Judge Rolf M. Treu, who decided the Vergara case, declared that he was shocked -- shocked! -- to learn from Professor Raj Chetty and Professor Thomas Kane of Harvard about the enormous harm that one "grossly ineffective" teacher can do to a child's lifetime earnings or to their academic gains.
How did he define "grossly ineffective" teacher? He didn't. How did these dreadful teachers get tenure? Clearly, some grossly incompetent principal must have granted it to them. What was the basis -- factual or theoretical -- that the students would have had high scores if their teachers did not have the right to due process? He didn't say.
The theory behind the case -- as I see it -- is that low test scores are caused by bad teachers. Get rid of the bad teachers, replace them with average teachers, and all students will get high test scores. You might call it the judicial version of No Child Left Behind -- that is, pull the right policy levers -- say, testing and accountability, or eliminate tenure -- and every single child in America will be proficient by 2014. Congress should hang its collective head in shame for having passed that ridiculous law, yet it still sits on the books as the scorned, ineffective, toxic law of the land.
Judge Treu was also regurgitating the unproven claims behind Race to the Top, specifically that using test scores to evaluate teachers will make it possible to weed out "bad teachers," recruit and reward top teachers, and test scores will rise to the top. Given this theory, a concept like tenure (due process) slows down the effort to fire those "grossly ineffective" teachers and delays the day when every student is proficient.
Relying on Chetty and Kane, Judge Treu is quite certain that the theory of universal proficiency is correct. Thus, in his thinking, it becomes a matter of urgency -- a civil rights issue -- to eliminate tenure and any other legal protection for teachers, leaving principals free to fire them promptly, without delay or hindrance.
Set aside for the moment that this decision lacks any evidentiary basis. Another judge might have heard the same parade of witnesses and reached a different conclusion.
Bear in mind that the case will be appealed to a higher court, and will continue to be appealed until there is no higher court.
It is not unreasonable to believe that the California Teachers Association might negotiate a different tenure process with the legislature, perhaps a requirement of three years probationary status instead of two.
The one thing that does seem certain is that, contrary to the victory claims of hedge fund managers and right-wing editorial writers, no student will gain anything as a result of this decision. Millions more dollars will be spent to litigate the issues in California and elsewhere, but what will students gain? Nothing. The poorest, neediest students will still be in schools that lack the resources to meet their needs. They will still be in schools where classes are too large. They will still be in buildings that need repairs. They will still be in schools where the arts program and nurses and counselors were eliminated by budget cuts.
If their principals fire all or most or some of their teachers, who will take their places? There is no long line of superb teachers waiting for a chance to teach in inner-city schools. Chetty and Kane blithely assume that those who are fired will be replaced by better teachers. How do they know that?
Let's be clear. No "grossly ineffective" teacher should ever get tenure. Only a "grossly ineffective" principal would give tenure to a "grossly ineffective" teacher. Teachers do not give tenure to themselves.
Unfortunately, the Vergara decision is the latest example of the blame-shifting strategy of the privatization movement. Instead of acknowledging that test scores are highly correlated with family income, they prefer to blame teachers and the very idea of public education. If they were truly interested in supporting the needs of the children, the backers of this case would be advocating for smaller classes, for arts programs, for well-equipped and up-to-date schools, for after-school programs, for health clinics, for librarians and counselors, and for inducements to attract and retain a stable corps of experienced teachers in the schools attended by Beatriz Vergara and her co-plaintiffs.
Let us hope that a wiser judicial panel speedily overturns this bad decision and seeks a path of school reform that actually helps the plaintiffs without inflicting harm on their teachers.