Teaching Profession Opinion

Vergara Overturned; Unions Lose by Winning

By Charles Taylor Kerchner — April 18, 2016 4 min read
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Union leaders are rejoicing that a California appellate court struck down a trial court ruling that would have voided some tenure and seniority practices. The media are calling it a major victory for unions, but I chalk it up in the loss column.

How can that be? California Teachers Association president Eric Heins said, “Today’s ruling reversing [Superior Court Rolf M.] 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.” (Other reactions, all predictable.)

The court did say that, at least the last part. But the court didn’t endorse the existing statutes either. “The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea,’” Appellate Division Two Presiding Justice Roger W. Boren wrote.

I’m Delighted With The Decision

I’m delighted with the decision. Vergara would have been a terrible constitutional principle, and much of the 36-page appellate court decision refutes the claim that the tenure and due process statutes violate the constitution or create a civil rights issue.

But the CTA and California Federation of Teachers still lose. They lose because Students Matter, the organization that brought the suit, is organized as a movement. The lawsuit is only a means to the larger end of reshaping teaching as an occupation. The movement goes on. [L.A. Times, EdWeek]

By Friday morning, the Students Matter web site had announced that they would appeal the ruling to the California Supreme Court, and similar efforts continue in other states. A look-alike lawsuit in Minnesota had been announced Thursday.

In California, Students Matter is suing Antioch Unified and 12 other school districts over those districts’ collectively bargained ban on using standardized test scores as part of teacher evaluation. The 1999 amendments to the 45-year-old teacher evaluation law, the Stull Act, included standardized test scores among other multiple measures.

Built Like A Campaign Organization

It’s long been recognized that Student’s Matter looks like a campaign organization. Its web site is glossy, it’s media talking points are well crafted, and the student plaintiffs are sincere and often tearful. Students Matter is looking for, and successfully reaching, a larger audience. And they can point to public opinion, such as the USC/Dornsife poll that shows only about 8 percent of respondents favoring using seniority for the purposes of layoff and equally low support for achieving tenure after two years.

In its Teacher Employment Policy Pillars, Students Matter agrees with virtually all educators and researchers on the centrality of an effective teacher in the classroom. They want laws that insure that all students have access to effective teaching. But they’ve chosen to attack employment statutes that have a modest influence, at best, on the quality of the teaching work force. (See, “Five Reasons that Vergara Is Still Unwinnable.)

The line of evidence and testimony in the trial court provides some clues about the employment world that Students Matter founder David Welch and his organization want.

It’s About THE TEST

They want a system in which teachers are judged on the quality of their teaching as measured by standardized tests and on which their employment security also rests. Everything in this worldview is tied back to THE TEST: teacher rankings, value added assessments, revocable tenure.

Welch and company wave a hand at broader teacher training and induction issues: “the State’s efforts should extend beyond the policies challenged by Vergara to strengthen the entire teacher preparation, assignment and retention pipeline.” But their litigation would create a work place that is less secure and in which occupants are judged by exams that they didn’t create, which measures things that they didn’t and weren’t supposed to teach, and which are designed to exaggerate variations in results so that student results can be spread out over a normally distributed bell curve.

The defendants in the original trial put on a set of witnesses that had a different worldview: that there needs to be a systemic approach to the problem that creates incentives for accomplished college students to become accomplished teachers, good support for new teachers, continuous improvement in schools, substantive and tough minded evaluation programs (such as the peer review programs described here recently.)

No Action from the Unions

Unions say they want all of these things. But they’ve not done much to counter Student’s Matters with view of teaching that goes beyond the status quo. It’s not that they can’t; they just haven’t. Any day they wanted to, the CTA and the CFT could put all their lobbying, electoral, and organizing skill behind building teacher quality, including getting rid of those who can’t perform well. That union-led evaluation and teacher development programs remain rare, suggests that the internal revolution that needs to happen within teacher unionism hasn’t. Thus far, the unions have squandered a rare political opportunity in California that would allow them to deal with current dangers and those that lurk over the horizon.

Policy fixes are at hand. Academics and policy scholars have described new assessment systems in detail. Four years ago a task force created by State Superintendent Tom Torlakson produced Greatness By Design that included many of the necessary elements.

But I’ve yet to see a bill package introduced in the legislature that would overhaul teaching in the ways that these advocates recommend.

Unions can’t build the future by defending the past. By failing to advance their own agenda, they’ve left the field open for Students Matter and its supporters.

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