Vergara v. California Appeal Underway: The Case that Will Yield No Winners

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In June of 2014, defendants in “Vergara v. California” in Los Angeles, California lost the case. Plaintiffs included nine public school students (backed by some serious corporate reformer funds as per Students Matter) who challenged five California state statutes that supported the state’s “ironclad [teacher] tenure system.” The prosecution’s argument was that students’ rights to a good education were being violated by teachers’ job protections…protections that were making it too difficult to fire “grossly ineffective” teachers. The prosecution’s suggested replacement to the “old” way of doing this, of course, was to use value-added scores to make “better” decisions about which teachers to fire and whom to keep around, as based on teachers’ causal impacts on students’ “data.”

This week, this case is being appealed, back in Los Angeles (see a recent Education Week article on the appeal here; see also the Students Matter website for daily appeal updates here). This, accordingly, is a very important case to watch, especially as many agree that this case will eventually end up in no lesser than the state’s Supreme Court.

On this note, though, I came across a great article, also in Education Week, this morning, capturing as per the article’s title, the “Five Reasons Vergara Is Still Unwinnable.” I already tweeted this one out, but for those of you not following us on Twitter, I didn’t want you to miss this one.

The author — Charles Taylor Kerchner, Research Professor at Claremont Graduate University — puts the key pieces of the case in context as well as under a fair and appropriate light, more specifically explaining why “this is a case that the plaintiffs can’t win and the defendants will lose regardless of the outcome.” This, in other words and as per his opinion, is a case that will ultimately yield no winners.

Do read Kerchner’s full Education Week piece here, and share out as you see fit. I’ve also copied/pasted the text below (e.g., for those of you who follow via email).


As the trial court arguments concluded in the spring of 2014, one of the first ‘On California’ posts argued that, “from our perspective this is a case that the plaintiffs can’t win and the defendants will lose regardless of the outcome.”  It still is.

Oral arguments on its appeal began last week, a decision is due in 90 days, and an appeal to the state Supreme Court is considered a near certainty.  Just in case you haven’t been listening to the well-oiled noise machine surrounding the case, EdWeek’s Stephen Sawchuk provides a backgrounder.

Teacher Labor Market Realities

First of all, the plaintiffs can’t win this case because they don’t understand—or willfully ignore—the realities of the teacher labor market.  The underlying problem in the supply and demand for teachers is not that young very good teachers were being fired while old sluggish ones held on to their jobs.  As the recent data on teacher shortages shows, the problem is attracting good people to teaching in the first place and holding onto them.  Most young teachers who teach in challenging schools leave because the work is too hard, not because they were laid off. 

If the plaintiffs really want to increase the quality of the teacher work force, then they should put their money behind efforts to forgive student loans or provide residency programs for novice teachers so that they are not dissuaded by the shock of stepping into a classroom without a solid grounding in the practicalities of teaching.

Value Added Testing

Second, accepting Vergara equates to accepting value added testing as a valid means of assessing teacher performance.  Value added testing began as an attempt to substitute achievement gains for the more socially biased “league table” ranking of schools.  Its early advocates used the technique to demonstrate the influence that a good teacher has on a student’s long-term academic progress and economic life chances.  The economists that argued for the Vergara plaintiffs made much of this reasoning.

Unfortunately, , value added systems are usually terrible when they are put in place. The “value” in value-added are nearly always scores on state standardized tests.  Some of these tests are not very good indicators.  For example, nearly all the state tests used by Vergara plaintiffs have been replaced by measures more aligned with the Common Core of state standards.

Most of the tests are only given in a few grades in a few subjects.  Teachers in other grades and subjects get a composite score based on how well the whole school or an entire grade performed, a score that has little to do with that teacher’s value added.

It’s nonsense to use such gross statistical artifacts as the means to dismiss a teacher, or to reward one.  (A Tennessee case featured a teacher who was denied a bonus because his value added scores didn’t make the cut.  He taught largely advanced students, who were not required to take the state tests, and thus his entire value added score rested on one class.)

Disparate Impact

Third, the case accepts the constitutional principle of “disparate impact.”  This evidentiary argument has its origins in housing discrimination cases where it has been held that a law or practice, such as a bank’s lending policy, need not be discriminatory on its face if its impact was unfairly felt. 

If one accepts that people of color are generally discriminated against, and that poor people of color are absolutely discriminated against, then any rule or regulation within the education system is vulnerable to a disparate impact challenge.  Any form of teacher tenure?  Licenses to teach?  A pension system that encourages older teachers to stay instead of making way for young, enthusiastic ones?  School district boundaries?  Civil service protections?  Because all these exist in an inherently discriminatory environment, they would all be vulnerable if Vergara were upheld.

Rich People and Simplistic Solutions

Fourth, Vergara points rich people toward simplistic solutions.  Venture philanthropy is built around the assumption that people with wealth can use their money to disrupt institutions rather than support existing ones.  Students Matter, which is bankrolling the Vergara lawsuit, is a good example. 

It tinkers with three relatively inconsequential aspects of teacher quality while ignoring the much more fundamental changes in teaching and learning that need to take place in order to create a 21st Century education system.

At least as a thought experiment, people with money ought to be required to specify where they are headed.  If public monopoly, which every high performing school system in the world uses to deliver education, is bad, then specify the alternative.  Hiding behind empty phrases such as “grossly incompetent teachers,” derived from a statistical analysis of state test scores, is no substitute for the hard intellectual work of designing a novel education system.

I’m with the so-called reformers in the belief that the education system put in place more than a century ago needs transformation, but certainly those who want to change it should be required to come up with something better than increasing the amount of time it takes to get tenure by 12 months.

Buying Bullets for Your Opponents

Fifth, Vergara has created yet another instance in which the California Teachers Association and the California Federation of Teachers can inflict damage on themselves.  I hope they prevail in this appeal.  They should.  But in winning, they lose.  They will continue to be a target of opportunity by Republicans and an object of scorn among school reformers. 

They have utterly failed to seize the opportunity for policy leadership presented by the lawsuit and the unprecedented but transitory political support they currently enjoy in Sacramento.

Rather than build on strength, a siege mentality has overtaken union leaders, as in “they’re all around us.”  If that’s the case, you’d think that the unions would quit supplying their opponents with ammunition.

I hope the appellate justices overturn Vergara, but regardless, the case will yield no winners.


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