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Children Sue in Order to Learn

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Schoolchildren in Los Angeles are currently pleading in court for the opportunity to learn. They claim bad teachers prevent them from doing so.

California’s teachers’ unions are among the most powerful in the nation. California statutes are so skewed in favor of teachers’ job security that even grossly incompetent educators are almost impossible to dismiss. For instance, it can cost $250,000 to $450,000 — and years of legal effort — to remove a grossly incompetent K–12 public-school teacher from the Los Angeles Unified School District (LAUSD). Once removed, the teacher can still be reinstated by a separate governing board.

The extreme difficulty of dismissal became apparent in 2012 with the defeat of a bill aimed at making it easier to fire teachers who are accused of sex crimes. A headline in the California Catholic Daily (July 17, 2012) read, “California Teachers Union Kills Anti-Pedophile Law.” A year later (Sept. 16, 2013), the National Review protested a union-backed policy that closed a window on many sex-abuse victims, preventing them from suing public schools. The article stated, “If you want to molest children in California … [m]ake sure you have a good union,” because “if it comes down to the interests of a unionized government employee vs. those of a nonunionized sex-crime victim, look for the union label.”

On January 27, Vergara v. California began a non-jury trial before Los Angeles Superior Court Judge Rolf Treu. The plaintiffs are nine public-school students and their parents. They claim that statutes protecting the jobs of grossly incompetent teachers constitute a denial of education. Minority children suffer especially, because such teachers are often transferred to schools in minority and poor areas; thus, implementation of the statutes violates the state’s constitutional guarantee of an equal education as well. The trial is expected to stretch through February. If successful, Vergara may overturn some of the rules that form the current foundation of the state’s teachers’ unions.

The trial could become a national test case of similar rules governing teachers’ employment in other states where the same concerns for children and criticisms of teachers’ unions are being voiced. Many school officials join in the call for a dramatic overhaul. Three states and Washington, DC, have already swept away tenure for teachers; others have eliminated seniority as the touchstone for promoting or retaining teachers. The New York Times (Jan. 31, 2014) reported that now “school districts in 29 states use poor effectiveness as grounds for dismissal.… [And, just] five years ago, no states allowed student performance to be considered in teachers’ evaluations.… Now, 20 states require such data.”

In each instance, teachers’ unions have fought for the status quo. Parents — and now children — have fought for change that allows real education to occur in schools.

Background of Vergara

The two largest teachers’ unions in the state are the California Teachers Association (CTA), an affiliate of the National Education Association, and the California Federation of Teachers (CFT), an affiliate of the American Federation of Teachers. They have successfully controlled the politics of education in the state and protected the interests of their members, even of those who commit severe misconduct.

On November 1, 2010, the education-reform group Students Matter was formed in California. It describes itself as a “national nonprofit dedicated to sponsoring impact litigation to promote access to quality public education.” Its first case is Vergara. Founded by Silicon Valley entrepreneur David F. Welch, and backed by several wealthy supporters, Vergara has the finances to field an expert legal team, including former U.S. solicitor general Theodore B. Olson.

The lawsuit (PDF) was filed in the California Superior Court for Los Angeles County on May 14, 2012. Predictably, Vergara had to jump through various hoops, including several motions to dismiss and motions for summary judgment, before being cleared for trial. The trial targets five California statutes:

  • A permanent employment statute, by which teachers are granted or denied tenure (lifetime employment) after only 18 months.
  • Three dismissal statutes that are so protective of teachers that “in the past 10 years in the entire state of California, only 91 teachers have been dismissed.” (There are currently about 275,000 K–12 public-school teachers in California.)
  • The “last in, first out” layoff statute, by which layoffs are determined by seniority rather than by merit.

The defendants originally named in the complaint included the state of California and two individual school districts. Although the teachers’ unions were not named, they chose to become intervenors; that is, they voluntarily joined as defendants to contest the plaintiffs’ claims. (The defendants have changed in other ways over time.) All the defendants argue that legally protecting teachers’ jobs is necessary to retain and attract quality educators who would otherwise be lured away by the private sector.

Students Matter responds that Vergara

would not diminish teachers’ protection from arbitrary and capricious firing. Federal and state laws already protect all employees against discrimination and wrongful termination. Additionally, the California Constitution ensures all public employees due process and especially protects all public employees from unfounded termination — just as the Constitution protects the educational rights of children.

Vergara pointedly targets only teacher-employment laws “that go far, far beyond due process.”

Vergara is assured of national headlines, because the controversy is widespread. The plaintiffs plan to have children testify under oath about their inability to learn due to grossly incompetent teachers. According to the plaintiff’s attorney Theodore Boutrous, the now-17-year-old plaintiff Beatriz Vergara will testify about “teachers falling asleep in class, sitting and reading newspapers or playing YouTube videos while ignoring students.”

At a press conference outside the courthouse on the first day of the trial, one student explained that having negligent teachers meant she couldn’t read before the 3rd grade. Student plaintiff Raylene Monterroza stated,

When I’ve had great teachers, I’ve felt like my dreams were possible. Having teachers, who believed in me and cared about whether I learned and grew as a student or not, made all the difference in the world. But when I had teachers who seemed like they didn’t even want to be there and couldn’t teach, I had to find a way out.

No parent can hear such reports of teacher incompetence and apathy without feeling rage and betrayal. This is especially true given California’s remarkably high tax rate, which is justified in the name of education.

The case also pits school official against school official and union. The first witness called by the plaintiffs’ attorneys was Los Angeles Unified School District Superintendent John Deasy. The Superintendent claimed the permanent employment statute (mentioned above) did not allow enough time to assess whether teachers should have tenure. “Not remotely,” he said. He also denied that tenure was necessary to attract and retain teachers, saying “Job stability and tenure do not appear to be linked.”

Conclusion

Vergara is a compelling case with implications that will ripple outward, whether or not there is a victory in court. As one plaintiff’s attorney stated, “Even though we’re focused in California constitutional provisions, we think it could provide a model for challenging the laws of other states that have the same arbitrary unequal effects on rights of students.”

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).