The Big Money Behind California’s Tenure Lawsuit

On the surface, the ruling in the Vergara v. California lawsuit which effectively abolished tenure and fair hearings for misconduct in California on June 10 pitted nine mostly low-income, public school students, trying to use the power of the courts to patch up an education system they argued is failing them, against the state of California and two of its largest teachers unions.

The lawsuit, filed in May 2012 by a nonprofit called Students Matter, argued that five statutes of California’s education code detailing legal protections for teachers, including tenure, made it difficult to fire incompetent teachers. According to the lawsuit, these educators were primarily concentrated in low-income schools. Two years after the suit was filed, Los Angeles County Superior Court Judge Rolf M. Treu ruled that the statutes setting forth a two-year review process for teachers to receive tenure and due process procedures prior to dismissal – among others – were unconstitutional.

But dig a little deeper, and a bevy of venture capitalists, charter investors and Obama administration officials invested in the education reform agenda materialize as part of the swirling, multimillion-dollar brew of the Vergara lawsuit.

One such figure is David F. Welch, entrepreneur and creator of Students Matter. Welch comes from the other side of the tracks to the low-income students the Vergara suit purports to represent. In 2013, he made $2.39 million in the fiber optics communications industry, and lives in a house worth over $10 million in Atherton, one of Silicon Valley’s most expensive zip codes.

According to his bio on the group’s website, Welch founded Students Matter “to defend children’s fundamental right to have an equal opportunity to access quality public education.” This isn’t his first undertaking in public education. Welch is also an investment partner with NewSchools Venture Fund, which connects entrepreneurs to public education projects financed through the philanthropy firm. These include several charter schools, charter management organizations and a handful of projects to increase teacher evaluation through instantaneous data collection in schools.

Welch’s connections, and those of Students Matter, touch on many of the biggest names in education reform. The group’s advisory board boasts Ben Austin, the founder of Parent Revolution and cheerleader for the parent triggers laws that some have argued continue to privatize public education under the guise of parent choice. The California Charter Schools Association was also on a list of early backers for Students Matter.

Studentsmatter.org files its IRS forms under the title Students First Foundation, which shares a name with former chancellor of Washington DC’s schools, and outspoken education reform proponent, Michelle Rhee’s StudentsFirst.org. Welch’s personal foundation, the David and Heidi Welch Foundation, has also contributed $550,000 to Rhee’s Students First lobby, according to California investigative website Capital & Main. Student Matters did not respond to requests for comment.

The depth of interest in education reform measures doesn’t stop in the private sector. Students Matter, and by extension the education reform movement, have extensive ties to the Obama administration. Russlyn Ali, assistant secretary for civil rights in the US Department of Education, who is also in charge of ensuring equal federal funding reaches schools, is on Student Matter’s advisory board. So was Ted Mitchell, nominee for the position of under secretary of the Obama administration and president and CEO of NewSchools Venture Fund. Democrats for Education Reform, whose board of directors holds a statewide list of former governors, state senators and city mayors, were also early supporters of Students Matter.

At the local level, Los Angeles Unified School District’s superintendent John Deasy applauded the outcome in Vergara, as did Students Matter advisory board member and former superintendent of the Oakland Unified School District Tony Smith. The parent of one of the co-defendants in Vergara, Karen Martinez, ran for the school board of the town of Alum Rock and eventually unseated one of the main opponents of charter growth in the district.

The law firm litigating Vergara also has extensive connections in corporate litigation. Gibson, Dunn & Crutcher LLP, the California-based law firm hired by Students Matter, is representing Walmart in a gender discrimination suit, represented Chevron in its environmental dispute with Ecuador, and the Dole Food Company in a lawsuit involving allegations that pesticides used by the company caused sterility in farm workers.

A Long History of Education Reform in California

California is no stranger to education reform battles buoyed by the endless bank accounts of millionaires, either through the courts, through enrollment crises caused by growing charters in some neighborhoods, or through district policies which overhaul schools deemed as failing by removing all staff.

The $16 billion budget shortfall California experienced in 2008 led to thousands of teachers receiving pink slips as the fiscal crisis trickled down to school districts. The California Teachers Association estimates that more than 14,000 teachers lost their jobs in one year, a process called a “reduction in force,” or RIF. Many of these teachers were concentrated in low-income schools. Unemployment for some teachers wasn’t the only change pushed through during the budget crisis. A class action lawsuit, Reed v. State of California, attempted to make a structural change by arguing that seniority-based layoffs in public schools crushed by the budget crisis hurt the civil rights of students. The Reed case was supported by a broad range of education reform philanthropists.

Reconstitution, which forces teachers and administrators in low-performing schools to reapply for their jobs, has been applied to several large high schools in low-income areas. The policy is similar to that of “turning around” schools in Chicago Public Schools, where the district hires a company such as the Academy for Urban School Leadership to re-staff the school.

One notable example was the Los Angeles Unified School District’s decision to turn Crenshaw High School, one of only four majority African-American schools, into three magnet schools. The district argued the school was failing. Parents said they had not been given enough input into the decision, and said they were concerned that a selective enrollment magnet school would have space for a small proportion of Crenshaw students only. But some teachers said the school was facing reconstitution not only for its students’ performance, but also because of a pioneering curriculum that went against the vision of Superintendent John Deasy.

Alex Caputo-Pearl, then a history teacher at Crenshaw and now the recently elected president of the United Teachers Los Angeles (UTLA) union, said Superintendent Deasy had chosen the school for reconstitution because it had a strong union chapter. In doing so, he had dismissed the important gains teachers had made with a pioneering education model led by teachers in the school.

In 2011, Crenshaw had created its own education model, the Extended Learning Cultural Model, under an interim principal. In the year the program was in place, it allowed teachers to use their students’ cultures for teaching instruction with an expressly political mindset, design collaborative lessons across subjects and encourage students to work within the community. Educators at Crenshaw argued that there was an anecdotal change in students, but also a rise in the much-vaunted metric of test scores.

“This relates to the Vergara lawsuit in the sense that it really occurred in a way that educators who eventually got bounced out of Crenshaw during the reconstitution felt like they had no due process,” said Caputo-Pearl. “There was no real way to establish that they had an impeccable teaching record and had contributed in huge ways to the school and yet were the political targets for the superintendent.”

Caputo-Pearl, who represents a reform caucus elected in May 2014 to the leadership of UTLA, said this isn’t the first time in his 22-year teaching career he’s seen the importance of due process protections.

In 2006, Caputo-Pearl was forcibly transferred out of Crenshaw to a middle school on the city’s west side by then-Superintendent Roy Romer because of his organizing for additional resources for schools in the historically poor area of south Los Angeles. Three months later, through a due process hearing and community organizing, he was back at Crenshaw. “It was critical that I had a right to a hearing and due process,” said Caputo-Pearl, as well as the organizing done both inside and outside the school to help him keep his job.

Other teachers say measures such as RIFs or reconstitutions have affected their job security, a concern that tenure was created to help alleviate. Gillian Claycomb, a high school social studies teacher, said she has been working in Los Angeles public schools for four years, but has not yet achieved tenure because for two years she was a long-term substitute, a position that she says is essentially a full-time teaching job without benefits.

Claycomb says she didn’t have a full-time position because her school, Theodore Roosevelt High School in the working-class, Mexican-American community of Boyle Heights in East Los Angeles, had a declining population because of charters opening up in the neighborhood. “People who decide to teach in low-income schools realize that those students have had fewer educational opportunities, so we understand the need for different types of support,” she says. Even if it doesn’t translate into test scores, “the teachers that I’ve worked with have experience and knowledge of how to work with low-income students and overcome these barriers.”

True Struggles

So what’s really the problem with urban education in California? Laura Aguilar, 17, a senior at Manual Arts Senior High School in South Central Los Angeles and a high school organizer with the Community Rights Campaign, a grassroots organizing group, says her concerns aren’t about the quality of her teachers, but about ways in which her high school is policed. Aguilar has been organizing since she was 14, but has lived in Los Angeles’ low-income South Central community since birth. She says her main concerns are the policing in schools, as well as the school-to-prison pipeline in low-income schools, through which students with minor offenses are more likely to end up in the criminal justice system.

The Community Rights Campaign has tracked the racial and geographic distribution of “truancy tickets” in Los Angeles, which allow police to fine a student $250 for being found outside of school during the day, and established that black students are twice as likely to be ticketed. Aguilar helped rally students against the proposed expansion of Los Angeles municipal code 4504 in 2009, which would have expanded the jurisdiction of police.

Inside the schools, Aguilar says she is also most concerned with high levels of police and a physical environment that makes it hard to learn. “Outside of the school, we have police cars and then inside we have official school police,” she says. “Apart from that, we have a lot of gates in front of gates. It shouldn’t be like that. It makes me feel very closed and very oppressed. I’m treated as if I’m trying to escape.”

For educators inside the schools, resources are a constant struggle. Rebecca Solomon, a teacher at Robert F. Kennedy Schools in Koreatown, has taught in the Los Angeles Unified School District for 15 years. She said it’s clear that education reforms understand the huge role money plays in education, from offering basic materials to summer programs and advanced classes. The difference in opinion, she said, is about where those resources should go.

“We want those resources to go to places we think most effectively help teachers and students,” said Solomon, citing support services and counseling as important areas. “Our [students and teachers] interests are rarely in conflict.”

The Vergara decision blames low-performing teachers for the problems in urban education, using a metric called the value-added analysis. According to two of the witnesses against teacher tenure during the Vergara hearings, teacher performance can be judged by calculating how much students’ test scores increase each year, and then giving high scores to teachers whose students do above average. According to an analysis in Education by the Numbers, a blog by the Hechinger Report, “the general idea is to build a model that answers this question: are the students of this particular teacher learning more or less than you expect them to?” Using this metric, some researchers have found that teachers in low-income schools have students with test score gains that are below average.

But even opponents of teachers unions have questioned the use of this reasoning in Vergara to come to the conclusion that if teachers were easier to fire, there would be fewer low-performing students in low-income schools. Orin Kerr, a professor at the George Washington University Law School, said in a Washington Post op-ed after the Vergara decision that while he liked the results of the decision, the legal opinion was missing a step in the argument by not offering a waterproof link between teacher tenure laws producing bad teachers.

Kerr writes:

[It] would seem to require evidence of a causal connection between the laws challenged and the quality of teachers. But we don’t hear about that evidence. Instead, the judge notes that there are a lot of bad teachers in California. He then says that “on the evidence presented at trial” the laws led to the bad teachers and therefore trigger strict scrutiny. But the judge doesn’t say what that evidence is. In effect, he announces himself satisfied about the causal effect without telling us why . . . To be fair, I would guess that the judge is ultimately right that those laws create bad teachers. That position certainly matches my ideological instincts. But I would think that a constitutional challenge here requires evidence, not ideology.

Others question whether the broad consensus, though maybe not an explicit one, that questions workers’ rights to benefits such as due process is also at fault for the Vergara decision. Eric Fink, a professor of law at Elon University and expert in legal ethics, told Truthout that though judicial opinions aren’t meant to consider the politics behind cases, it could be difficult to toe the line. “The note on tenure, for example, has an implicit assumption that because tenure rights in California are stronger than in other places, they should be made weaker,” he said.

Fink, who previously worked as a lawyer for the Philadelphia Federation of Teachers, said that while the judge may be right that California teachers have more protections than other non-teacher employees, he also assumes it must be unjustified. “There may be a reason people need stronger protections, but he [the judge] doesn’t consider that.”

Looking Ahead

Students Matter has said it is considering filing similar lawsuits in New York, Maryland, New Mexico, Connecticut, Oregon, Kansas and Idaho, as well as any other states that may be responsive.

Caputo-Pearl says the California Teachers Association and the California Federation of Teachers will appeal the Vergara decision. But, he cautions, it won’t be enough to stop what he says is an onslaught of education reform measures.

“What we need to do on the ground is actually organize around investing in mentor teacher programs, organize around staffing and class size, organize around getting school administrators the training they need to actually effectively support teachers,” he said. “The reason is obviously not just to improve the system, but also to project to the public that we’re throwing down around things that matter.”

One project of United Teachers Los Angeles, and with which teachers Claycomb and Solomon have both been involved, is writing up a blueprint called The Schools Los Angeles Students Deserve. It is modeled after a 2012 study released by the Chicago Teachers Union, which used it to make a case for the structural changes that would help students and place the union in a central role of fighting for those demands. The Los Angeles blueprint calls for reduced class sizes, a stop to the policy of charters pushing out low-performing students, all schools fully staffed with music and art as well as counseling and social service professionals, fully-funded adult and early childhood education, and an anti-racist and culturally relevant curriculum.

Rebecca Solomon said that while teachers want to make change, they are “not interested in shouldering the entire responsibility of a money-free solution.”

The day that Vergara was issued, Solomon said she cried. Not because it was unexpected, but because “I knew if we don’t fight this, if we don’t create something new, another five year cycle is going to go by and you’re going to realize ‘oh, that didn’t work.'” And as a consequence of what she said is constant education experiments, Solomon fears, “our students are not going to be as successful as we need and want them to be for this to be a better society.”