What Really Worries Me About the Vergara Decision

On June 10th, California Judge Rolf M. Treu declared that teacher tenure laws in California deprive students of their right to an education and declared them unconstitutional.  The provisions that were specifically targeted were the time frame for awarding tenure to California teachers, seniority rules on firing of teachers colloquially known as “last in, first out” and rules for due process before removing a teacher after the initial probationary period.  Judge Treu grandly compared his decision to Brown v. Board of Education and sent shock waves through the mainstream teacher community.

I do not think the ruling is likely to survive a challenge.

First, the evidence that Judge Treu said “shocks the conscience” and was presented by the plaintiffs is not precisely rock solid.  Relying heavily upon the work of Professor Raj Chetty of Harvard University, the plaintiffs claimed that even one “grossly ineffective” teacher had long term lasting harm on student’s achievement and future economic success, and they claimed California’s tenure laws subjected students to such “grossly ineffective” teachers.  The problem here is not that there are not a discernible portion of teachers who ought to be removed, but that the Chetty research, indeed most of the research used by the plaintiffs is, to put it mildly, disputed.

Dr. Audrey Amrein-Beardsley of Arizona State University writes the blog Vamboozled to discuss research and policy around the use of value added measures of teacher performance (VAMs), and she has taken on the flaws of Dr, Chetty’s work on numerous occasions, notably here and here. Dr. Amrein-Beardsley links to critiques from other scholars as well, and the obvious message that Judge Treu missed is that this scholarship “shocks the conscience” most powerfully when one thoroughly ignores that does not represent a professional consensus among education researchers.  Indeed, it is easy to portray the handful of researchers who insist that single teacher impacts can be measured this way as outliers.  So with appeals in the works, it is hard to believe that Judge Treu’s wholesale ignoring of contrary evidence will be replicated by every judge who reviews the evidence.

Second, as Dr. Diane Ravitch of New York University explains here, the plaintiffs in the Vergara case are of questionable standing.  If the argument is that “grossly ineffective” teachers have damaging lifelong impacts on students, it would stand to reason that the plaintiffs could clearly demonstrate that they had been subjected to such teachers.  Not so much.  In fact, some of them apparently claimed that a given teacher was bad at teaching when those same teachers were widely recognized as excellent:

One of the plaintiffs (Monterroza) said that her teacher, Christine McLaughlin was a very bad teacher, but McLaughlin was Pasadena teacher of the year and has received many awards for excellent teaching (google her).

Dr. Ravitch refers to briefs by the defense that go on to note how none of the plaintiffs could tie any of the supposedly poor teachers to the specific statutes that were challenged in the lawsuit.  Appeals attorneys were certainly make use of this, and given judges more inclined to consider all the evidence, they may have successes.

I am, therefore, tentatively hopeful that this case will die or be substantively altered on appeal.  But I am still worried, and the reason is that the case provides a much desired legal win for a coordinated set of interests that have teacher unions firmly in their sights.  The plaintiffs were sponsored by the group “Students Matter” which is funded by Silicon Valley technology entrepreneur David Welch and is financially allied with charter school funders and Michelle Rhee’s “Students First” organization that similarly attacks teachers’ union protections.  Given the partisan position of the lawsuit’s backers, it was extremely troubling, if not surprising, to see Secretary of Education Arne Duncan welcome a decision that greatly undermines teachers’ workplace protections:

With strong financial backers like Welch, Rhee and organizations like the Walton Family Foundation and tacit approval from the administration, we can expect similar lawsuits in pretty much every state over the next few years.  It fits one of the favorite narratives of the education “reform” camp:  that everything hinges on teachers and if we only fire the right teachers, schools, everywhere, will improve dramatically

brace yourself

This is pernicious for a number of reasons.  First, it relies of the very shaky and often laughable claim that all it takes to close the achievement gap is enough “great teachers” in a row.  Michelle Rhee loves to repeat this claim, but the claim does not stand up to very strong scrutiny, most notably that the research basis for the claim merely extrapolated from one year gains in classrooms with an identified effective teacher instead of studying students over time.

Further, we should question the value of the metrics used to rate teacher effectiveness in the first place.  As I have written previously, the American Statistical Association’s statement on the use of VAMs warns that only 1% to 14% of student variation on test scores can be attributed to variation in teacher quality. The does not mean, by the way, that teachers have no effect, but that statistically tying the achievement gap among students as measured by standardized testing to variability in teacher quality is looking at a very narrow slice of that gap’s origins.  What else can account for persistent gaps in student test scores?  Los Angles has a Residential Income Segregation Index of 51. 54% of children in the central city live in povertyThe impacts of poverty on children are by now well documented and cannot be excluded when considering school performance. Classrooms in Los Angeles are overcrowded, sometimes to a shocking extreme. California’s woeful education expenditures place it in the company of Arkansas and below West Virginia.  But according to the proponents of the Vergara case, the only thing that matters is teacher effectiveness as rated by the test score gains made by their students, regardless of all of the other factors that may effect those scores.

And this is painful ground for teacher and student advocates.  It sounds like I am saying that teachers have little impact, but what I mean to say is that teachers matter, but not in ways that are effectively measured by the value added models based on standardized testing.  Professor Jesse Rothstein’s review of the Measures of Effective Teaching study funded by the Gates Foundation demonstrated that teachers who did very well in their value added measures did far less well in measures of students gaining higher order thinking skills, so it is highly possible that the measures favored by Vergara’s so-called expert witnesses improperly favor the wrong teachers.  Anecdotally, such measures of effectiveness miss the realities of how teachers work with students.  The worst teacher of my entire life was my seventh grade mathematics teacher who was a bully and the most demotivating individual I have ever known in my life.  However, in a community where 95% of high school graduates went on to four year colleges and universities, the depths of his ineffectiveness would have been masked by the external advantages of his students.  Influence and impact upon students can frequently be hard to see in any numbers, but they are real regardless.  I have had former students contact me via social media to express appreciation for the role I played in their development towards adulthood, and not all of those students were long term academic successes (they are, however, remarkable people…testing misses that).

That is because an effective teacher is not merely a person who extracts a pre-determined gain in a standardized test over the course of one year.  Effective teachers inspire students to take risks that may result in messy but instructive failures.  Effective teachers help student manage social and emotional challenges to become more skilled at collaboration and leadership.  Effective teachers challenge students to, as Maxine Greene phrased it, “stir” themselves and see the world in different and transformative ways.  Effective teachers may simply convince a struggling student to stay in school for the stability it provides in his or her life.

As we prepare to challenge the Vergara decision and to brace ourselves for the flood of similar suits that the likes of Michelle Rhee are undoubtedly planning, it is vital that we not only confront the highly flawed assumptions of test based teacher competence, but also that we uplift a better vision of the importance of skilled and experienced teachers.


Filed under Media, politics, schools, Social Justice, Testing, VAMs

4 responses to “What Really Worries Me About the Vergara Decision

  1. And yet … while the California provisions struck down in the suit were clearly bad policy, only a few supporters of tenure have acknowledged that. Instead, there’s mostly been a massive distortion of the true issues in the case. “The End of Tenure”? No, the apocalypse is not coming.

    So now we’re getting sucked into another sideshow issue that will absorb all the attention and will not result in dealing with the most urgent issues in public education. (Have you considered that may be what the bringers of lawsuits want?)

    More reasonable, sane tenure provisions – like those of the vast majority of other states – would, from the judge’s comments, have survived the challenge. Rather than debate the law, discuss the policy. California’s provisions were not good policy, and that’s the truth. Deal with it.

    • Of course, if the problem was simply “bad policy” that would be fixed by adjusting the tenure laws in California to be more in line with those other states, then the judge could have ordered a legislative fix to a flawed policy. Instead he declared the laws unconstitutional even though none of the plaintiffs could demonstrate they had been adversely impacted by the policy and that the “shocking” evidence the judge referenced about the life long detriments of even a single bad teacher is heavily contested within the research community. The decision reached far beyond the evidence that was presented. And yes, the end of due process protections for teachers in an entire state because of the supposition that those protections over protect a small segment of the teaching population is over reach.

      If the bringers of the lawsuit truly want to address the biggest problems we have in education, they would be bringing to suit to improve early childhood interventions for children in poverty and to improve the appalling working conditions in many of our most impoverished schools that are detrimental to children and that drive nearly half of urban teachers to leave their schools in less than five years. I do not believe the law suit funders truly care about education because they NEVER address this and do everything to deflect the conversation.

      I AM “dealing with it”. I am focusing on what are the real challenges in education. I would welcome it if the PACs that are organized against teachers’ due process employment protections would add that to their list of concerns.

  2. Old post but I’m just getting back to this …

    Judges generally can’t “order a legislative fix.” They don’t get to edit and re-write the laws. They can leave the law on the books, or strike it.

    You’ve completely avoided the key point – the provision that was struck down was bad law and bad policy. Though you’ve proved my point – no one will admit that.

    • Laurence Tribe, who knows quite a bit about the law, makes these points well:

      “The outdated California laws the court struck down make no sense for the teachers they were intended to protect, or for the students whose learning is the very reason for the education system’s existence.

      California is one of only five states that require two or fewer years of experience before teachers become eligible for tenure. Granting tenure to teachers so soon after hiring that they have not yet even been credentialed as competent to teach shortchanges teachers who need additional training, and it all but guarantees that whole classes of children will receive a subpar education.

      Even the teachers unions’ expert witness, David Berliner, recognized this, testifying that a probationary period of three to five years would be better than California’s 18-month period.

      Requiring the layoff of a school district’s most junior teachers first, even if they are clustered in the lowest-income schools, harms vulnerable students and devalues teachers. Expecting administrators to surmount a labyrinthine and expensive procedural morass to discharge poorly performing employees is no better for kids or teachers.

      The superior court’s decision in Vergara does not strike down due process rights, collective bargaining rights or tenure for public school educators. It only invalidates burdensome rules that give tenure a bad name …

      the state’s and teachers unions’ continuing defense of these nonsensical laws likely won’t succeed. The facts and the law overwhelmingly support the trial court’s decision.”


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