Student Matters, launched by optics engineer David Welch, sued the Los Angeles School District and the state of California in 2013, targeting state laws protecting veteran teachers from being fired for incompetence and giving tenure to teachers after less than two years on the job. The lawsuit argued that these laws had created the equivalent of a segregated school system — one in which the lowest-quality teachers were funneled to schools in poor neighborhoods with largely Latino and African-American student bodies.

In June 2014, Los Angeles Superior Court Judge Rolf Treu agreed, saying the state status quo “shocks the conscience.” He stayed his ruling invalidating five teacher protection laws pending the state government’s appeal, which is under way.

Welch’s new legal case — Doe v. Antioch — is more straightforward. It focuses on trying to get school districts to comply with a 1971 state law, the Stull Act, that requires student performance be part of teacher evaluations.

The EdSource website has details on Student Matters’ action:

It is suing 13 school districts that it claims are violating the state law requiring student scores on state standardized tests be a component of a teacher’s evaluation.

 

The lawsuit, filed in Contra Costa County Superior Court, says that the districts illegally agreed in contracts negotiated with teachers to exclude test scores. …

 

Students Matter argues that student progress on state tests is an important and reliable measure of effective teaching. The Legislature agreed, when, in 1999, it amended the Stull Act to include test scores on state tests among the multiple measures in evaluations. The lawsuit says that in violating the law, the 13 school districts “intentionally disregard valuable student achievement data that are accessible to them, choosing instead to remain ignorant as to the quality of the teachers in their schools.”

 

The 13 districts serve approximately 250,000 students. Along with Antioch Unified, they are Chaffey Joint Union High School District, Chino Valley Unified, El Monte City School District, Fairfield-Suisun Unified, Fremont Union High School District, Inglewood Unified, Ontario-Montclair School District, Pittsburg Unified, Saddleback Valley Unified, San Ramon Valley Unified, Upland Unified School District, and Victor Elementary School District.

LAUSD lost similar case, still hasn’t fixed policy

Tori Rector/flickr

What makes this lawsuit seem close to a certain winner for Students Matter is recent legal history and the clarity of the 1971 state law in question. In 2012,  Los Angeles County Superior Court Judge James Chalfant ruled that the Los Angeles Unified School District violated the Stull Act with its teacher evaluation process.

The L.A. Unified board chose not to appeal the ruling after being told by district lawyers it had little chance of winning.

But in an illustration of why Welch is pursuing changes through the courts instead of at the Legislature or in local school districts, L.A. Unified has never changed the policies that Chalfant ruled were illegal.

Instead, district officials and United Teachers Los Angeles have been negotiating new standards for years.

In February, CalWatchdog.com reported on the UTLA’s contract talks with LAUSD administrators. The union’s official position is that the district should use the same performance evaluation standards it had in 2011-12 — the standards that Chalfant had found to be illegal under state law.

In one sense, the astonishing result is a reminder of how powerful the legal doctrine of equal protection has become. Treu did not agree as a matter of law that “every child, everywhere, deserves great teachers.” But he did conclude that union job protections for teachers, including bad teachers, had fostered inequalities of opportunity so grave as to shock the conscience.

Explicitly drawing a comparison between Vergara and Brown vs. Board of Education, Treu ensured that similar litigation will spring up around America. It is a surprising reversal of roles for political partisans, many of whom associate bold, consequential readings of equal protection clauses with traditionally liberal causes, plaintiffs, and judges. (Indeed, lead counsel in the plaintiff’s case was Theodore Boutrous Jr., who successfully litigated the challenge to Proposition 8, which banned same-sex marriage in California.)

Silicon Valley muscle

But in another sense, the Vergara case reveals how the power of Silicon Valley now reaches far beyond technology, politics or even the economy as a whole. The priorities and perspectives of some of Silicon Valley’s most socially involved figures now shape the most basic legal concepts undergirding American life.

David Welch, a longtime fiber-optic communications entrepreneur, founded and chairs the board of Students Matter, the group responsible for organizing and pursuing the Vergara case. A board member of the National Resources Defense Council, he does not fit the stereotype of the movement conservatives often presumed to spearhead legal action against teachers unions. Yet at the same time, neither does Welch’s profile match the prevailing view of Silicon Valley’s youthful, web-centric titans. Rather than pursuing public policy outcomes in realms like surveillance or gay marriage, Welch sought structural change in K-12 education — without relying on the internet, like Mountain View heavyweight Khan Academy.

Welch’s efforts underscore how Silicon Valley can no longer be presented as “disrupting” settled institutional practices in a one-dimensional way. Although the buzzword of disruption has come in for its share of scorn, critics will feel pressured by events to acknowledge that the change wrought by Welch scrambles typical partisan battle lines, rather than reinforcing Randians-versus-the-masses cliches.

Divided Democrats

Democrats, for instance, are now as deeply divided on education reform as they have been since the civil rights era. In California, the differences are striking. Tom Torlakson, the incumbent superintendent of public instruction, benefited from $2.5 million in independent expenditures by the California Teachers Association this primary election. LAUSD Superintendent John Deasy, by contrast, penned an op-ed for the Los Angeles Times touting his “responsibility and privilege” to make good on Judge Treu’s ruling.

Democrats nationwide who remain loyal to teachers unions will likely face an opportunity to change their political calculus. Education reformers are looking to pattern lawsuits off of the Vergara case in Connecticut, New Jersey, New Mexico, New York, Oregon and elsewhere, according to Politico — along with a “relentless public relations campaign, backed by millions of dollars from reform-minded philanthropists, to bring moms, dads and voters of both parties to their side.”

In that fashion, it’s clear that even Silicon Valley’s most powerful figures can’t single-handedly change America’s legal landscape. Although Welch has proven instrumental in achieving an early victory essential for a broader national attack on teacher unions’ tenure regimes, that kind of reform movement requires more than money or influential figureheads. Like most large-scale political efforts, without an energized, broad base of ordinary Americans, it will fizzle out and fail.

But one organization that has figured this out is the California ACLU. It has sued school districts — and won — over policies mandating that students pay for instructional materials that should be free. Why were students forced to pay? To free up funds for employee compensation.

The ACLU has also sued — and won — over teacher assignment/retention policies that concentrate the worst teachers at California’s most struggling schools, and that often lead to teachers at such schools instructing students in fields other than the ones they were trained in. Why would the establishment have such dubious policies? To preserve the jobs of teachers, even bad teachers and those who can’t find teaching jobs in their areas of expertise.

Court challenges work better than counting on Legislature

Perhaps encouraged by the efficacy of court challenges to the California education status quo — as opposed to failures to improve K-12 policies via the Legislature — a Silicon Valley tech entrepreneur has launched an ambitious lawsuit. Seth Rosenblatt, a Harvard-educated member of the San Carlos school board, writes on the Ed Source education website that the fallout from Vergara v. California could be gigantic.

“The Vergara case is premised on the legal theory that the California Constitution’s guarantee of students’ equal opportunity to quality education is incompatible with current laws (specifically five statutes in the California Education Code related to permanent employment, dismissal procedures, and seniority-based layoffs) that do not allow local school districts to manage their teaching staffs based on quality and effectiveness. The plaintiffs claim that because effective teachers are so crucial to ensuring students’ academic success, ignoring teacher effectiveness is tantamount to not giving all students a quality education. They further argue that such harm is borne disproportionately among minority and low-income students. …

Without debating the arguments of the case itself (and my goal is not to create such a debate in this forum) and not being an attorney, I would not attempt to handicap the lawsuit’s chance of success. However, there is no doubt that there is much dissatisfaction among school districts, school board members, administrators, and even many teachers around the myriad of human resource rules contained in the Ed Code. It is difficult to argue that the way teachers are evaluated (or not evaluated), how dismissal notices are handled, and “last in first out” rules are compatible with building a public education system in a 21st century design. And certainly many communities have stories where such regulations have disproportionately negatively affected those schools and students with the greatest needs. The lawsuit has created interesting alliances – for example, although the Los Angeles Unified School District was originally a defendant in the case (it’s since been dropped), Superintendent John Deasy is expected to testify for the plaintiffs.”

Forcing a new paradigm on teacher hiring, evaluation

The Vergara case is scheduled to begin Jan. 27. Eventually, if Students Matter has its way, it could be transformative.

“Regardless of whether one is supportive or not of Vergara, the immediate implications of its potential success would be staggering, and it would completely make moot all of the current discussions around Sacramento on this topic. Relationships between local school districts and their bargaining units would be forever altered, and school districts and teachers would have to quickly find a new paradigm for hiring, evaluating, and firing staff. However, the folks at Students Matter are quick to point out that Vergara would not eliminate due process protections that currently exist in California Government Code for all public employees, including teachers.”

Go, Students Matter, go. If any status quo in California needs to be dynamited, it is the CTA-driven tyranny of our public schools.

Here’s more on David Welch, the Ph.D. tech entrepreneur with more than 160 patents who launched this reform effort.