The California Court of Appeal, Second District, will take up the closely followed appeal in its Los Angeles courtroom.

The 2014 decision by Los Angeles Superior Court Rolf Treu made headlines across the nation. After the judge cited evidence showing the near-impossibility of firing incompetent teachers in California, he wrote, “All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience. There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms” — with most working in largely minority schools.

The result, said Treu, was a de facto segregated system that reminded him of the circumstances in Kansas that led to the 1954 U.S. Supreme Court ruling in Brown v. Board of Education that led to the end of segregated schools. He wrote that evidence presented by the Vergara plaintiffs — nine students in predominantly minority schools in Los Angeles Unified — showed California had failed to provide “a student’s fundamental right to equality of the educational experience.”

Poor teaching a ‘deep-rooted inequity’

The ruling was depicted by the California Teachers Association and the California Federation of Teachers as an outrageous exaggeration of problems in state public schools and a de facto attack on teachers and unions. Nevertheless, the ruling prompted the New York Times to run an editorial lambasting California’s schools for neglecting Latino and African American students:

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.

Treu stayed his invalidation of the teacher-protection laws pending appeal.

The state government’s appeal of the ruling, filed by Attorney General Kamala Harris, questioned Treu’s assumptions about the effects of state law:

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.”

That’s from the Los Angeles Times.

High-profile law professors split on ruling

A powerhouse group of law professors, led by Harvard’s Lawrence Tribe, supported Treu’s decision in a friend of the court brief:

The California Constitution establishes public schools for the benefit of children, not teachers, and the State Education Clause talks about the right to public education as “essential to the preservation of the rights and liberties of the people,” not as a right essential to the economic security of the teachers selected by the state to make that right a reality. Public schools exist to educate students, not to provide jobs, and job security, to teachers.

 

Another group of high-profile law professors, including Harvard’s Charles Ogletree and UC Irvine’s Erwin Chemerinsky, criticized Treu’s reasoning in their brief opposing the ruling:

Even if the record supported and the trial court found that the statutes caused the harms to the education of poor and minority students, that would not be sufficient to find the statutes invalid on their face and enjoin their enforcement. There also would need to be proof that striking down these statutes would remedy the harms and improve the education for these students. … There is no basis in the trial court’s decision, or in the voluminous record of an eight-week trial, for concluding that education of any identifiable group of students would be improved by the elimination of tenure, the prohibition on considering seniority in layoffs, or the injunction against enforcement of the procedural requirements for performance-based dismissal.

 

For more on the various friend of the court briefs — including one filed by former GOP Govs. Pete Wilson and Arnold Schwarzenegger — go here for an EdSource overview.

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.

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.

“Californians trust their public school teachers and want to spend more money supporting public schools, according to a recent poll. […] California voters also say they oppose the state’s strong tenure laws and believe that all public school teachers should be held accountable through regular performance evaluations, according to the USC Dornsife/Los Angeles Times Poll, released this week.”

The results were seen by analysts as a danger sign for teachers unions, which have long tied the success of public education to their own strength. A growing consensus that the two have fallen out of sync would make it harder for unions to maintain the status quo, which has famously protected even bad teachers from losing their jobs.

“It’s worth watching what happens in California,” University of Oregon education scholar David T. Conley told the Wall Street Journal. “If a new model emerges it’s going to attract a lot of attention around the nation.”

Demographic differences

The poll also suggested that some sharp demographic differences persisted in how Californians perceive other controversial efforts at public school reform. The implementation of the new Common Core standards, for instance, has provoked outrage and resistance across the country — but not always from a strong majority.

In California, the poll indicated, opinion was divided over standardized testing of the kind Common Core favors. “A majority of Latino voters, 55 percent, said mandatory exams improve public education in the state by gauging student progress and providing teachers with vital information,” as the Los Angeles Times reported. But roughly “the same percentage of white voters said such exams are harmful because they force educators to narrow instruction and don’t account for different styles of learning.”

Life after Vergara

The political and legal weakness of California’s teachers unions was laid bare by the Vergara decision, which struck a strong blow against protective tenure practices by deeming them an infringement of students’ constitutional rights. “The case has produced a lot of headlines but very little movement inside the state Capitol,” as KQED observed. “And yet the new poll suggests real skepticism among the public. Just 7 percent of those surveyed believe the current two-year tenure threshold is the right level. And a whopping 82 percent believe that performance should play more of a role in deciding which teachers to keep and which ones to fire.”

One reason for Sacramento’s inaction: the final impact of the Vergara ruling has yet to be decided by the courts. As CalWatchdog.com previously noted, one recent Supreme Court holding on public housing law did give the California Teachers Association and the California Federation of Teachers some reason for optimism. Vergara‘s fate could hinge on a higher court’s determination as to whether it properly applied the so-called “disparate impact” standard:

“The analogies between Texas public housing laws and California education laws are not precise. But if [Supreme Court Justice Antonin] 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.”

Private challenges

But in the interim, in Vergara‘s wake, unions have faced a wave of follow-on litigation. In addition to a broad challenge against collecting dues from all teachers, four state teachers have taken the unions to court over their use of dues “for political activities,” the Washington Post reported. “The plaintiffs argue that unions are violating their constitutional right to free speech by forcing them to either support union-favored causes and candidates or lose access to important job benefits. At stake are tens of millions of dollars in dues collected by the state’s two largest teachers unions,” the CTA and the CFT.

Although union leaders have responded to the litigation by portraying its backers as part of a broader crusade against unions of all types, the USC Dornsife/Times poll suggests that Californians are inclined to think of the role and power of unions at public schools as an issue distinct from broader debates over the strength and purpose of organized labor in America.

While Tuesday night was grim for liberals, embattled teachers unions have won a big victory in California.

Incumbent state school superintendent Tom Torlakson repulsed a strong challenge from reform-minded charter school executive Marshall Tuck, defeating him by a margin of about 52-48 percent.

That’s from the Daily Caller. But given the stakes, it seems obvious that Torlakson’s relatively narrow win was a battle in a war that’s not going to end any time soon.

Who started the war? You’ll be surprised

And who touched off this war in California? As I wrote in the U-T San Diego, a case can be made that it was Gov. Jerry Brown — allegedly the close buddy of the CTA and CFT.

The education establishment is like a supertanker that requires the application of vast energy to make it change course. There are subtle but unmistakable signs this course change has begun.

The first factor driving this change was Gov. Jerry Brown’s declaration that the single most important issue in the Golden State is ensuring struggling minority students get a strong education so they can have productive lives. This was followed by Brown’s 2013 overhaul of school funding formulas, which was meant to ensure such students benefit from extra resources. Though the governor was careful not to frame this as an indictment of how these students are now being treated, that is the only interpretation that makes sense.

The second was Los Angeles Superior Court Judge Rolf Treu’s June ruling in the Vergara vs. California case that minority students received such inferior educations that it “shocked the conscience.” Treu cited the vast evidence presented in the Vergara trial that because of several state laws, bad teachers are almost impossible to fire, and are funneled to the minority schools most in need of the best teachers.This led to national news coverage, which accepted the premise that teacher union power hurt minority students.

The third was Tuck’s candidacy and its universal support among California editorial boards — conservative, libertarian and liberal alike. They too embraced the view that union power had metastasized in the public school system to the detriment of the most vulnerable students.

Finally, the canard that teacher and student interests are one and the same has been routed. Now it is only a matter of time before state Democrats are forced to address the emerging conventional wisdom that teacher unions, their most powerful faction, are doing harm to their most loyal factions: Latinos and African-Americans.

Is the gov a modern Machiavelli?

I have tried out this theory — that what’s happened appears to show how Jerry Brown is downright Machiavellian on education — with many people over the past few months. Journalists are more skeptical than non-journalists.

But the comments of a friend who is a sports fan have stuck with me. He said what Brown had done reminded him of a newly hired football coach commenting in obliquely negative ways on his roster. The goal is putting the who-is-to-blame focus on the general manager and the spotlight on the bigger picture, not the next game.

That’s sort of what Jerry Brown did. In a subtle way, he said California’s biggest problem was the CTA’s and the CFT’s fault. He’s framed the issue as if he were … Marshall Tuck.

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.