A scathing audit on school funding that found the state did not meet promises made six years ago to help English language learners, foster children and students from poor families sets up a 2020 test of the clout of the California Teachers Association and the California Federation of Teachers – and of the willingness of Gov. Gavin Newsom to take on the unions who were early backers of his successful 2018 candidacy. 

State Auditor Elaine Howle’s review focused on how school districts in San Diego, Oakland and Clovis had implemented the Local Control Funding Formula, which was adopted by the Legislature in 2013 at the behest of then-Gov. Jerry Brown. The governor and then-Senate President Darrell Steinberg, D-Sacramento, were among several leaders who said the LCFF would be a game changer by getting additional assets to struggling students.

But Howle found instead that billions in extra funds the formula directed to districts with high percentages of English learners, foster kids and poor families had been used for general needs – including raises for teachers. She concluded there was little or no evidence that the LCFF had boosted these students’ performance.

“In general, we determined that the state’s approach [to Local Control] has not ensured that funding is benefiting students as intended,” Howle wrote.

Howle’s finding confirmed all the major criticisms of the formula that have been raised by education reformers and by civil rights lawyers who have repeatedly sued Los Angeles Unified over its treatment of poor minority students. 

Bill to track school funding couldn’t even get a hearing

But these groups have never gotten far with Local Control changes. Last spring, Assemblywoman Shirley Weber, the San Diego Democrat who pushed for the audit, couldn’t even get Assembly Education Committee Chairman Patrick O’Donnell, D-Long Beach, to hold a hearing on her bill to require disclosure of how LCFF dollars are being used.

Howle’s audit gives Weber new evidence to push for tracking such spending, and she has said fixing Local Control is her top priority in 2020. But O’Donnell, a former teacher who is close to the CTA and CFT, is unlikely to drop his opposition to tracking the funding.

A key question is likely to be what the governor does. While Newsom won the early endorsements of the two teacher unions, he spent the 2018 campaign telling editorial boards and the Los Angeles and Silicon Valley billionaires who back education reform that he too wanted to fix Local Control to ensure it helped struggling students and had proper accountability protections.

But any attempt to get school districts to stop spending LCFF dollars on teacher compensation – and on rapidly growing teacher pension costs – will go directly against the CTA and the CFT. They already see available school funding as inadequate and are both pushing for billions of dollars in tax hikes in two measures expected to be on the ballot in November 2020. They also won changes that will make it more difficult for charter schools to be approved or renewed using the argument that charters were diverting funding from regular public schools at a time when those schools are desperately underfunded. They are unlikely to accept the notion that the audit must be acted on.

Meanwhile, Newsom has so far used his political capital to advance an education reform that teachers unions also may question. But the reform – using metrics to track the performance of students throughout their K-12 journey – isn’t nearly as contentious as the state forcing many school districts to reorient their Local Control spending and stop using it for raises and pension bills.

The 2018 race for state superintendent of public instruction may not have an incumbent but is likely to feel like an encore of the 2014 race, pitting a Democrat aligned with the California Teachers Association and the California Federation of Teachers against a Democrat who backs reforms opposed by the unions.

In 2014, Tom Torlakson – a former teacher and state lawmaker – won a second term, touting higher graduation rates and somewhat better test scores. He defeated former Los Angeles charter school executive Marshall Tuck 52 percent to 48 percent in a race in which $30 million was reportedly spent, triple the campaign spending in that year’s quiet governor’s race.

With the strong support of wealthy Los Angeles area Democrats who have been fighting for changes in L.A. Unified and who remember the job he did running Green Dot charters, Tuck is running again.

Subbing for termed-out Torlakson is Assemblyman Tony Thurmond, D-Richmond, who has worked closely with teachers unions on many fronts – most notably joining in maneuvering last summer that helped kill a tenure reform bill that had gotten off to a strong start in the Legislature. He has also opposed efforts to more closely monitor how education dollars are being spent under the Local Control Funding Formula. The law was supposed to be used specifically to help districts with high numbers of English language learners, students in foster care and students from impoverished families to improve their academic performance. But civil rights groups say the extra dollars often have been used for general spending, including for teacher raises.

Thurmond was also among lawmakers who expressed interest in helping teachers deal with California’s high housing costs, proposing legislation to award $100 million in rental grants to teachers in need. It didn’t advance.

Tuck may have better shot than when he challenged incumbent

The conventional wisdom is that Tuck has a better chance than in 2014 because Thurmond has much lower name recognition than Torlakson. But that could be erased with a heavy television ad run by the teachers unions using the same anti-Tuck themes as in 2014: Making the argument that the charter schools he led are part of a corporate scheme to take over public education. 

If Tuck, 44, gets his way, the debate will focus on his reform agenda – the idea that charters serve as healthy competition for regular schools; the need for much better oversight of how the Local Control Funding Formula is used; adopting teacher tenure reform; and accountability standards that make it easier to judge whether a school is improving.

Thurmond’s website emphasizes his view of California educators doing battle with President Donald Trump and Education Secretary Betsy DeVos over what he describes as their intent to “gut” and “defund our public schools.” Thurmond, 49, a military veteran who was a social worker before running for office, also said teachers need “bonuses and other incentives” to address the shortage of qualified instructors.

Complicating the Tuck-Thurmond race is the likelihood that for the first time in the 21st century, a prominent Democratic gubernatorial candidate is running as an anti-union reformer – which could make schools a more prominent issue in the 2018 election cycle than is normal.

Former Los Angeles Mayor Antonio Villaraigosa, who repeatedly tangled with the United Teachers Los Angeles while seeking authority over L.A. Unified, has already won the endorsement of the state Democratic lawmaker recognized as the leader of education reform efforts: Assemblywoman Shirley Weber of San Diego.

The CTA endorsed Lt. Gov. Gavin Newsom in the governor’s race and Thurmond for superintendent in October. The CFT did as well in December.

No Child Left Behind, championed by President George W. Bush and Sen. Ted Kennedy, D-Massachusetts, was enacted in 2002. It included a long list of mandates that states had to follow to receive federal funding. But it quickly became a lightning rod because of its heavy emphasis on testing. It was also criticized for setting unrealistic goals.

Last year, the House and Senate moved to pass a new federal framework that included far fewer requirements. But accountability advocates did manage to win a provision that they believe will force states to step in and improve poorly functioning schools. It mandates that states must intervene with schools which repeatedly fail to graduate two-thirds of students, fall in the bottom 5 percent of academic achievement or have chronic problems with low scores for ethnic groups.

U.S. Department of Education officials charged with drafting rules for this provision want states to adopt simple metrics based mostly on test scores that provide one number for each school, making it easier to assess academic performance.

California State Superintendent of Public Schools Tom Torlakson

But Gov. Jerry Brown, state Superintendent of Public Instruction Tom Torlakson (pictured) and state Board of Education President Michael Kirst have for years disapproved of the single-score rating. This view — and the aggressive lobbying of the California Teachers Association and the California Federation of Teachers — led to the scrapping of the Academic Performance Index that had previously provided snapshot looks at school performance.

Instead, the state Board of Education earlier this month unanimously adopted a system that rates schools on several factors, including math and English test scores; graduation, suspension and absenteeism rates; and effectiveness of English-learner courses. Kirst and Torlakson wrote a letter to a U.S. Department of Education officials urging that California’s multi-metric standard be accepted.

State evaluation ripped as confusing, unhelpful

But the proposal has come under fire within California. While it was being finalized, the state evaluation system was blasted in a Los Angeles Times editorial as being confusing and unhelpful. The Legislature was also skeptical. At the behest of Assemblywoman Shirley Weber, D-San Diego, the Assembly and Senate passed a bill with almost no dissent that had a similar variety of metrics for schools — but also a bottom-line, single score on academic performance, as the U.S. Department of Education wants.

Last weekend, Gov. Brown vetoed the bill — AB2548 — saying the standards developed by the state Board of Education were superior.

This sets up a confrontation with the Obama administration in the short term and with the administration of Hillary Clinton or Donald Trump after Jan. 20, 2017.

Brown, Torlakson and Kirst may be hoping for a more sympathetic ear from Clinton. A high-profile education reformer earlier in her career, in recent years she has echoed teacher unions’ criticism of assigning so much importance to results of standardized tests.

But when it comes to Proposition 55, ignorance of its contents is not likely to be a problem for voters. The California Teachers Association and its allies are likely to spend $100 million or more on saturation TV and social media ads depicting the measure as crucial to the future of California public education.

Prop. 55 would extend for 12 years the temporary tax hikes on single people earning more than $263,000 and couples earning more than $526,000 that voters approved in 2012 (then at slightly lower income thresholds) as part of Proposition 30. Instead of sunsetting at the end of 2018, the income tax increase would continue through 2030. The $7 billion or more this is expected to generate annually would be earmarked for education. The temporary sales tax hike that voters also approved in 2012 will lapse at the end of this year.

Revenue recession took toll on teachers

This month, the CTA wrote a $10 million check to the Yes on 55 campaign, which now has a $28 million warchest. The CTA and the smaller but still powerful California Federation of Teachers are likely to write several more checks that size to try to avoid the headaches that public school teachers faced from 2008 to 2012 during California’s long revenue recession.

While the “step” increases in pay that teachers typically receive in 15 of their first 20 years on the job were largely protected, strapped school districts didn’t grant additional across-the-board pay hikes that many provided during recent tech bubbles that pumped up capital gains revenue for the state. They also pushed for teachers to pay more toward their benefits and in some cases accept layoffs that extended beyond the newly hired to those with several years of experience.

As the Legislative Analyst’s Office graphic above shows, education spending has strongly rebounded since 2012, helped by a new boom in Silicon Valley and Proposition 30’s adoption that year. But the CTA and the CFT share Gov. Jerry Brown’s skepticism that the current good times can last. After first insisting that the temporary tax hikes must be allowed to expire because that’s what voters were promised, Brown has been far less vocal on the topic in the wake of new forecasts from his Department of Finance that state deficits are likely in coming years without retention of the income-tax hike.

Since state coffers are the main source of K-12 funding, Prop. 55’s approval is crucial to maintaining teachers’ pay and benefits. In most school districts, compensation eats up more than 80 percent of general fund budgets.

But Prop. 55’s route to passage may be rougher than Prop. 30’s in 2012. The Sacramento Bee editorial page has already said that support for extending the tax hikes should be explicitly linked to reforms in teacher tenure and to teacher unions’ support for state-subsidized childcare for poor families.

Some state lawmakers may also try to leverage their support for Prop. 55. Led by Assemblywoman Shirley Weber, D-San Diego, they are unhappy with how 2013’s Local Control Funding Formula has been implemented. The measure was supposed to pump billions of dollars in extra funding to districts with large numbers of English-language learners and foster children so they could provide help specifically for such students.

But three years in, education reform groups say that’s not happening, citing the absence of evidence of additional help for either category of student. Last year, Superintendent of Public Instruction Tom Torlakson said the local control dollars could be used broadly for general pay raises, overruling a lower-ranking official.

Children entering charter schools in Los Angeles already outperform peers who attend traditional public schools, then pull ahead even a bit more, especially those attending charter middle schools … .

 

Pupils who enter charter elementary or high schools displayed significantly higher test scores, relative to counterparts entering traditional public schools at the same grade levels, the report said. Elementary students in charter schools benefit from slightly steeper learning curves, relative to peers remaining in conventional schools, researchers said. Charter high schools were no more or less effective than traditional schools in boosting student performance.

 

Charter schools, while publicly funded, operate independently of many state requirements and the administration of the Los Angeles Unified School District. Some 274 charter schools operate in L.A. Unified this fall, more than any school district nationwide.

 

The four-year study of 66,000 students at charter schools in Los Angeles Unified — one of the largest research projects yet on charters — offers generally positive news about their quality of education.

The $490 million ‘Great Public Schools Now Initiative’

The study is sure to be invoked by Broad and others unhappy with the quality of education in the nation’s second-largest district. In September, the Los Angeles Times obtained a copy of a 44-page report prepared for Broad called “The Great Public Schools Now Initiative” that corroborated earlier stories that Broad hoped to increase from 16 percent to 50 percent the number of L.A. Unified students in charters, which would require the creation of an estimated 260 new schools. A key passage in the executive summary:

The opportunity is ripe for a significant expansion of high-quality charter schools in Los Angeles. Thanks to the strength of its charter leaders and teachers, as well as its widespread civic and philanthropic support, Los Angeles is uniquely positioned to create the largest, highest-performing charter sector in the nation. Such an exemplar would serve as a model for all large cities to follow.

According to the Times account, the report cited …

… numerous foundations and individuals who could be tapped to raise money, including the Bill and Melinda Gates, Bloomberg, Annenberg and Hewlett organizations. Among the individuals cited as potential targets for fundraising were Eli Broad, Irvine Co. head Donald Bren, former entertainment mogul David Geffen and Tesla’s Elon Musk.

 

It also suggested a strategy of grassroots organizing and civic engagement designed to generate more interest among parents in charter schools.

UTLA, CTA gear up for public-relations war

The California Teachers Association and its largest chapter, United Teachers Los Angeles, are ramping up for the challenge. The UTLA has already launched a picketing campaign against the plan. At a November rally, CTA President Eric Heins said, “We are here to say to Eli Broad and to Walmart that our schools are not for sale. … The 325,000 members of the California Teachers Association stand arm in arm with UTLA and with CFT to say no to Eli Broad, to say no to Walmart, and to help build the schools that all L.A. students deserve.”

The CTA has won support from Diana Ravitch, a high-profile education reformer and author who’s made an odyssey from harsh union critic to someone who agrees with the union claim that there is something unsavory, corporate and ominous about a school reform movement organized by billionaires. That’s how she characterized Broad’s effort on her website.

“Will the [LAUSD] board go along with Eli’s silent coup or will they choose someone to represent the public interest?” Ravitch wrote.

Broad’s defenders describe his school reform ideas as very comparable to President Obama and his push for school and teacher accountability. But the nation’s two largest teachers unions, the National Education Association (which counts the CTA as its biggest affiliate) and the American Federation of Teachers (the California Federation of Teachers is its biggest affiliate), reject that comparison.

Obama’s recent decision to sign the Every Student Succeeds Act, a national education framework replacing 2002’s No Child Left Behind law, would appear to back up the NEA’s and AFT’s view. It pulls back sharply from federal accountability requirements imposed on states and individual school districts.

The new law swept to bipartisan passage because of an unusual coalition of Democrats who joined teacher unions in saying too much class time was being spent on testing and Republicans who said Congress should not be a “national school board,” in the phrase of Tennessee Sen. Lamar Alexander, a former secretary of education.

Under that ruling, employees may get a refund on dues specifically identified as going for political purposes. But attorneys for Rebecca Friedrichs argue that the CTA’s history shows all its dues are essentially used for political ends. Friedrichs opposes much of the CTA’s agenda, starting with the union’s strong support of far-reaching teacher job protections and the relatively quick granting of tenure.

The case has the potential to shake up California’s political climate. The CTA and the California Federation of Teachers give more money to candidates and causes than any other entity and are considered to have more influence over the state Legislature than any other groups. Based on what’s happened in other states, the CTA and CFT could lose one-third of all dues if Friedrichs succeeds and mandatory assessments are no longer allowed.

‘Not if, but when’ present law is overruled

What’s striking about this case is that the CTA appears to already assume it’s going to lose. In July of last year, the union distributed a 23-page memo discussing a post-Friedrichs world at a meeting of local district union leaders. Its title: “Not if, but when: Living in a world without Fair Share.” (“Fair Share” is how the CTA describes the law mandating all teachers pay “agency fees.”)

The memo ends with an upbeat tone:

CTA Will Be Ready!

 

Over the years, CTA has responded to many attacks and crises that have threatened to dismantle our organization and our core belief that every child in California deserves a first-class education. By and far, we have prevailed because of the organizational strength of our membership, the efforts of our talented staff, and our shared commitment to our mission to protect and promote the well-being of our members and to improve the conditions of teaching and learning in California.

 

Planning, organizing and preparedness will ensure our continued organizational strength and survival and help us adapt to an ever-changing environment.

Nevertheless, the reasons for the CTA’s fatalism are plain. Friedrichs v. CTA got to the Supreme Court in much speedier fashion than many cases. At least four justices supported bringing it before the high court for review, and one has already made his views plain:

Twice, Associate Justice Samuel Alito has stated in opinions of recent years that Abood v. Detroit Board of Ed., the 1977 case that established the constitutionality of fair share fees, was shaky. In a 2014 opinion in Harris v. Quinn, Alito said that precedent was “questionable on several grounds.”

That’s from Politico.

The 2013 measure guides additional dollars to districts with high concentrations of English-learner students, foster children and impoverished families, altering the funding formulas that have driven disbursement of state dollars for decades. Even before the reform became law, reform groups warned the funds will be steered into operating budgets and used to pay for raises for teachers orchestrated by their powerful unions.

A January Legislative Analyst’s Office report surveyed 50 California school districts, including the 11 largest, on how they were handling LCFF moneys. The LAO concluded that some districts were better than others, but that not one district had adequate safeguards.

In February, the Fresno County Office of Education formally asked the state Department of Education for guidance: Could broad raises be given with the additional funding?

Bureaucrat for tough standards, but his boss isn’t

The midlevel bureaucrat who responded in April — Jeff Breshears, administrator for the Department of Education’s Local Agency Systems Support Office — said that could only happen in unusual circumstances. The California Teachers Association strongly disagreed, as Edsource reported:

The Local Control Funding Formula was created to give maximum flexibility to school districts, and that includes creating competitive salaries to reduce teacher turnover, said Claudia Briggs, communications assistant manager for the CTA.

 

“We believe the law is clear: The money can be used to attract and retain quality teachers in the classroom, to lower class sizes and to restore programs that were cut,” said Briggs. And she said the CTA disagrees with the education department’s position that districts cannot use supplemental dollars for across-the-board raises if fewer than 55 percent of the students are English learners and low-income children.

 

“All control dollars are sent with no strings attached to suit the best needs of students. So if the percentage is below 55 percent, districts can absolutely still use those funds” for pay raises, she said.

After Brashears’ memo became public knowledge in recent weeks, Torlakson overruled his subordinate and said the funds could be used for broad teacher raises if districts could make the case that this would help English-learners and the other struggling students the LCFF was meant to assist.

Assemblywoman takes on party establishment — again

None of this sits well with a liberal second-term Assembly member who has already tangled with the Democratic Party establishment on teacher tenure and rules on how police body cameras can be used. In a statement published on the Union-Tribune’s website, San Diego’s Shirley Weber expressed frustration with Torlakson’s interpretation. Here are excerpts:

While teacher salaries are of great importance, supplemental and concentration grants are intended to achieve greater equity in our educational system by improving education outcomes for low-income students, English language learners and foster children. The Superintendent’s correspondence makes no connection to more equitable outcomes and use of those funds for salaries. Lowering the burden of proof for salary increases only further exacerbates circumstances that the poverty supplemental and concentration grants are intended to mitigate. …

The Legislature’s intent was clear when it enacted LCFF and the State Board reinforced this intent when it adopted regulations that these supplemental and concentration dollars were to “increase or improve” services and be “principally directed” to low income students, English learners and foster youth. Significant investments have already been made towards LCFF and an effective mechanism has yet to be implemented to actually track how these supplemental and concentration resources are being invested. There must be no ambiguity about who should benefit from these investments.

Weber is a former San Diego school board president and San Diego State professor.

]]> https://calwatchdog.com/2015/06/22/gov-brown-sides-teachers-union-school-funding/feed/ 2 81006 https://calwatchdog.com/2015/06/06/another-black-lawmaker-turns-ca-teacher-unions/ https://calwatchdog.com/2015/06/06/another-black-lawmaker-turns-ca-teacher-unions/#comments Sat, 06 Jun 2015 12:31:41 +0000 http://calwatchdog.com/?p=80649 California’s Democratic Party has long been able keep the peace between its richest faction — public employee unions — and its biggest faction — minority voters.

But more than with any Legislature this century, the current session has produced some very tart sparring between two African American lawmakers and the lobbyists for the California Teachers Association and the California Federation of Teachers who have close to operational control of Democratic majorities in both the Assembly and Senate.

The latest came when state Sen. Holly Mitchell, D-Los Angeles, took exception to the dismissive treatment of one of her legislative priorities:

State Sen. Holly Mitchell, D-Los Angeles, said she is upset with the California Teachers Association’s vocal opposition to the Senate’s plan to cover much of its proposed higher spending on child care with money allocated under the Proposition 98 funding guarantee for schools.

 

Dean Vogel, the association’s president, said that the Senate proposal would take “more away from 5-year-olds to give to 3-year-olds.” In an interview Thursday, Mitchell said she has seen the same logic on union literature, which she called “weakest, most sophomoric argument I could ever hear.”

 

Mitchell suggested that the union’s opposition to the Senate’s plan stems from the fact it believes none of the extra spending would benefit its members. “What else can it be? I’m trying to unconnect the dots, but they haven’t shown me any other option,” she said.

That’s from a Sacramento Bee story this week. It builds on the run-ins that Assemblywoman Shirley Weber, D-San Diego, had with the CTA and CFT over her tenure reform proposal and Weber’s beefs with police unions over whether officers should be able to look at body camera footage before writing their initial reports on incidents. Weber was the subject of a deeply flattering Dan Walters column on May 4 that depicted her as a welcome break from the Legislature’s union-dominated norms.

The Capitol’s big guns came out last week – and they were aimed at a 66-year-old grandmother who dared to buck two of California’s most powerful political interests – teacher and cop unions.

Shirley Weber, born in Arkansas and reared in a poor neighborhood of Los Angeles, acquired a doctorate degree and taught at college for four decades before becoming San Diego’s first African American Assembly member in 2012.

Weber is also concerned about whether the teachers unions are trying to hijack Local Control Funding Formula dollars for teachers’ raises, an issue on which she has the support of the full California Legislative Black Caucus.

Last week, however, at a legislative hearing on tenure reform, Weber was far more aggressive on the issue. The Sacramento Bee’s coverage inexplicably left out the juiciest parts or the hearing — or even that the hearing had any juicy parts. Not LA Weekly.

Shirley Weber grew up in Pueblo del Rio, a poor South Los Angeles housing project known as “the Pueblos.” She made her way out and went on to college, earned a Ph.D. at UCLA and was elected president of the San Diego Unified School Board before winning election to the California Assembly in 2012. 

Weber introduced a seemingly moderate bill on Wednesday to accomplish three things: She wanted to add a new category called “needs improvement” to California forms that evaluate teachers and provide only two choices, “satisfactory” or “unsatisfactory.” Her reform would signal that the teacher needs training in order to be more effective in class.

Second, her bill would require that funds be spent to train the teachers who are in need of improvement.

Third, and most controversially, Weber’s bill would require that teacher evaluations be based at least in part on their students’ academic growth — not necessarily by using student test scores, but not banning their use, either.  …

Sacramento is a pretty congenial place — there’s a lot of back-slapping and fist-bumping and laughing that goes on in the hallways and aisles. But when Weber’s Democratic colleagues signaled that they would not let her bill out of the education committee — effectively burying it, preventing it from getting to the Assembly floor — Weber lit into them.

“When I see what’s going on, I’m offended, as a senior member of this committee, who has probably more educational background and experience than all ya’ll put together on top of each other,” Weber lashed out.

‘You gonna rape me, rape my bill?’

The fireworks continued later in a different forum.

Weber was even more candid when speaking to L.A. Weekly the next day.

“Obviously, it was orchestrated by the teachers union to not let the bill out,” she said. “It was purely political.”

Interestingly, the Assembly Education committee chair, Patrick O’Donnell, wants to take Weber’s idea of a “needs improvement” evaluation for teachers and incorporate it into his own teacher-evaluation bill. But Weber objects to that, too.

“You’re gonna rape me, rape my bill and take it as your own?” she said, incredulously. “After the work we’ve done, without my name on it? I’m not having that. You may do it, but you will not do it without my permission.”

About a decade ago, I spoke on background with a prominent California Latino politician who’s kept moving up in the years since. He told me that the CTA and CFT make it clear to Democratic candidates that there is a low ceiling to their careers if they’re not fully supportive of the teachers unions’ agenda. This was confirmed by the silence of Karen Bass and John Perez when the Los Angeles Democrats were speaker of the Assembly and minority parents sought big changes in L.A. Unified.

But the Vergara case, the continued prominence of former state Sen. Gloria Romero as a critic of teacher unions and now Weber’s emergence as a sharp union foe will keep the spotlight on how minority students are treated and on how reforms to help minority students are treated in Sacramento.

A second battlefront in Weber vs. CTA?

Weber has also expressed concerns that the Local Control Funding Formula reform adopted in 2013 has not been implemented well, as CalWatchdog reported in March.

It was supposed to ensure more money went directly to help struggling students. But in January, the Legislative Analyst’s Office reported that none of the 50 California school districts had adequate safeguards on how the money was used, including the 11 largest districts.

This could end up being a second front in Weber’s battle with the teachers unions. In several districts, there’s evidence the LCFF dollars have been diverted to use for teacher pay raises.

In Vergara, Los Angeles Superior Court Judge Rolf Treu cited gaps in test scores between minority students and white students in California and evidence that minority schools were far more likely to have the worst teachers in concluding that three state laws protecting teachers’ jobs and prerogatives were unconstitutional violations of student rights.

Treu likened the Vergara case to Brown vs. Board of Education, the famous 1954 Supreme Court case in which justices held Kansas’ “separate but equal” public schools for whites and blacks were unconstitutional.

But the Kansas case involved a state whose education policies resulted in white schools having more money and resources than black schools. In Vergara, while there are stark differences in test scores between schools with mostly Latino and African-American students and schools with mostly white and Asian-American students, these schools receive similar funding from the state under the ADA (average daily attendance) formula. And while the worst teachers congregate at minority schools because of official rules and unofficial practices rewarding veteran teachers with clean records, it’s difficult to contend the state laws that allow this to happen were crafted with a racial animus.

However, some liberal legal experts have long made the case that showing laws have a “disparate impact” on minorities through statistics and real-world effects should be enough to invalidate them on equal protection grounds. This is how the U.S. Equal Employment Office defines the term:

Disparate impact refers to policies, practices, rules, or other systems that appear to be neutral, but result in a disproportionate impact on protected groups. Disparate treatment is intentional. For example, testing a particular skill of African Americans only is disparate treatment.

The Texas case involving allegations of housing discrimination against minorities that was heard by the U.S. Supreme Court on Jan. 24 was the first time that justices have taken a case in which lower-level courts had taken the “disparate impact” theory into serious consideration in their rulings.

Scalia: ‘No, no, no, no,’ numbers don’t confirm bias

The Overlawyered blog’s and Forbes magazine’s coverage of oral arguments in the case should have the California Teachers Association and the California Federation of Teachers doing handstands. The Supreme Court’s conservative majority lacerated attorneys making the “disparate impact” argument holding that the state of Texas’ policies were unconstitutional. Justice Antonin Scalia said these attorneys …

... conflated racial disparities, which can happen for all sorts of reasons, with deliberate racial discrimination, which is what racists do … .

“No, no, no, no,” Scalia said. “Racial disparity is not racial discrimination. The fact that the NFL is largely black players is not discrimination. Discrimination requires intentionally excluding people of a certain race.”

During the questioning … the court’s conservatives got to enunciate conservative concerns about the spreading use of disparate impact. … the Supreme Court has previously outlawed explicitly racial solutions to disparities, such as rigid quotas …

The analogies between Texas public housing laws and California education laws are not precise. But if Scalia’s framing of what constitutes unconstitutional racial discrimination — conscious, intentional, consequential bias in the crafting of a law — holds for a majority of the high court, then the California education status quo is likely to survive the Vergara case.

Justices eager to rebuke Obama administration?

One housing-law expert even thinks the Supreme Court’s conservative majority is spoiling to get this view explicitly stated in the Texas case so as to rebuke an Obama administration which has gone overboard in pushing “disparate impact” litigation.

The Court has wanted to examine this issue, as evidenced by accepting cert three times. It has repeatedly said that it only wanted to look at whether disparate impact applies under the Fair Housing Act and not what standard would apply if it does exist, even though there are many circuit court decisions using disparate impact, and they have used conflicting standards. Typically, the Court would want to decide an issue that is in conflict between the circuits, especially here, where HUD has already tried to resolve the conflicts with a rule. The Court’s refusal to consider a standard suggests that the majority of the justices already know disparate impact will no longer apply under the Fair Housing Act.  …

In some disparate impact cases, the theory has worked effectively to lessen racial discrimination and the perpetuation of illegal segregation. However, the substantial increase in the use of the theory … has caused the theory to be attacked and probably struck down. The takeaway is one of the pendulum having swung too far one way and now swinging back to the middle … .

That’s from Mike Skojec, partner at the national law firm of Ballard Spahr.