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Thompson: What Is the Real Intent of Vergara v. California?

FederalistThe 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 would not oppose an informed call for judicial activism if it was likely to help, not hurt, poor schools. But, Vergara is more worrisome than the old-fashioned conservatism that prompted the unfunny joke, “I’m from the government and I'm here to help.” If the Courts allow this power grab, we can expect the truly sick punch line, “I’m rich and my corporation is here to straighten you out.”

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

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Yes, no doubt about that. It's another mode of attack on teachers and public schools from the so-called "reform" sector with zero sincerity, all tactic and propaganda. Speaking from California.

The "reform" sector's showpiece teacher is the sickening sex criminal at LAUSD's Miramonte Elementary. In that case, when actually pinned down, even the "reform" mouthpieces have to admit that union protection had NOTHING to do with the fact that complaints against that teacher were left unanswered for a very long time -- it was entirely administrative/management inertia/incompetence/ball-dropping. And that was, by the way, in a school district whose management/administration has been aggressively PRO-"reform" through several generations of leadership.

No Child Left Behind and Race To The Top also call for "streamlining" due process for teachers, as well as elimination of seniority and tenure rights for teachers. However, racial disparities in test scores and other outcomes can be explained as both an effect of poverty - toxic stress levels for a large minority of low-income students - and unequal conditions of learning, such as racial disparities in exposure of students to inexperienced teachers. There are racial disparities in access to a quality, public, K-12 education, but this problem cannot be solved by the remedies advocated by the GW Bush and Obama administrations. School district should be trying to retain new teachers in schools serving students of color, rather than firing and replacing them during their probationary period. Much of the problem of high teacher turnover and a high concentration of inexperienced teachers in schools with high concentrations of students of color is the result of teachers being pushed out the door, often fired arbitrarily, because they typically do not have the administrative due process rights of tenured teachers. During their multi-year probationary period, new teachers are basically "employed-at-will:" They are easily fired on various pretexts. The solution is not to take job protections away for tenured teachers, but to upgrade job protections for teachers who have not completed their probationary period.

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