Seniority, Tenure and the Vergara Decision

On June 10, Los Angeles Superior Court Judge Rolf Treu issued a ruling that threatens to strike down California education code statutes protecting teacher due process rights, including seniority and “tenure”. The lawsuit on which Treu ruled, Vergara vs. California, was brought by nine California students, but it was supported by an array of corporate education “deform” forces, among them President Obama’s education secretary (Arne Duncan), the Los Angeles school district superintendent (John Deasey), a corporate-funded education “reform” group (Schools Matter) that has pushed anti-union initiatives in several other states, and a right-wing Silicon Valley billionaire foe of teacher unions (David Welch).

The Vergara lawsuitasserts that laws protecting more senior teachers in times of layoff cause the schools to keep “grossly ineffective teachers in classrooms while pushing highly effective, but less senior teachers out.” Judge Treu agreed, stating in his written decision: “The number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students. The evidence is compelling, indeed it shocks the conscience…ineffective teachers disproportionately impact low income and minority students and that getting rid of bad teachers is nearly impossible,”

The state’s largest teacher unions, the California Federation of Teachers (CFT) and the California Teachers Association (CTA), issued a joint statement describing the ruling as “misguided”. CFT President Josh Pechthalt said that far from protecting students of color in vulnerable urban districts, the ruling “is fundamentally anti-public education, scapegoating teachers for problems originating in underfunding, poverty, and economic inequality.”

This description of the ruling is only half right. There is no doubt that both the lawsuit and the decision are anti-public education, anti-union and fit entirely within the narrative of all that is wrong in public education can be understood by blaming the people who actually do the work within school: teachers, paraprofessionals, counselor, librarians, school nurses and psychologists. Secondly, it seeks to deflect the blame away from systematic underfunding of public education and the shredding of the social safety net in California that has led to losses in services to the most needy students and families across the state.

But the ruling isn’t ‘misguided’. On the contrary, it is entirely in line with Arne Duncan and Barack Obama’s wholesale attack on public education, which emphasizes merit pay for ‘good’ teachers and a streamlined dismissal process for ‘poor’ ones, which supports standardized testing and ‘value-added’ assessment for teachers to measure performance, and which seeks to replace public education with privately run (though publicly funded) charter schools that opens the estimated $1 trillion education industry to corporate control, profit, and plunder.

While much has been made of the lawsuit being supported by a prominent Silicon Valley public relations firm and backed by anti-union Silicon Valley billionaire David Welch, the real enablers of lawsuits like this are Democratic Party leaders – starting with Obama and Duncan and including a host of Congressional, state, and local politicians. They are joined by many Republicans – indeed, Obama and Duncan pursue essentially the same education program as did the Bush Administration. There has been bipartisan support for this program of bashing teacher unions, punishing schools, students, and teachers for poor results on high-stakes multiple choice tests, replacing authentic learning with robot lessons and scripted drills, and the overall privatizing of public education. If anything, the federal government’s complicity in the corporate assault on education has accelerated under Obama and Duncan.

Reflecting this consensus, the New York Times celebrated the Vergara decision and supported the continued bullying of teacher unions saying, “unions can either work to change the anachronistic policies cited by the court or they will have change thrust upon them.”

It is also why this malignant anti-union, anti-public education threatens to spread across the country. The legal team behind the Vergara case (ironically, the lawyers who fought the same-sex marriage ban in California) said they might bring similar lawsuits in Minnesota, New Mexico, Oregon, Connecticut, New York and Maryland. Other observers predict that dozens more may be taken on by legal teams throughout the country.

Let’s be clear. Barack Obama and the Democratic Party have declared open season on public education and the notion that education is a right for all. Carrying out this lethal agenda means dismantling teachers unions that stand as the biggest potential obstacle to that project.

What’s Really Behind the Attack on Tenure?

First off, it is important to understand that one feature of this decision that is NOT going to be challenged by groups like “Students Matter” and “Students First”
is the systematic underfunding of public education. Nor will they challenge the annual tradition of layoffs that comes with it. And of course, the cuts and layoffs in education are part of the broader cuts and layoffs to so many vital services. The Vergara decision celebrates the right of states to slash essential services and lay off public sector workers, while lambasting unions for trying to protect workers and services from these cuts. Thus, it upholds the principle – accepted without question by nearly every Democratic and Republican politician — that paying off state debt to the big Wall Street banks takes priority over delivering the essential services that tens (perhaps hundreds) of millions of people in this country depend upon. These priorities are upside down!

But having accepted this framework of enshrining debt repayment (“deficit reduction”) as the holiest of holies – more important than education, health care, housing, pensions, mass transit, etc. – school districts look to reduce their deficit not just by laying off teachers, but wherever possible by laying off higher-paid teachers. And since teacher pay increases with experience, school districts are looking for ways to lay off senior teachers. They can’t do this without gutting seniority. (To illustrate how teacher pay increases with experience: In San Francisco, a 1st year teacher with a bachelors degree earns $47,000 / year, while a 13th year teacher with the same degree earns $55,000 / year. These numbers become thousands of dollars bigger for teachers with advanced degrees. In Oakland, the difference is even bigger: $40,000 / yr for 1st year teachers, and $55,000 / yr for 13th year teachers.)

Capitalists like Bill Gates and Eli Broad know little about what goes on in the classroom, but they know how to count and they know how important it is to the bottom line to have “labor flexibility” when it’s time to make cuts.

Besides being more “expensive”, veteran teachers with seniority protection are more likely to stand up to school and district administrators than are new, probationary teachers. In California, teachers on probation can be dismissed without cause. Time and again, probationary teachers who dared speak up at staff meetings are given non-renewal letters come March 15 – that is, they’re fired at the end of the school year. Management would like nothing better than to be able to intimidate all teachers with the threat of such victimization. The Vergara decision, by stripping seniority, would let them do so.

The Vergara lawsuit claims to be protecting students of color from ‘ineffective’ experienced teachers. But any person who has spent a moment in an actual public school knows that experienced teachers are a school’s educational backbone. This is particularly so for schools that serve our most vulnerable students, who rely most heavily on teachers with several years’ experience managing challenging classroom environments and delivering differentiated curriculum to heterogeneous classrooms.

Yet in schools in urban high poverty areas – schools where the enrollment is most often predominantly students of color – the five-year teacher turnover rate is well over 50% (in many such schools, half the faculty is gone within two years). The big problem isn’t firing bad teachers. Rather, it’s finding, supporting, training, mentoring, and retaining new teachers and helping them to become good career teachers. Instead, the very forces that lead the campaign to strip teacher seniority promote “Teach for America” (TFA) as a solution. But TFA is an explicitly anti-union measure that recruits untrained new college graduates to teach for two years, after which most of them leave. This increases the already unbearably high teacher turnover rate, thus increasing the instability in already unstable schools and in their surrounding communities. Adding this increased instability to the lack of resources and support in schools in high-poverty areas, and then on top of this adding the punitive measures taken against these schools by the mandates of programs such as No Child Left Behind, Race to The Top, and School Improvement Grants, and it’s remarkable that so many good veteran teachers remain in these schools. And now, these senior teachers are being targeted.

And at a deeper level, there is the effect of poverty on education. Over the past half century, numerous studies have shown that at least two-thirds of the variation in student test scores is attributable to poverty and poverty-related factors. In other words, even as measured by the poor yardstick of standardized tests, the overwhelming obstacle to student achievement in high-poverty schools is poverty itself. Thus, the overwhelming obstacle to the achievement of students of color is poverty, and this is overwhelmingly a problem of the race and class divisions of capitalist society. A real solution to the problems facing our schools means getting rid of the capitalist system all together and replacing it with a system based on human need, socialism. You’re not going to hear that from David Welch, Bill Gates, Barack Obama or Arne Duncan, so of course they are going to blame teachers instead.

The Rise of Reform Caucuses in Education Unions

The attack on public education has not progressed without changes in our schools and unions. We are at the beginning of a potential revival of teacher activism within our unions. Such activism is beginning to challenge the tepid response of our unions to the attacks on our schools by the Democratic Party and the corporate reformers who push standardized testing, Common Core, scripted and on-line teaching environments, and charter schools that eschew the teaching of students with learning disabilities, immigrant students and challenging students who come into our schools with the least home-environment support.  While having experienced challenges and setbacks, groups like CORE in Chicago, SEE in Seattle, MORE in New York –populated by activist educators – are part of a growing movement to defend pubic education and restore full funding for education and other social services.  In California alone, this includes groups like the Breakfast Club in San Diego, Union Power in Los Angeles, the Berkeley Labor Caucus, Classroom Struggle in Oakland, and EDU in San Francisco.  These groups are attempting to push their unions to wage a much more deliberate struggle against these Democratic Party and corporate attacks (although none have explicitly broken with the Democrats).

These activist educators are definitely a target of the attacks on tenure and seniority in our schools. When layoffs come (and they have been a virtual permanent feature of public education over the last several decades) principals across the state will be encouraged by school districts to remove these troublesome, out-spoken teachers from their schools regardless of or despite their effectiveness in teaching. The message to the rest of the teaching staff will be clear after lay-offs are used to remove these activists, “You want to fight corporate reform of our schools? Shut up and do your job!”

Action Not Just Appeals

Unfortunately (and predictably) the response of education unions to this attack has been miserable.

NEA president Dennis Van Roekel virtually echoed the ‘blame the teacher narrative’ of the lawsuit when he said, “We have to stop wasting time on these issues that don’t help teachers do their job of educating students. It doesn’t change the fundamental problem, which is who in the world is hiring these people who are not qualified?”

Thanks, Dennis. Appreciate the words of support.

Closer to home, California’s statewide teacher unions, the CTA and the CFT, have emphasized a legal response from their lawyers. CFT President Josh Pechthalt described the ruling as a ‘bad news, good news scenario”, telling teachers not to worry because the good news is that Judge Treu “stayed the ruling pending appeal.” CTA president Dean Vogel echoed the promise of “no justice, no struggle” when he said “We plan to appeal this decision on behalf of students and educators, while teachers continue to provide all students a quality public education every day.”

This response is wholly inadequate but entirely in line with the tradition of relying on courtrooms and politicians to defend public education. This method has gotten us into this mess and cannot get us out of it. Continuing this passive approach will signal to the ruling class that educators are NOT going to fight these sorts of decisions, and will thus encourage continued attacks across the state and across the country.

What kind of response do we need from CTA and CFT? We need mobilization and action. The summer months prior to the opening of schools should be used to prepare for a massive rally in Sacramento (during a work day) some time in middle to late August, right at the start of the next school year. We need to go to Sacramento with our message, rejecting the demonizing of educators for the troubles in public education. We need to place the blame for this attack where it belongs – on the corporations and the rich who push the corporate assault on public education. We must call for “fully funded public education, fully funded social services and a massive tax increase on corporations and the rich to pay for it.”

Beyond that, we need to stress that the priorities in this society are upside down, and they need to be turned right side up. Stop prioritizing debt repayment (which goes mainly to the big banks) over schools and other essential services. No more multi-trillion dollar bailouts of banks and corporations at OUR expense. Bail out schools and services and end foreclosures. We need a multi-trillion dollar bailout for jobs and services, and we can start by demanding that the banks repay the $2 trillion of 2009 bailout money that they’re still holding onto.

These are the kind of changes we need to put before the public in response to this dangerous attack on teacher unions.

Of course this will not be enough to force the Democratic Party and corporate reformers to back down. CFT and CTA will need to put forward an unfair labor practice suit and prepare to defend it with a one-day statewide strike in late august or early September. This should be our opening response to this attack with a promise to escalate the response beyond this if legislators do not immediately assure protections to tenure and seniority. This kind of response will also send the message to our education sisters and brothers across the country that we will not take this attack without a fighting back. (And indeed, we should draw in other public sector unions – teacher unions represent nearly 40% of all union members, and weakening teacher unions, will weaken all of labor.) A legal appeal without class struggle will fail to stem the tide of the ruling class attack on education and will only invite copycat attacks across the country.

No More “Orderly” Layoffs!

And one last thing about ‘seniority’ and layoffs. Unions are loathe to talk about it but there is a problem with unions relying on seniority as an ‘orderly’ system for administering layoffs every year they come. The problem is there should be NO ‘orderly’ way for states to force layoffs on our schools. Unions have for too long put up only verbal resistance to yearly lay-offs, decrying the effects of these layoffs, without lifting a finger to defend our least senior teachers from the effects of the layoffs. It is little wonder that young teachers see little point in having a union, let alone participating in one when every year all we promise them is an ‘orderly’ way of administering layoffs that puts them at the front of the line for cuts (and wages absolutely no collective struggle to stop it).

Again, this means more than rallies. It requires work actions and strikes in the face of the layoffs that capitalists are promising for the future. Anything less than this from our unions means we are preserving seniority just to make layoffs easier for schools and administrators at the expense of new teachers who do in fact work just as hard as any of us to make schools work for our children.

We are tired of our unions hiding behind seniority to defend the status quo of layoffs and cuts to school budgets while sacrificing our newest members to feed the Democratic Party and corporate reformers who insist on cutting social service budgets.

David Cohen (a critic of the Vergara decision) and supporter of teacher tenure rights says at the end of his article: “Let’s stay informed and engaged. Stay vigilant, even adversarial as necessary – but calm.”

We disagree: the time for ‘calm’ has long passed. Now is the time to respond aggressively to this attack, now is the time to organize struggle to defend our schools and our jobs. And later, after we defeat seniority and tenure, we demand a more vigorous defense of ALL our members when layoffs come again next year.

If you agree with this, and are looking for ways to get CTA, CFT and our local unions here in California to actually fight this decision, contact us at or

Jack Gerson is a retired Oakland high school teacher. While an active teacher, he served on the executive board and bargaining team of the Oakland Education Association (OEA), and was an OEA delegate to CTA State Council.

Andy Libson is a high school Science teacher at Mission High School and a member of United Educators of San Francisco. He is also a member of the reform caucus. Educators for a Democratic Union.