The Vergara lawsuit’s focus on teacher tenure diverts attention from the larger problems plaguing U.S. public education
After a close reading of Los Angeles County Superior Court Judge Rolf Treu’s ruling  in the landmark lawsuit challenging California’s teacher tenure rules, Vergara v. State of California, I actually think the judge got it right.
That said, I’m offended by the entire premise of this lawsuit. I’m offended by the victory celebrations of the so-called school “reformers” who supported the plaintiffs in the case—and most of all, I’m offended by the assumption that this ruling will somehow magically fix the problems plaguing public education in California and elsewhere.
In the wake of Judge Treu’s June 10 ruling, critics of the decision have suggested it marks a serious blow to teachers’ hard-fought protections or job security.
I disagree. There seems to be plenty of room in the Vergara decision for a reasonable reworking of California’s tenure rules in a way that would preserve due process, while making it easier to remove what the judge calls “grossly ineffective” teachers.
As Judge Treu indicated, the plaintiffs and defendants agreed on a number of key points during the Vergara trial:
• “Grossly ineffective” teachers undermine a child’s ability to succeed in school.
• There are a significant number of these teachers in the state’s schools. (A witness for the defense, education researcher David Berliner, estimated that 1 to 3 percent of the state’s teachers could be called grossly ineffective, meaning up to 8,250 of California’s roughly 275,000 teachers would fit this description.)
• The two-year probationary period before California teachers are granted tenure at a school isn’t long enough to accurately assess their performance.
The plaintiffs also argued that it was “too time consuming and too expensive to go through the dismissal process [currently in place in California] to rid school districts of grossly ineffective teachers.” The judge concurred, noting that even a defense witness acknowledged such dismissals were “extremely rare.”
“There is no question that teachers should be afforded reasonable due process when their dismissals are sought,” he wrote (emphasis mine). “However, based on the evidence before this Court, it finds the current system … to be so complex, time consuming, and expensive as to make an effective, efficient, yet fair dismissal of a grossly ineffective teacher illusory.”
Judge Treu didn’t rule against tenure as a concept. He simply thought California’s system was structured in a way that violates students’ rights.
If state policy makers were to extend the probationary period for new teachers to 3-5 years and streamline the dismissal process for those who are demonstrably poor, it’s likely this new system would be judged constitutional, while still giving educators their due process.
But here’s the thing: The fact that this lawsuit was even filed is an unfortunate example of how the rich and powerful are able to frame the whole school-reform debate in their terms.
(Next page: Why the Vergara suit will have a minimal effect on student achievement)
Eighty-two hundred poor teachers in California is 8,200 too many—but why is it assumed that firing these individuals and replacing them with new teachers will solve the nation’s education crisis?
If as many as 3 percent of teachers are deemed “grossly ineffective,” that means 97 percent are not. So, why are the education “reformers” behind the Vergara lawsuit focusing so much time and money on a problem that affects only 3 percent of the student population? And how do they explain the disappointing achievement of so many other students?
It’s no secret  that a Silicon Valley magnate and charter school entrepreneur, David Welch, has spent millions of dollars to finance and publicize the Vergara suit. Welch and other corporate school reformers have been playing a massive shell game by focusing the public’s attention on teacher unions as the root cause of education’s problems, while diverting attention from other, more significant factors that decades of research have identified—such as poverty, inequitable funding, and a lack of parent involvement or accountability.
It’s insulting that this campaign is being framed as a civil rights issue, and that these so-called “reformers” claim they’re just trying to help poor students. You know what would really help poor students? Funding their schools at the same level as those in Atherton, Calif., where Welch makes his home—reportedly the wealthiest ZIP code in the country.
But addressing issues such as poverty and inequitable school funding would require systemic changes that address the widening gap between the rich and poor in this country, such as raising the minimum wage to a living wage for full-time employees, closing the tax loopholes exploited by large corporations, taxing capital gains on those with annual incomes over $250,000 at a higher percentage, and … well, we can’t have that, can we?
The Vergara case might result in fewer demonstrably bad teachers, but it ignores the larger, more complex reasons why our public schools are struggling to produce students who are ready for college or careers. And that’s the real crime in this lawsuit, because until these other issues are addressed, true large-scale improvement won’t be possible.