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Analysis: The long wait for the impact — if any — of Vergara

Michael Janofsky | June 11, 2014

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Marcellus McRae, a lawyer for Vergara plaintiffs LAUSD

Marcellus McRae, a lawyer for Vergara plaintiffs at a news conference yesterday

Now what?

Two years after Vergara v California was filed and one stunning Superior Court decision later, the long wait to a final resolution now begins in earnest.

Will Judge Rolf Treu’s lower court decision stand? He knocked out five California laws that he viewed as unconstitutional, violating state laws that guarantee every public school student a quality education.

Or will the state and its two major teacher unions prevail on appeal, convincing higher courts that the laws serve a valuable purpose, providing due process protections that help recruit teachers and keep them in the profession?

Just as important as all that is the political message Judge Treu’s decision sent across the country, that here is a court that views quality public education as a civil right, guaranteed, in this case, by the California constitution.

Education policy is one of those passionate public debates that never goes away — and never seems to find a solution that satisfies all stakeholders.

It largely pits two powerful entities against each other in eternal conflict — reformists, who want change, any change, that can demonstrate better academic performance than what happens in traditional public schools; and teacher unions, whose prime objective is to safeguard employment, which generally means neutralizing legislative actions that would reduce the numbers of teachers, irrespective of their effectiveness in the classroom.

The decision in Vergara v California provides new fuel for the debate, as the opposing forces contemplate what it could mean for California — and beyond.

“This decision will undoubtedly spark interest in similar suits in other states,” said James Ryan, Dean of the Harvard Graduate School of Education.

He went on to say, “If suits like Vergara are brought in other states, this will be a long, drawn-out process. Litigation takes time, especially given the inevitable appeals process. The results are also likely to vary from state to state. The constitutional rights at stake are stronger in some states than in others, and the teacher employment laws in states also vary.

“It may be the start of something big,” he said. “But we won’t have a clear idea of just how big for years to come.”

That’s the thing, though, with education policy. It takes so much time to initiate, legislate and settle in. The full implementation of Judge Treu’s striking down five laws that set rules for teacher dismissal, seniority rights and tenure will likely not take effect for years — or not at all if the state wins on appeal.

In the meantime, state lawmakers here and elsewhere now have something more to contemplate, how this one judge viewed the conflict not by how it affects teachers but how it affects those they teach, especially the disadvantaged ones. He cited the lifelong consequences suffered by students doomed to learn from an ineffective teacher.

Marcellus McRae, a lawyer for the Vergara team who did most of the questioning during the two-month trial, said the value of a court decision is that it was free of political partisanship and influence with an unassailable rationale: “There’s no negotiating around the Constitution. That’s a tremendous wake-up call to the legislature, and if they didn’t know it then, they know it now.”

David Welch, the Silicon Valley billionaire who financed a Vergara communications team, Students Matter, and the same legal team that argued successfully against California’s Prop 8, had this to say after the decision was released yesterday:

“I believe our public education system is failing our children because it has stopped putting their needs and their success above all else. This case was designed to change that – to ask, how do the rules that govern our education system advance the best interests of California’s children?”

It’s a question other states may be asking on behalf of their public school children. The New York Times reported that Welch’s lawyers are “considering filing lawsuits in New York, Connecticut, Maryland, Oregon, New Mexico, Idaho and Kansas as well as other states with powerful unions where legislatures have defeated attempts to change teacher tenure laws.”

How all that plays out and how long it takes remain unknowns. But for the time being, they have another piece of evidence, in Vergara, to inform their thinking  — one way or another.


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