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.

AB753 is authored by Assemblyman Jose Medina, D-Riverside, and would expand the scope of the tenure system to teachers working in small school districts, as well as certificated employees working in non-teaching positions. Employees of school districts and county offices of education with more than 250 average days of attendance would only have to be employed for two consecutive years and be re-employed for a third year to qualify for permanent employee status.

Preliminary analysis of the bill from the Appropriations Committee revealed this bill would have an effect on at least 17 county offices of education and 250 school districts in California.

The California Teachers Association wrote in support of the bill:

“Under the Education Code, permanent employees can only be terminated for just-cause or as part of a layoff. Unfortunately, several classes of certificated education employees have been inappropriately denied permanent status based on the need to create fiscal solvency or in anticipation that the need for services into the future was insecure; there are currently systems in place to appropriately reduce staffing if needed. AB753 will remedy this situation treating all certificated education employees with dignity, respect, and professionalism.”

However, the statute is technically unconstitutional based on the landmark Vergara decision by a California Superior Court.

“AB753 flew in the face of the Superior Court ruling in Vergara and defied all logic by seeking to expand the very system the court found to be unconstitutional and harmful to California’s students and teachers,” wrote Students Matter Policy Director Ben Austin in a press release. “We thank Committee Chair Jimmy Gomez and members of the Appropriations Committee for listening to the will of California voters and the state’s court system. This vote is a watershed moment for the California Assembly — standing up to the most powerful special interests and with the vast majority of California parents, children and educators who want ‘kids first’ change.”

A recent poll from USC Dornsife and L.A. Times demonstrate that Californians “take a dim view of teacher tenure” and many believe that “teachers receive tenure much too quickly.” Another poll from Teach Plus found that most teachers “highly value tenure but strongly support making tenure a more performance-based, professional benchmark.”

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 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.