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Issues and facts to consider when reporting on Vergara v. California

Dolores Picture
United Farm Workers co-founder Dolores Huerta addresses reporters at press conference outside the L.A. courtroom where arguments were heard on February 26, 2016 in the appeal of the Vergara v. California Superior Court decision of 2014. Huerta described how Students Matter representatives misled her into supporting the Vergara case, and her subsequent demand that the group remove her from their website.

OVERVIEW

A panel of appeal judges in Los Angeles ruled earlier this year to strike down the June 2014 Superior Court decision in Vergara v. California. The suit, and the initial decision by Judge Rolf Treu, proposed to strip workplace rights from 300,000 classroom teachers in California, claiming that what stands between low income and minority students and their constitutional right to equal access to a quality education are state statutes that grant teachers a hearing before being fired (“tenure”), require schools to evaluate teachers for job security in the second year of employment, and give more senior teachers preference over junior teachers in layoffs (“seniority”). The plaintiffs have appealed the appellate court ruling to the state Supreme Court, which will decide sometime this summer whether to accept the appeal.

The Vergara lawsuit is not what it seems. It is an anti-union suit masquerading as a civil rights case. Its plaintiffs were recruited by a corporate law firm supported by a Silicon Valley millionaire, David Welch, who has bankrolled a group called Students Matter. Welch and others are spending millions of dollars in legal fees and on a PR firm to carefully orchestrate a “blame the teachers” campaign to connect dots between a real problem (equal access to public education for all students) and a false cause of that problem (teacher workplace rights).

One of their moves backfired in February when Dolores Huerta, cofounder of the United Farm Workers union with Cesar Chavez, briefly appeared on the Students Matter website as a supporter of the Vergara case. When she learned more about the case, its backers, and its objectives, Ms. Huerta quickly demanded that Students Matter remove her from the website. In her ‘cease and desist’ letter, she called Students Matter “an organization that blatantly misrepresents the facts and pushes an agenda to strip workers of their rights for the financial gain of its backers.”

To help guide reporters through the thick PR blanket suffocating real information in the case, we offer the following issues and facts to consider before writing about Vergara v. California.

Who is David Welch and why is he funding Vergara v. California?
On the Students Matter website we are told that wealthy Silicon Valley employer David Welch’s “passion for public education arises from his roles both as a parent of three school-aged children and as an employer in two highly successful start-ups in Silicon Valley.” Plausibly personal reasons could drive Welch’s decision to fund Vergara v. California (and similar suits in other states). If his children actually attend public schools then like any parent, he would presumably be concerned about their education. And if he somehow connects his experience as an entrepreneur to the benefits provided—or not—by public schools, say, in creating an educated workforce for him to employ in his businesses, he might be concerned as well. If neither of these things is the case, his “passion for public education” is empty verbiage, and hides other reasons for his actions. Platitudes should be responded to with concrete questions and factual answers.

What might Welch’s status as a corporate charter school investor have to do with this crusade, an attack on the workplace rights of unionized public school teachers?
There is no evidence that prior to founding Students Matter David Welch exhibited any “passion for public education.” Just the opposite: As an article in Capital & Main points out, “The David and Heidi Welch Foundation, for example, has given to NewSchools Venture Fund, where Welch has been an “investment partner” and which invests in both charter schools and the cyber-charter industry, and has been linked to the $9 billion-per-year textbook and testing behemoth Pearson. Welch has also supported Michelle Rhee’s education-privatizing lobby StudentsFirst, most recently with a $550,000 bequest in 2012.”

What is the connection between opposing Proposition 30 in 2012 and support for the Vergara law suit?
The single greatest boost to helping students gain “their constitutional right to equal access to education” in years was the passage of Proposition 30 in 2012. Prop 30 imposed modest income tax increases on the wealthy (people like David Welch) that provide six to eight billion dollars per year in California public school funding. Prop 30 stopped teacher layoffs, restored programs slashed by loss of revenues due to the Great Recession, and directed dollars, through the Local Control Funding Formula, to schools with students that need the most help—low income and foster children, and English Language Learners. These are presumably the students that Students Matter claims it seeks to help. Yet prominent backers of Vergara and Students Matter—Eli Broad, Tench Coxe, Donald Scifres—spent heavily to oppose Prop 30.

Judge Treu referred to a 1-3% teacher incompetency rate. Where did that come from?
This statistic was provided by witness for the defense Dr. David Berliner, professor emeritus of education and author of a number of widely respected books on public education. In his decision, Judge Treu, who said that this number “shocks the conscience,” misrepresented Berliner’s comments.  Here is what Treu said:

There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms. Dr. Berliner, an expert called by State Defendants, testified that 1 to 3% of teachers in California are grossly ineffective.

But here’s what Berliner said when asked later about the origin of that statistic: “I pulled that out of the air. There’s no data on that. That’s just a ballpark estimate, based on my visiting lots and lots of classrooms.”

Also, Berliner himself never used the words “grossly ineffective.” Like “shocks the conscience,” however, “grossly ineffective” is a phrase that shows up repeatedly in stories about Vergara. As Berliner noted, “In hundreds of classrooms, I have never seen a ‘grossly ineffective’ teacher. I don’t know anybody who knows what that means.” But it sure sounds bad, which is why these phrases are all over Students Matter press releases and carefully mentioned every time a Vergara lawyer or spokesperson opens their mouths.

It’s not easy to find reliable statistics or studies on occupational incompetence, in education or anywhere else. It is extremely easy, however, to find Judge Treu’s phrase in virtually every story on the Vergara suit, thanks to how neatly it fits within the faux civil rights narrative provided by Students Matter’s expensive PR firm, Rally.

The simple reality this PR campaign takes advantage of is that everyone who has passed through the public school system has inevitably come across a poorly prepared or badly performing teacher, and how could it be otherwise? Each student between kindergarten and twelfth grade is taught by around fifty teachers. Do we really expect that each one will be, like Lake Woebegone children, above average? Needed to address this problem is increased support to help struggling teachers improve, and if that effort falls short, counsel them into another career. But that’s not the solution Vergara v. California offers.

UCLA law professor and education expert Stuart Biegel observes, “If 97 to 99 percent of California teachers are effective, you don’t take away basic, hard-won rights from everybody. You focus on strengthening the process for addressing the teachers who are not effective.”

How long should a probationary period for teachers be?
Like the probation period for teachers, that for other public employees varies (example: probationary employment for police averages around a year and a half). Vergara proponents claim that California’s laws providing for “tenure”—the right to a hearing before termination, distinguishing public school teaching from at-will employment—after eighteen months is not enough time for an administrator to make an effective determination of a new teacher’s fitness to teach. A year and a half is enough time to figure out the fitness of a police officer, but not good enough for a public school teacher? Stanford professor and education scholar Linda Darling-Hammond testified in the trial that current law provides enough time to identify teachers who should be counseled out of the profession.

How hard is it to fire a teacher?
If you listen to Vergara backers, it’s impossible to fire a teacher. But here are the facts. During the first two years of a teacher's career, a lengthy probation period, administrators can fire them for any reason, or for no reason at all. After that, the requirements are for the administrator to document the problem necessitating the teacher's dismissal, and convince two out of three people on a panel of experts to agree. That's it. A teacher's simple right to a hearing before dismissal is not unfair to students. To the contrary: students need a stable, experienced teaching workforce, not a revolving door of educators. Numerous witnesses in the trial testified that in well-run school districts, administrators have no trouble determining the capability of a probationary teacher within the time provided by current law and have no trouble removing teachers who consistently receive poor evaluations.

What causes teacher layoffs?
There are two misleading and faulty assumptions embedded in the Vergara argument that seniority order dismissal during layoffs means bad teachers are kept while good teachers are dismissed.

Misleading and faulty assumption 1: The problem with layoffs is seniority.
The cause of losing good teachers to layoffs is the underfunding that causes the layoffs—lack of revenues, exacerbated by the ongoing aftereffects of the economic recession. It is more accurate to say low tax rates on the wealthy, coupled with economic recession, caused our funding crisis for public education, hence layoffs, than to pretend that orderly dismissal rules are "unfair" to new teachers. Prop 30, which Vergara advocates opposed, addressed this issue. There have been very few layoffs since passage of Prop 30.

Once layoffs occur, seniority is the only fair, transparent way to administer them. It ensures equal treatment for all in a difficult time. It replaces the arbitrary authority of administrators to rule by whim or favoritism.

Misleading and faulty assumption 2: Good teachers are young teachers, and old teachers are bad teachers.
Research consistently shows more experienced teachers provide better student learning outcomes than inexperienced teachers. But we all know schools need a mix of younger and more experienced teachers. Younger teachers bring energy and the most recent pedagogy. Older teachers bring wisdom, the knowledge that comes with facing and solving many classroom problems over the years. One intention of the Vergara lawsuit is to drive a wedge between younger and older teachers, and between teachers and parents—divisions that do not serve effective learning for students, but do assist the anti-union cause by sowing suspicion and confusion among natural allies.

The teacher shortage: Is the bigger problem firing teachers or hiring teachers?
We are experiencing a steep decline in attendance in teacher training programs (down 53% in five years), and face a looming teacher shortage. How would making it easier to fire teachers help us to solve our growing teacher shortage problem? Short answer: it won’t. Vergara v. California is one of an enormous cluster of legal attacks on public education and unions funded by wealthy conservatives, who think that defeats at the ballot box can be overcome in the courts. One reason we have a teacher shortage is the real difficulty of the job in an underfunded system, coupled with low pay compared to jobs requiring equivalent education and training. Another is the relative recovery of the economy, providing prospective teachers with alternative, more lucrative career paths. But an insidious third reason for declining enrollment in teacher education programs is the poisonous political atmosphere surrounding public education created by attacks on teachers like Vergara v. California.

What do students and teachers need to succeed, and how does the Vergara suit help?
Students and teachers need the resources and training to succeed: safe and healthy campuses, adequate staffing and school library hours, enough computers for everyone, a well-rounded curriculum, excellent teacher education programs, school nurses, prep time, and systematic mentoring, or peer assistance and review, for struggling teachers. Prop 30 stopped the bleeding of public education resources that began before, but was terribly exacerbated by, the Great Recession. Prop 30 has not provided everything education needs to educate every child well, but it has moved the needle in the right direction.

By contrast, the Vergara suit will not add a single pencil to sparse school supplies (the average teacher spends about $500 a year out of pocket on supplies) or reduce the ratio of students to teacher in a single classroom (California has the highest student to teacher ratio in the country), just as it will not provide any support that any struggling teacher needs to succeed.

The question implied by the Vergara v. California suit is an important one, which needs to be asked and re-asked every day: how do we best educate California’s students? The answer that it suggests—eliminate the rights of the people who teach those students—is disingenuous and deceptive, and no amount of billionaire-backed PR will change that reality.

Back to the main Vergara page

Sources
“David Welch: The Man Behind Vergara v. California,” Capital & Main, February 20, 2014

Dolores Huerta Forces Anti-Teacher Lawsuit Backers to Remove Her Name From “Vergara” Website,” Capital & Main, February 29, 2016, 

Fuzzy Math: The guesstimate that struck down California’s teacher tenure laws,” Slate, June 12, 2014 

"Addressing California's Emerging Teacher Shortage: An Analysis of Sources and Solutions,” Learning Policy Institute, By Linda Darling-Hammond, Roberta Furger, Patrick M. Shields, and Leib Sutcher, 2016

Where have all the teachers gone,” nprEd, by Eric Westervelt, March 3, 2015
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For more information, www.cft.org, or to speak with a CFT representative, call 510-579-3343.

Appeals Court Overturns Vergara Lawsuit

FOR IMMEDIATE RELEASE:  Thursday, April 14, 2016

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More on the Vergara lawsuit

Educators Applaud Appellate Ruling in Meritless Vergara Lawsuit

LOS ANGELES —In a sweeping victory for students and educators, the California Court of Appeal today reversed a lower court decision in the deeply flawed Vergara v. California lawsuit. The unanimous appellate opinion is a stinging rebuke to Judge Rolf M. Treu’s poorly-reasoned ruling, and to the allegations made and millions of dollars spent by wealthy anti-union ducation reformers” to bypass voters, parents, and the legislature with harmful education policy changes. The reversal affirms the arguments of educators, civil rights groups, legals cholars and education policy experts that the state statutes affirming educator rights do not harm students. 

“This is a great day for educators, and, more importantly, for students,” said California Teachers Association President Eric C. Heins. “Today’s ruling reversing Treu’s decision overwhelmingly underscores that the laws under attack have been good for public education and good for kids and that the plaintiffs failed to establish any violation of a student’s constitutional rights. Stripping teachers of their ability to stand up for their students and robbing school districts of the tools they need to make sound employment decisions was a wrong-headed scheme developed by people with no education expertise and the appellate court justices saw that.”

In their 36-page decision, Justices Boren, Ashmann-Gerst and Hoffstadt outline the numerous ways in which plaintiff’s arguments were wrong and Judge Treu’s decision declaring the statutes unconstitutional could not be affirmed. “We reverse the trial court’s decision. Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. … the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students. With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.”…The judgment is reversed. The matter is remanded to the trial court with directions to enter judgment in favor of defendants on all causes of action.”

“Today’s decision vindicates decades of experience that show many local districts across the state are working collaboratively with teachers to help public education thrive. We need to take those best practices and expand them, not wipe out education codes that protect students and teachers,” said Joshua Pechthalt, president of the California Federation of Teachers. “We have a looming teacher shortage that is made worse by lawsuits like this one and the constant attacks on teachers and public education. We need to work together to raise up teacher performance and create a climate that keeps veteran teachers in the classroom and attracts young people to the profession.”

Vergara was the brainchild of Silicon Valley multi-millionaire David Welch and a group of corporate attorneys and public relations experts who founded the organization Students Matter to back the suit and to recruit the nine student plaintiffs used to front their failed attempt. At issue in the case were five California statutes covering due process rights for teachers, probationary periods, and the value of educator experience when school districts are forced to lay off personnel due to cuts.

Over the course of a nearly two-month trial, award-winning teachers, superintendents, principals, school board members, education researchers, and policy experts testified to the benefit of these laws and how they work quite well to ensure quality instructors in well-run school districts. Plaintiff attorneys put on witnesses from often dysfunctional districts where administrators attempted to blame the laws instead of their own failures to fulfill basic responsibilities such as spending time in classrooms observing teachers or providing assistance to struggling educators. No connection was ever made between the challenged laws and any student being harmed or any teacher who should not be in a classroom remaining there. The Court of Appeal decision repeatedly affirmed that the current laws do not prevent districts from making personnel decisions.

Pechthalt and Heins say now we can continue to focus on the work are entrusted to do and that is to educate our students.

More information on the case as well as background can be found here and here.

 

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The 325,000-member CTA is affiliated with the 3.2 million-member National Education Association. The California Federation of Teachers is the statewide affiliate of the American Federation of Teachers, and represents more than 100,000 faculty and school employees in public and private schools and colleges, from early childhood through higher education.

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Board of Governors Votes to Reform Accrediting Agency

For immediate release: March 21, 2016

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CFT leadership applauds courageous change in accreditation

SACRAMENTO, MARCH 21, 2016 - In an historic vote in Sacramento today, the California Community Colleges Board of Governors voted unanimously to reform its current accrediting agency, the Accrediting Commission for Community and Junior Colleges (ACCJC), and begin to establish a new model for fair accrediting practices with a new agency.

Leadership from the California Federation of Teachers turned out in support of the resolution of separation from the corrosive practices of the ACCJC.

“We congratulate the Board of Governors for taking a courageous vote today to change the accreditation system in California. We look forward to working with all stakeholders to ensure a valid accreditation system,” said CFT Secretary-Treasurer Jeff Freitas. “There are two million students whose full access to educational opportunity depends on it, and there are tens of thousands in particular at CCSF whose access has been terribly damaged and need special attention.”

California's community college system today made an historic turn toward fair accreditation after years of enduring the harsh, arbitrary and opaque practices of the ACCJC. With this vote the Board of Governors solidified plans to move to a new accreditor. This action is unprecedented anywhere in the country, and would mean a renewal of opportunity for California’s community college students.

“In my three decades working in the California Community College system I’ve rarely seen the kind of consensus and unification around an issue that we have seen in this effort to bring fair accreditation to California’s Community Colleges,” said Joanne Waddell, President of the Los Angeles College Faculty Guild, and a CFT Vice President.

“In order to ensure safe passage to a new accreditor for all our colleges, it will be necessary that there be a strong mechanism established to watch over the commission,” added Lacy Barnes, CFT Senior Vice President and instructor at Fresno City College.

President of American Federation of Teachers Local 2121 Tim Killikelly said, “The Board of Governor’s overwhelming decision today to move to a new accreditor is the right one and we applaud it.”

More information on the accreditation action (item 2.2) can be found on the Action Calendar page here.

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The California Federation of Teachers represents 120,000 education employees in public and private schools, from Head Start through the University of California. It is affiliated with the American Federation of Teachers, AFL-CIO. For more information, www.cft.org.

Statement from CFT on the recent vote to increase the state’s minimum wage

FOR IMMEDIATE RELEASE:  Thursday, March 31, 2016

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Higher Minimum Wage Will Help Millions

“Today, California lawmakers passed legislation that will raise the state’s minimum wage to $15 an hour in the coming years. This is an important step and a common sense development that will improve the lives of millions of Californians currently struggling to make ends meet in an economy that too often seems rigged in favor of the haves at the sacrifice of working men and women. We applaud those who voted in favor of this bill.

“As an education union, we have a number of members who will be affected by an increase in the minimum wage, namely many in our classified ranks and others such as those who work in early childhood education. Many of the parents of our students will also benefit greatly from this change. People living on the margins will find a bit of economic breathing room, enabling them to better provide for their families.

“An increase in the minimum wage will help pull millions out of poverty. We commend the legislature for passing this legislation and getting it to the Governor for signing it.”

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The California Federation of Teachers represents more than 100,000 education employees in public and private schools, from Head Start through the University of California. It is affiliated with the American Federation of Teachers, AFL-CIO.

Supreme Court Rules in Favor of Working People

FOR IMMEDIATE RELEASE:  Tuesday, March 29, 2016

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Statement from CFT President Joshua Pechthalt

Friedrichs Decision a Blow to Corporate Special Interests

“Earlier today, working men and women across this country heard some welcome news: The United States Supreme Court ruled 4-4 in the Friedrichs v. CTA lawsuit. This is a victory for those who believe in fairness and the importance of having a voice on the job, good benefits and just wages. This is also a defeat for those corporate special interests fixated on weakening the collective will of millions of Americans while rigging both our economy and our democracy in their own favor.

“While this is a day to rejoice, it does not mean that our struggle is over. The deep-pocketed backers of the Friedrichs lawsuit and others will not simply give up. But their attacks, along with the Supreme Court’s ruling and the resilience of CFT’s members, only strengthen our resolve.
“Lawsuits such as Friedrichs v CTA and Vergara v California have been nothing but distractions. With Friedrichs now settled, it’s time that we shift our focus back to what’s important: Working to ensure that we have the best education system possible for the state of California. We have been given the gift of time, and we will use this time effectively on behalf of our members and our students and be ready for the next fight to come.”

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The California Federation of Teachers represents more than 100,000 education employees in public and private schools, from Head Start through the University of California. It is affiliated with the American Federation of Teachers, AFL-CIO.

CC presidents move to reform, then leave ACCJC

For immediate release: March 17, 2016
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CC Presidents

City College of San Francisco students who testified on the damage ACCJC has caused their school to NACIQI in December.

Statement from CFT president Joshua Pechthalt

CFT applauds growing momentum for accreditor’s ouster

“Today California moved another step closer to reforming the broken accreditation system for California’s community colleges. With a more than 90% vote earlier this week to reform the Accrediting Commission for Community and Junior Colleges (ACCJC), while preparing at the same time to move to another accreditor, community college presidents struck a decisive blow to ACCJC’s fading hopes of maintaining the unacceptable status quo.

“While a number of individual college presidents had already gone on record regarding the need to move to a new accreditor, this vote shows that a remarkable, unprecedented consensus has now emerged. The presidents’ vote confirms what the Chancellor’s Accreditation Task Force revealed last year: the ACCJC is no longer widely accepted in its community, and does not meet the needs of California public higher education. We expect that the California Community College Board of Governors will outline important details of the developing plan to make this historic move to a new accreditor.

“Last weekend at the annual CFT convention our members voted overwhelmingly for a special dues assessment, affirming CFT will have the resources for organizing and to fight for public education and workplace rights in the courtroom as needed. Our members know that ACCJC’s courtroom assault, like Vergara v. California, Friedrichs v. CTA and other cases bankrolled by anti-union billionaires, represents a grave ongoing threat to the viability of public education. Our membership does not intend to allow a victory in one arena with ACCJC to be undone in the courts.

“The CFT has been fighting for a fair and appropriate accreditation system—in court, at the US Department of Education, in the legislature and in the streets—ever since the ACCJC unfairly and unlawfully sanctioned City College of San Francisco in 2012.”

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The California Federation of Teachers represents 120,000 education employees in public and private schools, from Head Start through the University of California. It is affiliated with the American Federation of Teachers, AFL-CIO. For more information, www.cft.org.

Media contact

If you are a reporter or have a media inquiry, please call CFT Communications Director This email address is being protected from spambots. You need JavaScript enabled to view it. at 510-579-3343.