The Am Law Litigation Daily reports that Vergara vs California is known colloquially as the "bad teacher" lawsuit. Perhaps it should be called the "nice philanthropist" suit. An entrepreneur named David Welch and other corporate funders believe that five California laws violate the rights of poor children of color. Vergara's attorneys, Theodore Boutros and Theodore Olson, argue that the Court should remake education law because... well, because they are the good guys and they believe those laws are bad.
Welch founded Students Matters, a nonprofit which consulted with a range of anti-teacher, anti-union corporate-funded organizations. It argues in court that the democratic and legal rights of teachers should be annulled because some "papers" issued by those interest groups cite polling data showing that some administrators misunderstand those laws, and because of some data-driven theories advanced economists (even though they run contrary to a large body of education research.) Since philanthropists see themselves as nice guys, and since they like these corporate-funded papers and because they do not trust peer-reviewed education research, they want the Court to strike down the will of the people.
David Cohen's "Education Policy vs Litigation" at InterACT provides a balanced analysis of why Vergara's plaintiffs oppose teachers' seniority rights and due process protections. Cohen attended a discussion on the case at the Stanford Law School and he recounts some of the questions that should have been asked by the court before allowing the suit. Some California districts, with and without the help of teachers' unions, successfully remove ineffective teachers. Other states and districts, that do not have California's law, experience the same shortage of high-quality applicants in their tough schools. So, shouldn't the non-educators have asked whether there are reasons other than the laws that make it difficult to attract and retain teaching talent? Why can't the outsiders understand that the real problem is the terrible working conditions in so many high-poverty schools? If they were a principal, would they go through the not-so-onerous process of dismissing teachers when they may not be able to find better replacements?
Vergara's evidence, meager as it is, often contradicts their assertions. Students Matter cite the notorious corporate reform group, the National Council on Teacher Quality (NCTQ), which acknowledges that none of the state's requirements for firing teachers appears "overly onerous." But, it offers into evidence a poll of Los Angeles principals showing that many are unaware of the power they actually have in terms of firing teachers and indicating that others feel "reticent" about following the process of terminating teachers. Moreover, the NCTQ seeks to outlaw seniority provisions in teachers contracts because "principals do not feel they have the authority" to reject transfers that they don't want to hire.
The NCTQ claims that the most talented university students don't apply to education schools. It also provides extreme and inflated estimates of the ability of teachers to overcome out-of-school effects such as extreme poverty, and it praises the economists' estimates that the bottom 25 percent should be fired using test scores. In other words, the NCTQ's so-called evidence is actually a compilation of feelings, misunderstandings, worries, estimates, and preferences about what schools should be like.
The NCTQ and Students Matter also mischaracterize a controversial "working paper," "The Long-Term Impacts of Teachers: Teacher Value-Added and Student Outcomes in Adulthood" by Raj Chetty, Freidman, and Jonah Rockoff as evidence for the demonstrably false claim that "recent research shows that teaching effectiveness is not only measurable, it is the most important determinant of a child's academic (and future) success--more important than socio-economic status, parent involvement or even per-pupil funding." In fact, up to 90 percentof the factors that determine student performance are beyond the control of teachers. Moreover, these economists only claim that their estimates are 80 percent reliable in terms of the policy question at hand -- firing individual teachers. The more typical estimate is that value-added is inaccurate for about 25 percent of teachers. They ignore the observation of education expert Bruce Baker who notes that "a 1/5 misfire rate to generate a small marginal benefit, might still have a chilling effect on future teacher supply."
Cohen is particularly astute in describing the logic of Welch, the Students Matter's founder. Welch has also been told that high-challenge schools have a hard time finding qualified applicants. But, he claims expertise in getting the most out of people and he feels like, "Successful organizations must embrace change." Since educators are too risk adverse, they need a Silicon Valley gambler like him to strip them of their hard-earned job protections. Welch apparently believes that turning teachers into second class citizens by abrogating their contracts will make teaching in the inner city more attractive.
Students Matter thus argues that they have very strong beliefs on the subject of schooling and they have read some interesting papers, with a lot of data in them. So, they can overrule the democratic rights of the public. Welch can't explain why he thinks his notions about California laws would help poor children of color, but he's read a book by Carol Dwyck and that must be relevant in some way... His Vergara seems to claim that if we respect the intuitions of some very rich people and replace state laws with something that they feel comfortable with, then something good will happen.
How did we get here? How did we get to a point where corporate powers can cherry-pick some theoretical research about a complex problem and strike down imperfect but basically good laws, without offering alternatives? How can they demand that laws be replaced when they rely only on their faith that something better will happen? Why assume that overruling the will of the people on one set of labor issues will somehow produce solutions for a different set of educational problems? Why should a few rich peoples' opinions on the causes of failure in poor schools be allowed to trump social science and the democratic rights of educators?
Perhaps these are the wrong questions. Perhaps, the Court should strike down these laws because the people who hold these faith-based hypotheses are very, very rich people. If the Court reverses the will of the people, that will encourage more nice, rich people to go around the country, identifying injustices, making snap judgments on how our democracy should work. Perhaps we should replace our constitutional democracy and trust the elites to fix problems for us -- or not. After all, not even the plaintiffs claim to have policies to replace those that were adopted by the peoples' representatives.