The tension has been on broad display in recent days as law enforcement unions and police chiefs react angrily to a new law signed by Gov. Jerry Brown that is driven by the assumption that officers routinely act in racially biased ways:

For civil rights activists, Brown’s action was a big step toward protecting minorities from racial profiling.

 

For many in law enforcement, the measure creates a massive new bureaucratic headache that will do little to illuminate the question of whether police treat minority groups fairly.

 

“It’s a terrible piece of legislation,” said Lt. Steve James, president of the Long Beach Police Officers Assn. and the national trustee for the California Fraternal Order of Police.

 

Written by Assemblywoman Shirley Weber, D-San Diego, in response to fatal police shootings of unarmed black men and other people of color, the legislation will require officers to collect data on anyone they stop, including “perceived” race and ethnicity, the reason for the encounter and whether arrests were made.

That’s from the Los Angeles Times’ account of the uproar over the new law. It is certain to be contentious going forward, especially given the likelihood that some departments will simply ignore it and say they don’t have the resources to spare.

Vergara suit based on claims of poor treatment of minorities

A potential for an even bigger rupture lies with the Vergara v. California lawsuit. Los Angeles Superior Court Judge Rolf Treu ruled in 2014 that five state laws protecting veteran teachers’ rights were unconstitutional because they had the net effect of funneling the most troubled teachers to poor minority communities. Treu said this amounted to a de facto segregated school system but stayed his decision pending an appeal.

The deadline for filing “friend of the court” briefs in the appeal was Sept. 16, and the prominence of those who chose to do so reflects the high stakes in the case:

Parties filing in support of the two teacher unions, the California Association of Teachers and California Federation of Teachers, and the state, which are all co-defendants, were Lawyers’ Committee for Civil Rights, Equal Justice Society, Education Law Center, Southern Poverty Law Center, and Advancing Justice-LA, according to a press release from CTA. …

 

Joining a list of education chiefs from around the nation, student groups, business organizations and others who filed briefs supporting the student plaintiffs was [Arnold] Schwarzenegger and [Pete] Wilson, who wrote, “At stake in this case is not only the future of California’s students, but also the future of California,” said the former California governors, both Republicans. “As students who learn from grossly ineffective teachers face lifelong setbacks, by extension, California’s future economic and social success is similarly impacted.”

That’s from L.A. School Report. What’s noteworthy is the absence of Latino groups either supporting or opposing Treu’s ruling, even though its most sweeping findings were largely based on the treatment of Latino students in the Los Angeles Unified School District.

Former state Senate Majority Leader Gloria Romero, D-Los Angeles, has been an outspoken critic of how public education works in California. She has long asserted that Latino state lawmakers are scared of taking on the CTA and the CFT, especially if they hope to end up in leadership positions. Whether that’s true or not, few Latino politicians beyond Romero and former Los Angeles Mayor Antonio Villaraigosa have taken on the unions.

Black lawmaker leading Democratic critic of teachers unions

Instead, the most prominent Democratic critic of teachers unions is the same African American lawmaker who wrote the police profiling bill. Weber introduced a measure this spring that would have required teacher evaluations to include student performance. It was quickly killed in committee, prompting Weber to sharply criticize her fellow Democrats and their union backers.

A Los Angeles Times poll earlier this year showed support for the sort of changes sought by Weber and other reforms, in particular having teacher layoffs be determined by classroom performance, not seniority.

Weber and the California Legislative Black Caucus have also expressed concerns about the implementation of 2013’s Local Control Funding Formula, a state law championed by Gov. Jerry Brown that was supposed to directly help struggling students by providing them with more resources and attention. A January Legislative Analyst’s Office report looked at 50 California school districts, including the 11 largest, and found none had adequate safeguards in place to prevent LCFF dollars from going to teacher compensation or other uses.

The appeals trial in the Vergara case is expected to begin later this year with oral arguments. Plaintiffs have said they expect the appellate ruling by January.

But the decision written by Judge Anthony Kennedy could have profound implications for public education, starting with the Vergara lawsuit in Los Angeles. In that case, Superior Court Judge Rolf Treu ruled last summer that California laws protecting tenured teachers from being fired for incompetence amounted to unconstitutional affronts to minority students’ right to an equal public education because the laws have the effect of funneling the worst teachers to the most troubled schools in poor minority areas. The ruling is being appealed by the state government.

Treu’s decision cited how poorly Latino and African-American students did in standardized tests administered by Los Angeles Unified School District. This reflected the arguments made by the high-powered legal team hired by a Silicon Valley billionaire who represented the students in the Vergara case.

In the fall 2014 “Education Next” reform journal, Joshua Dunn of the University of Colorado-Colorado Springs and Martha Derthick, a University of Virginia emeritus professor, considered the implications of Vergara’s success. “Should California’s courts accept the group’s legal rationale, which hinges on disparate-impact analysis, the floodgates could open for litigation calling for even greater judicial control over California’s schools. … Anyone could challenge any law, however neutral in design, with a claim that it was somehow related to an unequal outcome.”

The broadness of this legal argument was bluntly attacked in the state’s appeal, which asserted that Treu’s ruling offered “no factual and legal bases” for its conclusion that California’s teacher-labor laws were unconstitutional.

Texas case pivoted on de facto housing segregation

There are two big reasons to wonder, however, if the U.S. Supreme Court ruling will affect the Vergara appeal, which seems certain to end up before the California Supreme Court.

The first is that Texas’ implementation of federal housing laws meant to discourage housing segregation isn’t necessarily an apples-to-apples comparison with California’s implementation of education laws. Treu’s opinion cites Brown v. Board of Education, the landmark 1954 Supreme Court case that led to the declaration that “separate but equal” public schools were unconstitutional.

Texas is accused of implementing a federal law in a way that hasn’t changed historic patterns of racial segregation. California isn’t Texas; it has embarrassing moments, such as this later-invalidated 1964 referendum, but it can’t be considered a Jim Crow state when looking at the historical context.

The second is that justices seem to be aware that reducing legal judgments about what is prohibited discrimination to raw numbers detailing what racial groups are doing well and which aren’t is a recipe for legal chaos.

The fear of this being the eventual result led some observers to be appalled by Kennedy’s decision. But others noted that it has escape hatches for future rulings involving “disparate impact.” This was pointed out by law partners and employment law experts Paul F. Hancock and Andrew C. Glass in their analysis for Scotusblog.com.

In describing the requisite pleadings-stage safeguards, the Court relied upon Wards Cove v. Atonio, in which it held that to sustain a disparate-impact case, a plaintiff must identify a specific policy of the defendant and adequately plead that such policy is the cause of the disparity. To distinguish meritless from meritorious claims, the Court directed lower courts to “avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations” into every FHA decision. Thus, the Court held that a “racial imbalance does not, without more, establish a prima facie case of disparate impact,” and that a plaintiff can no longer maintain a disparate-impact claim by pleading a mere “statistical disparity.” Disallowing claims where a plaintiff cannot establish a “robust” causal link to a defendant’s actual policies serves to eliminate suits seeking to hold a defendant liable for alleged racial disparities it “did not create.”

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.

This is from the latest coverage this week by the Los Angeles Times:

The Los Angeles Board of Education on Tuesday approved a $1.1-million plan to provide a longer school day, additional classes and tutoring to Jefferson High students who lost instructional time as a result of widespread scheduling problems this semester.

Officials also announced that the Los Angeles Unified School District would audit other high schools to find additional students who might have been similarly shortchanged.

An Oct. 3 piece had more details on the nightmare.

Civil rights organizations asked a judge Thursday to order the state Education Department to remedy problems at Jefferson High School in South Los Angeles, where attorneys say some students have languished for nearly eight weeks without the appropriate classes.

The Alameda County Superior Court judge is expected to make a decision Monday.

The request stems from a lawsuit brought earlier this year that alleges the state has ignored its obligation to ensure that all California students receive a minimum level of instruction. Attorneys say the state is primarily abandoning its responsibility to students who are minorities and from low-income families.

The lawsuit, filed by the American Civil Liberties Union, Public Counsel and others, contends the lack of quality learning time for these students is in violation of the state Constitution’s equal protection guarantee because the state does not ensure that all students have access to an adequate education.

Last month, hundreds of students at Jefferson walked out of class to protest the scheduling snafu and what they contended was inept management by administrators that had severely interrupted their education.

Some students have been assigned classes they do not need or have already passed, others have multiple free periods, or are given administrative tasks rather than courses with instruction, according to the lawsuit. Others are simply sent home. Some classes have up to 50 students, the lawsuit said.

Same equal-protection argument made in Vergara

The same argument that minority students were not receiving an adequate education was made in the Vergara case. Here’s the background.

When Treu wrote that the treatment of minority students “shocked the conscience,” that struck some people as a little over the top. If the Jefferson case doesn’t “shock the conscience,” I don’t know what would.

The Jefferson student body is 93 percent Hispanic and 7 percent black. It’s in a particularly impoverished area of downtown L.A. The idea that what happened at Jefferson could have happened at a middle-class LAUSD school — many students going nearly two months with little meaningful academic instruction — is ludicrous.

Even after Vergara, the people running Jefferson High didn’t think anyone would be paying attention to how they were brutalizing their students. Thankfully, this time at least, they were wrong.

… Torlakson’s support of teacher tenure laws that were invalidated by a superior court judge earlier this summer, and a more recent decision by the superintendent to seek an appeal of the ruling.

“I helped pass a law this year to make it easier to fire ineffective or abusive teachers, but I also believe that experienced teachers deserve a fair hearing when their job is on the line,” said Torlakson in his opening statement.

That’s just not true; the teacher-discipline bill approved by the Legislature this year makes it easier to fire perverts and those who engage in other types of “egregious misconduct.” It doesn’t make it any easier to fire teachers who are simply bad at teaching.

This is part of a larger picture of an education status quo devoted to the interests of teachers, not students, as Tuck has said all year. More from Cabinet Report on Wednesday night’s debate:

Tuck, a champion of charter schools who helped establish a network of takeover schools for the mayor of Los Angeles, has used the Vergara decision as a cudgel throughout the campaign. …

“Nine students had to file a lawsuit against the state superintendent and against the state to get rights to a quality education,” Tuck said. “And a judge said the laws around teacher tenure shock the conscience in terms of impact on high-poverty kids. And yet the state superintendent is appealing the case.”

Torlakson defended his position, saying the decision is fundamentally flawed. “I believe in job protections and giving teachers a chance to a hearing,” he said.

Reasonable job protections — or ridiculous ones?

But the problem for Torlakson, a former high school math teacher, is that his reasonable-sounding rhetoric is used to describe a process that isn’t reasonable. Lance Izumi of the Pacific Research Institute has documented how in the the 1990s, a grand total of one teacher was fired for incompetence in the Los Angeles Unified School District, the nation’s second largest district.

More recent numbers are just as stunning.

Pre-Vergara, out of 275,000 teachers statewide, 2.2 teachers were dismissed for unsatisfactory performance per year on average. Do you believe that only 0.0008 percent of professionals in any given field are unsatisfactory? Then why would that be the case in the teaching profession?

That’s from an op-ed in U-T San Diego by Randy Ward, San Diego County superintendent of schools. Here’s more from his piece:

[It] is extremely expensive and time-consuming to dismiss unsatisfactory teachers. The superintendents of Oakland and Los Angeles Unified School Districts testified to performance-based teacher dismissal costs ranging from $50,000 to $450,000. Costs like that represent a strong disincentive for principals and district administrators to use the process. Instead, they opt to shuffle the teachers around, with many of them ending up in the poorest communities and those with the neediest students.

What Vergara provides is an opportunity, an alternative to the views held by the shameless politicians in Sacramento who are appealing this verdict. We recognize and do not underestimate the powerful impact teachers have on our students’ lives, but we also know the adult-based statute system we have isn’t working. This is our chance to try something else. Ending “last in, first out,” where teachers are laid off by seniority rather than quality, basing tenure decisions on clear instruction-based rubrics, and lengthening the amount of time it takes to be granted teacher tenure would be decisive steps toward forging another path.

“Shameless” is a fair description of Torlakson. His depiction of his slavish support of the CTA and CFT as being tantamount to fighting for students is one of the most absurd spectacles in Golden State politics.

Unlike with most major announcements, the appeal wasn’t mentioned on the AG’s or the governor’s websites as of Saturday night or disclosed in the mass emails routinely sent to journalists by statewide officeholders. It was apparently leaked to a handful of news organizations, including The Los Angeles Times, which posted the story early Saturday.

The notice of appeal cited several issues, including that “changes of this magnitude, as a matter of law and policy, require appellate review.”

The notice also faulted the trial judge, saying that he had “declined to provide a detailed statement of the factual and legal bases for [his] ruling.”

The one-page appeal did not offer any sweeping defense of tenure laws, unlike the positions staked out by state lawyers this spring when the case was argued before Los Angeles Superior Court Judge Rolf Treu. The appeal’s detached tone seemed designed to minimize the political fallout of the governor siding with teachers unions in a legal fight that builds off the incendiary argument that teacher unions are bad for minority students. It faults the judge’s handlilng of the lawsuit and steers clear of larger issues.

Torlakson had put out a statement early Friday that trashed the ruling and compared it to blaming firefighters for fires.

CTA/CFT legal strategy normally used by GOP

Meanwhile, a report on the EdSource blog illuminated the legal strategy that the California Teachers Association and the California Federation of Teachers will pursue in appealling the trial court victory won by the Students Matter reform group, which is funded by Silicon Valley tech tycoon David Welch.

“We have good grounds on appeal that the California equal protection law does not require the invalidation of these provisions of the California Education Code,” said Jim Finburg, the San Francisco lawyer representing the unions.

Treu’s ruling pivoted on the equal protection law. He found teacher protections in four state laws had the effect of funnelling the worst teachers to mostly minority schools, to the detriment of students in those schools. He said the negative impact this had on Latino and black students “shocks the conscience.”

The legal theory that neutrally worded laws can be found unconstitutional if they have a negative “disparate impact” on certain groups has been fought over in courts across America for years, most prominently in fights over civil service tests, especially for firefighters and police.

The Vergara case breaks new ground in that it cites large discrepancies in educational performance among racial groups as evidence of the “disparate impact” that tenure laws in California have on Latino and black students.

The “disparate impact” argument is normally made by Democratic activists on the left and ridiculed by Republicans. In the Vergara case, at least in the CTA/CFT appeal, it appears the normal positions will be reversed.

The deadline for the filing of the unions’ appeal is late October.

Barring an unexpected development, the Vergara appeal will be heard by a panel of judges from the 2nd District Court of Appeal at the state courthouse in Los Angeles.

But Torlakson’s specific reaction to the finalizing of the ruling was less predictable. Remember the context here: From President Barack Obama on down, many Democrats have said tenure laws are unfair to minorities and need to be changed. They may not call them unconstitutional and compare modern schools to those seen in segregated black America of the Jim Crow era. But they don’t like them.

Torlakson, however, didn’t even acknowledge this sentiment. Instead, he offered this comment:

“We do not fault doctors when emergency rooms are full. We do not criticize the firefighters whose supply of water runs dry. Yet while we crowd our classrooms and fail to properly equip them with adequate resources, those who filed and support this case shamelessly seek to blame teachers who step forward every day to make a difference for our children.”

So the real problem, you see, is that taxes are too low!

Teacher is most important classroom ‘resource’

There are two huge problems with this argument. The first is that the most important “resource,” so far as a student is concerned, is the teacher. And kids in minority schools are far more likely to have teachers who barely make the grade or who don’t even teach in the subject they were trained to teach. The second is that it’s pretty galling for a teachers union supporter to complain about adequate resources which the overwhelming majority of the operating budgets in most California school districts goes to compensation, primarily for teachers. In San Diego Unified, the state’s second largest school district, 92 percent of the operating budget goes to compensation.

So Torlakson’s reaction to the problems outlined during the Vergara trial amounts to saying the real problem is that teachers aren’t paid enough!

As for the CTA and the CFT, the real issue here isn’t about all the poor teachers that are foisted on the students who most need good teachers. Instead, it’s about a right wing plot to shut down discussion of topics important to well-meaning Californians:

A law firm representing the California Teachers Association and the California Federation of Teachers asserted that without tenure and other protections, teachers “may not teach topics such as Islam or global warming that might be considered controversial.”

Oh, my.

Establishment: Teachers matter, students don’t

I am skeptical the Vergara case will stand up on the appeal filed by the state. The bad laws Treu wants banned are effectively anti-minority, but not explicitly, and I think that point will rescue the CTA and CFT at some point.

Nevertheless, this has been a very worthy lawsuit. It underlines how horrible the California education status quo has become, and how relentlessly it sides with the needs of teachers over those of students.