which LA School Report documented in a number of deep dives inside the system, calculating the scores of all 714 LA Unified schools entered into the data set (which didn’t include charters) and ranking them.

The new data revealed the best and worst of the district. It showed that the district’s 13 lowest performers are all elementary schools, and it looked at the top and bottom elementary schools, the stark differences among middle schools and the high and low high schools (Harbor Teacher Prep Academy at the top, Jordan High at the bottom).

The lack of data also played a notable role in the drama over 20th Street Elementary School, when LA Unified rejected a parent petition to take over the failing elementary school in South Central Los Angeles, asserting that no California school qualifies as failing under the state “parent trigger” law precisely because data no longer exist, meaning no school could be failing.

TEACHER TENURE AND UNION DUES

Supreme Court Justice Antonin Scalia’s death in February set off fears of deadlocks and predictions that the Supreme Court could change course on education reform.

Indeed, following Scalia’s death, the Supreme Court split 4-4, upholding mandatory union dues for teachers and other public employees in Rebecca Friedrichs v. California Teachers Association, which had been called a “life-or-death” case for public employee unions.

Plaintiffs fighting the mandatory dues had been optimistic following January oral arguments, when a 5-4 decision in their favor seemed likely. That calculus changed, however, following Scalia’s death.

A blow to efforts to overhaul California’s teacher tenure laws came in April, when the Court of Appeal overturned a Los Angeles Supreme Court ruling in Vergara v. California, which challenged teacher tenure, layoff laws and dismissal policies. Attorneys representing the students plaintiffs appealed to the California Supreme Court, which must decide whether to take the case by the end of August.

Then in the closing days of June, state lawmakers defeated a bill that would have amended teacher tenure laws and extended the probationary period from two to three years — even after the bill was stripped of its boldest language. The bill, AB 934, had been drafted to address some of the same concerns raised in Vergara.

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.

The California Supreme Court could be the next step. (Credit: Paul Sakuma-Pool/Getty Images)

Nearly two years after the trial in Vergara v. California first began, the case is set to move forward as judges from a state appeals court hear arguments Feb. 25.

The plaintiffs – nine students in five California public school districts – argue that five laws governing teacher dismissal, tenure, and “last in-first out” layoff policies deprive them of their right to a quality education, in violation of the state’s constitution. Those policies disproportionately harm minority and low-income students, they say.

After a two-month trial in early 2014, Judge Rolf M. Treu ruled in the plaintiffs’ favor, declaring those laws unconstitutional. Treu delayed the portion of the ruling banning the imposition of those laws pending appeals.

Here’s what you need to know ahead of the appeals court arguments.

What are the plaintiffs’ arguments, and who is supporting them?

Attorneys representing the students argued that California’s constitution, as interpreted in past cases, requires the state to provide a quality education. The five laws in question deprive students of that equal education, and poor and minority students are more likely to be assigned low-performing teachers, the plaintiffs argued.

Specifically, they said California’s two-year time period for tenure was too short to adequately evaluate new teachers. The cumbersome dismissal procedure made it too difficult to fire ineffective teachers who harmed students, they said. “Last in-first out” layoff policies forced districts to ignore teacher quality and students’ best interests.

Parents, students, teachers, superintendents and other school officials testified on their experiences under the law. Researchers testified about the harmful effects of an ineffective teacher on students’ test scores and long-term earning potential as adults.

The students filed the lawsuit with the backing of Students Matter, a national nonprofit that “promotes access to quality public education through impact litigation, communications and advocacy.” (The group has also filed a case challenging 13 California districts’ teachers contracts that prohibit the use of standardized test data in teacher evaluations, which they say violates a 1971 law.)

As the case has moved to the appeals stage, numerous individuals and groups have filed “friend of the court” briefs backing the students, including former Gov. Arnold Schwarzenegger; a coalition of groups including the Education Trust-West and the Los Angeles Urban League; business groups including the California Chamber of Commerce; and current and former superintendents, including New Mexico’s Hana Skandera, Louisiana’s John White, and Cami Anderson of Newark, N.J.

What are the union and the state’s arguments, and who is supporting them?

The California Teachers Association, which intervened on behalf of the state, argues that the lawsuit “has highlighted the wrong problems, proposed the wrong solutions, and followed the wrong process.” They say the laws at question are not unconstitutional and don’t harm students.

Unions have also argued in briefs that there isn’t evidence linking the least effective teachers to the neediest schools, and that there’s no evidence students named in the lawsuit have been taught by the worst teachers.

They also argued that the probationary period is enough time to weed out early-career ineffective teacher. On dismissals, they argued that most dismissal proceedings resulted in some early settlement or the teacher dropping the challenge, and that schools win when the process finishes through completely. On “last in-first out,” they argue that in the aggregate, more experienced teachers are more effective than newer ones and that without seniority protections, schools will simply choose to keep newer teachers who make less.

The state has argued that the laws are necessary to create a stable workforce and attract people to a profession that often offers low pay and difficult working conditions.

National unions – including the National Education Association, American Federation of Teachers and other national groups – filed amicus curiae briefs on behalf of the unions. A coalition of civil rights groups, including the Education Law Center and Southern Poverty Law Center, also weighed in on the unions’ behalf.

The union also argues that Students Matter is “an organization created by Silicon Valley multimillionaire David Welch and a private public relations firm for the sole purpose of filing this suit.” CTA says those who back Students Matter have “an interest in privatizing public education and attacking teachers’ unions.”

What’s happened in the case so far?

Students Matter filed the lawsuit in 2012. After the judge dismissed the state and unions’ motions for dismissal and immediate judgment, the trial began in March 2014. Proceedings lasted 33 days.

Judge Treu issued his ruling in June 2014 declaring all five laws unconstitutional.

There is “no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,” he said in the opinion.

The evidence on the effect of ineffective teachers “shocks the conscience,” Treu wrote. He also said there is evidence that the laws in question disproportionately affect poor and minority students.

The state and unions appealed, setting the stage for the Feb. 25 arguments before the appeals court.

What are the next steps?

A three-judge panel will hear arguments from judges representing the students and the state and teachers’ union, on Thursday, Feb. 25. Lawyers will have arguments prepared, mostly about the validity of the lower court’s ruling, and justices will interrupt to ask questions. While the 2014 trial lasted for months and involved the presentation of scores of witnesses and evidence, this trial likely won’t last more than an hour and will be more focused on the legal issues at hand and evidence already presented.

California rules require that the judges rule within 90 days, so a decision should be released by the end of May. The decision takes effect 30 days after that, unless one of the parties appeals to the state supreme court.

What’s the national impact?

Each state sets its own laws governing teacher tenure, dismissal and layoff policies, and the rights the students assert are given under the state constitution, so similar efforts will come in state courts. Several similar lawsuits have already been filed, including two in New York that have been merged into one case. (The 74’s editor in chief, Campbell Brown, founded the Partnership for Educational Justice, the group that filed one of those two lawsuits.)

This article was published in partnership with The74Million.org.

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.

Student plaintiff Elizabeth Vergara at a press conference

An appellate court ruling in the landmark Vergara v. California case moved closer to an end date today with the attorneys for the nine student plaintiffs filing their appeal brief.

The brief is a response to the appeal arguments made by the defendants in the case, the State of California and its two largest teacher unions, the California Federation of Teachers and the California Teachers Association.

The defendants lost the case last June when 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. Treu stayed his ruling and left it up to state lawmakers to fix the problems he cited, making the outcome of the appeal a potential tectonic shift in education should the ruling stand.

The defendants now have 20 days to file additional reply briefs, unless they are granted an extension. Once the briefs are all filed, the court will schedule a date for oral arguments, but there is no timeframe on when the court must schedule it, Theodore J. Boutrous, Jr., the plaintiffs’ lead co-counsel, explained in a phone call today with reporters.

The plaintiffs in the case have been financially supported by the organization Students Matter.

Once the oral arguments happen, the appellate court will then have 90 days to issue a ruling.

“Realistically, we are looking at six months to a year [before the appellate court rules,]” Boutrous said.

The defendants argued in their appeal that court did not apply proper legal standards in the case, that the plaintiffs used improper legal theories in arguing it, and that Gov. Jerry Brown should not be named as a defendant because he lacks “institutional interest” in the case, among other arguments.

“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 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.”

Boutrous expressed confidence in the plaintiffs’ appeal brief.

“The briefs on the other side took issue with our legal theories, but, as we lay out, the legal underpinnings of our claims are well established, and they are based on the same principals that led to historic civil rights victories,” Boutrous said.

These are all possibilities, judging from this season of potential change for the state’s public schools.

In recent weeks, a trio of separate but related actions has taken aim at the state in efforts that proponents say would improve the safety and academic performance of California’s 6.2 million public school students. But whether they would, in fact, lead to constructive change or serve merely as change for change sake remains to be seen.

If all three efforts succeed, one outcome is clear: the state and school districts would have new responsibilities aimed at providing students a better learning environment through changes that could hold important benefits for low-income and minority children.

In chronological order:

• The ACLU of Southern California and two other law firms in late May filed a class action in an Alameda County state court — Cruz v. California — on behalf of 18 students from seven schools, charging that students are being denied adequate instruction time. Two of the schools are in LA Unified — Fremont High School and Florence Griffith Joyner Elementary School. Another two are in Compton Unified —Compton High and Franklin S. Whaley Middle School.
• Early this month, a state superior court in Los Angeles delivered a stunning victory to nine student-plaintiffs in Vergara v. California, striking down a series of state laws that govern teacher protections as a way to remove ineffective teachers from their classrooms.
• Last week, with unanimous support in both chambers, the state Assembly and Senate sent a bill to Gov. Jerry Brown that would make it easier to get rid of teachers accused of immoral and illegal behavior.

While there are no direct links among the three actions, they combine to suggest that additional measures are needed to protect the rights of school children in their quest for a quality education, which, in turn, affects their career prospects and lifetime earning potential. And the proponents in all three want to hold the state accountable.

“The state went off the rails a long time ago, and it’s becoming increasing frustrating,” said Mark Rosenbaum, chief counsel for the ACLU. “Left to its own devices, the state is not going to do anything to change.”

As obvious as the troublesome issues appear to the proponents of change, opposing forces in the lawsuits can keep the status quo in place for years through appeals.

That is certainly true in Vergara. While the state has not commented on whether it intends to appeal, its union partners — the California Federation of Teachers (CFT) and the California Teachers Association (CTA)— have said they would, arguing that the laws are fine the way they are and provide teachers important job protections.

The judge in the case, Rolf Treu, said he would stay any state action — i.e. legislation to satisfy his decision — until appeals have been exhausted.

The Cruz case is only just beginning, and Rosenbaum said he is hoping for a trial to begin “within a year.” It cites free periods, security disruptions, mid-semester course changes and transient teachers as among the causes of lost instruction time. Those factors, the suit contends “systematically deprive” students of “meaningful learning time”

The bill awaiting Gov. Brown’s signature is more narrowly defined, aimed almost exclusively at teachers accused of such offenses as felonies and child molestation.

All three actions have potential ripple effects. The Vergara trial has triggered an enormous wave of public debate across the country over case’s central issues — the benefits and proper length of tenure, how dismissals should work and the criteria districts should use to layoff teachers in times of budget cutbacks.

“It boils down to this,” said Marcellus McRae, a lawyer for the Vergara plaintiffs. “If state constitutional protections are a pathway to helping students in California, other states will say, ‘We can do this, too.’ This is a very strong reminder that that courts are an avenue and the proper place to get enforcement.”

Rosenbaum said the issues in Cruz should serve as a template for other districts in which budgets, administrative malfeasance or indifference have worked to deny students learning time.

Only the law aimed at problem teachers can initiate more immediate action. Gov. Brown has 12 days to sign it once it reaches his desk. So far, it hasn’t, according to his communications office. If he does sign, it would go into effect in January — a big change for students, with maybe more to come.

The Center for Union Facts, a nonprofit, ran an ad in today’s USA Today that urges parents and school reform advocates to to follow Vergara’s lead and sue when teacher unions block reform efforts.

Judge Rolf Treu decided in favor of the nine student plaintiffs, declaring unconstitutional laws that set rules for teacher tenure, seniority rights and dismissal. As chief defendant, California was joined by the state’s two biggest teacher unions.

“While the final resolution of this case may still be years away after inevitable appeals, it demonstrates there are means beyond traditional legislative venues to achieve education reform,” said Richard Berman, executive director of the Center. “Just because teachers unions block reform efforts in state legislatures and local school boards, reform advocates don’t have to sit idly by while children and our education infrastructure suffer.”

A spokesman for the Center said the ad was part of an on-going campaign to focus on teacher unions that urges parents to have a voice in education policy.

Ben Austin

LAUSD School Board Member Steve Zimmer’s recent commentary “Standing with Beatriz” hit the nail on the head on one key issue: for our children, the stakes are high.

Let me acknowledge first that Mr. Zimmer is a good person who is doing what he feels is best for the children of LAUSD. On this issue, however, we have a principled disagreement about what that is.

Mr. Zimmer portrays himself as a grassroots underdog taking on a phalanx of nefarious billionaires who aim to “privatize” public education. What he fails to mention, is that he was also supported by over one million dollars in campaign contributions from the biggest and most powerful special interest group in the state. That fact doesn’t make him right or wrong, but it does make him part of the system. It isn’t a coincidence that the same adult special interests that bankrolled his campaign are now bankrolling the opposition to Vergara.

Mr. Zimmer wrote about the “Vergara fiction,” that the status quo is broken. But this harsh reality is unfortunately not fiction for the children who lose their talented, dedicated and loving teachers to layoffs each year just because they were hired last. And it’s not fiction for the children who have been molested and for those who were literally forced to eat semen by a teacher who was paid $40,000 to retire, with full benefits!

Vergara shifts the focus from the interests of adults to where it should have been all along: children.

Putting children first must be the “north star” by which all decisions are made in our public education system. Ninety one percent of likely California voters support a children-first agenda, but far too often the interests of powerful adults trump the interests of children.

This is not a coincidence.

It’s because kids don’t have a political action committee, and kids don’t have lobbyists.

Beatriz Vergara and the millions of children attending California public schools can’t vote.

When I served on California’s State Board of Education, every time I cast a vote there were lobbyists for teachers unions, administrator unions, charter schools and a plethora of other special interests sitting right there in the front row. Lobbying me. Watching me. Keeping track of every vote. They do the same with Mr. Zimmer.

But the seat for kids is always empty. Because kids don’t have lobbyists.

Sadly, the ordinary political process has failed our children, especially our low-income children, children of color and undocumented children. It has left a broken status quo in its wake. Extraordinary measures are now required.

The landmark Parent Empowerment Act – also known as the Parent Trigger – provides parents with a real seat at the table to advocate for the interests of their kids. That’s the theory of change undergirding the work of Parent Revolution.

Another innovative theory of change comes through the Vergara lawsuit, recognizing and enforcing a child’s constitutional right to a quality education because the normal political process has failed to do so.

As an LAUSD dad, I witness firsthand the inequity of the system every single day. Far too many children are sentenced to a high or low quality school based solely on their zip code or neighborhood.

I am fortunate to live in a nice neighborhood in West LA. On many mornings, I drop my daughter off at our neighborhood LAUSD school and walk past empowered parents who are getting what they need for their kids. I pass dedicated and effective educators who love our kids and are invested in their development.

After dropping off my daughter, because of my work at Parent Revolution, I often drive to schools like 24th Street Elementary School in the South LA/West Adams neighborhood. I hear stories from parents that kids and teachers were getting sick from noxious fumes and no one knew why, but no one took action to figure it out.

Once Parents Union members began to organize and collectively demand a better school, district officials took action and discovered the dead animal carcasses rotting in the air vents!

If there were dead animals on my daughter’s campus, there would be a S.W.A.T. team surrounding the remains before a parent or child even noticed it.

Same city. Same district. Same age kids. Same type of neighborhood school.

But nothing about those schools felt the same.

At 24th Street, the parents used their power under the Parent Empowerment law and now things are different.

Now the interests of children are represented at the bargaining table. Now the dead animals are cleaned up and the school has a culture of high expectations. But that’s not the case in over a thousand failing schools across the state of California.

As a parent, it is obvious to me that California children’s constitutional right to an equitable education is being violated every single tragic day, because these children are forced to accept conditions I would never accept for my own daughters.

Even if the ordinary political process doesn’t (or can’t) provide children a seat at the table when it comes to decisions that impact their future, this judge has the power to acknowledge the harsh reality of the status quo, and can make the common sense judgment that constitutional liberties exist to serve this exact purpose: to protect discrete and insular minorities who can’t protect themselves in the ordinary political process.

In the case of Vergara, that means protecting children like Beatriz and thousands of other children across the state.

A ruling in favor of the plaintiffs would embrace a bedrock principle as old as America itself: our children are our future and we must place their interests above our own.

Ben Austin is Executive Director of Parent Revolution and a board member of Students Matter, the organization bringing the Vergara case.

A state ballot initiative aimed at regulations governing teachers that was headed for the November ballot has been pushed to 2016, according to a report by ABC affiliate KXTV in Sacramento.

The measure was seeking to change the way California school districts lay off teachers by using a teacher’s classroom performance rating, rather than seniority. Matt David, a Republican strategist and the measure’s sponsor, decided to wait until 2016 to bring the measure to the voters because of the high start-up costs associated with new annual teacher evaluations, the KXTV report said.

The fiscal analysis of the initiative, conducted by the independent Legislative Analysts office, showed that the cost of the new annual teacher evaluations could hit $1 billion.

Though the decision may seem like a victory for teacher groups statewide, David isn’t backing down.

“We feel it’s necessary to commission a study that examines the true cost based on other states rather than speculate on hypotheticals like the LAO fiscal analysis,” he told the station.

David’s initiative seeks many of the same objectives as Vergara v. California, the state’s most significant teacher rights case in two decades, which recently concluded the testimony phase in California State Superior Court. The case was brought by nine student plaintiffs who say the current state laws protect ineffective teachers and deny their constitutional right to receive a quality education.

The defendants in the suit —the state and its two biggest teacher unions argued that the regulations are fine as they are and blamed problems with ineffective teachers on poorly-run schools and districts.

Messages seeking comment from David were not immediately returned.

John Deasy, with fellow panelist, Susan Estrich

More than two months ago LA Unified Superintendent John Deasy took the stand as the first witness for the plaintiffs in Vergara v California, a lawsuit challenging teacher protections. He testified for three days, laying the foundation of their overall case.

Now that the trial has ended, the head of the largest school district in the state continues to make his case to the public, positioning Vergara as a civil rights issue.

Speaking yesterday on a panel called “Rights, Writs and Rulings: Where does a student go for redress?” sponsored by the USC Rossier School of Education, Deasy characterized the Vergara trial as the next point on the civil rights continuum seeking to strike down segregation in public schools: A major focus of the plaintiffs’ case is that low-income and minority students are more likely to be taught by ineffective teachers than children from more affluent families.

He spoke at length about Plessy v Ferguson and Brown v Board of Education, both historic cases that challenged the Fourteenth Amendment. And Deasy drew parallels between more the recent public education battles of Williams v California, Serrano v Priest, and Butt v California, as well as the peaceful protests lead by African-American students in the 1960s.

Deasy said a group of well-dressed black students sitting at a segregated Woolworth’s counter in Greenboro, North Carolina decades ago, politely asking to be served is not unlike a group of nine California students asking for a better education today.

“I would like a cup of coffee. I want to go to a good school,” he said. “We are still struggling some 60 years later to enact the promise of Brown v Board of Education. I am troubled how today we can witness such unequal, non-protected classes of youth at a single institution called public education. Our work is not done.”

It is not the first time Deasy has elevated disparities in public education to status of a civil rights issue. It was part of his rationale for LA Unified’s push to get iPads in the hands of every district student.

But the arguments in Vergara, which equate a case seeking to strike down five laws that govern teacher seniority, dismissal and tenure to a battle with institutional racism, is upsetting to people on the other side of the issues, as if opponents of Vergara are implicitly racists or bigots for supporting the existing laws or advocating a different path toward improving educational outcomes.

That includes those who support the two-year probationary period for tenure, the state’s last in, first out layoff policies, and the state’s dismissal process.

“I know about the inequities,” said Lisa Alva, a teacher at Roosevelt High School in east LA, which she describes as “notably needy.”

Throughout Deasy’s speech she said, she was trying “really hard” to reconcile his lofty ideas with the reality of what is happening in schools everyday.

“Deasy says this case is not about striking down teacher rights, that it’s about student rights, but the two are not mutually exclusive.” she said. “Help us do a better job. Give us the resources and the support we need.”

Steve Zimmer

Just over a year ago, I won re-election to the Los Angeles Unified School District board. It was an unlikely victory in what may have been the most expensive school board race in U. S. history. The wealthiest of self-styled reformers – Eli Broad, Reed Hastings, Michael Bloomberg and Michelle Rhee’s followers – put in over $4-million to try and take over the L.A. Board of Education.

The stakes were high. Los Angeles Unified is by far the largest school district in the nation to be governed by an elected board. Our district has over 900,000 students, over 60,000 employees and an operating budget of over $7 billion. The reformers were clear about their goals. They sought to eviscerate the power of our teacher union by eliminating job protections, seniority rights, and tenure. They sought to link teacher evaluation directly to standardized test scores. And more.

Against this gale force, we were able to build an improbable coalition of families, teachers and classified employees, and community activists. We matched the billionaires’ money with authentic boots on the ground. We talked to people, and people listened. In the many struggles in today’s economy, battles often pit people’s interests against the interests of corporate America. This time the people won.

Or so we thought.

As it turns out, the election isn’t really over. It just shifted venues.

The same privatizers who funded the campaign to buy the school board funded the litigation here in Los Angeles that seeks to achieve through the courts what they could not win at the ballot box. Named for one of the student plaintiffs, Beatriz Vergara, the case heard closing arguments yesterday. If it is successful, the Vergara case will eliminate some teacher tenure protections, limit seniority, and diminish collective bargaining rights.

To be sure, the Vergara case has dramatized serious and significant issues facing our students and their schools. I have spent my career working to narrow the opportunity gap that creates the sub-standard conditions for teaching and learning that so dramatically impact the achievement gap. At both the school where I taught for 17 years and the Board of Education, I have built partnerships that address the education disadvantages that saddle so many black and Latino students struggling against our institutionally racist systems.

But the Vergara plaintiffs’ team was much more interested in the spectacular than the substantive. Their case was presented with compelling optics and atmospherics, and it is part of a strategy that extends well beyond the courtroom. Students Matter, the umbrella organization advancing the case, hired a crackerjack PR team and paid them millions to spread what I call the “Vergara Fiction” across the nation.

The Vergara Fiction is disingenuous. It says that if it were easier to fire teachers and if teachers didn’t have strong tenure and seniority rights, many of the problems facing Beatriz Vergara would disappear. The obstacles built over decades would evaporate with one decision. In this fantasy world of precise causality, if no teachers had tenure, then they would be scared into performing better. If there was no teacher seniority, energetic new teachers would work around the clock for two years before burning out and moving out, being replaced by another young recruit. Make no mistake; the goal of the plaintiffs is to diminish the stature of teaching as a profession.

Addressing instructional quality for all students involves a complex series of changes in policy and practice. Who we recruit to be the next generation of teachers and how they are trained and supported necessitates a transformed relationship between school districts and universities. Improving teacher education is much more important than lengthening the tenure window.

And collaborative teacher evaluation reform like LAUSD’s Frameworks for Teaching and Learning must be implemented with urgency and investment. None of this work is easy. It will take collective sleeve-rolling from our teachers, our union partners and civic Los Angeles. Eliminating seniority would be simpler, but it wouldn’t change a thing for Beatriz Vergara.

Finally, we should all come together to make sure criminals and pedophiles masquerading as teachers never enter a classroom. There are reasonable changes that can be made to statutes that ensure student safety without cutting due process for teachers facing accusations that have nothing to do with student’s rights.

But the plaintiffs’ legal team and their private-sector backers aren’t interested in real solutions. That is not their agenda. The case is just a means to an end. That is why the public relations campaign is so much more about fictional narrative than concrete substance. They have woven together a story that ensures that if they win in court they win, but if they lose they win even more.

Because the next stop for the reform train is back at the ballot box.

The court case is the trailer for the next series of ballot initiatives and school board races. By establishing a fictional direct correlation between Beatriz Vergara’s teachers and every aspect of her aspirations, the plaintiff’s have pitted teacher’s rights against the American Dream itself. And a campaign that is framed as a battle between adult job protections and children’s dreams is a sure fire vote getter. I can see the ad already: “Beatriz Vergara can’t vote yet but you can!”

The damage the Vergara case will inflict will be felt well before the verdict is read or the first post-Vergara campaign is launched. Every teacher that watched the trial or read the coverage felt the attacks personally. The defense team did an admirable job presenting its case, but no one is defending teachers or our life work. The unrefuted narrative of teachers’ standing in the way of the American Dream instead of defending and promoting it, will linger much longer than the verdict.

And there is one more thing.

I know Beatriz Vergara. Not personally. But I know thousands of Beatriz Vergaras. They are my students, my counselees and my neighbors. Rejecting the billionaires and their plaintiffs’ attorneys cannot mean we reject Beatriz and the urgency of her struggle. In fact, we must redouble our efforts to make the complex and difficult changes to our systems that will truly honor her potential and her dreams. We must show Beatriz and her family and all our families that we go so much further when we turn towards each other instead of against each other. We must make her struggle our struggle in our every waking moment. We must forge new pathways to realize the promise of public education for all students. And today, we must have the courage to realize that standing with Beatriz Vergara means standing against the exploitive case that bares her name.

Steve Zimmer is a member of the LA Unified School Board, representing District 4 

Plaintiffs’ lawyer Ted Boutrous

Lawyers from both sides in Vergara v California — the state’s most significant teacher rights case in two decades — unleashed their final arguments today, in a last attempt to amplify their own case and destroy their opponent’s.

The case is now in the hands of state Superior Court Judge Rolf Treu, who gave the sides until April 10 to submit any final briefs, after which he has 90 days to issue his ruling. He has the option of striking down all the laws, some of them or none of them.

“I’m not saying it’ll take all 90 days,” he told them inside a downtown courtroom larger than the one used for the trial, so as to accommodate a big audience on the final day of proceedings. “The court has much to consider, and it will consider it deliberately and thoroughly.”

Ted Boutrous and Marcellus McRae, lawyers for the nine student-plaintiffs went first, offering dramatic and emotional rationales for striking down five laws that govern teacher seniority, dismissal and tenure.

Jim Finberg

They were followed by Supervising State Attorney Susan Carson and Jim Finberg, who was representing the California Teachers Association and the California Federation of Teachers. Together, they argued that the plaintiffs came nowhere close to proving their case.

For two hours, Boutrous and McRae laid out their vision, arguing that the statutes handcuff school districts, thus leaving ineffective teachers in the classroom and denying students their constitutional right to a quality education.

Boutrous underscored the impact ineffective teachers have on students. Recalling testimony from Harvard economist Raj Chetty, he told the court that if as few as 3 percent of California teachers were ineffective, the academic impact on their students would be the equivalent of $11.6 billion in lost lifetime earnings.

“If that’s not real and appreciable harm caused by theses statutes,” Boutrous said, “I don’t know what is.”

McRae followed, and his presentation was the most animated and emotional of all the lawyers.

“You can’t make sense out of non-sense,” he intoned more than once, insisting that the challenged statutes are the prime reason why so many ineffective teachers remain in California classrooms.

He indicated the evidence supports the plaintiffs’ position that the two-year tenure statute provides insufficient time to make an informed decision on a teacher’s effectivess; the dismissal rules are too costly and lengthy; and, the seniority law requires district to layoff top teachers.

He called the dismissal process “a monstrosity” that requires “17 arduous and byzantine” steps before a teacher challenging a dismissal would have the final decision. He likened it to driving down an unfamiliar freeway, and “You don’t know if your getting off at exit 2, exit 10 or you have the E ticket ride to the Court of Appeal.”

McRae also repeated the familiar theme in the case, that the students most impacted by these statutes are the most vulnerable, generally from minority and low income families.

“Have we not had enough in this country’s history of short-shrifting poor people?” he asked. “This is an abomination. This has to stop.”

Both Boutrous and McRae reminded the court that the five statutes undermine students’ rights, and that the state must show that there is a compelling state interest that could not be satisfied with any other approach, and they argued it hasn’t done so.

The lawyers for the state and teacher unions mounted strong counter arguments, that the challenged statutes are not the problem. Rather, the pervasiveness of ineffective teachers can be laid at the feet of poorly managed school districts, as they said their evidence has shown.

The defense maintained that the contested laws serve legitimate governmental interests – academic freedom, attracting and retaining quality teachers, and providing employment protections for teachers to insure that they are not unfairly dismissed.

“The best way to help students,” said Carson, the state’s lawyer, “is not to take away teachers’ rights. Put more resources into schools so they can do the best job they can.”

Finberg argued that the plaintiffs failed to prove that the challenged rules had a direct impact on the nine-student plaintiffs, especially because only four of them and the father of a fifth actually testified in the case.

“None of the plaintiffs suffered real and appreciable harm,” he said.

He reminded Judge Treu that each accusation a plaintiff  made, of suffering from the ineffectiveness of a teacher, was a misrepresentation of the facts, as he described the teachers they named as exemplary.

“The reality was very different,” he said, adding that none of them had ever been assigned an ineffective teacher or been given one as a result of the statutes.

Finberg also made a strong defense of the two-year tenure statutes. To counter McRae’s argument that three years or more would give school districts more time to make critical judgements, Finberg asked rhetorically, “How useful is that additional information? And what is the cost of waiting?”

He concluded by telling the court that the statutes “are doing the good job we want them to do, educating California children.”

As is customary, plaintiffs got one last chance to make their case in rebuttal. Boutrous responded to the defense’s closing arguments by saying he felt as if he “had entered an alternative universe  where rules that govern behavior don’t apply.”

He said the laws violate students’ constitutional rights and harm “kids every day creating an inequity wave across the state.”

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.”

LOS ANGELES — An attorney representing nine California public school students told a judge Thursday that laws making it too hard to fire bad teachers and retain good ones are preventing students from obtaining a decent education and must be struck down.

Theodore Boutrous Jr. made his assertions in a closing argument in the trial of a lawsuit that seeks to make it easier for administrators to dismiss incompetent teachers with tenure and easier to retain effective ones.

Attorneys for those who support leaving teacher tenure laws intact were to make their closing arguments later in the day.

Superior Court Judge Rolf Treu, who is hearing the case without a jury, did not indicate whether he would issue a ruling immediately afterward or a written one later.

Boutrous said that saddling a student with a bad teacher for just one year can cost a youngster tens of thousands of dollars in future lifetime earnings.

“When a student has a grossly ineffective teacher, it harms them. It harms them for the rest of their lives,” Boutrous said.

Administrators clearly know who their ineffective teachers are, but tenure laws tie their hands, he said.

The closing arguments came after weeks of testimony from top school officials and others.

The group of students who brought the lawsuit say that once an incompetent teacher is granted tenure, it becomes so difficult to fire them that students are denied their right to a good education.

Attorneys for the state and teachers unions respond that the 18-month probationary period before a teacher is granted tenure is sufficient time to weed out incompetents.

The trial represents the latest battle in a nationwide movement to abolish or toughen the standards for granting teachers permanent employment protection and seniority-based preferences during layoffs. Dozens of states have moved in recent years to get rid of or raise the standards for obtaining such protections.

The students bringing the lawsuit want longer probationary periods before teachers are granted tenure and a streamlined process for firing underachieving instructors. They also want an end to “last hired-first fired” policies when financial constraints make it necessary for school districts to lay off instructors.

Teachers union officials say those job protections are vital to keeping quality teachers in a profession already losing talented people to higher-paid private-sector positions.

Judge Rolf Treu

Closing arguments are scheduled for tomorrow in Vergara v California. Lawyers for the nine public school children who are the plaintiffs will speak from 10 to noon, followed by their defense counterparts, from 1:30 to 3:30.

The plaintiffs have the option to get in a last word after that, but, really, is there much new to say by now?

The positions are clear. For two months, the opposing sides have put on AM/FM cases as they try to persuade Superior Court Judge Rolf Treu of their superior wisdom.

Plaintiffs have taken a systemic approach, using the experiences of nine students as a motif for showing why California needs to legislate a more efficient way to get ineffective teachers out of the classroom. The fact that one child’s education could be compromised means all children are at risk.

No, say the defendants — the state, with the California Federation of Teachers and California Teachers Association, as “intervenors.” Their case has been more granular. These kids might have had problems with their teachers, but is that enough to blow up state laws that offer employment protections for public school teachers, whose effectiveness in the classroom is dependent on so many factors outside of it?

The battle ground has been five laws that cover three aspects of teaching in California:

• The Permanent Employment Statute, which requires school administrators to decide after 18 months whether to hire on a permanent basis or dismiss a teacher. Plaintiffs say it’s too short a time to make a reasonable decision. Defendants say it’s time enough.

• The three Dismissal Statutes, which provide the protocols for how districts get rid of an ineffective teacher. The plaintiffs say it takes too long and costs too much. The defendants say they provide critical employment protections for an endangered profession.

• The “LIFO” Statute, or last-in, first-out, which means seniority is the only measure by which teachers are laid off in times of tight budgets. Plaintiffs want student achievement as a determinant. The defendants say seniority is fair, orderly and objective.

Tomorrow is not nearly so critical as what happens next. As a bench trial in which 52 witnesses testified over two months, the case now falls to Judge Treu to contemplate one over-arching question: Are the laws, as they exist, the best and only way for the state to provide California school children access to a quality education, as the state Constitution provides?

Anyone watching Judge Treu over the course of testimony would appreciate his unstinting attention to detail and process. He demonstrated a sponge-like quality to absorb nuances of testimony in navigating the appropriateness of questions, evidence and objections.

At the end of testimony on Monday, lawyers from both sides thanked him. But his task ahead is a daunting one. Striking down state laws is a serious undertaking, and no matter how he decides, the losing side is likely to appeal.

He is not bound to any formula for judgement. He can strike down all the laws, some of them or none of them — although they are so inextricably linked, vacating only some might pose a greater challenge for the legislature than a complete overhaul.

It’s even possible that the legislature might have another look at the laws if the defense prevails on all points. California is one of just five states that provide as little as two years for granting tenure. That would be the easiest law to change, and the case didn’t provide much compelling evidence that keeping the probationary period so short is vital.

Whatever happens, the Vergara case has provided yet another platform for those in public education to divide their universe along the usual union-reform axis. After all, it is a wealthy entrepreneur from Silicon Valley with ties to reform groups, David Welch, who is underwriting the plaintiffs, and the California affiliates of the nation’s largest teacher unions are on the other side.

In that context, the arguments are likely to continue, well beyond whatever Judge Treu decides.