Skip to content

Education Policy via Litigation

June 3, 2013

[EDIT 2/2/14 – For a more recent post on this topic, see Eight Problems with the Vergara Lawsuit ]

Education is a highly politicized aspect of society, affecting the lives of millions and requiring hundreds of billions of dollars per year. The politics of education policy may be unavoidable, but there are reform strategies that bypass politicians and voters. Try a lawsuit.

In a couple of prior blog posts, I’ve praised the efforts to improve public education by seeking legal remedies; specifically, I’ve written about Lobato v. Colorado (here, and here), along with a case in Kansas. A preliminary ruling in the Lobato case held that Colorado had failed to uphold its duty under the state constitution, to provide a quality education to all of its children – though the Colorado Supreme Court just overturned that ruling. Too bad. I thought the judge’s initial ruling was a powerful indictment of governmental and societal indifference to school quality, and suggested some real accountability for the notion that a quality education really is a right, as expressed in many state constitutions.

Here in California, there are currently two adequacy cases in the courts: Campaign for Quality Education v. State of California, and Robles-Wong v. State of California. More recently, a variation on the adequacy lawsuit has entered the court system, one that aims to address inequity in the distribution of “quality” teachers. Plaintiffs aren’t seeking any money to help expand support and professional development for teachers, or to lower class sizes to more manageable levels. A group called Students Matter has been established to bring a lawsuit against the state – Vergara v. California [PDF] – seeking to improve education by invalidating ed code provisions related to teaching status (“tenure”), dismissal, and seniority, arguing that these laws are harmful, and disproportionately harming minority students in high-poverty schools. I find myself troubled by this lawsuit because of the unintended consequences I foresee, and because the plaintiffs’ arguments depend on a combination of false and flawed premises.

Hoover Tower

photo: Jawed Karim (

Last month, I attended a talk at the Stanford Law School, where audience members had a chance to hear about the case. I’ll summarize the presentation, and then explain why I think the plaintiffs are misguided in their thinking, their strategy, and their apparent lack of interest in the unintended consequences should they prevail in court.

The rationale for the case was offered by the founder of Students Matter, David Welch. Speaking as an entrepreneur, inventor, and employer, he framed the problem in terms of innovation, change, and finding solutions to problems. “I have not devoted my career to education policy… but I do believe I’m an expert on what you need in an environment to get the most out of people,” he told us. He cited Carol Dweck’s book Mindset as his favorite book about learning, change, and transformation. Welch argued that Mindset speaks to organizations as much as individuals. “Successful organizations must embrace change” and cited MOOCs as an example of educational organizations needing to embrace risky change with unknown outcomes. As for traditional public education, Welch said that it’s “not something that is going to gradually evolve itself in the right direction; it exists as it is because of itself.”

The main problem that has captured Welch’s attention is the struggle to put “the best” teachers into the lowest-performing schools, and to keep them there. He says he’s guided by the question, “when is it ever okay to knowingly compromise a child’s education?” He reports that when he went to talk to people in the education system, he learned that their main problem is the inability to hire top teachers, the lack of flexibility enjoyed by private industry. So, as Welch sees it, existing laws prevent students from having equal access to the best teachers, and we need up change or eliminate laws that impede districts and principals trying to hire a team that gets better results, or fire the teachers who can’t get those results.

Left unaddressed was what kinds of salaries and working conditions are going to tilt the playing field and attract a larger pool of talent from whom to pick these future “best teachers.”

Welch assured the audience, “This is not a lawsuit that is an attack on teachers. It recognizes the importance of quality teachers and the impact they have.” Rather, he framed it as an attack on a system he called outdated, with policies that hurt kids, inhibit change, and devalue student outcomes. Litigation, rather than a legislative process, was described as essential because of the political barriers to change, leaving the courts as the only place where facts tip the scales and the “voiceless” can be heard.

The presentation continued with attorney Theodore J. Boutros describing in more detail which parts of ed code would be challenged and why. It didn’t take long at all for him to bring up the most notorious case of teacher child abuse in California’s recent history, from Miramonte School in Los Angeles. Of course, schools can already remove a felon from a classroom immediately and this case has nothing to do with addressing child abuse, so the point of bringing up this example was obviously prejudicial. Offering a more academic argument, Boutros cited last year’s Chetty, Friedman, and Rockoff (CFR for short) study using value-added measurement to look at long term effects of teachers, and some additional research by Erik Hanushek (who had introduced David Welch earlier), arguing that firing the worst teachers would bring all sorts of positive results for students.


Eric Hanushek (photo by the author)

They pointed to data that can be used to argue that one bad teacher can have a devastating long-term effect, and “the worst teachers are responsible for the train wreck” of low-performing schools and students. Unfortunately, without the other side represented in the presentation, there was no critique of the CFR study, or questioning of Hanushek’s assumptions. (Larry Ferlazzo has a good compilation of reactions to the CFR study).

Boutros did try to sidestep potential problems with value-added measurement (VAM): “Our lawsuit does not seek to endorse any one particular method” of teacher evaluation, he said – though main evidence he offered in this presentation depended entirely on the presumed validity of VAM in determining teacher quality. And in fact, when the question concerns large numbers of teachers and students over a number of years, we might be able to find some useful information about groups or types of teachers and students. However, while there might be some use for standardized test data in huge quantities, there are unavoidable pitfalls in the use of VAM at the level of the individual teacher – a topic I’ve covered exhaustively in other posts. Thus Students Matter could be correctly identifying broad issues about teacher quality and distribution, and yet have the wrong idea about the remedy.

Actually, Students Matter doesn’t really have a remedy in mind – just the removal of certain sections of ed. code; it’s not within the scope of the case to explore how schools should handle human resources decisions, to consider variations in the ways individual schools and districts already operate under ed. code, or how existing ed. code provisions have any useful purpose.

The specific ed. code provisions the plaintiffs seek to alter or eliminate are those relating to:

  • permanent employment – described (distorted) as “a virtual guarantee” of continued employment for any teacher who lasts 18 months on the job [See CA ed. code sec. 44929.21(b)]
  • dismissal – deemed by the plaintiffs’ counsel to be too complicated and time-consuming, described as due process far in excess of other professions [See CA ed. code, sections 44934, 44938(b)(1)(2) and 44944]
  • seniority provisions in layoffs (commonly called “last-in-first-out” or “LIFO”) – attacked because it’s seen as a policy that ensures ineffective teachers will keep their jobs while more effective teachers are laid off for budgetary reasons [CA ed. code sec. 44955]

The plaintiffs ask the court to use a type of judicial review called “strict scrutiny” – putting the burden of proof on the state to show that the current ed. code addresses a compelling state interest in a narrow and appropriate way, because the same provisions also have “a real and appreciable impact on the exercise of a fundamental right.” In other words, it is not a necessity for the plaintiffs to prove beyond doubt that these students have already suffered a definite harm from their actual teachers – only that their constitutional rights in the broader sense are likely to be infringed upon by existing law.

Since only one side of the case was represented at the event, the event organizer from the law school, William Koski, took it upon himself to raise some of the counterarguments to the Students Matter position. He cited three challenges:

1. Factual challenges – The plaintiffs’ representation of the problem might be challenged at a practical, operational level. In LAUSD, Superintendent John Deasy has been “cracking down” on teacher misconduct cases: since February of last year, LAUSD has dismissed 100 teachers, had 200 investigations end in the teacher’s resignation, and there are 300 more out of classrooms as their cases are resolved. That uptick in activity suggests that, even though Supt. Deasy supports the Student Matters lawsuit (despite being a named defendant), existing law may not be the impediment as much as political will and administrative determination.

I would add that the attempt to invalidate a state law on the basis of a select few districts seems suspect. There are districts that are more active in dismissing teachers, and inconveniently for the anti-union crowd, some of these districts have strong labor-management collaboration, with union-designated teachers on the review panels that make these decisions. If state ed. code were the problem, the place to prove it would be in the districts that have done everything else right but run into this obstacle. Instead, it looks like districts struggle or thrive largely based on the quality of their own administration and governance.

2. Causality – The allegation that ed. code is causing a constitutional violation with regard to teacher quality will need to proven. If these policies don’t cause the harm described, there’s no need for the case. The argument regarding teacher quality rests entirely on test scores, if last week’s presentation is representative of their case. The flaws in the tests and the formulas applied to their results may present obstacles for the plaintiffs. Also, I don’t know if the court can look at this or not, but the fact that other states have the same problematic outcomes without any of the same ed. code sections might suggest that logically, eliminating these ed. code provisions will not produce the desired effect. Another way to look at it might be to bring in research showing that whatever corrections are used in the VAM formulas, poor students and English language learners tend to generate lower results, and that the data can even be used to argue that students affect teachers – it’s not a one-way relationship.

3. Consitutional remedies – our event facilitator raised, for the sake of argument, a more philosophical question: is a constitutional challenge is the way to go even if we could assume a consensus that change is necessary? Is there danger of a slippery slope, where any educational difference or deficiency might be contested as constitutional rights violation? What about quality principals, for example? Boutros answered that the plaintiffs had considered that question, but felt that this specific case is narrow in focus, even if broad in application, and would not put the state on the path to excessive lawsuits.

There were several questions from the audience, a few of which I want to share. Someone asked what remedies the plaintiffs are seeking and whether that might lead to a disappointing final result even if they win the case. The court may grant relief, but what will follow? Boutros replied that they want the court to refrain from legislating remedy; another attorney from his team pointed out that if the courts strike down these statutes in ed. code, nothing would prevent schools from still functioning. How well they’d function of course is unknown, when entire teaching staffs are thrown into uncertainty regarding their job security.

Another questioner asked Dr. Hanushek if a ruling for the plaintiffs would affect the labor pool, if the loss of job security for teachers would affect the availability or quality of job applicants? Hanushek replied that we just don’t know, that there’s no research to reliably answer that question.

A third question followed up on the same theme, suggesting that a ruling for the plaintiffs would discourage people from teaching, and David Welch stepped in to say that we can only understand what motivates people to enter a career or a specific position by looking at a variety of factors. That’s certainly true, but there was something disinterested about Welch’s response that bothered me. If we take him at his word, he’s very concerned about children, but impatient when it comes to discussing, or even understanding what the adults in schools need in order to help the children. In this event at least, he didn’t convey any understanding of what differentiates schools from other workplaces; essentially, he doesn’t know what consequences his lawsuit might have, and doesn’t seem to care if they might be negative.

And that’s where I see the major distinction that would make me favor litigation to achieve responsible and equitable funding for schools, compared to litigation to determine finer points of school operations. It’s one thing to fight for resources to help everyone, and another to dictate how the work should be done. The Students Matter team is quite certain that they’re right; David Welch seems to feel that as long as he puts “students’ rights” in the introductory clause of his sentences, his position is unassailable. It’s so clear to him that policies relating to personnel decisions are not designed to serve children, and therefore can be struck down if they’re found to have any negative effect on children.

The risks of unintended consequences, while not concerning to entrepreneurs and lawyers, should be of great concern to schools, children, parents, teachers – and hopefully the court.

17 Comments leave one →
  1. Lisa Alva Wood permalink
    June 3, 2013 10:55 pm

    This is very valuable information for those of us who are interested in preserving stability for all our students and the value of teaching, for ourselves. Shouldn’t we be engaging in Sacramento, via our state-level unions? It doesn’t seem that any other means could be as effective. SO dangerous for us to allow non-educators to control this arena. How about some outreach and action, CTA? Educate me, please, on how to activate my affiliates in the state capitol…

    • David B. Cohen permalink*
      June 3, 2013 11:40 pm

      Thanks for your comment, Lisa. I’m not sure there’s too much we can do in the capitol. This trial is scheduled for next January, and unless the plaintiffs have a change of heart (ha) or the defendants concede (may not even be possible), the only thing that would prevent a trial would be for the legislature to change these sections of ed code before trial. I do agree that in the long run, we need more teachers more involved in our unions, not just fighting bad ideas, but generating new ones, helping to solve the problems we can, building coalitions with parents and community, and being totally clear about how our advocacy is good for kids and schools.

  2. June 4, 2013 5:31 am

    “If we take [David Welch] at his word, he’s very concerned about children, but impatient when it comes to discussing, or even understanding what the adults in schools need in order to help the children. In this event at least, he didn’t convey any understanding of what differentiates schools from other workplaces; essentially, he doesn’t know what consequences his lawsuit might have, and doesn’t seem to care if they might be negative.”

    And there it is: “reformers” are interested in big, sexy and in this case, litigious ideas. They don’t really care about practice, unless it yields “results” (a word I have come to despise). HOW teaching “works?” Not important. It isn’t about teaching at all, in fact. It’s about teachers–ranking, sorting, assigning and paying them. They are agnostic about the core work of schools: teaching and learning. I sat on a panel with a Deputy Secretary of the Us Dept of Ed during the Bush years–and she used those words: agnostic and results. The saddest part is that the current ED would use the same words and ideas.

    I find the increase in the number of similar lawsuits, across the country, terrifying. The theory seems to be if the legislature isn’t making bad policy, attack from the other end–removing reasonable policies.There are plenty of law firms delighted to do just that.

    As for Lisa’s comment–turning this over to our unions–the first step in instituting data/market policy changes like this is weakening the unions. For way too long, teachers have seen this as “union work”–lobbying, taking the time to deconstruct legislation and its impact on schools, proposing new policy. Teachers thought their job was to elect strong leaders and pay their dues–and show up occasionally to carry a sign. Teachers’ eyes glaze over when you mention “policy,” and they’re prone to proudly saying they just want to shut their doors… yup. And teach.

    We haven’t been paying attention, for a long time.

    Brilliant piece, David. Will be re-using and sharing this one.

  3. Marktropolis permalink
    June 7, 2013 10:50 am

    FYI. I did check on Students Matter and their nonprofit status. Guidestar shows no records, and the IRS nonprofit check doesn’t have them either. And the copyright on their website is “Students Matter Media Properties, LLC” which doesn’t sound very nonprofit-ish. One of their main “team members” is the consulting firm Griffin Schein. Their client list ( appears pretty progressive, until you get to the Walmart Foundation.

    As is often the case, I think these are some relatively progressive people who never got around to fully understanding the business they’re trying to change, or the ramifications of the changes they are seeking. Unintended consequences and all that. As in “hey, we just want to gut union members’ job protections, what’s the problem?”

  4. July 21, 2013 10:55 pm

    Late comment but I just want to say again that this is an excellent piece, David. I’ve been thinking a lot more since I first read this on how we can take action. I’ve tried talking to StudentsMatter, but as you mentioned in earlier comments, it appears doubtful that they would change their minds. Do you have any ideas on what we can do? Perhaps mobilize more students to speak up about this matter? I will be starting a chapter of Students United for Public Education ( this fall at my university, and this is a matter I hope to tackle with them. Let me know your thoughts! Thanks!

    • David B. Cohen permalink*
      July 23, 2013 12:33 pm

      Thanks for reading and sharing, Hannah. Sorry your comment sat in moderation for a while. Good for you getting active in your university! I don’t know that there’s much we can do regarding this particular case – but whatever happens with the case, the overall challenge remains the same. Teachers, students, parents, and community leaders need to tell their stories about what works and what they need in schools. I have a feeling that if we could complicate the story of “failing schools” we’d find a consensus that quality will follow from stability, resources, communication, time to work together. What we don’t need: unstable and unscientific VAM, destabilized teaching cadres, funding cuts. David Kirp’s recent book lays it out in great detail:

      • July 23, 2013 12:45 pm

        This looks like a great read; I’ll be sure to check it out! Thank you for the valuable insight. I will be sure to honor it going forward.

  5. Name permalink
    May 15, 2015 11:55 pm

    lack of flexibility enjoyed by private industry
    Really? Can private industry always outbid competitors for best employees? Those that can outbid, outbid those who cannot.
    Schools have the same problem. Some outbid others.
    Neither all schools nor all ‘private industry’ can ‘enjoy the flexibility’ of having ‘the best’.

    I’m not at all employed in education or related work, but it has seemed to me that Vergara plaintiffs ignored their own claim – that students in less-funded schools do worse than students in well-funded schools.
    Have any of the ‘reformers’ proposed a method to attract ‘the best’ to schools which now cannot attract ‘the best’?

    Vergara seems to have been a sidetrack that has delayed dealing with the real problems.


  1. My “Nine educated education predictions for 2014!” Published At Wash. Post — Here Are Some Additions | Larry Ferlazzo’s Websites of the Day…
  2. Arguing Vergara on Twitter | InterACT
  3. Arguing Vergara on Twitter | InterACT
  4. Vergara V. California Would Turn Teachers into Second Class Citizens – @ THE CHALK FACE
  5. The Best Resources On California Court Case Attacking Teacher’s Rights | Larry Ferlazzo’s Websites of the Day…
  6. Eight Problems with the Vergara Lawsuit | InterACT
  7. “Strict scrutiny” of Vergara ruling a setback for teacher protection | InterACT
  8. Educational Policy Information
  9. Bonanza! Silicon Valley Sees Gold in Corporate-Driven School Reforms | CAPITAL & MAIN

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: