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.”

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.”

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.

Tom Torlakson supports a status quo in which an average of 2.2 of the state’s 275,000 public school teachers are fired each year for incompetence — a figure so ridiculous you barely need to add context. It shows the public school system is run for the adult employees, not the students.

Yet as he seeks a second term as state superintendent of public instruction against reformer Marshall Tuck, Torlakson continues to pretend he doesn’t like horrible teachers in the classroom and did something about it.

As he has done throughout his campaign, Tuck condemned Torlakson’s appeal of a Superior Court judge’s ruling in Vergara v. the State of California, overturning laws creating tenure in two years, governing dismissals and requiring layoffs by seniority. Those laws, he said, “have led us to a situation where we can’t have an effective teacher in the classroom” and are “crushing the hopes” of the state’s most challenged students. …

Torlakson agreed that when “teachers are not up to it, move them out” and said that he wrote and helped pass a law this year making it easier to fire “ineffective and abusive teachers.” The bill, AB 215, by Assemblywoman Joan Buchanan, D-Alamo, dealt primarily with teachers charged with abuse, not poor performance.

That’s from John Fensterwald’s coverage of the final forum between the two Democrats running for superintendent. I’m glad he mentioned Torlakson’s, er, disingenuousness, but he was on the kind side. AB 215 has nothing — nothing — to do with getting rid of incompetent teachers. Fensterwald’s use of “primarily” to describe what the bill is focused on gives Torlakson a bit of cover he just doesn’t deserve.

At a little bit after the 51-minute mark of a forum in Los Angeles last week with state Superintendent of Public Instruction Tom Torlakson and challenger Marshall Tuck, the candidates are asked a question from the audience about the Vergara ruling, which is described as holding that state tenure laws are so harmful to low-income students that they violate the Constitution. Should the state accept the ruling, appeal it or work out a settlement in which tenure laws are amended but not scrapped?

Tuck succinctly says the state should accept the ruling and work to fix broken policies hurting students.

But when it’s Torlakson’s turn to respond, he ducks the substance of the Vergara ruling, misrepresents Gov. Jerry Brown’s position, misrepresents the legal arguments made in the state’s appeal and tells a huge whopper about the teacher discipline bill enacted this year — all in a little over a minute. Here’s my transcription of Torlakson’s comments:

We have a fundamental disagreement. I am for kids. I’m for low-income kids. I’ve been a fighter spending my whole career for those kids and their future.

I did say we should appeal that decision because I think it is fundamentally flawed. it’s wrong on the facts. It’s wrong on the law. The governor and the state board of education agreed. We’ve asked the state attorney general to file an appeal and bring it to a higher court level.

I believe job protections giving teachers a chance to have a hearing if they’re on a proposed layoff list to have them have a chance for a fair hearing having experienced teachers do that.

Teaching is a tough job. Not everybody is cut out for that work. I know that. And what we are looking at is how do we move teachers who can’t make it out of the profession faster.

And I helped with a law this year that was signed in by Governor Brown that will expedite the process of removing abusive teachers and ineffective teachers from our schools in it. It’s a tough job, but we should allow teachers to move forward and get rid of the ones who can’t make it and then the others have a chance through … we’re being cut off.

Sigh.

Gov. Jerry Brown did not reject the idea that tenure is bad for minority kids. In his recent debate with Neal Kashkari, he tiptoed around the issue.

In her appeal, Kamala Harris did not reject the idea that tenure is bad for minority kids. She questioned Judge Rolf Treu’s legal reasoning.

Finally, it is absurd for Torlakson to argue that a bill triggered by the difficulties Los Angeles Unified faced in firing a teacher who fed semen to his students has anything to do with targeting ineffective teachers. It’s not just absurd; it is, to use a technical term, a lie.

Here are the first three sentences of AB 215, the teacher discipline law Torlakson crows about:

Existing law prohibits a permanent school employee from being dismissed, except for one or more of certain enumerated causes, including immoral or unprofessional conduct. This bill would also include egregious misconduct, as defined, as a basis for dismissal. Existing law requires the governing board of a school district to give notice to a permanent employee of its intention to dismiss or suspend the employee, together with a written statement of charges,
at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing. This bill would additionally apply the above to egregious misconduct.

I look forward to the education beat reporters jumping on the plain evidence of Torlakson’s dishonesty. Maybe I’m naive, but I really do. The deceit is too obvious to miss or ignore.

… 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.

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.

A spokesman for Attorney General Kamala Harris told me repeatedly that the AG’s office wasn’t deciding on whether to appeal. He said Harris would do what her clients wanted. Gov. Jerry Brown and state Superintendent of Public Instruction Tom Torlakson are named plaintiffs in the case, and if either or both want to appeal, I was told, Harris would then appeal.

Treu is expected to issue a final ruling by Sept.10, at which point an appeal decision must be finalized.

But even if that is delayed, Brown and Torlakson will certainly face pressure to explain their stands because they are running for re-election. Torlakson is in the much tougher race, against experienced Democratic education reformer Marshall Tuck, than Brown, who faces neophyte GOPer Neel Kashkari.

Vulnerable Torlakson still likely to back unpopular side

Yet it is Torlakson who is far likelier than Brown to take the unpopular stand of siding with crazy tenure laws that give teachers lifetime job protections after 16 months.

That’s because his greatest patron during his political rise — the California Teachers Association — is appealing Treu’s ruling. Torlakson has to join the CTA in defending the status quo that argues that school quality is a function of school spending, and that if only schools would spend more on veteran teachers’ salaries, schools would get better.

If Torlakson didn’t appeal a ruling premised on the idea that the CTA was bad for minorities, that would be mind-boggling.

A career-defining moment for Jerry Brown

The stakes are far higher for the governor. He is on cruise control for re-election, so if he backed an appeal — especially on narrow grounds — he wouldn’t face the blowback that Torlakson would.

But at this point in his life, Brown isn’t necessarily thinking about the short term. He may be thinking about history and his lasting legacies.

The last governor thought this way. Leading the biggest, richest, most trendsetting state apparently inspires this view of the California gov job. It’s why Arnold championed AB 32 and bills that were forerunners of Obamacare.

The CTA may have plenty of wins on its plate of late, starting with the fake teacher-discipline bill and the scam that is the Local Control Funding Formula. But in the long haul of history, it can’t win with its argument that tenure after 16 months is OK, or its defense of policies under which school systems funnel their best teachers to the schools where they arguably are least needed.

Can a CA Dem admit that unions hurt minorities?

Brown is not a dolt. He knows this. Brown must also know that even if President Obama will go down as the first powerful Democrat to fight for reforms focusing on teacher tenure and competence, if he decides to be a loud champion of the Vergara ruling at the state level — in America’s largest state — his historical standing will benefit immensely.

Though it will probably make his second term a much bigger headache. Once again, the Vergara ruling is predicated on the idea that teachers unions are bad for minorities. That is a very toxic premise to throw into the Dem mainstream debate. It’s one thing if an obscure Los Angeles judge makes the point. It’s another thing entirely if it’s Gov. Jerry Brown.

We shall see.

Sorry, folks — you can just be wrong. Vergara reframes the way the public looks at schools in such a fundamentally anti-teacher union way that it’s going to make some of the most familiar teacher arguments seem idiotic. For example, the frequent CTA refrain that it is “fighting for children” is going to seem laughable (or Orwellian) to anyone who has read Vergara coverage.

To those in denial — to the folks I still meet who think the CTA’s noble talking points are truly reflective of how the CTA wields its power — I’m happy to present evidence that three of the four most influential liberal newspapers in America agree with me. (The other one — the Boston Globe — may also be down on teacher unions, but I couldn’t find evidence it had written a Vergara editorial.)

N.Y. Times: ‘a new chapter in equal education struggle’

When states are sued for providing inferior education to poor and minority children, the issue is usually money — disproportionately more money for white students, less for others. A California judge has now brought another deep-rooted inequity to light: poor teaching.

In an important decision issued on Tuesday, Judge Rolf M. Treu of the Los Angeles Superior Court ruled that state laws governing the hiring, firing and job security of teachers violate the California Constitution and disproportionately saddle poor and minority children with ineffective teachers.

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

The plaintiffs in the case, Vergara vs. California, are nine public school students who charged that state laws forced districts to give tenure to teachers, regardless of whether they can do the job, making it virtually impossible to fire even the worst of them.

In a blistering decision, Judge Treu agreed: ”The evidence is compelling. Indeed, it shocks the conscience.”

Washington Post: ‘groundbreaking ruling’

A judge who struck down California’slaws on teacher tenure and layoffs said the decision was based solely on the legal aspects of the case but added that he was mindful of the intense political debate about these issues. It is “beyond question,” he wrote, that there will be further political discourse. We certainly hope so. The issues about education equality laid bare by this groundbreaking ruling cry out for new ways of thinking. …

Treu … found that job protections afforded to teachers violate the rights of minority and low-income students to an equal education because they are the ones disproportionately stuck with the incompetent teachers who are hard, if not impossible, to fire. Constitutional rights in education typically have been tied to equitable funding, so the judge entered new territory by declaring a basic right to an effective teacher.

The trial featured powerful testimony about the effect of incompetent teachers on students. “The evidence is compelling. Indeed, it shocks the conscience,” the judge wrote.

Los Angeles Times:  Lawmakers ‘too deferential’ to CTA

California’s extraordinary protections for public school teachers were dealt a heavy blow Tuesday when a Los Angeles County Superior Court judge ruled that the state’s tenure laws unconstitutionally deprive students of an adequate education. To this extent, the judge’s opinion was absolutely correct: The tenure laws are bad policy. In almost no other field of work is it remotely as hard to fire someone for incompetence, or for not doing the job at all. Lawmakers have been far too deferential to the powerful California Teachers Assn. over the years, and now they have been given a strong prod to change their ways.

I’m glad that this ruling has gotten as much coverage as it has. But it’s odd that no newspaper I could find on Nexis or Google had done an analysis piece about how this might affect the Dem coalition. How can all the party’s minority lawmakers stand proud with the CTA and CFT after this?

I truly am baffled by the absence of stories on this obvious angle. The intraparty fight pitting Asian lawmakers vs. Latino and black lawmakers over Prop. 209 has been covered by the Sacramento media. Why not this?