Last week, something happened in a Los Angeles courtroom that rocked the education policy world. A judge declared due process rights for teachers—commonly known as "tenure" unconstitutional in the state of California in the case Vergara v. California, so named for one of the several students named as plaintiffs.
Virtually everything about the Vergara trial is misleading, starting with the trial’s name. Though my heart goes out to the students whose district has likely not offered them anything close to the educational resources and opportunities they deserve, this trial has nothing to do with fixing what ails them. Indeed, some of the people bankrolling it, like billionaire , to a campaign against the Proposition 30 millionaires’ tax that passed as a ballot measure in 2012, and is designed to restore much needed funding to cash-strapped public schools. Then there’s billionaire David Welch.
Vergara v. California really ought to be known as the Welch trial, after the Silicon Valley tycoon whose “lawsuit in search of a district” finally found the one where these students reside, in the City of Los Angeles.
It’s bad enough that deep-pocketed special interest groups have been able to use their money to corrupt the electoral process, and to poison public policy conversations to their advantage via their superior access to media and policymakers. It’s their well-funded message machine, after all, that distorted the meaning of words like “tenure” in the first place, tricking Americans into turning against the idea of employees being considered innocent until proven guilty of incompetence or wrongdoing on the job. (Let’s hope they don’t suddenly turn against due process in the rest of our justice system, lest we all end up not only wrongfully jobless but wrongfully imprisoned.)
But now, thanks to the Welch trial—and the others to come, if the ad campaign just launched by hired gun has its intended effect— we see that not only are the executive and legislative branches of government up for sale, but the judiciary may well be, too.
With this verdict, the message of the Welch trial outcome is clear: If you have enough money and an ideological grudge, you, too, can use America’s children as props—and our public courts as a stage—to engage in destructive acts of political theater. Unfortunately for us, these are essential rights the courts are playing with, rights whose abrogation will have real consequences for this nation’s children. And let’s be clear: The fear of being fired for no good reason is not a thing of the past, as the Welches of the world would have you believe.
Among those who do not have due-process protections, including pre-tenure teachers, instructors in most charter schools, educators in most private schools, and in states and districts without tenure, we have many living examples of why the due process guaranteed by tenure still matters. In my past life as a well-regarded but non-tenured teacher, I learned the hard way that questioning a principal for asking teachers to do things that are against students’ interests can cost you your career. (Fortunately for me, I established a new career speaking out against injustice. There’s not always money but, sadly, there’s always work.)
It is still the case that tenureless teachers risk being fired for speaking out against cheating, marrying the person they love, and getting pregnant, among other things. A profession that already sheds up to half of its ranks every five years can hardly afford these losses, and neither can the children and communities they serve.
Completely ignoring these facts, as well as the simple truth that several of the plaintiffs , Judge Treu’s transparently biased verdict ensured that considerable time, energy, and money will be spent appealing this attack on teachers’ rights, and fighting copycat cases that are to sure to follow. This will rob us of time and resources that could be spent improving recruitment and development of teachers, or dismantling poverty, or fighting inequality, or ameliorating inequities in school resources, or any number of things that actually impact student learning.
Not one student will benefit from this. Neither will the rest of our society, if we continue to allow an advantaged few to use our court system to undermine our ability to defend the rights that make us a free people. As outspoken teachers are already finding out, what good are First Amendment rights if you have to choose between exercising them and paying your bills? If there are willing judges out there, and enough public relations people for hire, what’s to stop any industry from launching faux-populist crusades to overturn long-standing rights, or to prevent the establishment of important new ones?
This case will be appealed, as it should be. But if our courts become a playground for deep-pocketed ideologues who only pretend to stand up for the disadvantaged, what will that mean for groups that really do defend society’s underdogs?
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