Vergara Decision on Tenure Appealed

teacherArguing that “changes of this magnitude, as a matter of law and policy, require appellate review” and that trial judge Rolf M. Treu had “declined to provide a detailed statement of the factual and legal bases for [his] ruling,” an appeal was submitted by Attorney General Kamala Harris on behalf of Governor Jerry Brown for the controversial ruling that would throw out the state’s tenure process for public school teachers.

The ruling also eliminated rules that made dismissing teachers more difficult and expensive than firing other state employees. Finally, Judge Treu eliminated regulations that made seniority the primary factor in deciding which teachers to lay off.

Judge Treu issued his final ruling: “The evidence is compelling,” the judge wrote in his original decision. “Indeed, it shocks the conscience.”

According to teachers’ groups, the judge’s final decision “offered no new reasoning or information as to how stripping teachers of their workplace professional rights will help students gain a better education. In rolling back the protections that allow teachers to educate their students and advocate for them without fear of arbitrary and capricious retaliation, the judge has set back a century of well-reasoned law.”

“The people who dedicate their lives to the teaching profession deserve our admiration and support. Instead, this ruling lays the failings of our education system at their feet,” said State Superintendent of Public Instruction Tom Torlakson, following a judge’s decision to finalize the ruling last week. “We do not fault doctors when the emergency room is full. We do not criticize the firefighter whose supply of water runs dry. Yet while we crowd our classrooms and fail to properly equip them with adequate resources, those who filed and support this case shamelessly seek to blame teachers who step forward every day to make a difference for our children.”

“No teacher is perfect. A very few are not worthy of the job. School districts have always had the power to dismiss those who do not measure up, and this year I helped pass a new law that streamlined the dismissal process, while protecting the rights of both teachers and students. It is disappointing that the Court refused to even consider this important reform,” the Superintendent added.

“In a cruel irony, this final ruling comes as many California teachers spend countless unpaid hours preparing to start the new school year in hopes of better serving the very students this case purportedly seeks to help,” he said. “While the statutes in this case are not under my jurisdiction as state Superintendent, it is clear that the Court’s ruling is not supported by the facts or the law. Its vagueness provides no guidance about how the Legislature could successfully alter the challenged statutes to satisfy the Court. Accordingly, I will ask the Attorney General to seek appellate review.”

His opponent, Democrat Marshall Tuck, said in a release that “[Torlakson] stands with his Sacramento funders and not with students.”

Mr. Tuck added, “Never has it been more clear that it is time for change in California than when the only [statewide] elected official dedicated to education will not side with kids — even after an independent judge found that the status quo ‘shocks the conscience.’”

“This decision fails to recognize the benefits to society provided by the challenged statutes, including the ability to recruit and retain educators, promoting teaching as a life-long career, the stability they bring to district employment decisions in layoff and other situations, and the basic due process they provide that allows teachers to speak up on behalf of their students,” said CTA President Dean E. Vogel.

He would add, “No link was shown between these statutes and the hiring or retention of ineffective teachers, or in the assignment of ineffective teachers to particular schools. On the contrary, the evidence showed that school districts have tremendous latitude in hiring and in assignment, and that in fact, underperforming teachers are remediated or removed from their positions frequently using the existing statutes. Simply put, the judge has ruled on faulty logic.”

“In ignoring all the real problems of public education, this is simply an anti-union attack masquerading as a civil rights issue,” said Joshua Pechthalt, President of the California Federation of Teachers.

“The central problems we face each day in the classroom are inadequate funding, poverty, lack of decent jobs in the communities surrounding our schools, and high turnover among younger teachers due to the pressures of those problems—none of which is addressed by the ruling in this case,” Mr. Pechthalt stated. “This decision will only reinforce the perception among idealistic young people that well-funded enemies of public education are undermining respect and support for teachers. This will make it harder to attract and retain young teachers.”

“I am beside myself with anger that JB is appealing Vergara,” Neel Kashkari, Jerry Brown’s opponent in November tweeted this week. “His lifetime of empty words about caring for the poor is utterly worthless.”

The California Federation of Teachers and the California Teachers Association anticipate joining in filing an appeal.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Frankly

    We know that the California appellate courts are owned by the Democrat Party and that party leaders always favor teachers unions over students because teachers unions given them hundreds of millions in campaign contributions.

        1. wdf1

          Can you find parts of the ruling that would refute this statement?

          Rolf M. Treu had “declined to provide a detailed statement of the factual and legal bases for [his] ruling,”

          1. South of Davis

            wdf1 wrote:

            > Is there any evidence that you can show that a pro-Vergara
            > out come would improve education?

            I don’t want to bash teachers and we have a lot of good ones in Davis (and other areas where the parents pay attention and care).

            Unfortunately the since bad teachers can’t (without spending boatloads of cash over years) be fired they get stuck in poor areas where (for the most part) the parents don’t pay attention and/or care.

            I didn’t even think that Verga would pass in the lower court since many on politics are happy with the current system where half the kids in many high schools drop out, get an EBT card and vote for the same political party until they die.

          2. wdf1

            Interview published in Salon, 6/19/2014: “This is a B- student’s opinion”: Why the education reformers’ latest victory is built on sand

            If [Treu’s] ruling is going to be upheld, and if he’s going to make a case for it, he needs to find a lot of facts. There was a trial here, there was testimony here; but there seemed to be very few facts that the judge explicitly relied on for his decision. So, he says, “Well, we know that there are a lot of grossly inadequate teachers in the system, and we know that at least some of these grossly inadequate teachers are going to go to low-performing schools, so that means that it’s a constitutional violation.” Wait a minute. There are six or seven different steps in there that you’ve got to make. The teachers’ unions argued, “Wait a minute — the reason the teachers might be grossly inadequate is because of the schools that they’re in, not because of the teachers themselves.” You can think that that’s right, you can think that that’s wrong, you can think that that’s true, you can think that that’s false; but it would seem to me that you’ve got to make an argument as to why you think … these teachers are grossly inadequate. What in fact is going on there? What is going on in these schools? That is the kind of thing a trial judge can and should be doing, and the judge here just didn’t do it.

            Here’s the actual tentative decision of the Judge Treu.

      1. hpierce

        I’d turn your question around…do you have concrete evidence that make the following more harmful to the educational outcomes of students?

        1. Bringing disciplinary/dismissal rules into line with those used for other State employees?
        2. Removing tenure as the primary criteria used in who gets laid off in a reduction of teaching staff?

        As for number 2., I have no evidence, but it seems likely that an enthused, talented teacher with fewer years “under their belt” being retained instead of a marginal, “going thru the motions until retirement” teacher, would likely benefit the educational outcomes, particularly over time.

  2. Rich RifkinWDE 73

    As much as I would like Judge Treu’s decision to hold up, I now think it is unlikely. I agree with his conclusion that teacher tenure rules help keep bad teachers in the classroom and that generally has a harmful effect on students who are stuck with those bad teachers and tenure likely has a disproportionately harmful effect on students from poor and broken homes. However, I think his legal opinion* lacks merit. It does not seem to me to be grounded in case law or the Constitution. He tenuously ties it to Brown v. Board and Serrano, claiming that, because of the ill-effects teacher tenure has on the lower classes, it inherently denies children from those backgrounds “equal protection.” That, to me, seems like a real stretch.

    What I think ought to be done, by initiative, because our corrupt legislature will NEVER fix this problem, is to have the people of our state vote for a law which effectively ends teacher tenure, saying something like districts must grade all of their teachers and those who fail to perform up to standards must be fired, regardless of time served in a classroom.

    I would leave it up to each district to establish its own standards, perhaps with some sort of state supervision. My belief is that it is unwise to base teacher grades solely or even mostly on a metric derived from student performance. Rather, I think some combination of peer review, parental opinion, principal judgment and student progress over several years would best figure out who the crappy teachers are and get them removed from classrooms. It also might serve as a basis for figuring out who the best teachers are and rewarding them with job protection in times of budget cuts and bonuses paid for good performance.


  3. Tia Will


    I largely agree with your position but am wondering how to prevent the potential downside which I see as the local community having too much power in the decision making. I can easily see this becoming a local referendum on the popularity of a given teacher, or the communities rejection of certain scientific ideas ( Scopes trial as a distant example) such as reproductive facts or evolution. How would we guard against a school community trumping up causes to get rid of a liberal or conservative or gay teacher ?

    I understand the harm attributable to tenure, but I also understand its legitimate protections of teachers whose only inadequacy may be divergence from the prevailing opinion of the community.

    1. hpierce

      I don’t think anyone is advocating that teacher retention/dismissal would handled any differently than for any other public worker… just the same. I wonder how you see the ‘potential downside’. Or, are you advocating that the community should have MORE input as to whether, say, a particular City planner or engineer be retained or let go due to their judgments, political persuasion, etc.

    2. Rich RifkinWDE 73

      TIA: “… how to prevent the potential downside which I see as the local community having too much power in the decision making.”

      I’m not sure there are any perfect formulas or solutions, only better and worse. Keeping teachers in the classroom who fail to meet the standards a district sets for its teachers is clearly worse.

      Where “community power” should play a role, albeit in my opinion a secondary one, is with parents. I would leave most of the judgment up to the principals and other teachers who have had the chance to review a teacher. I would also look at, and give some weight to, how much progress a teacher’s students make relative to similar students with other teachers over a period of years. But in some cases, many, most or all of the parents in a classroom will identify a bad teacher, one who is ineffective or harmful to their children. That type of judgment should be given consideration, too.

      I don’t know if it should result in firing a teacher. It might merit some sort of interim step. But (from my own experience with a bad elementary school teacher I had as a child) when parents are up in arms over a teacher–usually someone new, and thus removable–the district needs to make amends.

      Attention to underperformance is equally important when the teacher is a veteran. At the very least, the district needs to know why a veteran teacher has gone downhill. (I had a couple of old drunks for teachers at Davis High. I am bitter to this day that I never learned any chemistry because my teacher came in drunk every day and just gave out A’s and taught nothing.) Obviously, teachers are human beings, and can be affected by health or family problems. They should not be fired for those. But it’s wrong for a district to do nothing and have the teacher’s maladies ruin the educations of his students. Again, I think there are solutions short of firing someone. But I think education, especially in the early grades, is far too important to err on the side of teacher retention. Schools should err on the side of the children’s interests.

      1. Tia Will


        This all sounds reasonable to me. Especially if we were to enact a robust rehabilitation program for those whose life circumstances have caused them to “go downhill” as you stated.
        We have done this in my field and have seen a few dramatic turn arounds with early intervention and a willingness on the part of the doc to accept help.

  4. Tia Will


    I am not advocating at all. Sometimes a question is just a question. This was one of those times.

    However, your question about what I see as the potential downside made me think about this issue a little more closely and I do see a possible difference between the situation of a teacher as opposed to other classes of public worker. This difference lies in the inherent nature of their work. There is an emotional component that is involved when it is one’s child that is involved over and above what is involved when dealing with say a city grounds keeper or clerical worker.

    With a teacher, there is the idea on the part of some that somehow what the teacher is presented will “corrupt” the mind of what is most precious to them, their child. For example, a very religious individual may object to the presence of an avowed atheist in the school even if their subject matter is something completely neutral such as arithmetic at a lower grade level or calculus at the high school. I do not believe that a clerical worker or grounds keeper would be subject to the same threat of discriminatory action as a teacher might be. I do not speak idly in this regard. I considered long and hard about whether or not to send my daughter to a private Catholic school as I knew that she would be subject to a fair amount of indoctrination into a belief system that I do not share. She was, and came out stronger in her own belief system for it. However, I can see that in the case of the public schools, some might find ( and might find enough others like minded) to decide that having the teacher fired for “incompetence” or some other trumped up excuse and to act on that prejudice. Do you believe that this could not occur ?

    1. hpierce

      I believe that if such “wrongful” termination occurs (which it would be), the truth would “out” at some point, and then pressure could and should be on school administrators to be disciplined, up to termination, and Board members could and should be recalled.

      I just don’t see teachers needing more protection than other professionals… you say it’s different for teachers… ask the most ardent proponents of the Fifth Street road diet, or opponents of the Cannery project, or those upset about the NewPath/CrownCastle telecom fiasco whether they wanted certain city employees terminated. Heck over the years, there have been ‘calls’ for that by writers contributing to this blog.

      1. Tia Will


        I concede the point about some less than circumspect individuals calling for consideration of dismissal of public workers on the basis of disagreement. It would be highly hypocritical of me not to in the face of the recent post suggesting that it might be time to consider removing
        Chief Black over the MRAP decision.

  5. Don Shor

    Re Rich’s suggestion:

    some combination of peer review, parental opinion, principal judgment and student progress over several years

    As a general guide, I think some combination of these would be reasonable as well. It’s hard for parents to have any input at all, so I don’t really share Tia’s concern about undue influence in that regard. School bureaucracies are particularly adept at screening out parental influence.
    In discussions of education reform, we often get asked (by wdf, for example) how you would judge teachers or assess their perfornance. Standardized test scores of student performance have drawbacks. Putting complete power in the hands of principals has drawbacks. Nothing is perfect — but neither is the present system which protects incompetent teachers. Teachers have a right to some form of due process; parents have a right to expect their children to be educated effectively. Principals are the likely arbiters, overseen by school boards. So review boards that incorporate all of those participants are likely to be fairest and most effective.
    Seems that the only stakeholders with no say in all of this are the students.

  6. Tia Will


    “It’s hard for parents to have any input at all, so I don’t really share Tia’s concern about undue influence in that regard”

    Unless things have changed dramatically in the last 12 years, I have to disagree with this statement based on direct school involvement. For years I asked at my children’s school to volunteer to give a health presentation in their classroom just as other mother’s gave presentations on how to cook specialty items from their cultures or art projects or gardening. Every year the response was the same. The teachers really wanted me to do this as many of them did not feel either comfortable, or like they had sufficient knowledge in the area of anatomy and physiology to do an adequate job. And every year, the answer was the same. “No, because a very vocal group of parents did not want information presented by a gynecologist”….never mind that I stated that I would leave the reproductive system out altogether for some presentations if there were objections. I think just the thought that some children might want real answers to real questions was enough to make some parents object.
    I would not downplay the ability of parents who have the ear of administrators to push their agenda.

    1. Rich RifkinWDE 73

      DON: “It’s hard for parents to have any input at all (on whether a teacher is retained or not), so I don’t really share Tia’s concern about undue (parental) influence in that regard.”

      TIA: “… I have to disagree with this statement based on direct school involvement. (Parental objections prevented me from giving health lectures at my kids’ school.)”

      Wait a minute, Tia. That story is interesting. But it is a non sequitur. Don specifically was talking about whether parents are now being heard regarding teacher retention. He couched his statement with “in that regard.” Don did not mention all areas of parental influence.

      Your story suggests that a vocal minority of parents can have an influence in affecting something which, while important in life, is arguably not the core mission of a general educator. I would not say this if the class in question was specifically health or sex ed or human biology. I assume you are talking about a more general classroom.

      I think most would agree that the principal mission of a public school teacher is to lead his students to learn the subject(s) he is charged with teaching, motivating them to put in the work they need to master the subject(s) and guiding them along the way toward that end. If parents really have “undue influence,” as you believe, I would say that would be borne out by pushing a school or district to fire a teacher who was succeeding in that core mission (as suing he was not abusive or a moral reprobate). I don’t think that stopping a doctor from giving a health talk to a 4th grade class, while valuable in my mind, suggests influence over the core mission of pedagogy.

      1. Tia Will


        You are right. My example does not meet the specific criteria that Don was addressing regarding the ability of parents to affect retention of a teacher. However, I am still not totally convinced that he is right about the very limited power of a core of determined parents. Let me try again with another circumstance and see what you and Don think.

        We know that there is an ongoing controversy in our country about what material is appropriate to teach to our students. One of the most contentious issues is with regard to reading choices in English literature.
        This especially manifests itself in materials containing sex scenes and or minority views of how the dominant US culture came to be and its ongoing impact on minorities. It is fairly common for us to read about a core group of parents, having decided that they do not want their children exposed to certain ideas attempt to censor an individual book chosen by a teacher. I do not see it as too far a stretch to see that in the case of a particularly vocal and or persistent teacher who would not chose to voluntarily or under duress self censor that there might be a push for his or her removal. Maybe not so much so in Davis…..
        but I can certainly see this happening in settings such as some places I have lived in Orange County.

        Does this address my concern about Don’s point better ?

        1. Rich RifkinWDE 73

          I again think your point is valid. However, in most cases this is likelly another example in line with your experience of health education. Where it works best–and you pointed to examples of this–is when public influence effectively dumbs down course work to meet the political views of the public. For example, a history class bypassing a core part of our history because of its controversial nature; or an English Lit class eschewing the best authors in favor of mediocrities to assuage political sensitivities of the aggrieved.

          Yet, I do have a quibble with one thing you state: “This especially manifests itself in materials containing … minority views of how the dominant US culture came to be and its ongoing impact on minorities.

          Perhaps unintentionally, you have used minority and minorities in two distinct ways in the same sentence, confusing your point a bit. Just for clarity’s sake, presume for a second that minority equals black. Here is your sentence again with that change: “This especially manifests itself in materials containing … black views of how the dominant US culture came to be and its ongoing impact on blacks.

          While that is more understandable, it is problematic. It seems to presume, I think incorrectly, that blacks (or minorities) have a uniform view regarding “the dominant U.S. culture and how it impacts them.

          However, there is another way of reading your sentence, not equating minorities with an ethnic or cultural sub-group, which I think is more defensible, and perhaps what you meant all along. Try it this way: “This especially manifests itself in materials containing … unpopular views of how the dominant US culture came to be and its ongoing impact on some racial and ethnic minorities and others outside the mainstream of American culture.

    2. Frankly

      Tia – Do we have tenure for practicing doctorrs? Any other profession?

      I think the answer is no, and no.

      And why not? If this tenure is such a positive thing, then why not other professions?

      Tenure was always a stupid idea. Continued advocacy is just being stuck on stupid.

  7. Tia Will


    In a sense we do have “tenure” fro practicing doctors if you define tenure to mean protection against dismissal based on time served with acceptable performance to the time they are accepted in to the group.

    So the way this works in Kaiser, as well as similarly in other systems is the following:
    A doctor is hired on what is offered as a career track. They are evaluated over the first two years of their practice within the group. At that point they are either put up for “participancy” or told that they will not be advanced.
    If they are accepted as a “participant” by a vote of senior physicians, they work for the group for one more year and if their performance remains acceptable, their name is forwarded to the group for acceptance as a “senior physician. This serves almost as a form of tenure as it is very rare for a doctor to be dismissed from the group after this point. Although we do not have a union, extraordinary efforts are made to help rather than fire physicians after this point. I can think of only one or two cases where physician impairment led to dismissal from the group in the 30 years that I have been with Kaiser so I would say that “de facto” this represents a form of

    1. Rich RifkinWDE 73

      One difference between teachers and physicians is consumer choice. If I regularly go to a doctor, as an adult or as the guardian of the patient, and I don’t think that doctor is fully competent, I will change doctors. Although I am not a Kaiser patient, I am the guardian of one. And while I have been very pleased with almost all of the doctors I have interacted with, I did find one who I believe is less competent in his specialty than he should be. He misdiagnosed a problem which was not difficult to diagnose. It took a second doctor, also at Kaiser, one minute to figure out the original diagnosis was wrong. They delay made the problem much worse. So we will not go back to see Dr. Incompetent any more.

      In the case of a teacher, parents who are actively involved in their kids’ educations–like so many parents in Davis are–will try to have their kids change classrooms if they get stuck with a nincompoop. However, that is not always easily accomplished. The district may say there is no room in other classes. And less involved parents, which we also have in Davis, often don’t know how bad their kids’ teachers are until it is too late. In a case where a child comes from a broken and poor home and his single parent is not actively involved in his education, his losing a year or more to a bad teacher can derail his entire educational future.

      All that said, there is a market problem with patients thinking they know this is a good doctor or that one is bad (other than good or bad bedside manner, which takes no expertise). Most of us have no way of fairly judging our doctors, unless something goes wrong, and even then, it might not have been the doctor’s fault. We simply lack the scientific expertise.

      For example, I had some surgery in 2012 at Sutter Davis Hospital. It was a very positive, successful experience. The surgeon, anesthesiologist, the nurses and so on all did a great job, and I have never had a problem since. But I had no way to know that would be the case in advance. And had my surgeon been lousy, it’s not like I would just avoid using him in the future. If I were shopping for nails and found the ones they sold at Hardware Store A to be bad, I would shop the next time at Hardware Store B. But getting surgery, one time, is not like that. Without expertise in the field, you simply have to trust your doctor knows what he is doing. And you hope that if a surgeon is bad, the hospital or his accrediting board will get rid of him. But even that is not certain.

      1. wdf1

        Rifkin: One difference between teachers and physicians is consumer choice.

        If you examine a community that is poor and isolated (either rural or urban), there really isn’t the kind of choice you suggest, with teachers or physicians, grocery stores or hardware stores. Your example holds up in Davis because of a certain amount of affluence that allows for choices.

        An issue I have is that seeking to abolish teacher tenure and seniority the way that Vergara proponents hope for will not solve this kind of poverty. I imagine myself as someone who might hypothetically be making a choice to pursue teaching in a poor community or not. This decision (if somehow upheld) only makes teaching in a poor community a little bit less appealing.

  8. Tia Will

    I agree with all the points you have made with regard to our situation in Davis. This however does not hold in rural situations or in some inner city situations in which there is no logistical way that people can make a choice. Tenure, like every other system has its pros and cons. I tend to agree with you that given the knowledge that no system will ever be perfect, knowing we will at times err, it should be on the side of the children not the protection of poor teachers.

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