Thompson: What Is the Real Intent of Vergara v. California?
The most striking thing about Vergara vs California, which would strike down laws protecting teachers' due process, is the lack of evidence that those laws, not the legacies of poverty, damage poor children of color.
It claims that "separate and together" those laws violate the civil rights of children. One would think that the court would demand evidence for the existance of that alleged interplay of the laws.
To prove that it is the laws, not management's response to the laws, that causes harm, Vergara apparently relies on nothing but assertions made by management. If their video of the greatest hits of administrators during Vergara's depositions is any indication, the trial will showcase their sound bites, not evidence. In other words, it is argued that administrators, not lawmakers, who should say what administrative law should be.
Such judicial overreach is almost enough to make us long for the good old days when Vergara’s lead attorney, Theodore Olson, helped found the Federalist Society. It seems like only yesterday that Olson joined with Edwin Meese, Robert Bork, Antonin Scalia, John Roberts, Samuel Alioto, and Clarence Thomas to proclaim, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
When Olson et. al opposed judicial activism, corporations did not have the rights of people. Or, should I say they did not have the rights that people once had, but that they would now deny to teachers?
I agree with Larry Ferlazzo's Best Resources of California's Case Attacking Teachers' Rights that the case will result in an "unequivocal" victory for teachers. I'm concerned about the question raised by Education Week's Steve Sawchuk, however. Why did the plaintiffs not seek a more narrowly tailored suit that had a better chance of success in court? Ed Source's John Fensterwald made the same point, noting that "narrowly constructed, fact-based lawsuits" have been successful.
If their goal was improving schools and not attacking teachers and unions, would the plaintiffs have even considered the overreach which is Vergara? Are corporate reformers unabashedly using the courts as a battleground for battering employees' rights, as opposed to helping children? Even though Vergara will likely result in a legal embarrassment, is it just one of many assaults we can expect by reformers who will use any means necessary to defeat their enemies?
Update. The plaintiffs' slides showed the same old misleading statements about teachers' ability to overcome poverty, the theories of economists devoted to value-added statistical experiments and, of course, photographs of lovely students and attractive young teachers and advocates. It previews the argument that the due process procedures should be shortened, and that California treats teachers better than state employees because they are given ninety days to "correct and cure" their deficiencies, they are entitled to a written statement of the charges against them and of the facts alleged, and a few protections more than other state employees, i.e full, not limited, discovery rights, a hearing before their peers, not an impartial observer, and the right to appeal.
Of course, we teachers believe that those laws are reasonable and mostly beneficial to students. And, as the plaintiff's evidence shows, we teachers have helped devise solutions for efficiently removing ineffective teachers, raising the question of why the plaintiffs' administrator/witnesses are so bumbling. But, the plaintiffs' believe differently. Based on their beliefs on those complex issues, they demand that the duly enacted laws of California must be struck down, and replaced by ...?
In other words, this is a thinly veiled political campaign with the court as a venue. The plaintiffs opening arguments confirm my suspicion that the real purpose of Vergara is to expand the audience for their sound bites and Power Point panaceas. -JT(@drjohnthompson) Image via.