Tuesday, August 23, 2016

Let The Vergara Whining Begin

Vergara is dead (probably, mostly).

The California lawsuit brought by gabillionaire anti-union, pro-charter reformsters has finally had a well-deserved stake driven through its non-existent heart.

When the appeals court shot it down, the determined that while one might imagine that in some imaginary alternative universe without tenure laws, students might get better teachers,  

the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

The petition to have the appeal heard at a higher level court has been denied.

There are interesting points to be found in the decision and the dissents. For instance, one dissenting judge argues that while some classes of students are getting a churning mess of less-than-awesome teachers, that doesn't appear to have anything to do with tenure, but is instead "because they were enrolled in a distressed school district."

A conservative observed way back when Vergara was first decided that this case could turn out to be a tactical error (I don't remember which one-- sorry, writer for whom I'm not giving full credit for prescience) because Vergara underlines the state's obligation to provide decent schools under "equal protection." And reading this decision, I am struck that the case-- even in the dissents-- could end up saying, "No, you can't sue the state for having a tenure law, but you could probably sue it for underfunding poorer school districts." In which case the whole business could boomerang back in the faces of the folks who were hoping to use Vergara to weaken public education.

But mostly the folks who were banking on an eventual upholding of Vergara are sad.

Take, for instance, Jeanne Allen. Allen is the founder and CEO of the Center for Education Reform, an organization that has been yipping regularly for the crushing of teacher unions and the sweeping aside of public education in favor of charter schools. I'm on CER's emailing list, and their response to Vergara's death was swift and senseless. Here's the whole thing, minus the press releasy opening graph:
"At a time when innovation and opportunity are so desperately needed in education, it’s astounding to think that hiring and firing decisions are based on artificial parameters such as how many years an educator has been in the classroom. It’s a huge disservice to kids. Our schools need the freedom to staff their institutions appropriately to meet students’ ever-changing needs.
"The California Supreme Court has inserted legal rights that otherwise do not exist. In doing so, they relegate too many children badly in need of a great education to ineffective schools and ignore the science that a great teacher can make a difference in the life of a child.
"Tenure discourages great teachers by protecting those who might not be able to keep their job if they had to prove their success. This decision is bad for aspiring teachers and bad for kids."
Yes, being able to hire and fire teachers at will would totally drive innovation because... reasons? It's the Dread Pirate Roberts School of Management ("I'll probably kill you today.") But then, Allen also assumes that hiring and firing are only based on years of experience-- wait-- hiring is based on years in the classroom??!! In fact, firing is pretty much always on turning out to be bad at teaching. Now, maybe she means layoffs based on years of experience, but as we see in places like Chicago, that's not even true everywhere. At any rate, we know that the traditional system promotes stability and protects the district's investment in teaching staff. 

Second paragraph? Well, that of course is what Vergara failed to do-- that tenure (I know, I know-- we should be saying "due process protections" but "tenure" is what most civilians think this is about) has anything to do with maintaining quality education. And while nobody would argue that good teaching is good for children, the "science" presented at the trial was bunk.

Allen would also like to reassert the notion that aspiring teachers would be more interested in teaching if they knew that they would never have job security and could be fired at any time for any reason. Because that's what really gets people interested in devoting their lives to a line of work.

Oh, and I almost forgot-- the heading for this whole thing "Sad Day for Teachers' Rights in California." Because, you know, at the end of the day, Vergara was about protecting a teacher's right to be fired at any time for any reason.

I could point Allen to research like Eunice Han's paper showing that a strong collective bargaining actually increases the likelihood that "bad teachers" will be fired, but Allen doesn't really care about public schools, teachers, or the students who attend public schools-- she's just to rip down public ed and push profitable charters. If she did care about anything except charter growth, she would be questioning things like the chronic underfunding of some schools, or asking how better to hold onto great teachers and get their best work out of them (spoiler alert: you don't do it by threatening to fire anyone at any time for any reason).

I don't want to spend a lot of time doing a happy dance about Vergara's ultimate fate, but the whole business is a reminder that in the public ed debates, there are reformsters who are thoughtful critics who reach some terribly wrong conclusions with reasonably good intentions. Then there are people like the bankrollers of Vergara and Allen, who are just vandals who want to tear down teaching and public education  so they can gain some power, make a buck, and never have to listen to anyone disagree with them ever again. Vergara was a bullshit lawsuit with no real purpose except to shut up and shut down teachers, further weakening public schools in California. Its defenders were increasingly driven to rhetorical ploys that defied all logic and sense and actual facts.

There's no doubt that they'll find new outlets for their nonsense (Allen has been peddling her baloney-laden wares on Twitter to support Massachusetts' Let's Make More Charter Operators Rich bill), but at least, once the last few tantrums are over, we won't have to listen to any more Vergara-based foolishness. All the parties who were oh so interested in Vergara could stick around to have a real discussion about how to actually strengthen public education in California. Go ahead and place your bets now on how many will actually do so-- or whether we're just going to be treated to more shenanigans to try to get to the federal level. 


  1. Replies
    1. And today's winner for Most Entertaining Typo...

  2. The bottom line is that CA has become a terrible state for education. Our unfunded mandates, including taking tests on computers, have become a burden on the districts that can least afford them. Our rich districts pass the cost of basics, like pencils and copy paper, directly onto students, despite a state constitution which prohibits it. Foundations and PTAs in wealthy districts fund art, music and science, again despite how education is supposed to be funded. Class sizes are 32:1 in third grade and above.
    Teachers are aging out, and no one is willing to replace them. Our teachers are unable to collect social security for the jobs they did prior to becoming a teacher, or any job they get after being a teacher. Or they forgo their retirement benefits. It is a disaster, many many years in the making.
    Tenure is the LEAST of our problems.

  3. Had Jeanne Allen attended law school, she could have avoided profoundly ignorant comments on the Supreme Court of California denying review of Vergara. Her unhinged, and nonsensical discussion of "inserted legal rights" baffles. As the face of the neoliberal corporate education reformers, she demonstrates the disconnect with reality and facts that is endemic in their project.

  4. Thanks, everyone, and especially that "clever" Peter Greene. I don't know you, and would not dream to question your motives, your intentions or frankly, your expertise. Great teachers - and people who value principled discourse - rarely find it necessary to conduct themselves in mean-spirited and insult-laden ways. It doesn't bother me, but it doesn't nothing for your cause, other than demonstrate, for the upteenth time, that all you have is insults to whip up frenzy among people who may have the best of intentions but nevertheless want to defend mediocrity. It's wrong, and it doesn't work. As they say, you're entitled to your own opinion, not your own facts. I wish you peace and joy and all good things for you personally. Professionally, I will fight you and your friends - ceaselessly.

    1. Ms. Allen, I don't know you either, though I've watched you work on multiple videos, and your dislike and dismissal of public education and the people who work there are pretty clear. I think you've made your intentions pretty plain, and your skills at using insults and belittling are certainly as well-developed as mine. As you demonstrate here, you are pretty good at the finely-turned passive-aggressive insult and, writer to writer, my hat's off to you for that.

      There are plenty of people in the ed debates who are interested in productive conversations, and I have had productive conversations with many of them (though as a classroom teacher, my affect on influential policy discussions is between slim and none). These are folks who have a personal or ideological bent and are interested learning more and really seeing how things look from the other side. They start with the assumption that intelligent and well-intentioned folks can reach different conclusions.

      There are also people who are strictly advocates of a particular point of view, either because they are personally invested in it or because it's what they're paid to do. They aren't really interested in understanding other points of view, but simply in making the case for their own "side." You seem to fall pretty clearly into that group. I don't think that necessarily makes you evil or unprincipled, but it does make it hard for me to take you seriously. You seem kind of angry, and stuck in an increasingly case of tunnel vision. None of which makes you a bad person.

      It would be nice to have a real conversation with you, albeit challenging. Feel free to reach out any time you're interested.

  5. Imagine if the money that paid for Allen's group and the edppost and all these education consultant groups or pr groups and sites went to our schools instead. Won't hold my breath since that would mean funding schools for "those people" and most that pay their bills don't see the rest of us as human enough to invest in.

  6. I'm so tired of people like Jeanne Allen, who never taught a day in her life, whose interests are "Branding and personalized marketing", and who is now working on a Master's in Educational Entrepreneurship, which of course is business, not teaching, acting like they know anything about teaching and learning and what schools and students need. It's ludicrous.

  7. Dmitri Melhorn predictably blew a gasket:

    (after writing an article months ago proclaiming absolute certainty that not only would the CA Supreme Court hear the case, but would rule in favor of the Vergara plaintiffs)


    He compared the majority opinion CA Supreme Court Justices to Roger Taney, who wrote the 1857 Dred Scott majority opinion.

    Goin' a little over the top now, Dmitri?

    Just a little, maybe?

    Melhorn's doctor needs to up the dosage of whatever psych meds this guy must be on... as the current prescription is not getting the job done.


    "In the long struggle to make the United States more just and perfect, court majorities have made some horrific mistakes. When that happens, the burden falls on dissents to provide hope for the future arc of the moral universe. Such dissents often come from the most distinguished jurists. Benjamin Curtis, for instance, was the first formally trained lawyer on the United States Supreme Court. In 1857, he dissented from the Dred Scott case that eviscerated the civil rights of African Americans, arguing that: “free persons, descended from Africans held in slavery, were citizens of the United States.”

    " ... "

    "In a shameful abdication of duty, 4 of the 7 California Justices refused to even listen to the arguments of Beatriz Vergara and her fellow plaintiffs. Those four justices, Carol Corrigan, Kathryn Werdegar, Tani Cantil-Sakauye, and Leondra Kruger, thus join the ranks of names such as those of Roger Taney and Henry Brown that will be forever tainted by their defense of a brutal and discriminatory system."

  8. It is obvious that Jeanne Allen really does care a lot about how poor black and brown children are educated. There is a lot of money that can be made from them! Her Masters Degree in “Education Entrepreneurship” tells it all– the true motive for much of the reform movement is making money (from poor people at taxpayer expense)!

  9. Mercedes Schneider did a bravura “close reading” of the public filings of Students Matter, the organization behind the Vergara and other corporate ed. reform lawsuits.

    In its public filings, the organization’s full name is:

    “Students Matter, the Students First Foundation (SFF)”

    She found some statements that were very interesting, to say the least, emanating from this ( in Mercedes’ words) “corporate reform lawsuit factory”:


    StudentsMatter Is Millions in Debt from Vergara Lawsuit, Yet It Keeps on Suing


    “This next part is my favorite:

    “Creating grass-roots-ish buy-in for top-down-birthed education litigation. Also included on the second 2012 tax form:

    Students First public filing:


    That sure perverts, or at least, contradicts the meaning of “grassroots.”

    Wikipedia: “Grassroots movements are associated with bottom-up, rather than top-down decision making, and are sometimes considered more natural or spontaneous than more traditional power structures.”

    Mercedes’ article also states how Students Matter /Students First Foundation (SFF) now has millions of dollars of legal expenses, with much less money taken in for fundraising, leaving it now millions of dollars in the red.

    Other than those hefty legal fees, which constitutes the bulk of that debt, what else did David Welch & Co. spend money on?

    Well, like Eva in NYC, they sure blow a lot of money on public relations and rallies:


    “The second highest expense was to a Los Angeles-based organization,

    “Rally: $809,955 for ‘public relations.’ ”

    Quick review on SFF Founder David Welch (from a Capitol & Main article):

    EXCERPT: (how Welch cashes in on corp. ed reform… read the whole thing)

    “What may be unique about Vergara is David Welch himself, a man who prior to creating Students Matter in 2010 — the same year as the Reed case — had virtually no background in education policy or any direct financial stake in the multi-billion-dollar, for-profit education and standardized testing industries.

    “… (Welch’s) reported 2012 income was $2.23 million, (Welch) lives in a $12.5 million estate nestled in the bucolic Silicon Valley enclave of Atherton, which ranks first on Forbes’ annual list of America’s most expensive ZIP codes.”

    “Yet Welch and his nonprofit play a special role among a group of other nonprofits and personalities whose legal actions, school board campaigns, op-eds and overlapping advisory boards suggest a highly synchronized movement devoted to taking control of public education. The David and Heidi Welch Foundation, for example, has given to NewSchools Venture Fund, where Welch has been an ‘investment partner’ and which invests in both charter schools and the cyber-charter industry, and has been linked to the $9 billion-per-year textbook and testing behemoth Pearson. ”



    Another thing that I noticed from Mercedes’ piece is that David Welch, the Silicon Valley multi-millionaire and entrepreneur who “founded” Students Matter (SFF) and initiated the Vegara lawsuit, differs from big-money corporate education reform funders such as Eli Broad, Gates. and the Waltons in a least one key respect.

    Like those others, David and Heidi Welch made an initial donation of $320,000 to Students Matter (SFF), which David founded — money which they will not get back.

    Unlike those others, however, EVERY CENT that the Welch’s personally kicked into Students First AFTER THAT has actually been “a loan” from them to the separate entity “Students Matter /Students First Foundation (SFF).”

    This is a loan, mind you that Students Matter / Students First Foundation (SFF) is required to pay the multi-millionaire Welch’s back, albeit “without interest.”
    “By the close of 2012, SFF still owed Welch a total of $949,122, which it listed on its 2013 990 as its ‘total liabilities.’ ”
    According to Mercedes, the Students First /Students First Foundation (SFF) has already paid the Welch’s back some of that:
    “SFF managed to reduce its debt to Welch from $949,122 to $480,429. However, it also took out a line of credit to the tune of $4,249,122 with Bancorp for SFF operating expenses.

    “In 2014, SFF received $6,441,741 in total revenue and had $5,510,409 in total expenses. Of course, it also still had the Welch and Bancorp debt as liabilities ($5,576,311 total). The result was another year of negative total net assets: -$4,196,936.”

    Hmmm … after that initial $320,000, the multi-millioniare Welch’s have not exactly been sticking their necks out, money-wise. We never would have known that detail without Mercedes’ tenacious on-line gumshoe efforts.

    To cope with all that debt to the Welch’s, to Bancorp, and to SFF’s sub-contracted law firm, those in charge of the SFF have “apparently notified the IRS that it plans to convert its status from private foundation to public charity.”

    And why is that?

    Because once it is re-classified as a “public charity,” SFF can choose to have its donors “remain anonymous.” According to Mercedes:

    “Perhaps SFF will draw more corporate-reform billionaire cash if those billionaires are able to hide even as they still benefit from the nonprofit-donor tax breaks.

    “To keep feeding (law firm) Gibson, Dunn and Crutcher, the SFF behind StudentsMatter must attract more money. Much more.”

    Here’s the end of Mercedes’ article, with that information, and its significance:


    “Looming question:

    “How is SFF able to afford its astroturf ed. litigation?

    “SFF owes Bancorp over $4 million, and SFF paid (the law firm handling its lawsuits) Gibson, Dunn and Crutcher a total of $10,652,620 from 2012-2014, with Vergara alone, pre-appeals.

    “SFF has apparently notified the IRS that it plans to convert its status from private foundation to public charity. One of the benefits of doing so is that the public charity allows for donors to remain anonymous. As a private foundation, SFF must include details about its donors (including names, addresses, and amounts) as part of its 990 tax reporting.

    “Perhaps SFF will draw more corporate-reform billionaire cash if those billionaires are able to hide even as they still benefit from the nonprofit-donor tax breaks.

    “To keep feeding Gibson, Dunn and Crutcher, the SFF behind StudentsMatter must attract more money. Much more.”

    “Can’t wait for the continuing saga as told by SFF’s 2015 990 tax forms.”

  11. Over at the Ravitch blog, Ellen Lubic chimed in about the wealthy folks backing "corporate education reform":
    Ellen Lubic:

    "August 27, 2016 at 5:22 pm

    "Here is a list of the top 20 Billionaire philanthropists from Forbes Magazine. They list 50 (out of hundreds), but I only listed the first 20 whose combined assets are in the area of 100s of billions of dollars. Among these is a piker, Meyer Luskin, only a single billionaire, but who founded and sits on the Board of Alliance Charter Schools. Most of the listed deep pockets are charter supporter/investors, and their total combined wealth figures close to trillions of dollars.

    ————————————- ————-

    Forbes’ first 20 Foundations represent :

    Gates, Buffett, Zuckerberg, Waltons, Broad, Bloomberg, Paul Allen, Chuck Feeney, Gordon and Betty Moore, James and Marilyn Simons, John and Laura Arnold, Carl Icahn, Koch brothers, Julian Robertson Jr.,Sheldon Adleson, Stephen Bechtel Jr., Michael and Susan Dell, Hansjorg Wynn, J. Wayne and Delores Weaver.

    "Almost all of these wealthiest people on earth are charter school supporters. So do you really think that a few hundred million paid to the law firms who work for them to file lawsuits like Vergara, is so meaningful that they will give it up? Never.

    "They can press for union-killing lawsuits (teachers’ tenure is a secondary issue) forever and never miss a meal or buying another new Maseratti.

    "Their long term goal is to privatize everything to run as Free Market investment opportunities, with all wealth redistributed only upward, to them. This has been building for the last thirty years…and horrifying to say, they are winning with the preponderance of US wealth now in the hands of their top 1/2%."

  12. BELOW is a link to Jennifer “Edushyster” Berkshire’s snarky analysis in the immediate aftermath of the initial plaintiff victory of David Welch and Students Matter two summers ago. Without the reversal earlier this week, everything the Vergara lawsuit wanted would have gone into effect:


    Two years later and after this week’s verdict, it’s fun to drink in Jennifer’s wry commentary on a certain “coincidence” relating to exactly who else (or rather, who REALLY) benefits from an ultimate Vergara victory — besides (or INSTEAD OF) those “low income kids” that the wealthy Vergara folks claim to “love so much (more than the people who work with them every day).”

    (SPOILER: it’s those same wealthy folks who claim that the lawsuit’s victory will now be triumphantly “addressing the civil rights issue(s) our our time.”)

    “Might there be some other beneficiaries of the Vergara victory, besides the kids that is?

    " … the Vergara ruling is great news for billionaires who love low-income kids (more than the people who work with them every day).

    ” … when I encounter a solution that will at last address the civil rights issue(s) of our time and set aright our listing public schools, I always ask myself a single, simple question.

    “Is it possible that, in addition to addressing the civil rights issue(s) of our time and setting aright our listing public schools, said solution might also — completely coincidentally, mind you — just happen to cheapen the cost of teaching?

    “Completely coincidentally, the answer these days is almost always yes.

    “But where to spend all of the extra money that will be freed up by replacing lemons with limes (lemon veteran teachers with low-cost, younger newbies, JACK)????

    “If only we could think of something really disruptive, or at least something that allows us to say *disruption* over and over…

    “And because I heart the concept of synergy, what if said solution also had the added benefit(s) of further benefiting billionaires who love low-income kids (more than the people who work with them every day)????”

    She also highlights the insanity of certain fallacies inherent in their arguments.



    For example, on the one hand, corporate ed reformers and Vergara hates LIFO or seniority protections, with the underlying premise that years of experience in the classroom don’t matter in terms of the quality of teaching. Jennifer then points out that they simultaneously decry the fact that — compared to students from higher income neighborhoods — students attending schools from lower income neighborhoods are having their “civil rights” violated because a larger percentage of their teachers are … wait for it … less experienced… that same quality that they otherwise insist “doesn’t Matter.” (intentional capitalization joke based on the name Students Matter, btw).

    “Another big victor: fallacies of the logical variety. Otherwise known as flaws in reasoning or *logic lemons,* these were in full bloom from the minute Judge Treu announced that court was in session.

    “How else to explain the paradox by which teacher tenure laws apply to the state’s wealthiest school districts and its poorest, but only violate the civil rights of students in the latter?

    “Or how about the related and even paradoxier claim beloved by Students Matter fans, including Arne Duncan, that while teacher experience doesn’t Matter, the inequitable distribution of experience (which doesn’t Matter) is the civil rights issue of our time? SEE RELATED: lemons, dance of the.”

    Read the whole thing. It’s a blast.


    Here's Jennifer’s best zinger (from the COMMENTS section of her Vergara article, linked ABOVE. imo, she’s the “Dorothy Parker” of the folks who write about corporate education reform).

    Jen points out another coincidence involving the wealthy Vergara funders — the folks who love “low income kids more than the people who work with them every day”:


    “It turns out that a surprising number of those who are now so eager to *elevate* the teaching profession have actual elevators in their homes … ”
    Ooooh, snap!

    Here’s that quote in context:


    “Mother Crusader, a New Jersey blogger who specializes in following the money, has a new post up about who paid for Vergara.

    “It turns out that a surprising number of those who are now so eager to *elevate* the teaching profession have actual elevators in their homes… ”