Sunday, February 09, 2014

VERGARA v. CALIFORNIA/WEEK 2 : The judge is struggling to stay awake

a compendium of coverage as the plaintiff’s case continues….

Why the Vergara Trial  Could Upend Public Education

By Hillel Aron, LA Weekly |  The Informer | | LA Weekly

Ted Boutrous, who fought in court for gay marriage, represents students Julia Macias, Beatriz Vergara, Elizabeth Vergara and Kate Elliot against the teachers unions. - CHARLIE MAGOVERN/NEON TOMMY


Fri, Feb 7, 2014 at 6:52 AM  ::  There are no bloody gloves, no celebrity witnesses, no shocking reports on DNA evidence. In fact, a few days ago Judge Rolf Treu was struggling to stay awake, calling an 11:15 am recess to keep from nodding out. Nevertheless, Vergara v. California, being covered by The New York Times, Associated Press, and other major media in a downtown L.A. courtroom, could be the biggest thing to happen to public education in California since Proposition 13.

<<Charlie Magovern/Neon Tommy  |  Ted Boutrous, who fought in court for gay marriage, represents students Julia Macias, Beatriz Vergara, Elizabeth Vergara and Kate Elliot against the teachers unions.

The trial, finishing its second week, pits Silicon Valley telecom multi-millionaire David Welch (footing the bill, natch) and nine named plaintiffs who are California school children, against the State of California and its two biggest teachers unions, the California Teachers Association and the California Federation of Teachers. The suit aims to overturn the following five California laws that govern when a schoolteacher can be fired: 

* "Last in, first out," which, during layoffs, forces school districts to get rid of the newest rather than the least effective teachers - a practice that can nearly empty poor, urban schools of their youthful staffs.

* The "permanent employment statute," which makes teachers eligible for job tenure after two years (in practice it's closer to 16 months when you factor in teachers' summer breaks and the fact that tenure is granted in March, not at year's end.)

* Three other laws that make firing a tenured teacher for performance (i.e., not being able to teach) onerous and even impossibly kafkaesque, depending on which bureaucrat you talk to.

    John Deasy, star witness in Vergara v. California. - LAUSD

    LAUSD   John Deasy, star witness in Vergara v. California. >>

The five laws have been targeted by so-called school reformers for years, but the California state legislature has resisted undoing or softening them - in part because the CTA union spends more money on campaigns than any other special interest group (and also because California voters generally like teachers).

Which is why some reformers are going to court. First they launched Doe v. Deasy, a successful lawsuit that forced LAUSD and other districts to use student test outcomes to evaluate whether teachers are doing their jobs.

But Doe v. Deasy is a small-claims case compared to Vergara, which has national implications - and which unions see as the nuclear option.

<< David Shankbone  | High-powered attorney Ted Olson (with his daughter, Christine) is reprising his fight for marriage equality, this time arguing for children's rights.


The plaintiffs have an all-star legal team from Gibson Dunn & Crutcher, each member forever clad in crisp, pinstripe suits - including the two famous Teds, Theodore Boutrous Jr. and Theodore B. Olson, the team that helped overturn California Proposition 8 before the Supreme Court.

The two Teds and tech entrepreneur Welch have a rather aggressive PR approach, hiring media consultants Griffin Schein, who pepper local and national reporters covering Vergara with daily (or more frequent) updates of the legal goings-on.

It won't be enough for this team to prove that California's five laws are silly, or expensive (it costs $250,000 to $450,000 to fire a single teacher from LAUSD) or even bad. Boutrous and Olson must prove that the laws are unconstitutional -  that is, that they violate California's equal protection clause by giving poor and low-income students less access to education than other kids.

"We have a situation where the positions for more junior teachers tend to be in these low income and minority districts," said Boutrous in a conference call before the trial.

Olson has yet to grace the court with his presence, but Boutrous has been front and center, appearing at press conferences and giving the opening statement with his perfect tan and helmet-like head of white hair.

His task -  proving that the five laws violate the constitution's equal protection clause -  may not be as hard as it seems.

"California has had, for 40 years, an extremely strong equal protection constitutional doctrine," says Professor Michael Moreland of Villanova University School of Law. "There's an at least plausible argument that the plaintiffs are making."

In 1971, the California Supreme Court ruled in Serrano v. Priest that the state was violating the equal protection clause by giving some school districts more money than others. Now, the plaintiffs say teacher dismissal laws have a similar net effect: that bad teachers, more often than not, land in bad schools, which more often than not are in lower-class communities.


    Noah Patrick Pfarr

      Boutrous cites a study by The Education Trust which found low-income children were two times as likely as better-off children to be taught by an ineffective English teacher, and were 1.66 times as likely to be assigned an ineffective math teacher.

      Last week, that argument was made by the closest thing to a star witness in the Vergara trial - LAUSD Superintendent John Deasy. Deasy testified on Day Three, "When you follow the law, an unfortunate byproduct of following the law is, in my opinion, the discrimination of youth having to be placed in front of an ineffective teacher."

      In a funny way, Deasy is being used by both sides.

      The plaintiffs are using Deasy's own words -  that firing a bad teacher is hard, expensive, and in some cases not worth trying; and that 16 months of classroom experience is "not remotely" enough time for administrators to decide whether a new teacher should get job tenure.

      But the defense side - the CTA and CFT - is also using Deasy. The headstrong Superintendent, who took over the nation's second-largest school district in 2011, has, by sheer force of will, pushed the ossified system forward. For decades before Deasy, you could count on one hand how many of LAUSD's 25,000-30,000 teachers got fired each year. While most U.S. professions and industries fire 3 to 6 percent of their people each year, LAUSD fired a small fraction of 1 percent.

      For example, just three teachers were fired from LAUSD in 2006-07.

      In 2011-12 Deasy upped the firings to 99 teachers.

      Similarly, pre-Deasy, teacher tenure used to be all but automatic: less than 1 percent of teachers failed to win what amounted to lifelong job tenure after less than two years of experience. The Los Angeles Times has reported that, in a widespread practice, LAUSD barely assessed new teachers before granting them job tenure. Under Deasy, the "no thanks" figure has edged up to between five and 10 percent.

      The defense has seized on these crackdowns by Deasy, citing them as proof that state laws themselves aren't keeping bad teachers in the classroom - it's fault of a long parade of LAUSD superintendents, stretching back decades, who weren't as proactive as Deasy (who, it should be said, has nearly gotten forced out for his troubles).

      "Well-run school districts are able to fire ineffective teachers," said the teachers unions' lawyer, Jim Finburg, in his opening statement.

      Deputy Attorney General Nimrod Elias, who is representing California - which is also being sued by the nine children - said in his opening statement, "Some students are fortunate to be in a better-run district than others. ... No plaintiff was assigned an ineffective teacher because of their race or income level. There will not be evidence that these laws make bad teachers assigned to low-income areas."

      Does the California constitution guarantee a student's right to learn, or to be taught by an effective teacher? These are questions the court must sort through. Each side will present a string of experts, school bureaucrats, teachers and perhaps even students.

      The trial is expected to last at least two more weeks, and its outcome will ultimately be decided by the white-haired Judge Rolf M. Treu, who watches over the proceedings with a skeptical, Rip Torn-esque grimace.

      The fact that Treu chose to hear the case at all means that he's at least open to the plaintiff's argument that the state, and the big teachers unions, are violating the constitutitonal rights of children.

      Whatever Treu decides, the state Supreme Court will almost surely have the final say. And it's that higher court's decision that could echo across the U.S., as other school reformers gear up to take very similar arguments to court.

      White students get better teachers in L.A., researcher testifies

      By Howard Blume, L.A. Times |

      6:39 PM PST, February 7, 2014  ::  Black and Latino students are more likely to get ineffective teachers in Los Angeles schools than white and Asian students, according to a new study by a Harvard researcher. The findings were released this week during a trial challenging the way California handles the dismissal, lay off and tenure process for teachers.

      In the study, professor Thomas J. Kane concluded that the worst teachers—in the bottom 5%--taught 3.2% of white students and 5.4% of Latino students. If ineffective teachers were evenly distributed, you’d expect that 5% of each group of students would have these low-rated instructors.

      A similar pattern held when Kane looked at teachers rated in the bottom half: 38.5% of white students had such an instructor; the number was 48.6% for African American students and 52.2% for Latino students.

      Kane presented his findings during testimony in Vergara versus California. He appeared as a witness on behalf of nine families, who are backed by the Menlo Park-based Students Matter, which seeks to overturn several laws. The organization opposes teacher tenure decisions being made in only 18 months, layoffs based on seniority rather than merit, and a dismissal process for ineffective teachers that can prove lengthy and costly. These laws have the effect of diminishing the quality of the teacher workforce and do particular harm to low-income and minority students, advocates contend.

      The teaching-quality imbalance especially hurts the neediest students because “rather than assign them more effective teachers to help close the gap with white students they’re assigned less effective teachers, which results in the gap being slightly wider in the following year,” Kane testified, according to an unofficial trial transcript.

      His other notable finding was that the worst teachers in Los Angeles are doing more harm to students than the worst ones in other school systems that he compared. The other districts were New York City, Charlotte-Mecklenberg, Dallas, Denver, Memphis and Hillsborough County in Florida. 

      Kane’s research was used to suggest that the challenged laws are causing the disparities that he cited.

      The statutes are being defended in court by the state of California, the state Federation of Teachers and the California Teachers Assn.

      Attorney James Finberg, representing the unions, cited other research that blamed voluntary transfers for the concentration of more-effective teachers at schools with fewer minority students and more pupils from higher-income families. His side has contended that better management, including an effort to improve teaching conditions, could address the disparities found by Kane.

      “Well-managed districts are able, within the existing statutory scheme, to give tenure only to those probationary teachers who demonstrate effectiveness, and to dismiss, or encourage the resignation of, the few ineffective teachers who slip through the cracks, or become ineffective,” Finberg said in an interview.

      In cross-examination by Finberg, Kane acknowledged that the ability to win tenure rights could help in recruiting talent into the profession.

      Kane's study looked at data from the 2004-05 academic year through 2010-11.  It encompassed the test scores of 1.1 million students and 58,000 teachers in grades 3 through 8. It has yet to be reviewed by peers, Kane said.

      Kane's ratings of teacher effectiveness were based only on student scores from state standardized tests that were applied to a "value-added" formula. This measurement takes into account such factors as ethnicity, family income and past performance when determining how much an individual teacher affects a student's test results. Kane said that the best measure of a teacher’s work would include other factors in addition to scores.

      L.A. Unified has joined the growing number of school systems that measure teachers through a value-added formula, which it calls Academic Growth Over Time. Elsewhere, such ratings count for as much as half of a teacher’s evaluation. Under an agreement with the teachers union, L.A. Unified can only apply the value-added results for an entire school as part of a teacher’s performance review. But an individual’s rating can be used, for example, to inform annual improvement goals.

      Fight Over Effective Teachers Shifts to Courtroom  By JENNIFER MEDINA, New York Times | JAN. 31, 2014

      this week from plaintiff-sympathetic
      LA School Report:

      Vergara trial: Tears fall over challenges of minority students

      Posted on February 7, 2014 by Vanessa Romo

      Kareem Weaver

      Kareem Weaver

      In an abbreviated day of testimony in the trial Vergara v. CA, a suit that is challenging teacher dismissal laws in California, Superior Court Judge Rolf Treu heard from two witnesses who described their personal disappointments with California’s public education system and the laws regulating teacher employment.

      Testifying on behalf of the plaintiffs, Kareem Weaver, an award winning teacher and principal from the Oakland Unified School District, talked about his belief that minority students can ill afford exposure to grossly ineffective teachers.

      An African-American who grew up in the Bay Area and was raised by a drug addicted father, Weaver broke down in tears, recounting the challenges he sees minority students facing.

      “Low-income students of color are the most vulnerable population,” he said, before putting his face in his hands.

      He told the court how many minority students grow up on a “razor-thin margin of error,” where educational experience can make a huge difference.

      “It either props them up or blows them down,” he said, adding that the slightest external factor can “determine how you will engage with learning for the rest of your life.” And having a high quality teacher, he said, can be pivotal.

      Weaver’s testimony was so impassioned, plaintiffs’ attorney Marcellus McRae, who was questioning him, also became emotional. At one point, McRae stepped into an alcove just off the court room to regain his composure.

      Another part of Weaver’s testimony focused on two years as principal of Lazear Elementary School in Oakland, where he successfully raised the low-performing school’s Academic Performance Index score by 74 points over two years.

      Defense lawyers seized the achievement as an opportunity to argue that current laws granting teacher tenure and dismissal protections do not prohibit academic improvement or learning. In fact, the year after Weaver left, Lazear became a charter school and its API score dropped.

      First, Jonathan Weissglass, representing the California Teachers Association and California Federation of Teachers, established no changes had been made to the state law when Weaver was at the helm of the school. Then he asked Weaver how he had accomplished the score improvement.

      Weaver said he provided extra support to teachers and spent nearly two hours a day conducting classroom evaluations. He now works in the Bay Area for New Leaders, a national nonprofit that develops school leaders and leadership policies for school systems across the country.

      Following Weaver to the stand was Jonathan Moss, who identified himself as “a very privileged white male.”

      A Teach for America alumnus and a member of Students First, Moss taught at Compton Unified School District between 2008 to 2012.

      He said he wanted to become a teacher after learning about the achievement gap between poor, minority students and their white counterparts. He said he chose Compton over LA Unified because he thought the need was greater.

      He ended his teaching career in 2012, in search of “more job security” and now works for the Los Angeles Urban League.

      Moss said he received four lay-off notices in four years in Compton schools while teachers with more seniority stayed on, which is consistent with the state’s “last hired, first-fired” policies, one of the state laws under challenge in the lawsuit.

      “I know it had nothing to do with my performance,” he said. “I know that I was an effective teacher and my colleagues were not.” He described “a sense of mediocrity” among tenured teachers and linked it to the fact they “knew their jobs were protected and they all had job security.”

      He said that working among those teachers created a “demoralizing environment.”

      The cross examination was brief. Charles Antonen, representing the state, asked if it is up to a principal to set the culture of a school.

      Moss responded that it was not. “It’s up teachers to set their own standards,” he said.

      McRae told Judge Treu that the plaintiffs need another week and a half or so to conclude their case before the defense takes over. Testimony resumes on Monday.


      Vergara trial turns another focus onto LA Unified teachers

      Posted on February 6, 2014 by Mark Harris

      Thomas Kane

      Thomas Kane

      A Harvard professor of education and economics provided the Vergara plaintiffs powerful testimony today when he told the court that schools in the Los Angeles Unified School District have ineffective teachers and a disproportionate number of them are assigned to minority and low income students.

      The opinions of Thomas Kane went to the heart of the plaintiffs’ case in Vergara v California, in which nine students are challenging state laws governing teachers employment. While the students claim that laws on seniority, dismissal and tenure violate their fundamental right to an education, their opponents — the California Teachers Association, the California Federation of Teachers and the state — say other factors are at play.

      Armed with slides, charts and graphs, Kane summarized his findings from a number of studies, including one paper that examined teacher effectiveness in LA Unified.

      He began his testimony with a bit of humor, telling the court that not using measures to gauge teacher effectiveness is like going to a Weight Watcher’s program “without a bathroom mirror or a scale.”

      He made five overarching points: that’s it’s possible to implement measures of teacher effectiveness, that LA Unified has a higher ratio of ineffective teachers than school districts studied by other researchers, that a disproportionate number of ineffective teachers in LA Unified serve Latino and African American students, that effective teachers have a causal effect on student achievement and that teachers have long-term impacts not only on student achievement but also lifetime earnings.

      Continue reading →

      Another witness in Vergara says tenure in CA comes too soon

      Posted on February 5, 2014 by Mark Harris

      Mark Douglas, Asst. Supt., Fullerton School District

      Mark Douglas, Asst. Supt., Fullerton School District

      The Vergara v California trial and its testimony from educators and administrators from around the state continued its geographic journey today, when the focus turned to Fullerton.

      Assistant Superintendent of the Fullerton School District, Mark Douglas, a 37-year veteran of state public education systems, took the witness stand in state superior court and added another layer to the plaintiffs’ case that the current teacher dismissal, seniority and tenure laws work together to violate students’ constitutional right to a quality education.

      The defendants in case, the California Teachers Association, the California Federation of Teachers and the state, argue that the statutes don’t infringe on students’ rights and that well managed school districts can work within challenged rules.

      Douglas touched on many of the plaintiff’s key points, including the cost and length of time associated with the dismissal laws. He testified, as others have, that 14-16 months is inadequate to determine whether a teacher should receive tenure, guaranteeing future employment.

      “It can be a crap-shoot if that person can develop into the person you want,” he said, adding that in his entire career he’s only seen two teachers whom he would recommend after such a brief evaluation period. Douglas said he believed at least four years of observation was necessary before making such a critical decision. Continue reading →


      Vergara hears moving testimony from oft-dismissed teacher

      Posted on February 4, 2014 by Mark Harris

      Bhavini Bhakta

      Bhavini Bhakta

      A stunning silence fell over the courtroom today when Bhavini Bhakta, the first teacher to testify in the Vergara v California trial, described the impact of the state’s current teacher dismissal and seniority laws.

      An award-winning educator with two master’s degrees, she recounted how despite her success, the warm embrace of her students and the appreciation of their parents, she was laid off five times in nine years at three different Los Angeles area schools only because she was junior to other teachers.

      “No matter how hard I worked, none of it mattered,” she said, wiping away tears. “All that mattered was my hiring date. You’re not even a person, it’s not anything you do; it’s just the hire date that matters. I was just a number, not a person, and that’s not easy.”

      Bhakta’s testimony gave an emotional lift to the Vergara plaintiffs, who are trying to show that state laws on teacher seniority, dismissal and tenure protect ineffective teachers at the expense of younger ones and deny children a constitutional right to a quality education.

      As defendants, the California Teachers Association, California Federation of Teachers and the state are claiming that the laws don’t interfere with the way district administrators deal with ineffective teachers.

      The 2009 teacher of the year at Broadoaks Elementary School in Monrovia, Bhakta told the court that she switched majors in college after tutoring kids, saying she fell in love with the profession.

      Continue reading →

      Vergara trial: finally, evidence of a student hurt by state laws

      Posted on February 3, 2014 by Mark Harris

      Jonathan Raymond, a former superintendent and  Joey's dad.

      Jonathan Raymond, a former superintendent and Joey’s dad.

      It took six days of testimony to finally put a human face on the legal issues in Vergara vs. California, and it wasn’t Beatriz Vergara or any of the other eight plaintiffs challenging the state and its biggest teacher unions.

      Rather it was Joey Raymond, the son of the former Sacramento City Unified superintendent, Jonathan Raymond, who took the stand late in the day and told what happened when he and his wife moved to their new city in 2009 and found a school for Joey, who was six years old at the time.

      Raymond came to Sacramento after serving as Chief Accounting Officer for a North Carolina school district. He testified that he was thrilled to find an opening in Miss Nim’s first grade class. He said he had visited her class on an earlier trip and found her to be “one of the five best teachers I’ve ever seen.”

      But the following spring, Miss Nim received notice that she was going to be laid off due to cutbacks and the state’s mandatory seniority system, know as “Last in, first out,” or LIFO. The former superintendent testified he was devastated — more so, because of the LIFO statute, one of the five that the Vergara plaintiffs are seeking to strike down.

      Continue reading →

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