The Case Against Teacher Tenure (Vergara v. California): The (un)Treu Story

The setting, the characters, and the dialogue in this play, are fictional. Unfortunately the court case, Vergara v. California, and the judge's decision are all too real.
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The setting, the characters, and the dialogue in this play, are fictional. Unfortunately the court case, Vergara v. California, and the judge's decision are all too real.

The Case:
Vergara v. California, was brought on behalf of nine students, eighteen teenagers and one younger student. Their families claimed that California due-process statutes that protected teacher seniority and tenure and regulated assessments to schools led to the retention of "grossly ineffective" teachers in minority school districts and thus violated their civil rights. The plaintiffs claimed that seniority and tenure disproportionately harm minority students in high-poverty schools by making it too difficult to fire incompetent teachers.

The Plaintiffs and their Support Team:
Although the plaintiffs claimed that teacher seniority and tenure violated the civil rights of minority students in poor communities, three of the eight original plaintiffs in the case were white and one of the five Latina defendants was from a middle class family. The ninth plaintiff, an African American male student, was added later.

The middle class Latina student and the three white students did not testify at the trial. The mother of the Latina student works for a charter school management company. The father of one of the white students is president of a coffee and tea company with between $10 and $25 million in annual revenue and over fifty employees. The father of the second white student is vice-president of Wilshire Associates, an investment management company. The parents of the third white student are wealthy real estate developers specializing in the affluent Encino market. The "real" plaintiff in the case was actually David Welch, a wealthy Silicon Valley entrepreneur. Welch founded a group called Students Matter in 2010, organized the students and their families as plaintiffs, and spent approximately three millions dollars to hire a law firm and support the case in court. Students Matter is also supported by major charter school advocates such as Steve Barr, founder of Green Dot Charter Schools. Barr did not take part in the suit, but endorsed it.

The Ruling:
On June 10, 2014, Judge Rolf Treu of the California Superior Court for the County of Los Angeles declared unconstitutional five provisions of the California Education Code that protected teacher seniority and tenure. According to Judge (un)Treu:

"Plaintiffs have met their burden of proof on all issues presented ... Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience ... There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms ... Substantial evidence presented makes it clear to this Court that the Challenged Statutes disproportionately affect poor and/or minority students ... All Challenged Statutes are found unconstitutional."

Five shadowy figures are sitting around a table in a dimly lit room. Four are speaking loudly. One looms quietly in the background, but he is the largest of the group. They are plotting the next step in their campaign to end teacher tenure, seniority, and teacher unions in the United States. They are celebrating what they consider to be a major victory. One of their California partners, "The Judge," just ruled that teacher tenure violates the civil rights of minority students. The group anticipates an appeal by teacher unions but figure the right-wing gang of five that controls the United States Supreme Court will ultimately rule in their favor.


The Judge: This character is loosely based on Judge Rolf M. (un)Treu of Los Angeles County Superior Court. In his ruling, Judge (un)Treu accepted the arguments made by the plaintiffs that teacher tenure and seniority violated the constitution of the state of California and that the California Education Code was therefore unconstitutional. In his ruling he cited the Brown v. Topeka, Kansas Board of Education decision by the United States Supreme Court, although he did not explain how his decision in Vergara v. California would lead to further school desegregation. Judge (un)Treu was appointed to the court by former California Governor Pete Wilson, a Republican.

The Entrepreneur: This character is loosely based on David Welch, a wealthy Silicon Valley entrepreneur who made his money in fiber optic communications. Welch founded Students Matter in 2010, the group that organized and funded the plaintiffs in Vergara v. California. Through the David and Heidi Welch Foundation, Welch has donated to the NewSchools Venture Fund where he was listed as an investment partner. NewSchools invests in charter schools and the cyber-charter industry and has links to Pearson, the textbook and testing mega-giant. Welch also supports Michelle Rhee's group, StudentsFirst, in its campaigns against teacher unions and to privatize education in the United States.

The Superintendent: This character is loosely based on John Deasy, Superintendent of the Los Angeles Unified School District. According to Deasy, who has a history of close ties to the Gates and Broad Foundations, "The court's decision in favor of nine student plaintiffs is a decisive step toward creating a system that puts the educational rights of California students before other interests. In ruling that key state laws governing teacher tenure, dismissal and layoff are unconstitutional, the court put California schools on notice that the education system must behave differently." Deasy testified as a witness for the plaintiffs in the lawsuit, claiming "Every day that these laws remain in effect represents another opportunity denied." Deasy claims to have been a high school science teacher but his online references do not list where, when, and for how long.

The Official: This character is loosely based on Arne Duncan. Education Secretary Duncan enthusiastically endorsed the judge's decision in Vergara v. California. According to Duncan, "My hope is that today's decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift . . . Every state, every school district needs to have that kind of conversation." It is not clear what conversation Duncan if referring to, because there does not appear to have been any conversation in Los Angeles.

The One Who Looms Silently in the Background. I am not sure who this person is, but somebody appointed Arne Duncan as Secretary of Education. You have to figure this character out for yourself.

The Narrator: This character wrote the play and reads the background information to the audience. He is loosely based on a Huffington Post blogger who is a retired high school social studies teacher and is currently a teacher educator at a major New York metropolitan area university.

The Script:

The Official: Can you square your decision with due process for teachers?

The Judge: Due process. What's that?

The Official: What about the facts in the case and legal precedents?

The Judge: Fact? Precedents?

The Superintendent: Better you don't know.

The Judge: Anyway. Poverty and urban blight. Humbug! Students fail because of their lousy teachers.

The Entrepreneur: End racial inequality in the United States. If only we could get rid of teacher tenure and teacher seniority.

The Superintendent: Underfunding of schools. I say, "Blame the teachers."

The Official: Test-driven instruction that bores students into submission. It is teachers with tenure who are boring.

The Judge: Low scores on standardized tests in minority communities. Minority students do poorly because of their lousy teachers.

The Entrepreneur: Inner-city minority unemployment. If we get rid of lousy tenured teachers students will all be prepared for 21st century college and careers.

The Superintendent: Detroit. Washington DC. Philadelphia. Chicago. Not our problem. Los Angeles students fail because of bad California teacher tenure laws.

The Judge: Do you really think getting rid of teacher tenure and seniority will make a difference in minority schools?

The Entrepreneur: Who cares? Once we break the teachers union we can privatize education and make fortunes.

The Superintendent: I don't really think we want people to hear that one.

The Official: Okay, how about climate change and global warming? Blame the teachers?

The Judge: Wait, my people don't believe in global warming.

The Official: Okay, take it off of the list. If only we can get rid of seniority, teacher tenure, and teacher unions, then all our other problems would be solved.

The Judge, the Entrepreneur, and the Superintendent together: Yeah!

The one who looms silently in the background remains silent but appears to nod in assent.

Narrator: In the concluding section of the novel Animal Farm by George Orwell, a similar secret meeting takes place. I am not sure what it has to do with anything; I am certainly not saying any of the fictional people in the above meeting are pigs. But Orwell's description of that meeting is worth remembering. As Orwell describes it:

"Between pigs and human beings there was not, and there need not be, any clash of interests whatever. Their struggles and their difficulties were one . . . [A]s the animals outside gazed at the scene, it seemed to them that some strange thing was happening. What was it that had altered in the faces of the pigs? . . . No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which."

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