FIRING THE BAD TEACHERS: Ted Olson and LAUSD Parents Sue

By Hillel Aron LA Weekly | http://bit.ly/NmRm6W

ILLUSTRATION BY NOAH PATRICK PFARR

published: July 05, 2012  ::  Superintendent John Deasy sat in an aisle seat in a Los Angeles courtroom, his left leg crossed over his right, his foot bobbing up and down like a bottle on a stormy sea.

The case was Doe v. Deasy. If the stone-faced chief of L.A.'s troubled school system was nervous, he didn't show it. He looked confident — in fact, glad — that he and LAUSD would lose.

It's unusual for a man like the influential Deasy to enjoy being sued. But these are unusual times. As Deasy had hoped, Superior Court Judge James Chalfant tentatively ruled that Los Angeles Unified School District's leaders had ignored a key state law, the 1971 Stull Act, which requires LAUSD to grade not just its students but its teachers.

Hailed 31 years ago as a key reform, the Stull Act requires all school districts to evaluate their educators annually. Teachers were to be assessed on many criteria, including how well pupils progressed under their tutelage.

That never happened. Assessing teachers by how well their students learned was all but ignored statewide. LAUSD, which educates one in every nine children in California, never bothered.

Deasy's courtroom loss in Doe v. Deasy "did exactly what has been my position," Deasy says. Chalfant ordered school districts to take student progress into account in grading their teachers.

The six anonymous parents who sued hail from both working-class South Los Angeles and the well-to-do Westside. Judge Chalfant allowed them to sue as John Does and Jane Does — a protection usually reserved for sexual-assault victims or the mentally incapacitated — and their attorney, Scott Witlin, says the parents actually "feared reprisals" from teachers and LAUSD.

"People in general — especially poor people — are afraid to speak up" about LAUSD's bad teachers, says Rev. Alice Callaghan, who runs a successful charter school on Skid Row and is the sole named plaintiff. "Think of everybody's experience with the police."

Powerful groups with deep pockets — in particular, the California Teachers Association and United Teachers Los Angeles unions — have hotly opposed a growing nationwide push to grade teachers.

On the heels of Doe v. Deasy, California teachers unions face an even tougher lawsuit from parents and students. One union lawyer calls it "Doe v. Deasy on steroids."

If the second lawsuit, filed by Students Matter against LAUSD and Alum Rock Union Elementary School District in San Jose, succeeds, California's nearly ironclad teacher-protection laws could crumble.

Students Matter is represented by superstar attorneys Theodore Boutrous and Theodore B. Olson, the pair who successfully argued to the 9th Circuit Court of Appeals that Proposition 8, banning same-sex marriage in California, was unconstitutional. (Olson, considered a top constitutional attorney, also won representing George W. Bush at the Supreme Court in Bush v. Gore.)

"We're not proposing some detailed thing," Boutrous says. "We just need to clear the books of these laws, which together are violating the constitutional rights of students."

Students Matter, bankrolled by Silicon Valley technology entrepreneur David Welch, co-founder of Infinera, has sued on behalf of eight named children and their parents — Beatriz and Elizabeth Vergara, Clara Grace Campbell, Kate Elliott, Herschel Liss, Julia Macia, Daniella Martinez and Raylene Monterroza. All but three are located within LAUSD.

The parents and students allege that California's five job-protection laws for teachers are unconstitutional.

But CTA spokesman Frank Wells argues, "The lawsuit is overreaching. ... They're asking the courts to do something that is better discussed in the Legislature. "

Except legislative action in Sacramento will probably never happen.

The 120-member California Legislature — dozens of whose members have taken money from CTA and fear going against the group — has repeatedly failed to make it easier to fire even teachers who are being charged with sexual abuse.

Within days of Wells' comment, state Sen. Alex Padilla asked the California state Assembly Education Committee to support his Senate Bill 1530 reform to make it easier to fire teachers accused of "serious and egregious misconduct," such as alleged LAUSD sex pervert Mark Berndt of Miramonte Elementary School. Berndt faces charges of feeding his semen on cookies to children, among other things.

But SB 1530 died in the Education Committee just last week — killed by Democratic legislators, most of whom refused to vote at all. The abstainers included well-known L.A. politicians Betsy Butler, who is running for state Assembly District 50 on the Westside, and Mike Eng of Assembly District 49 in the San Gabriel Valley.

Only Democrat Julia Brownley of Oak Park in Ventura County, chairwoman of the education committee, broke with the past and risked angering CTA by voting yes.

Padilla, an L.A. Democrat, was angry, saying, "Our kids deserve better."

The lawsuits filed by Students Matter and the anonymous parents group are in direct response to this paralysis in Sacramento.

"The laws create a situation where there are a certain number of very bad teachers trapped in the system," says Joshua Lipshutz, a Students Matter attorney. "If you are stuck with one of those teachers, that's a violation of the equal-protection provisions in the California constitution."

The L.A. Times has reported that very few green L.A. teachers are seriously evaluated by anyone in LAUSD before lifelong tenure kicks in after just 18 months on the job. In 2005, Gov. Arnold Schwarzenegger tried to expand that 18-month period to five years, but voters rejected his idea.

The five laws that in effect protect chronically ineffective teachers against firing are the "permanent employment statute" — lifelong tenure after 18 months; the "written charges statute"; the "correct and cure statute"; the "dismissal hearing statute"; and the "last in first out statute."

These statutes make it nearly impossible to fire a teacher who fights it. For example, according to L.A. Weekly's 2010 article "Dance of the Lemons," teacher Roque Burio got five "below-standard" evaluations, but years of retraining failed. LAUSD finally paid Burio $50,000 to leave quietly.

The Weekly reported that LAUSD spent $3.5 million over a decade to fire seven teachers who fought back and were protected by multiple hearings and court processes. LAUSD got rid of only four of the seven.

Nobody knows how many "lemon teachers" exist in the huge, 45,000-person LAUSD teacher force. But Students Matter believes 5 percent of California teachers are "grossly ineffective" — so bad that retraining can't help them.

In LAUSD, that would translate to 1,600 grossly ineffective teachers. Yet until recently, parents didn't fight back, and they still have no legal way to learn if their child has a "lemon" teacher.

Only principals and individual teachers can privately view detailed LAUSD longitudinal data showing how well each child scored on standard tests under several previous teachers — compared to how well the child scored under the current teacher.

The secrecy led the L.A. Times to publish its series "Grading the Teachers."

The newspaper named and ranked more than 6,000 LAUSD teachers — and now has named and ranked 11,500 — based on how well their individual students did on test scores, compared to the same students' test-score track record under previous teachers.

Boutros, Olson and Lipshutz are betting they can protect kids from failing educators.

In 1971, the state Supreme Court in Serrano v. Priest held that all school districts have a constitutional right to equal funding.

In its court filings, Students Matter argues that sticking a classroom with an ineffective teacher who chronically lets students fall behind is like unequal funding: "Students assigned to grossly ineffective teachers ... are denied equal access to the fundamental right to education."

"It would be revolutionary in its consequences if it succeeds," says David Plank, executive director, Policy Analysis for California Education. "The legal theory and the radicalism of the policy change are orders of magnitude greater than Doe v. Deasy."