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“Strict scrutiny” of Vergara ruling a setback for California teachers

June 11, 2014


Yesterday, California Superior Court Judge Rolf Treu handed down a ruling in the education policy lawsuit commonly referred to as the Vergara case. People I know who were closer to the case were not surprised that the judge ruled in favor of the plaintiffs, finding unconstitutional certain parts of the California Education Code pertaining to teacher rights. The case was brought by an advocacy organization called Students Matter, formed just for this purpose – litigating education policy changes they felt they couldn’t achieve via legislation. I’m going to attempt a moderate and reasoned interpretation of the ruling, but my feelings are less moderate when it comes to organizations that invoke children and students in their name, but fight for policies that do so little to help children. Because students do matter, but the money and power organized here are not really helping students. They have decided on a political battle transferred to the courtroom. I’m suspicious of wealthy and powerful individuals and groups whose advocacy for children leads to “reforms” that won’t cost a cent, but will weaken labor.

Students matter – but apparently, California’s shamefully inadequate funding levels don’t. That’s the status quo they accept; teacher protections are apparently the status quo to fight. In many funding categories, California is at or near the bottom of the state rankings. Students Matter has done nothing that will put a needed book or computer in a school. Not one wifi hotspot. Not one more librarian, nurse, or counselor. Not one more paintbrush or musical instrument. Not one hour of instructional aide support for students or professional development for teachers. They don’t have any apparent interest in the more glaring inadequacies that their considerable wealth and PR savvy could help. But forming a non-profit organization for litigation purposes and calling it “Lawsuits Matter” wouldn’t be as catchy. Their arguments regarding education problems and policy were flawed and unconvincing. Their standing in the case may be legal, but has the look of opportunism, with some incredible wealth and some powerful connections to education “reform” and charter school interests permeating the organization.

Venting done. On to the decision.

It seems to me crucial parts of the trial came before it started. (And if I get any part of the legal analysis or terminology incorrect, I welcome feedback). Questions about the plaintiffs’ standing and their ability to prove any harm were dismissed. In fact, the burden of proof practically switched from plaintiffs to defendants when Judge Rolf Treu ruled that the case would proceed under the judicial review principle of strict scrutiny.” By this standard, where the constitutional rights of a protected class may be abridged, it is essentially up to the defense to prove that a law serves a compelling state interest in the narrowest possible way. Judge Treu describes his role as follows:

This Court is asked to directly assess how the Challenged Statutes affect the educational experience. It must decide whether the Challenged Statutes cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular, in violation of the equal protection clause of the California Constitution.

So, we can all agree in that California students need consistently high quality teachers, and that harm is done when incompetent teachers retain their jobs. We can agree that teachers with less experience and lower qualifications are disproportionately concentrated in schools serving poorer communities and students. But since the plaintiffs don’t have to show any actual, direct harm caused to individuals by these laws, it seems to become a battle of anecdote vs. anecdote, and researcher vs. researcher. And the strict scrutiny burden falls on the defense.

Sure enough, when Judge Treu’s ruling addresses evidence of “the specific effect of grossly ineffective teachers on students” he does not then mention any of the plaintiffs, or any of the relevant schools or districts. He cites research done by economists (outside of California). Treu says “The evidence is compelling. Indeed, it shocks the conscience.” First he cites the testimony of Dr. Raj Chetty, whose major study of testing data and various personal data for former students found correlations which, extrapolated by several decades, suggest (in Treu’s words) “a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” Of course, divided by 30 students over 45 years of earnings, that would mean a little over $1,000 per year, or a little over $20 per week (48 weeks) per person. Hmmm. When you look at it that way, the conscience isn’t quite as shocked. (And that’s assuming the study proves what it claims to prove. For more details and critical views of that study, see this compilation of sources by Larry Ferlazzo). Treu also cites testimony by Dr. Tom Kane that students “taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.” The proxy for competence is presumably test scores, and the proxy for learning is also presumably test scores, so the cause/effect issues here would seem to be at issue; indeed, Jesse Rothstein’s research found testing data can produce “evidence” that 5th grade teachers appeared to influence their students’ test scores from 3rd grade. In other words, if you don’t have randomized samples, you can’t assume that teachers have equivalent groups of students. But you have to admire the confidence exhibited in those significant digits: yes, the effect has been measured down to a hundredth of a month, down to the hour.

If only Californians’ consciences were shocked by the fact that we have an economy greater than that of most countries, and concentrations of wealth that boggle the mind – with extreme poverty and grossly inadequate school funding. But, moving on, here are the specific elements of yesterday’s ruling.

The first challenged statute was California’s requirement that new teachers should be selected for permanent status (commonly but imprecisely called “tenure”) after two years. Treu cited testimony from both sides to suggest that the two-year period (actually, less, since notification must occur on or before March 15 of the second year) serves both students and teachers poorly – students because an undeserving teacher may be “reelected” and teachers because they may be released if there’s any doubt, even in situations where one more year might serve the teachers well. Applying strict scrutiny, Treu found that the logical possibility of harm to students is enough to compel the defense to show the need for a two-year period. The judge pointed out that most states with similar laws use longer periods of time, typically three years, some 4-5 years. He also noted from the testimony that it seems illogical to make a permanent status decision in a time-period shorter than the new teacher induction program.

Without agreeing with the reasoning used by the plaintiffs, or the remedy of simply throwing out the law, I would say this is the weak link for the defense case. I helped write a teacher evaluation policy report – with a dozen other teachers – in which we also advocated for a three years rather than two for this decision. However, we were talking about a set of interrelated changes that should be taken together, modifying teacher induction and evaluation. We certainly didn’t advocate making this change in isolation, or without a deliberative process. One local union recently requested (but didn’t receive) a waiver from the state to work with district administrators to craft a new induction and evaluation system that included a three-year probationary stage.

Regarding the steps and procedures involved in teacher dismissal, Judge Treu says the defense must meet strict scrutiny to prove why teacher dismissal must involve “über due process” and he points out that if education code in this area is stricken, teachers will be treated like other public sector employees, who do have due process rights. I’m not sure teachers are well-served by alarmist social media messages suggesting Treu’s ruling would leave us without due process. At the same time, I think there are compelling reasons that teaching is different from other public sector employment, necessitating some special consideration in dismissal procedures. However, Treu’s discussion of the evidence in this area seems particularly selective; he says that the current system is so complex and expensive that “dismissal of a grossly ineffective teacher [is] illusory.” The word “illusory” suggests that it just doesn’t happen – when in fact, it does happen.  LAUSD Superintendent John Deasy, a witness for the plaintiffs, even testified about the fact that greater attention to ineffective teaching in LAUSD has led to more teachers being dismissed. (A former superintendent, called by the defense, also testified regarding the fact that ineffective teachers often choose to leave rather than engage in the full dismissal process). I’m entirely open to the idea that the process could be improved, and in fact, CTA has worked with legislators, key stakeholders, and education advocacy groups around certain dismissal procedures quite recently. But I do to take issue with “illusory” and question Treu’s vision in that regard. And keep in mind, no evidence was cited (nor is there any I’ve read about) to suggest that any of the plaintiffs endured a teacher who would have been fired if not for these burdensome laws; under strict scrutiny, it seems that’s not necessary – but it would be more compelling.

I think the greatest weakness in Treu’s ruling concerns seniority as the deciding factor in layoffs. He writes that “last-in-first-out” policies (LIFO) are “unfathomable”– because the state would have to show a compelling interest for keeping students away from better, junior teachers, and instead, place them in the classrooms of a hypothetical “senior/incompetent” teacher. Treu’s argument is framed on the assumption that a school is employing a teacher identified as “incompetent,” and not merely less effective, or in need of support. That seems to me a flimsy premise upon which to engage in such hypotheticals about layoffs. If a teacher has been officially deemed incompetent, that should be the end of it – why would that person still be employed? But I have a feeling this hypothetical is about the senior teacher who might be incompetent, or has a reputation as such – and I don’t think education code should work that way. It might even be a teacher who’s in the middle of the dismissal process – but the difference between the middle and the end is the difference between maybe and definitely. While Treu offers supporting studies and testimony elsewhere in his ruling, this section refers to neither research nor trial evidence. He merely engages in a thought exercise, and then compares California’s statute to laws in other states, where for the most part, seniority is less binding than it is in California. The outside observer cannot infer how he concludes that the elimination of LIFO would help California students in general, nor is there evidence that it would help anyone specific, such as any plaintiff in this case.

This is the issue I’m most concerned about. Seniority is a rational basis for handling layoffs – the recent prevalence of which should be entered as evidence in a more appropriate lawsuit, regarding California’s failure to meet constitutional obligations concerning public education. Seniority serves a compelling state interest by providing a bulwark against politically or fiscally motivated layoffs, and by fostering the necessary collaboration to help schools thrive. (Note: there are already some legal exceptions to seniority as the sole criterion in layoffs. I think there’s reason to discuss ways of shielding certain schools in a district while adhering to seniority in other schools; however, see these InterACT blog posts by Martha Infante for some idea how complicated that can become). Eliminating LIFO opens the door to evaluations that favor less expensive teachers, and provides a potential end-around for administrators to avoid due process. Furthermore, it creates competition in place of collaboration; if layoffs are looming, there’s a perverse incentive to protect oneself at the expense of others. Admittedly, I’m engaging in my own thought experiment here, but with careers, pensions, and health care coverage at stake, teachers would have reasons to look out for themselves first, rather than put much effort into supporting others.

Judge Treu’s ruling closes by invoking Alexander Hamilton on the topic of separation of powers; he reminds us that judging and legislating are separate functions, and that the legislature must remedy what the court finds unconstitutional. Therefore, with years of appeals ahead, and then a legislative process to follow, I think it’s too soon for teachers or unions to begin talk of disaster. Mine is an admittedly amateur reading, but it would seem possible to under this ruling to pass constitutional muster with laws that make the following changes:

  • Permanent status awarded in third year rather than second year
  • Streamlined (not eliminated) due process laws
  • Seniority used as one factor rather than the sole factor in layoffs

Don’t get me wrong: just on principle, I’d rather see the whole case rejected on appeal. But if the ruling, or parts of it, should stand several years from now, then teachers still have room to advocate for a strong profession. Let’s stay informed and engaged. Stay vigilant, even adversarial as necessary – but calm.


Some other links you might want to check out:

KQED-FM “Forum” will discusses the Vergara ruling (Wednesday, June 11, 9-10 a.m.)

EdSource Today

California Teachers Association response

Diane Ravitch blog post (contains NEA and AFT reactions)

Charles Kerchner and David Menefee-Libey – in EdWeek blog “On California”

Two posts by Benjamin Riley (Quick reaction…, and Additional Thoughts…)

27 Comments leave one →
  1. tomjoewhite permalink
    June 11, 2014 6:53 am

    Great analysis of a horrible decision.

  2. June 11, 2014 9:47 am

    Thanks for all your time on this, David. Your experience and insights help a lot. Big, complicated issues take long blog posts to understand!

  3. Lynne permalink
    June 11, 2014 10:30 am

    Great summary David, thanks for providing the legal details in such a clear way.
    I only worry you are too optimistic at the end when you suggest if the ruling stands, teachers wil be able to advocate for reasonable legislative fixes. This is not a single pronged attack on the ability of teachers to speak out on behalf of our profession. Other lawsuits are currently winding their way through the courts (including one on home health care workers at the US Supreme Court which will be released within a month) which directly attack “fair share” labor laws. This is the idea that everyone, whether they are a member of the union or not, must pay their fair share of the costs of bargaining from which all teachers benefit. If fair share laws are overturned, the unions which advocate for us in areas like finding a legislative fix if Vegara stands will be severely weakened. But then that’s the whole point of these lawsuits.

    • David B. Cohen permalink*
      June 11, 2014 2:03 pm

      Lynne, thanks for your comment. I think I’m kind of an odd one – simultaneously optimistic and pessimistic, almost credulous and still skeptical. So, while I say we can advocate, I simply mean that it’s not “game over” when the courts finish with Vergara. We need to be prepared for that time, offering solutions and partnership, knowing where we have something to give, and where we need to draw firm lines. Our advocacy and leadership is needed, and will be needed, so I worry about people throwing up their hands as if all is lost and certain outcomes are inevitable. I know you know that – just trying to clarify a potential ambiguity on my part.

  4. christal permalink
    June 11, 2014 1:37 pm

    David, thanks for your excellent analysis on this.

    As I mentioned at one of PAEA’s meetings in discussing the Vegara lawsuit and what CTA believed would be the outcome – the judge ruling in favor of the plaintiffs – I mentioned a conversation that I had with your superintendent who is now retiring. He stated that without job protections like LIFO and permanent status, he could see a school board pressuring a superintendent to get rid of more expensive teachers during a budget crisis. He obviously understood why the California Ed Code has job protections for teachers.

    These protections give teachers the ability to advocate on behalf of their students, fellow teachers and the community in which they serve. When middle schools counselors and librarians were cut in my previous school district, it was the teachers who spoke up about why this was a horrible decision made on the backs of the students for previous poor financial decisions made by the school board.

    As a teacher, I faced lay-offs within my first two years of teaching, but I never held that against the other teachers. Instead, I was angry at the system that allowed the lay-offs to occur in the first place. Without job protections, teachers will continue to shy away from teaching in hard to staff school districts as it is our most neediest kids who need the strongest advocates.

    I believe that this will be overturned in appeal and that our legislators will come up with viable solutions working with CTA and CFT. I also agree that there is no need to wail & despair. Instead, I think all teachers should seize this as opportunity for community organizing. We need to start sharing publicly what we do in our classrooms with our neighbors.

    In closing, great teachers make teaching look easy. It is why I’m convinced we have so many great teachers – because everyone thinks they can do it!

  5. June 11, 2014 4:16 pm

    I think we can all agree there’s some people who indeed hurt children by trying to teach. I use the word trying because nearly all teachers are trying to help children, but some lack the skills how. What’s missing is consistent high quality training for teachers during student teaching and on-going professional development. This lack of training is even worse on the principal level where many programs are either mediocre or bypassed altogether via state examination. So few principals can trully support adult learning, why PLCs continue to be so elusive in many schools. I wish more were vocal about training, it’s where there’s a great deal applicable research and common cause between reformers and the union. It’s the primary reason why nations like Finland do so well: strong educator training. Start there, then very few on either side will have issues seeing eye to eye about teacher tenure or seniority.

    • David B. Cohen permalink*
      June 11, 2014 6:03 pm

      Chris, thanks for your comment. I agree that there is considerable common ground, but what I’ve never been able to figure out (or make peace with) is the intense focus of certain parties on teachers’ seniority and due process rights. We could accomplish so much by focusing on preventing “bad teaching” from ever occurring. The relentless drum beat from some corners to weaken protections, use test scores, etc., makes me suspect that the agenda is not entirely about better teaching, but also political and fiscal concerns relating to teachers as a work force and a political force.

  6. June 11, 2014 9:59 pm

    When I was hired by Oakland Unified School District, Oakland, CA in 1968, the state required 3 years of teacher evaluations before tenure was granted. Somewhere along the line, the requirement was reduced to 2. Each of those 3 years and the following 40 years of my career, I improved my teaching by taking continuing education courses in nearby colleges or those offered by the district, self-evaluation related to teaching standards as well as by benefiting from peer support and observation. My teaching skills were effective and successful in schools where I taught in lower, middle and higher levels of a neighborhood’s economical status. I rejoiced when I earned my tenure but knew that continued excellent teaching was required to keep that “insurance”. Falling below my own high level of self-expectation of job performance and district’s high standards would have led to my dismissal through due process requirements, tenure or not. I do not think the public realizes the high value teachers put on their own professional standards and living up to them. A few bad apples should not spoil the reputation and status of those who have EARNED tenure.Pulling the tenure rug out from under deserving, professional teachers is not the answer. Weeding out those who would do better in another job rather than teaching is the answer and it can be and is done.Teachers need not be punished because the administrators do not do their jobs as educational models which includes timely,instructive evaluations, hands-on observations and assistance to those who are failing to live up to the required levels of excellence. Let’s hope the Vergara ruling is thrown out on appeal. David Cohen is astutely right on target with his analysis of this sad decision.

  7. Charles Herndon permalink
    June 11, 2014 10:38 pm

    Well, David! “. . .agenda. . .about. . .political. . .concerns relating to teachers as a . . .political force.” Gosh! Do ya think? Maybe the most upsetting aspect for me, among many vexing, infuriating aspects of the “decision,” was the shameless parading of kids in the media tactical strategy to frame this as an issue of students’ rights. Also kind of a setback absorbing the fact that lawyers who advocate for rights in one arena can argue as effectively against rights in another. Gettin’ cynical won’t help, I know, and I admire your silver-lining attitude. I will continue to follow you as a touchstone for the optimism which undergirds all
    good teaching.

  8. Lisa Alva permalink
    June 11, 2014 10:49 pm

    Many educators don’t know what Vergara is or what it means. That’s why you’re getting views but few comments – people are learning and seeing that this thing is really huge and maybe it’s too huge for most educators to even get their heads around. Some educators are awake to all this and really trying to insert themselves into the policy conversation. They speak in front of school boards, try to make inroads in their unions, join “reform” groups – and very little of it turns out to be very effective. The reason for that is these options are not nearly as well-organized, well-focused or well-financed as the litigation-first group that won this particular round. We need inclusive leadership in teachers’ unions, and that’s the bottom line. There’s no vision of an association that invites everyone, values everyone, involves everyone; if there is, it’s a closely-guarded secret, or it’s kidding itself (hello, Union Power). There are many sides to this problem, many, and the lack of inclusive unionism is the most damaging one for teachers. I am mourning this decision because it’s a serious blow to the one entity – UTLA – that has kept me safe in all my foolish forays into the arena of politics, policy and public opinion. NOTHING in the Vergara case makes sense, for all the reasons you and other very smart people have brought to light, David, but at least UTLA kept me and others like me from material harm. Unless UTLA finally puts personalities and internal politics aside long enough to do some real member outreach that brings junior and senior teachers together, values their visions and actually offers value for dues dollars, we’re screwed. Educators 4 Excellence and Teach Plus have financed UTLA members in researching and writing up valid recommendations that go nowhere because these groups are financed by millionaires and UTLA rejects them. Okay, true. But at the same time, UTLA offers no inroad, NONE, for these same people to do this same high-quality work to make the same high-need and high-priority recommendations. Who loses? We’re all losing.

  9. David W permalink
    June 12, 2014 11:48 am

    I agree with much of what you say and your analysis but I disagree that it is alarmists who are saying that this ruling eliminates due process. As an attorney with CTA’s Group Legal Service program for the last 35 years and representing other public employees I think the allusions by Treu to the great rights of a Skelly hearing are absolutely misleading as Skelly “hearings” as I explain to all my clients are basically useless. They are trial by the accuser without the need of any due process except to tell the accused what they are accused of, offer them an opportunity to speak and then decide against them.
    In my opinion the biggest problem with the decision is that this man is a judge, not a legislature which creates our laws out of our policy preferences. You hit it right on the head that with virtually no reference to significant evidence he jumps to the conclusion of a need for strict scrutiny which then gives him the right to decide what the law should be not interpret the law as it is. All your suggestions may be ok but they should not be decided by one guy who has swallowed the billionaire’s pill and ignored class and race disparity.

  10. June 15, 2014 7:17 am

    But how do you define an incompetent teacher?

    Most teachers who leave the teaching profession in the first five years (studies say as many as 50%), leave because they can’t take the stress.

    And the major element of stress is that they don’t have what it takes to control the children to maintain a learning environment. It doesn’t mean they don’t know their subject or even how to teach it, but you can’t teach in an environment ruled over by anarchy and chaos. This situation is even more challenging in areas with high rates of poverty and/or street gang violence. The higher the poverty rate, the higher the challenge to maintain a classroom environment where children might learn if they pay attention and do the work, and too many of these children don’t cooperate or work at home or in the classroom. If they belong to a street gang, they hate to even carry books, pen, pencil and paper to class.

    To create a learning environment and engage with some of the students in that environment, a teacher must have the iron discipline and resolve of a Marine Corps drill instructor with the demeanor and voice of Mary Poppins.

    How do I know this? For twenty-seven of the thirty I was in a public school classroom as a teacher in Southern California, I taught at schools with childhood poverty rates higher than 70%. I even witnessed one drive by shooting from my classroom doorway as school was letting out. There were other shooting but I didn’t witness them. I heard them or heard about them.

    The high school that I retired from now has a poverty rate above 80%—probably thanks to G. W. Bush’s 2007-08 global financial crises and the following fallout. Of course, we can’t blame it all on Bush, because Clinton—with both houses of Congress controlled by the GOP—signed the law that helped cause the financial crises. In fact, it might have been a waste of time for Clinton to even attempt a veto because Congress might have had the votes to overrule it.

    If anyone wants to join me in my classroom to experience what I talk of, I just published my memoir of the year (1994-95) when I kept a very detailed, daily journal of what was happening in my classroom, the high school and the district. Almost twenty years later, I used that journal as my primary source and turned the memoir into a narrative. The first 20% is free to read on Amazon. The story with my students begins in the Prelude. There is no way I could have remembered all the “shit” that happened in any year I was a teacher without that journal.

    The e-book is available now or later today, and the paperback will follow in a week or two.


  1. David B. Cohen: A Thoughtful Analysis of Vergara Decision | Diane Ravitch's blog
  2. The Day After The “Vergara” Decision: Here Are More Thoughtful Reflections From Around The Web | Larry Ferlazzo’s Websites of the Day…
  3. Educational Policy Information
  4. Educational Policy Information
  5. Fighting Vergara in California and Elsewhere – @ THE CHALK FACE
  6. What’s the Future of Unions? | Gatsby In L.A.
  7. 2014 Medley #15: Reactions to Vergara | Live Long and Prosper
  8. Ed News June 13, 2014 Edition | tigersteach
  9. This Week’s “Round-Up” Of Useful Posts & Articles on Education Policy | Larry Ferlazzo’s Websites of the Day…
  10. California Court Rules It’s All The Teachers’ Fault | Larry Ferlazzo’s Websites of the Day…
  11. California and Tenure | Connecting the Dots with Dora
  12. The Vergara Decision and the Threat to Tenure | The Academe Blog
  13. Vital Dissonance (Periodic Fire In the Underbrush…) | Principals in Training
  14. Teaching and Learning, Tenure and Due Process « WeActEd
  15. Teachers Prepare to Fight for Schools Students Deserve Against Plutocratic De-funders | Colonel Despard's Radical Comment

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