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California’s laws governing teacher tenure and dismissal unfairly saddle disadvantaged and minority students with weak teachers, infringing on those students’ right under the state constitution to an equitable education, a state superior court judge ruled June 10.
The tentative ruling in the high-profile case strikes down the laws in question. It will be finalized within 30 days, and spells what appears to be a complete victory for the plaintiffs, nine California students and their families.
The landmark decision in Vergara v. California says the state’s constitutional guarantee includes having equal access to quality teaching—a step beyond the right to sufficient instructional time and money that rulings in previous equity suits have established.
The state’s teachers’ unions, which intervened as defendants in the suit, said they would seek an appeal. Judge Rolf Treu stayed any changes in the state laws until those appeals are settled.
Outside legal experts say the outcome of an appeal could go either way.
Still, in his ruling, Judge Treu said the plaintiffs had met the burden of proof.
“Evidence has been solicited in this trial of the specific effect of grossly ineffective teachers on students,” Treu wrote in the 16-page tentative ruling. “The evidence is compelling. Indeed, it shocks the conscience.”
It was not immediately clear whether California’s legislature, fearing additional litigation and the weight of more bad press, might seek to rework the laws in question on its own.
The ruling “is a signal to the legislature that these laws need to be not just tinkered with, but drastically reconsidered,” said Katharine Strunk, an associate professor of education and an expert on teachers’ unions at the University of Southern California, in Los Angeles. “The question now is whether there’s the willpower to do something about it—and the capacity to do something about it.”
Context for Trial
The lawsuit was brought by the nonprofit Students Matter on behalf of nine California students. It was argued by a high-powered legal team chaired by famed litigators Theodore Boutrous and Theodore Olson. The plaintiffs sought to overturn five sections of the state education code that, they contended, allow teachers to receive tenure before proving their success; make it virtually impossible to fire abysmal teachers; and concentrate such weak teachers in schools serving low-income and minority students because of seniority rules.
The defendants argued that teacher tenure is necessary to attract and retain teachers, and that there’s little evidence that the laws in question had a disparate impact on poor or minority students. They said “well managed” districts had no problems addressing teacher quality, and that the entire trial distracted from more important concerns, such as the need to provide financial resources and supports for teachers and students in high-poverty, high-minority schools.
Oral arguments in the bench trial, which was heard in Los Angeles County Superior Court, spanned nearly two months. Education researchers, economists, administrators, and teachers took turns debating the laws’ effects.
Judge Treu sided with the plaintiffs on all counts. In unsparing language, he called the defense’s arguments in favor of the layoff procedures “unfathomable,” the mismatch between the tenure and teacher-induction timelines “bizarre,” and the expeditious, fair removal of a teacher “illusory,” owing to an “uber due process” above and beyond that afforded to public employees in the state. Notably, Judge Treu on several occasions cited the defense’s expert witnesses to bolster the argument that too many cases of ineffective teaching go unaddressed. And he also cited research literature based on the use of “value added” methods, which use statistical techniques to isolate teachers’ impact on student test scores. The defense had sought to paint value-added as a flawed and unreliable tool.
The arguments in the case reflect national battles over so-called education reform. Over the past decade, philanthropies and newly emergent advocacy groups have worked to reshape the political landscape of K-12 education, favoring policies supporting teacher accountability and weakening ironclad tenure.
Even by the standards of today’s charged policy environment, Vergara stands alone for the controversy it has generated.
To the lawsuit’s supporters, the case has highlighted continuing deep inequities in the resources poor, black, and Hispanic children receive compared with their more-advantaged and white peers. But critics saw the lawsuit, at best, as an attempt to legislate through the courts, and at worst an attempt to undermine the teachers’ unions and force unproven policies on students.
Neither the plaintiffs nor defendants went unscathed in a seemingly unending volley of public relations.
Critics played up Students Matter’s funding, which was provided by a Silicon Valley entrepreneur, David Welch, and the group’s connections to other deep-pocketed donors, such as philanthropist Eli Broad, who has a history of butting heads with the teachers’ unions.
To some, those connections demonstrate the workings of what New York-based advocate and education historian Diane Ravitch has termed a “billionaire boys’ club” willing to spend millions to influence education policy. Just days before the ruling, a missive from the American Federation of Teachers implored reporters to “follow the money”; the National Education Association, in a statement after the ruling, said that it reflected “yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students.”
Yet in defending the laws, the teachers’ unions faced their own PR challenges. They were put in the unenviable position of arguing that the state guarantee to an equitable education does not extend as far as access to quality teaching. And in California, the unions historically have resisted efforts to tweak the state’s dismissal laws, even in the worst cases of alleged malfeasance. (The California Teachers Association, however, recently endorsed a bill, passed by the California Senate June 9, that would make some changes.)
Nor have unions been particularly receptive to alterations to the state’s tenure-granting laws. The CTA, for instance, recently refused to allow its San Jose, Calif., affiliate to extend the probationary period by an additional year to some teachers, citing concernsabout the precedent that action might set.
The ruling also comes as more states take a critical look at teacher-tenure and -dismissal rules. Nationally, some 16 states have taken steps to tie tenure-granting to teacher performance; seven return tenured teachers with weak evaluations to probationary status. Florida and Kansas have eliminated either the continuing employment or due process associated with tenure; North Carolina passed legislation outlawing continuing contracts in 2013, but that move was recently declared unconstitutional.
Judicial, Legal Implications
As yet unknown are how the ruling will play out both in California and nationally.
Some observers, though sympathetic to the plaintiffs’ claims, have expressed concerns about possible judicial implications from the ruling, both in the Golden State and elsewhere.
Because of its disparate-impact argument, “the floodgates could open for litigation calling for even greater judicial control over California’s schools,” wrote Joshua Dunn, an associate professor of political science at the University of Colorado-Colorado Springs, and Martha Derthick, a professor emerita of government at the University of Virginia, in arecent online article for the journal Education Next. “Anyone could challenge any law, however neutral in design, with a claim that it was somehow related to an unequal outcome.”
For another, legal observers say the slim ruling—at just 16 pages—leaves room for a successful appeal.
“I was a little taken aback at the fact that the legal analysis was so skeletal,” said Stewart Biegel, a faculty member in both the education and law schools at the University of California, Los Angeles. “The judge is making some broad generalizations about [prior education-equity cases], and it’s on some level troubling.”
As for its potential use for future cases, Mr. Boutrous and his team have expressed interest in taking the core legal strategy in Vergara elsewhere. Dozens of other states also have education-equity clauses in their constitutions. But case law on such matters in each state differs, as do their interpretations of educational equity and even teacher tenure.
The most immediate question, in the wake of the ruling, may well be whether California’s polarized legislature will seek to rewrite the laws so that they pass constitutional muster. The bill that cleared the California Senate this month, for instance, would make it somewhat quicker to fire a teacher for “egregious misconduct,” but it’s less clear how it would affect dismissal for poor performance.
Adding a wrinkle to the process, the plaintiffs’ attorneys said that Judge Treu has the supervisory authority to determine whether any alterations in the law meet the terms of the injunction.
Some observers saw bread crumbs for possible changes sprinkled throughout the ruling. For example, Judge Treu noted in his ruling that most other states have a tenure period of at least three years.
“I think it’s a clear signal from the judge that he thinks the legislature should fix this and, despite what he says in the conclusion, I think that’s exactly his intention in pointing out that California is not in line with other states,” said Ethan Hutt, an assistant professor at the University of Maryland’s education school. “Ultimately, the legislature will change the law, and my guess is it will move towards the pack in terms of tenure within three to five years, and create some discretion for the principal.”
My grandma Famma Gill worked her ass off. Her worn, plump, diabetic hands scrubbed crud off chipped dishes minutes after she finished a 10-hour shift. She washed clothes, took care of her husband, did unpaid church work and cooked for 17 of my cousins and me at times. I don’t remember her taking a day off. She was a hardworking homeowner in the inner city who clocked in every day until she died.
And even though she prayed for me daily in the midst of her task, I stilled ended up on the corner like most of the men in my family. I didn’t adapt to her religion, but I did inherit her work ethic.
At 18, I’d often slice the tips of my fingers up while shaving marble-size pieces of crack into smaller bits before shoving them into long glass vials that I rocked off for $6 a pop. I’d suck the blood off my fingers, rubber band the vials into a bundle, tuck them in my sock and then go off to my block around 8:30 a.m. to set up shop for my 10- to 12-hour shift.
My homie Lil Duncan with the chubby face, who was about four years younger, would normally be shutting down and on his way to school. He sold heroin and normally started around 4 a.m. (you gotta beat the sunset to slang heroin) and then closed in time to drop his little sister off at school and make his first-period class.
* * *
On any random night, midway through my shift or around the time Lil Duncan was reopening his, you could catch us and another 40-plus loudmouth, Niked-up teens and early 20-somethings in a circle on our east Baltimore corner. Crackhead Lenny and his wife, Loraine, would most likely be in the center, beating the shit out of each other like gladiators.
“Left hook, Loraine! Left hook, Loraine!” some kids would yell as she’d belt Lenny into a three-point stance or flat on his ass. Loraine liked to step back, Ali-style, and dance a little while waiting for Lenny to gather himself.
The crowd would thicken, and sometimes pudgy-pale cops would come by to watch and make side bets like, “Lenny, you’re goin to jail if I lose another 50 on you!”
I never gambled on junkie fights, but I’d always watch. Duncan couldn’t care less; he’d scrape the block for more sales. He’d serve your customers while you were goofing off and watching the match. Duncan had a relentless money-making approach, rarely joking, never killing time and only finding joy in hitting his sales quota, which changed daily, just like the staff on our corners.
* * *
“Dat nigga done! Dat nigga done!” was the usual chant when Lenny couldn’t get back up. I saw Loraine beat Lenny’s ass a thousand times.
I remember one time when Lenny had a “Rocky” moment — he lunged forward with an overhand right that connected perfectly with Loraine’s chin, and she swallowed the blow like a small pill and finished him off with two to the gut and a firm hook that stood him straight up before laying him out like school clothes.
She then picked him up as always and gently placed him on a stoop like an infant before claiming her prize — $20 worth of crack and some high fives from us. The guys on the block I hustled with lived for these fights, or dope fiend races, or drinking contests or anything else they could bet on, and most of these events ended the same. The losers trading money for cheap shots from the winners, as we all reported back to our posts.
The hustlers would go back to hustling, the police would go back to policing, and the junkies would go back to chasing. We all worked all day.
* * *
A year or so later, Loraine overdosed while Lenny was in prison or rehab or both. Either way he came back to the same corner as a transformed person. Lenny had doubled in size since the days when his wife used to beat the shit out of him, and his bumpy Braille-textured skin looked surprisingly clear and smooth, like he modeled for Neutrogena or something.
Another hustler offered him a free rock as a coming home gift, and Lenny proudly declined as he shook a fist full of multicolored NA key chains at us.
“No junk in a year, shorty, I’m off dat shit for good!” he cheered. I clapped for him and gave him few $20s as a coming home gift. We thought he’d be back.
Lenny landed a job working for the city but loved to stop by the corner and holler at us like, “Boy I sucks up allll the overtime! Check gonna be fatter than a project cockroach!” he’d say to us after late shifts.
When not working overtime he cut hair, or at least he tried and fed his new addiction for gold rings. He’d cover every finger. His hands looked like he was wearing brass knuckles. But more important, Lenny stayed clean and remained that way until he died.
Witnessing his transformation was one of the early factors that led me to believe I could beat the streets, too. Lenny once pulled me aside and said, “Boy, you can make money doing anything if you work hard and good at it.” I don’t remember the context of the conversation, but the phrase stuck with me as I transitioned from dealer to student.
* * *
Now, as a college grad, I still frequent the neighborhood as an example of exiting the drug game. And even though my student loan debt is high enough to push me into drug addiction, I’m happy to represent the redemptive power of education. Proof that shows if I can do it, you can, too.
My close friend Darnell Baylor works in the same east Baltimore neighborhood too, as a Psychiatric Rehabilitation Program worker. His job is to counsel juvenile offenders, make sure they go to school, keep their parole visits and to occasionally take them on field trips. I’ve been to work with him a few times — into the homes of the fatherless clients his agency pays him to visit. At times he’s the only positive male these young men see. The agency doesn’t pay Darnell to take on this fatherly role.
They also don’t pay him to make sure the kids can eat when the welfare runs out, or for haircuts, or for sneakers so they don’t get teased and tempted to sell. They don’t pay him to enroll these young men into sports and after-school programs. They don’t pay him to expose his clients to the National Great Blacks in Wax Museum or Walters Art Gallery on his off days, when he exposes them to different cultures and the necessary skills needed to stay out of prison. They don’t pay him to reward his clients when they excel in school by taking them to Ravens games and giving them concrete examples of the benefits of hard work. Baylor’s heart is bigger than both of the shoulders that he uses to lift his community.
Baylor applies the same work ethic to his 9-5 that a street kid like Duncan had on the corner, and it’s hard to believe that a person who is not a corporation, a group or a movement can have such an impact on an entire community. One day over drink, I asked Baylor how does he do so much and he simply responded with, “I don’t even know, but I make a way because it’s right.”
* * *
There’s a tattered house in the same community where Darnell works. It looks like it’s impatiently waiting to be torn down and could easily pass for abandoned. An anonymous woman in a crinkled shower cap tilts half of her head out of the second story window all day — overlooking Darnell and me, drug transactions, police brutality, kids playing, plump rats, hoop tournaments, teen pregnancy, city workers, dancing fiends, Christians evangelizing and everything else that goes on in our hood or any hood.
I don’t know if she has a disability or some sort of ailment, but I know she works all day. I saw her shower cap at 8 a.m., and I also saw the moon reflection bouncing off the same cap around midnight as well. Any time between those hours, you’ll see kids walk up to her window and use hand signals to show the amount of candy they want. She then reels down an old cloudy pencil pack attached to about 8 feet of tied together shoestrings. The kids dump their loose change into the pack and anxiously wait as she reels it up and then sends the stuffed pouch of goodies back down to them. She creates the same feeling for adults with loose cigarettes. And the list goes on and on.
The fact is that I can travel through east Baltimore or any urban inner city (BLACK) neighborhood for under 10 minutes and introduce you to the hardest-working Americans in our country. I know a guy that guts houses for $50 a day, a rack of uncertified tax preparers, too many single moms with triple jobs, some freelance freelancers, infinite party promoters, squeegee kids, basement caterers, back-alley auto mechanics, dudes of all ages selling bottled water and a collection of Mr. Fix Its, all living in a two-block radius. We are all American dream chasing, all trying to start our own business, all working our asses off.
Legal or illegal, the inner cities of America are our nation’s hotbed of side hustles. Even people like me with college degrees need multiple streams of revenue to survive, and I gained that work ethic from living in the inner city. Seeing my grandma work 10-hour shifts showed me I could do the same.
Lenny and Loraine didn’t beg for drugs, they performed for them. And Lenny continued to work hard years after his crack addiction faded. The Candy and Cigarette lady should be celebrated for her innovation. And I’d bet that even if the cops rushed and ended her industry, work ethic and creativity would lead to her creating a new one.
She still works hard but will be only judged for not following traditional rules, which is unfortunate because there are so many hardworking people like us who are forced to create our own industries as a direct result of being isolated by society. To me that poses a bigger question. Why employment inequality for African-Americans is always identified as laziness?
D. Watkins is a writer whose work has been published in Huffington Post, StopBeingFamous, 1729mag, and Salon. Watkins has been featured on NPR’s Monday Morning, The Marc Steiner Show, and Huff Post Live. Watkins holds a Masters in Education from Johns Hopkins University and an MFA in Creative Writing from the University of Baltimore. He is an adjunct professor at Coppin State University and runs a creative writing workshop at the Baltimore Free School. Follow him on Twitter @dwatkinsworld
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