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). 

Assemblywoman Susan Bonilla, D-Concord. (courtesy)

State lawmakers on Wednesday once again failed to amend teacher tenure laws, this time rejecting a bill that would have extended the probationary period from two to three years — even after the bill was stripped of its boldest language.

The bill, AB 934, sponsored by Assemblywoman Susan Bonilla, D-Concord, was defeated 5-2, with two senators abstaining, in the state Senate Education Committee. It drew the opposition of powerful teachers unions — the California Teachers Association and the California Federation of Teachers — and education reformers, two sides that seldom agree.

The teachers unions said the bill went too far in taking away teachers’ due process rights, while the reform advocates said the bill didn’t go far enough in making teacher tenure an earned benchmark.

The bill was conceived to address some of the concerns about the state of education in California that were raised in the landmark lawsuit Vergara v. California, which was overturned on appeal in April, and to bring about “the necessary and overdue changes that must be addressed within our education system,” a statement from Bonilla’s office said.

“It is frustrating when two opposing sides are not only unwilling to compromise, but are vehemently reluctant to work together to achieve the mutual goal of providing a high quality education for all California students,” Bonilla said in the statement.

Students Matter, which filed the Vergara lawsuit on behalf of nine students, initially had supported the bill, but the version that was voted on by the committee was heavily amended and Students Matter withdrew its support last week.

Ben Austin, the group’s policy and advocacy director, called the bill “watered down and gutted beyond recognition.”

The issue of teacher tenure was the crux of the Vergara lawsuit. Plaintiff attorneys argued that teacher protection laws perpetuate a cycle of keeping ineffective teachers in low-income classrooms.

Bonilla, a former high school English teacher, said the amendments to the bill, AB 934, were needed to give it a chance of passage.

Other provisions in the bill included more training for new administrators and an additional year of coaching and mentoring for teachers in their third year of teaching.

The bill would have also authorized school districts and local unions to negotiate dismissal procedures.

Bonilla said the current dismissal process takes about seven months and typically costs districts $100,000 to $200,000.

“No one can claim that the current system is working when it costs that amount of money,” she told the committee.

Her bill had “endured an onslaught of unreasonable scrutiny and criticism,” Bonilla said in a statement after the vote.

About 20 speakers addressed the senate committee to oppose the bill, including teachers, parents and students.

The California State PTA, Association of California School Administrators and California School Boards Association supported the bill.

Many of its supporters characterized the bill as a “good first step.”

The original bill would have also reduced the reliance on seniority in determining teacher layoffs and would have taken teacher performance into account, amending the “last in, first out” laws that determine layoffs, which was another issue raised in the Vergara lawsuit. That section was removed from the final version of the bill.

Senators Loni Hancock, D-Berkeley, and Carol Liu, D-La Cañada Flintridge, were the only votes in favor of the bill, saying they wanted to continue the discussion.

“I know that this bill is far from perfect,” said Liu, who chairs the committee.

“It will keep this conversation going with a little pressure on people,” Hancock said. “In the 14 years that I have sat on this committee, we have never had anything other than a banal, stereotyped confrontation on any of this issue.”

One senator told Bonilla she needed buy-in to move the bill forward successfully.

“I, too, have been seeking buy-in, but we’re in a situation that is so deeply polarized and so deeply political that the children are being lost. The children are being overlooked,” Bonilla said.

Those who opposed the bill said Bonilla was trying to take away teachers’ due process rights and that extending the probationary period would deter young people from entering the profession. Critics said extending the amount of time when new teachers can be fired without cause or explanation would create instability.

“Not only is this bill an erosion of teacher rights, but is an assault on California’s ability to attract new teachers into the profession,” said Jeff Freitas, secretary treasurer of the CFT. “This bill, if enacted, would ensure that California’s teacher shortage will become more severe.”

LA Unified teacher Bootsie Battle-Holt, who teaches at Marina Del Rey Middle School and is an elected member of UTLA, testified against the bill and called it “teacher policy without teacher voice.”

The bill is “not even an echo of what teachers think and say about the issues at hand,” she said.

Other people who spoke in opposition of the bill included Austin, students who are plaintiffs in the Vergara case, Bill Lucia, president and CEO of EdVoice, and Mike Stryer, California executive director of Teach Plus. Like Students Matter, Teach Plus also initially supported Bonilla’s bill.

“This bill is not fully baked even though it’s over 100 degrees outside,” Lucia said.

The San Francisco Chronicle editorial board wrote this week in support of the initial version of the bill: “The changes to AB934 are disappointing, but it’s still worth fighting to pass this bill. Although many school districts may choose not to negotiate a new dismissal process with their local unions, some will. When they’re successful, and the sky over public education doesn’t fall, it will be easier for reform advocates to return to the state Legislature with a stronger bill.”

In an interview after the hearing, Austin said it was unfortunate that his group had to oppose the bill.

“But at the end of the day, while we very much appreciate the good faith effort on Assemblywoman Bonilla’s part, the final product was a poster child for the kind of transactional inside baseball politics that voters all across the country are rejecting in real time,” he said.

Passage of the bill would have created an “illusion of change,” Austin said, and might have taken pressure off the state Supreme Court to take up the Vergara appeal, a decision that must be made by the end of August.

Austin said he was hopeful that future legislation would address these issues. He said he saw an “emerging bipartisan consensus” among the committee members that “the status quo is unacceptable.”

“The debate laid the groundwork for a future debate in a future legislature to take up this issue in earnest and address these issues in a way where they will have a real, not symbolic, but a real impact on low-income kids and students of color,” he said.

Also Wednesday, the committee approved a school accountability bill, AB 2548, by Assemblywoman Shirley Weber, D-San Diego, that will now head to the Senate Appropriations Committee. The bill, which Students Matter supports, seeks to define school and district expectations for student success and close the achievement gap.

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.

By Jenny Hontz

 When LA School Report reported this week that 181 LAUSD staffers are currently being paid to sit around and do nothing while they are investigated for alleged misconduct, costing the district $15 million a year, school board members expressed surprise.

The numbers are staggering, but it should be no surprise to anyone that this is happening. This so-called “teachers jail” system is the result of terribly flawed teacher tenure and dismissal laws that students and parents have been trying to fix for years in court and in the state legislature – so far to no avail.

In surveying our Speak UP members, 92 percent of parents said that “excellent teachers” were “very important” in their choice of a school – more than any other factor. 

But current state law and union contracts make it very difficult for districts like LAUSD to ensure that all students have effective teachers in every classroom. Unionized public school teachers currently receive lifetime job tenure after just 18 months, often with no meaningful performance review.

And once teachers receive tenure, it can take almost a decade and up to $500,000 to dismiss an ineffective teacher – rendering the process so costly and time consuming that districts like LAUSD rarely even bother to try.

That’s why LAUSD opted to pay Mark Berndt $40,000 to quit his teaching job at Miramonte Elementary School five years ago, despite photographic evidence that he spoon-fed semen to his students, blindfolded them and placed cockroaches on their faces.

These flawed laws also contributed to a level of bureaucratic indifference that led LAUSD to ignore repeated warnings of teacher sexual abuse, an atrocity that has now cost LAUSD $300 million over the past four years in sex abuse settlements.

The California Supreme Court will decide this summer whether to take up an appeal by nine students in the historic Vergara vs. California case challenging our unusually protective teacher tenure laws, as well as a seniority-based layoff system that often keeps ineffective teachers in district classrooms while letting more talented but less senior teachers go.

A Los Angeles Superior Court judge ruled in 2014 that the state statutes were unconstitutional, writing that it “shocks the conscience” that low-income and minority kids were so often saddled with the most ineffective teachers. The ruling was overturned on appeal in April after facing intense opposition from the state’s teachers unions, including the California Teachers Association.

We hope the state’s highest court will take up the case and rule in favor of the students, but regardless of what happens in court, the state legislature has the ultimate responsibility to fix a broken system and ensure that every child has an effective teacher in the classroom.

So far the state legislature, which appears to be in the pocket of CTA, has been unwilling to make the necessary changes. The latest disappointment came from this week’s gutting of a once-promising bill, AB 934, from Assemblywoman Susan Bonilla (D-Concord) that originally would have reformed the teacher tenure and dismissal process to the benefit of both teachers and students.

One week before the bill was slated for a vote in the Senate Education Committee, however, the bill was stripped of several key provisions, including a requirement that teacher tenure be based partly on performance evaluations rather than just length of service. Also taken out of the bill was a provision to balance teacher performance with seniority when making layoff decisions, and a new streamlined dismissal process for ineffective teachers.

Bonilla told Speak UP that she amended the bill because the Senate Education Committee told her it was “too big, too complex” and would not make it through committee unless changed. Bonilla said she faced “intense opposition” from CTA, which made it its No. 1 bill to kill this year. “They will oppose anything going down this path,” she said. “It’s extremely difficult.”

She pointed out that her amended bill would still extend the probationary period before teachers receive tenure from two to three years and would at least give districts the ability to negotiate a streamlined dismissal process through collective bargaining with local teachers unions.

“Of course, it’s not everything I wanted,” Bonilla said, although she believes it is still a “step forward” from where we are now. “It’s certainly better than nothing.”

The changes, however, prompted Students Matter, the organization supporting the student plaintiffs in the Vergara trial, to withdraw its support for the bill, calling it “a mere shell of its former self.”

It’s now more important than ever that the California Supreme Court step in and require the legislature to fix this broken system. We have seen the grip CTA has on the legislature and how hard it is to make meaningful change. It took multiple failed legislative attempts to streamline the process for dismissing teachers accused of egregious crimes such as sex abuse and drug dealing. (Judging from the ranks of the accused still sitting in teacher jail, it was clearly not streamlined enough.)

 It’s still nearly impossible to dismiss a teacher who is grossly ineffective but not a criminal. The process is so arduous that LAUSD often transfers ineffective teachers to lower-income schools in a process called the Dance of the Lemons.

That’s what happened to a teacher at Walgrove Elementary that parents claimed reeked of alcohol on the job. He wound up moving from the West Side to a school with a majority low-income, minority student population rather than getting dismissed.

Our kids deserve better than this. We encourage all Speak UP members and concerned parents to contact members of the Senate Education Committee and urge them to restore key provisions in the May 17 version of AB 934 that were just removed.

It’s especially crucial to contact the committee chair, Carol Liu (D-La Cañada Flintridge) and the ranking Republican, Bob Huff (R-Brea). You can find all the committee members and links to their contacts here and your own state representatives here.

It’s time the state legislature puts the interests of our children first. Parents are watching, and we want real action on this issue. Unfortunately, despite good intentions, Bonilla’s bill no longer goes far enough.

Jenny Hontz is a founding member of Speak UP, a grassroots organization helping California parents advocate for excellent, equitable education in their schools, communities and at the ballot box.

Student plaintiffs Raylene Monterroza and Brandon DeBose Jr.

Even before the deputy attorney general got to finish a single statement, the 2nd District Court of Appeals justices hearing a landmark education case Thursday jumped in to ask questions. How do you tell if a teacher is “grossly ineffective”? Is there proof that discrimination has occurred? What is the impact on the state?

For about 90 minutes Thursday morning, the three justices on the California Court of Appeals heard arguments in the historic Vergara v. California lawsuit which could have wide implications for the public school system. The lawsuit was filed by nine students in 2012 from different areas in California and challenge five specific state laws that involve teacher tenure, dismissal procedures and layoff laws.

During eight weeks in 2014 of testimony from more than 50 witnesses, the students spoke about incompetent teachers they said they were assigned because they lived in lower-income school districts and were minorities. Judge Rolf M. Treu ruled in favor of the students, saying his findings of ineffective teaching “shocks the conscience,” and found that there is enough evidence that the laws disproportionately affect poor and minority students.

The 77-seat downtown LA courtroom was packed Thursday; more visitors watched in an overflow room. Elizabeth Vergara, who has since graduated, and four of the other defendants sat in the front row. Her sister, Beatriz, the lead plaintiff, was in school.

Shortly after the arguments began, Presiding Justice Roger W. Boren waved his hand to the audience and said, “Anyone in this room has had a bad teacher at some time.”

Attorney Michael Rubin, representing the teacher unions.

Attorneys for both sides of the case felt that the questions from the three justices sided in their favor, and both sides held news conferences and telephone conferences hours after the hearing.

“I am delighted, it’s a great day for the students of California,” said attorney Michael Rubin, after arguing for the California Teachers Association and California Federation of Teachers. “I am confident the justices understood the questions and why tenure benefits the teachers. I think they can see why this trial judge grossly overstepped his bounds.”

Arguing for the students, attorney Theodore J. Boutrous Jr. said that he felt the judges planned to uphold the ruling. “We were able to get across the dangers of these laws and how they deprive thousands of California children of the quality education they deserve,” he said.

Theodore Boutrous Jr. representing the students.

During the arguments, attorneys referenced cases involving prisoners, home building and voting rights that they felt were pertinent to the arguments. Both sides spewed statistics to make their case.

Rubin said that black students are 43 percent and Latino students are 68 percent more likely to have underperforming teachers. He also said, “Charter schools don’t perform better in California than other schools” even though they don’t have to follow the tenure laws.

Boutrous said the tenure system costs the state $2.1 million a year in unnecessary costs, and that even former LA Unified Superintendent John Deasy testified that tenure should be granted after three to five years, not the two years it is now.

Both sides said they were ready to appeal the case if the judges rule against them. The judges must rule within 90 days, so a decision should be released by the end of May.

“I can’t wait to argue this in front of the full California Supreme Court, because we used some of their past decisions where they ruled in favor of education in our arguments,” Boutrous said.

On the other hand, Rubin added, “The California Supreme Court will also see that there is no merit in this case. These statutes will not be struck down any time soon.”

Also in the audience was a school board member from Mountain View Whisman School District, which has 5,000 students and where his two children attend. Gregory Coladonato paid his own way to travel from his district, which has the headquarters of Google, and also a 40 percent English learners population. He supports the decision by the lower court and said it would help children, and planned to head back to a school board meeting Thursday night.

“The implications of this are historic, it could be huge for the children of California,” Coladonato said. “This could give our superintendent greater flexibility to ensure that the highest quality teachers are in front of our students.”

Outside the courthouse downtown, Silicon Valley entrepreneur David Welch, who founded the nonprofit Students Matter that is funding the lawsuit, said, “We need to put politics aside. Every child regardless of where they live deserves a passionate, inspiring teacher in their classroom.”

One of the student plaintiffs, Brandon DeBose Jr. said he was reminded of when he testified two years ago. “Some of my teachers were great, but some of our teachers told us we were not going to amount to anything,” he said. “I now know every student and every school should have awesome teachers. This is a signal to students from Inglewood to Oakland that they matter.”

Press conference after the 2014 Vergara ruling.

Arguments in one of the most important lawsuits involving public education will be heard Thursday morning in the state Court of Appeals in Los Angeles.

The case of Vergara v. California seeks to overturn five laws involving teacher tenure, dismissals and the last-in, first-out layoff policies. The case was brought on behalf of nine students in five California public school districts and argued that the policies disproportionately harmed minority and low-income students.

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

A three-judge panel will hear arguments from lawyers representing the students and the state and teachers’ union. 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, the arguments 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.

The National Education Association’s president, Lily Eskelsen Garcia, said in a statement Wednesday, “The Vergara v. State of California lawsuit is an example of using our court system for political goals. Ensuring that every student gets a good education is a critical goal but one that can’t be solved with lawsuits. From the onset, the case has highlighted the wrong problems, proposed the wrong solutions, and followed the wrong process. What’s most troubling of all is that this lawsuit is not about helping students and has become a divisive distraction from the real work needed to improve student success.”

She added, “Striking down the statutes will not help our most at-risk students. High-poverty districts do not suffer from too few teachers being removed; they suffer from too much teacher turnover.”

Manny Rivera of Students Matter, representing the plaintiffs in the lawsuit, issued a statement saying, “In September 2015, renowned constitutional law scholar Laurence H. Tribe, former California Governors Arnold Schwarzenegger and Pete Wilson, and education chiefs from around the country submitted amicus curiae (or “friend of the court”) briefs in support of Plaintiffs. President Obama’s Secretary of Education, Arne Duncan, former Bay Area Democratic Congressman George Miller, and former Los Angeles Mayor Antonio Villaraigosa have also publicly applauded the Superior Court’s ruling in favor of the student plaintiffs.”

He added, “The case has also struck a chord with the general public. An April 2015 USC Dornsife/Los Angeles Times poll of California voters revealed more than half of California voters support eliminating or changing the state’s current teacher tenure laws, while a supermajority of voters (82 percent) believe teacher performance—rather than seniority alone—should be taken into account when making layoff and dismissal decisions.”

Mayor Antonio Villaraigosa with Teach Plus Fellows Bootsie Battle-Holt and Kat Czujko. (Photo: Nick Toren for Teach Plus)

While state teacher unions are spending time, energy and money fighting the landmark Vergara v. California ruling through appeal, one group of teachers in Los Angeles is helping shape what a post-Vergara world could look like.

In a presentation yesterday at the California Community Foundation, former Mayor Antonio Villaraigosa joined L.A.-based teaching policy fellows with the national group, Teach Plus, in presenting ideas for change should the appeal fail.

In a ruling that landed like a bomb on the educational landscape, California Superior Court Judge Rolf Treu struck down five statutes governing teacher tenure, dismissal and layoffs, concluding that they violate the state constitution by denying students access to a quality public education. If the ruling stands, the state legislature has to rewrite the laws, and yesterday’s event was designed as a roadmap.

As the key speaker, Villaraigosa threw his support behind the Vergara ruling —  and the group’s ideas to accommodate it.

“When you take extreme positions, like tenure, that says you can’t ever fire anybody… that’s extreme,” he said. “The other extreme is that we shouldn’t have teacher unions and due process. But what Vergara said was, this is uber–due process; this is way beyond.”

Teach Plus works to elevate the influence of teachers in policy discussions, and yesterday’s forum “is an example of that,” said John Lee, executive director of Teach Plus Los Angeles, referring to 10 Teach Plus fellows, all of them LA classroom teachers, who spent the summer researching Vergara.

The researchers compiled their findings in a policy brief, “Valuing Performance and Honoring Experience: Teacher Solutions for a Post-Vergara Profession.”

First up was tenure, which currently gives teachers extensive due process rights after 18 months. California is only one of five states that awards tenure within two years, according to the Teach Plus presentation.

Teach Plus recommends one short-term and three long-term solutions:

• Extend to four years the time for a teacher to gain “permanent status”; require three consecutive years of evaluations demonstrating effective teaching for a teacher to earn “permanent status.”
• Base tenure decisions solely on performance.
• Require schools to provide evidence of support for teachers who receive an unsatisfactory evaluation if those teachers continue their employment.

Kat Czujko, a teacher at Hollenbeck Middle School in Boyle Heights, helped write the tenure section.

“We want tenure to be a meaningful achievement,” she told LA School Report. “I feel like I got tenure just for showing up. We want tenure to be a case for teachers to showcase their talents and prove that they are effective educators in the classroom.”

On the issue of dismissal, the brief said among 275,000 teachers statewide, only 2.2 teachers, on average, are dismissed each year for unsatisfactory performance, which amounts to just 0.0008 percent of all teachers in the state.

The Teach Plus brief recommends these changes:

• Improve and expand programs that support teachers, particularly those that target new and struggling teachers.
• Connect teacher evaluation to the dismissal process.
• Improve the Commission for Professional Competence hearing process.

Andrea Burke, a teacher at Dr. Owen Lloyd Knox Elementary School in south Los Angeles who helped write the dismissal section, said she had received some blowback from other teachers for participating with Teach Plus in preparing the new ideas.

“There was a lot of hesitation, I will admit,” she said. “They have a hard time understanding how I could get behind something that’s going to wipe out tenure and get rid of teachers. And I had to tell them I’m actually a teacher sitting across from them at the lunch table, that potentially could have a voice in legislation that would be a part of something that affects all of us. And they were like, ‘Oh, I didn’t think of it like that.’ ”

The final part of the presentation regarded layoffs under the “Last-In, First-Out” rule, which requires newer teachers to go first when cuts are required. The Teach Plus brief said: “Instead of using a seniority-based process for layoffs, we recommend an approach that accounts for teacher effectiveness and uses seniority as a secondary criterion.”

Lisa Blackwell, a teacher at John H. Francis Polytechnic High School in Sun Valley, who co-wrote the layoff section, said, layoff decisions “need to be based on effectiveness, but we also need to recognize that if you’ve been teaching a long time, you probably are better at it than the earlier teachers. So that’s what we were shooting for, the balance in-between.”

During a panel discussion after the presentations, Villaraigosa said, “The only reason I got behind Vergara was because of the extremism on the other end. I can live with this. This is rational. I say it everywhere I go. I could be for some seniority, I could be for some tenure. I just can’t be for uber seniority and tenure. Performance has to count for something.”

The next step? Teach Plus officials said they intend to spread the findings throughout the state and get them to leading state lawmakers.

“I know that we are looking at visiting legislatures, to go and talk to them,” Blackwell said. “There are definitely next steps in place.”

The judge in Vergara vs. California today released his final review of the case, affirming his preliminary decision in June, that five state statures governing teacher employment rules violate the California constitution by denying students access to a quality public education.

In his final ruling, filed yesterday, Judge Rolf Treu, said, “plaintiffs have met their burden of proof on all issues presented.”

The decision effectively starts the clock for the defendants — the state and its two largest teachers unions, which joined the case — on whether to appeal. They have 60 days to decide.

Jim Finberg, a San Francisco-based lawyer who represented the unions — the California Federation of Teachers (CFT) and the California Teachers Association (CTA) — told LA School Report that the unions fully intend to appeal “and I fully anticipate that the state will appeal also.”

Treu’s ruling stops with his interpretation of the laws that involve tenure, dismissal and layoffs, leaving the ultimate remedy to the California legislature.

As he said in his decision, “All the court may do is apply constitutional principles of the law to the Challenged Statutes as it has done here, and trust the legislature to fulfill its mandated duty to enact legislation on the issues herein discussed, that passes constitutional muster, thus providing each child in this state with a basically equal opportunity to achieve a quality education.”

His preliminary ruling was hailed by that part of the education community, in California and beyond, that believes teachers should be held more accountable for the academic achievement of their students. The nine California students serving as plaintiffs had been seeking an end to laws that provide protections for “grossly ineffective teachers” at the expense of younger, effective teachers.

Treu’s affirmation only give that side greater expectation for changes.

“We are thrilled that the court has finalized its landmark ruling in Vergara,”  Theodore J. Boutrous, lead co-counsel for the plaintiffs, said in a statement. “Judge Treu’s inescapable findings—that California’s teacher tenure, dismissal, and layoff statutes are harming students, and that poor and minority students are bearing the brunt of the harm—are supported by an overwhelmingly compelling trial record. The ruling in Vergara is a victory not only for our nine Plaintiffs, but also for students, parents, and teachers across California.”

Josh Pechthalt, the CFT president, expressed confidence that Treu’s ruling would be overturned when the case reaches the court of appeals. Meanwhile, he conceded, there was value in the national discussion over tenure and other issues, triggered by the outcome of the case.

“While I’m not happy about the ruling, it does light a fire under having a national discussion about what education reform should look like and the role teachers play in it,” he said in an interview. “This is not the environment of our choosing, but it does create some urgency to engage parents and the community in the discussion.”

Previous Posts: Vergara legal team joining similar teacher case in New York; Weingarten comes out swinging: attacking Vergara, Duncan; Teachers union is in town, Vergara front and center

There are perils to the current tenure talk: that it fails to address the intense strains on many teachers; that it lays too much fault on their doorsteps, distracting people from other necessary reforms.

But the discussion is imperative, because there’s no sense in putting something as crucial as children’s education in the hands of a professional class with less accountability than others and with job protections that most Americans can only fantasize about.

We need to pay good teachers much more. We need to wrap the great ones in the highest esteem. But we also need to separate the good and the great from the bad.

Read the full story here

Courtesy: Aspen Ideas Festival

The stage was set with the two public education luminaries, ready to square off on such lightning rod issues as tenure and teacher dismissal laws in the wake of last month’s Vergara trial: Randi Weingarten, leader of the nation’s second largest teachers organization, AFT, and Superintendent John Deasy, leader of the second largest school district in the country, Los Angeles Unified.

The Vergara decision, striking down tenure and dismissal laws in California as depriving the state’s most vulnerable students equal access to a quality education, was widely seen as a blow to the teachers union and has moved public opinion toward agreeing with change.

But when Weingarten and Deasy engaged in debate earlier this week at the Aspen Ideas Festival, instead of fireworks, they seemed to find surprising common ground.

Could this be an opportunity for consensus building? Here are some highlights:

Lorena Gonzalez, California Assemblywoman

A bill that sought to create teacher tenure for California’s smallest school districts died in committee today when the bill’s sponsor, Assemblywoman Lorena Gonzalez, could not generate enough support for passage by the Senate Education Committee.

The bill would have required school districts with fewer than 250 students to grant tenure to teachers after three years. For now, those districts are not required to offer any tenure.

The bill had passed in the Assembly but fell one vote of approval in the Senate Education Committee last week, failing in part because it appeared to some members of the committee that it ignored the ruling in the recent Vergara v. California decision.

In Vergara, a superior court judge ruled unconstitutional California’s two-year tenure law, saying it was insufficient time to assess a teacher’s effectiveness.

The Gonzalez bill was due back today for reconsideration by the Senate committee.

Paul Ochoa, an aid to Gonzalez, a San Diego Democrat, said the bill “will not move forward this year,” but he was uncertain if Gonzalez would try again next year.

Vickie Decker

For the second time this week, the defense in Vergara vs. California today turned to a teacher characterized as “ineffective” by a plaintiff in the case to show a starkly different picture.

Vickie Decker, a middle school math teacher, refuted assertions by Jose Macias, the father of student plaintiff, Julia Macias, who had claimed in earlier testimony that Decker was harmful to his daughter’s education.

Decker, who has spent nearly 20 years in the Los Angeles Unified School District, challenged those accusations, saying Julia had performed poorly in her class and did not accept her offers to help her with the work.

“In her first semester she did fairly well,” Decker said of Julia, then adding her tests and quiz results in the second semester “were very poor.”

Jose Macias had testified that Decker “demoralized” and “intimidated” his daughter, making her “afraid to ask questions,” prompting her to seek moving to a different class.

Decker’s testimony is important to the defense — the state, the California Teachers Association (CTA) and the California Federation of Teachers (CFT) — in trying to show that students in the case had not suffered with ineffective teachers, and certainly not to the extent that five state laws governing teachers should be struck down.

Beatriz Vergara, Julia Macias and seven other student-plaintiffs are trying to show that their own experiences are evidence of why laws on seniority, dismissals and tenure should be changed to help guarantee access to quality public education for all California students.

In 2011, Decker taught Julia, then 13, at Lawrence Middle School for gifted students in Chatsworth.

Attempting to undercut earlier testimony that described Decker as a non-caring,  intimidating teacher, defense attorney Constance Hsaio asked her what assistance she offers her students struggling in math. Decker said she holds lunch workshops twice a week, and that she has an after-school, open-door policy.

After meeting with Julia’s parents, Decker said she told them their daughter was welcome to get the help but couldn’t recall if Julia ever made it to any of the sessions. She also said she provides monthly progress reports to parents, and in Julia’s case, weekly updates.

Hsaio then asked whether Julia returned all the weekly progress reports signed by her parents, as Decker required. She said Julia did not.

When asked whether she ever told Julia’s parents. “You should know your child’s problems, she’s your daughter,” Ms. Decker replied, “I would never say anything like that to a parent.”

Plaintiffs elected not to cross examine her.

Earlier, plaintiffs’ attorney Marcellus McRae finished his cross examination of Jesse Rothstein, a professor of economics and labor at Cal-Berkeley called by the defense as an expert witness.

McRae tried to demonstrate that Rothstein’s expertise and conclusions were limited and largely theoretical, as applied to California law and that alternative approaches to getting rid of ineffective teachers might be at least no worse, and maybe better, than current the current law.

“You are not an expert on California goals with respect to public education, are you?” McRae asked Rothstein at one point.

“Correct,” he said.

Previous Posts: Judge in Vergara v California rules that case will go on; In Vergara, witness says districts can overcome ineffective teachers; Analysis: Legal positions in Vergara trial a universe apart

While the judge’s ruling in the Vergara vs. California case about educational equity remains weeks away, one verdict is already in: California suffers from a toxic polarization on educational issues that harms both students and the teaching profession. Ironically, though, the case may provide a unique window for unprecedented collaboration around teacher quality issues.

While parents and community members seek real solutions to the challenge of ensuring an effective teacher in every classroom, all too many “reformers” and “teacher unions” have used the Vergara case to launch unproductive, divisive attacks.

Reformers often portray unions as essentially dedicated to protecting “bad” teachers through restrictive legislation and byzantine dismissal processes. In its extreme, reformers view teacher unions as serving only teachers, while ignoring students. At the same time, teacher unions often view reformers as union-busters, seeking to both eliminate hard-earned due process rights and silencing the voice of teachers through intimidation. In its extreme, teacher unions view reformers as focusing exclusively on students, while ignoring teachers.

This inflammatory rhetoric has prevented meaningful dialogue around issues of equity, teacher quality and elevation of the teaching profession. The good news is that the Vergara case may provide the perfect opportunity to identify convergent interests that would benefit both students and teachers.

As former teachers and union leaders, we see at least one deeply ingrained practice that makes collaboration around teacher quality issues virtually impossible. Specifically, teacher union and district leaders have allowed teacher quality issues to remain the exclusive domain of administrators. Why? Because firmly embedded in most teacher unions’ DNA is the taboo against involving teachers in evaluation of fellow teachers/union members- despite unions’ agreement that current classroom teachers are the “real experts.”

As a result, most teacher unions have ceded complete control on teacher quality issues and related personnel actions. At the same time, many district-level policy-makers remain wary about weakening administrators’ essential monopoly over teacher quality issues.

Given this monopoly, the varying quality of administrators, and the lack of joint ownership by teachers around performance issues, teachers are deeply distrustful of evaluations and, especially, personnel decisions based on evaluations. Not surprisingly, we see statutes such as tenure, seniority, and costly, complex and time-consuming dismissal processes- all of which reflect the failure of authentic joint ownership over teacher quality issues.

To break this impasse, we call on legislators and educational leaders to simultaneously take a leap of faith and show genuine openness to a key paradigm shift:

1. Teacher unions must abandon their de facto prohibition against “peer evaluation” and allow our strongest teachers to play an integral role on teacher quality issues (including on dismissal actions). Specifically, teachers should actively participate in development of a clear, common understanding of effective teaching and work with administrators in formal evaluation of peers in similar grades/content areas. Teachers should share ownership with administrators in Peer Assistance and Review programs that both support struggling teachers and make final, binding personnel decisions (including decisions on exit from the teaching profession). Similar programs have been executed successfully in the Poway and San Juan School districts here in California.

All of this can be accomplished without weakening collaboration amongst teachers or lessening union unity. Just as the medical and legal professions take ownership for the professionalism of their members, the teaching profession must do the same;

2. Teacher unions must show openness to modifying antiquated structures (e.g., use of seniority as the sole factor in personnel decisions), with the emergence of a more trusted, collaborative evaluation process;

3. Educational leaders must be willing to share significant power with proven master teachers on evaluation/teacher quality issues. Implicit in this is the recognition that administrators should not be the sole arbitrators of teacher quality and that both administrators and teachers need to take joint ownership of teacher performance issues in the best interests of students.

If the ruling in the Vergara vs. California case strikes down some or all of the challenged statutes, there will be a unprecedented opportunity for both sides to jointly craft legislative changes that ensure more equitable access to effective teaching. These changes absolutely can benefit both students and the teaching profession- but only if we are willing to take bold steps that move us away from destructive polarization and towards recognition that there must be path-breaking joint ownership over teacher quality issues.

Mike Stryer and Arielle Zurzolo both work for Teach Plus, a national not-for-profit focused on equitable access to quality teaching. Stryer taught at Fairfax High School and served as UTLA Chapter Chair. Zurzolo taught at Green Dot Public Schools and served as the President of AMU, Green Dot’s teacher union.

Local Votes of Confidence: Most Bonds, Parcel Taxes Pass
Proposition 30, raising statewide taxes to support education, was a nail biter, struggling to get a majority of voters behind it. But that wasn’t the case for most K-12 parcel taxes and school construction bonds on the ballot Tuesday. Ed Source

The Prop 30 Windfall – Not Yet
In its first year, more than $2 billion of Prop 30 funds will be used to start paying off the nearly $10 billion in deferrals, those late payments that forced cash-strapped district to borrow money.  Those payments should free up funds so in 2013-14, districts will start to see some real money. Ed Source

LAUSD Teacher Named One of Five California Teachers of the Year
Veronica Marquez, a fifth-grade teacher at Harmony Elementary School in South Los Angeles, was named today as one of five California Teachers of the Year by state schools Superintendent Tom Torlakson. Daily News

Where Did the Lottery Money Go?
The truth is that education budgets have shrunk so much that the lottery money just goes into the pot to help pay for what is needed—as permitted by law. But that was never its purpose. Galatzan Gazette 

Formal Recommendations on Revising Statewide Testing Due Out This Month
Setting the stage for perhaps the most critical public school issue that will come before the Legislature next year, the state board of education held its first public hearing Thursday on plans for shaping the future of student standardized testing in California. SI&A Cabinet Report

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

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

Previous posts: School Reform in the Courts