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

On August 22, 2016, the California Supreme Court denied reviewing the appellate court decision in Vergara et al. vs. State of California et al. The appellate court decided in April 2016 that Vergara did not prove constitutional violation of equal protection. Vergara was originally filed in 2012; four years later, it had reached its litigious end.

The following day, on August 23, 2016, the same group responsible for astroturfing education litigation like Vergara, StudentsMatter.org, filed a fresh, corporate-reform-promoting lawsuit in Connecticut, Martinez vs. Malloy. In short, the goal of Martinez is not to improve Connecticut’s “failing” public schools; it is to promote a dual school system in which those who choose to “escape the failing schools” are provided with magnet and charter schools to which to flee.

StudentsMatter is a corporate reform lawsuit factory, and the organization is okay with that. From its home page:

Our Mission

Students Matter promotes access to quality public education through impact litigation, communications and advocacy.

StudentsMatter has an advisory board, and interestingly, at the top of the board bio web page, StudentsMatter offers this disclaimer:

Note: The individuals below are representing themselves on Students Matter’s advisory board and not representing the organization for which they work.

The corporate reform litigation factory does not want to be held responsible for its own board. That’s funny.

Board members include

  • former StudentsMatter policy director and former Parent Revolution exec director Ben Austin;
  • former Chief of School Family and Parent/Community Services for Los Angeles Unified School District Maria Casillas;
  • former LAUSD superintendent John Deasy;
  • former California state senator Becky Morgan;
  • former chief of staff to VP Joe Biden and former chief domestic policy advisor to former Pres Bill Clinton, Bruce Reed;
  • investment banker and venture capitalist Arthur Rock, and
  • former chairman of the National Venture Capital Association and founding CEO of Fortify, a pioneer in the software security market, Ted Schlein.

StudentsMatter lists a single staffer, David Stanley:

David Stanley leads major gifts fundraising at Students Matter. He enlists philanthropists to serve as key partners to Students Matter and helps sustain the organization’s high-performing Board.

Prior to joining Students Matter in January 2014, David was Executive Director of Teach For America….

As for the StudentsMatter founder, well, that’s Dave Welch, who is all in for *public schools*:

David F. Welch grew up in Maryland where, along with his six siblings, he was educated in public schools. His passion for public education arises from his roles both as a parent of three school-aged children and as an employer in two highly successful start-ups in Silicon Valley. Dr. Welch founded Students Matter in 2011 with the goal of creating positive structural change in the California K-12 public education system.

Note that “structural change” means the market-driven reform model of limiting (better yet, killing) teacher job protections; evaluating teachers using student test scores, and feeding public money into cap-lifted, privately-run charter schools.

Of course, StudentsMatter has a featured law firm: Gibson, Dunn, and Crutcher, which was founded in Los Angeles.

Even though StudentsMatter lost its centerpiece case, Vergara, it still has a California case alive in the Contra Costa Superior Court, Doe vs. Antioch, which StudentsMatter features as follows (and which was filed in July 2015, before losing Vergara):

The California Constitution guarantees every student in California equal access to a quality education, including equal access to effective teachers. As the evidence presented in Vergara v. California overwhelmingly demonstrated, teacher quality is the most important in-school factor affecting student success. In order to ensure that all students are being taught by effective teachers, school districts need a fair and consistent way to evaluate educators. Originally enacted by the California Legislature in 1971, the Stull Act requires school districts to evaluate the performance of teachers and other certificated employees using multiple measures of performance, including student progress toward district and state academic content standards, as measured by standardized tests.

Extensive research has shown that effective teaching can be measured, and that evaluations composed of multiple components—including, but not limited to, students’ progress on state standardized tests—demonstrate the greatest reliability and the least volatility from year to year.

Yet, for over 40 years, many California school districts have ignored or outright defied the Stull Act. At least thirteen school districts, serving nearly 250,000 students, have entered into collective bargaining agreements with their local teachers unions that explicitly prohibit the use of any standardized test results in teacher evaluations, in clear violation of the Stull Act.

We think it’s simple: reward and retain excellent teachers and hold accountable those who are failing our children.

However, the StudentsMatter argument regarding the Stull Act is not airtight. Note the term “reasonably” in the language of the bill (bolded):

(b) The governing board of each school district shall evaluate and assess certificated employee performance as it reasonably relates to:

(1) The progress of pupils toward the standards established pursuant to subdivision (a) and, if applicable, the state adopted academic content standards as measured by state adopted criterion referenced assessments.

If I were a lawyer opposing StudentsMatter, that one word, “reasonably” would offer me a lot to work with in empirically establishing just how unreasonable it is to try to tie teacher evaluation to test scores.

And now, for some news on the nonprofit behind StudentsMatter, the Students First Foundation (SFF) (EIN 27-3816952). SFF was founded in 2010 and received its nonprofit status in 2011;

As to 2011 finances:

  • the largest contribution was $320,000 from David and Heidi Welch.
  • David Welch also loaned SFF $472,764, without interest, for foundation expenses.

And in 2012,

  • the Welch Trust contributed $550,000 to SFF;
  • the Broad Foundation contributed $200,000, and
  • Tammy and Bill Crown contributed $100,000.
  • There were also several contributions under $100,000.
  • Moreover, SFF received gifts of various stocks (Facebook, LinkedIn, Zillow, Ehealth, Imperva, and others) with an estimated fair market value of $647,361.

At the outset of 2012, SFF was in the red, with net assets of -$420,331 and end-of-year assets also in the red at -$799,486.

In 2012, SFF paid Gibson, Dunn and Crutcher $1,115,912 for “litigation.”

A second SFF 2012 990, filed in August 2013, is the first to mention StudentsMatter and the Vergara lawsuit (Note: the first 2012 990 includes a request for the August 2013 extension.):

THE ORGANIZATION SPONSORS IMPACT LITIGATION TO PROMOTE ACCESS TO QUALITY PUBLIC EDUCATION.

***

THE ORGANIZATION IS MANAGING AND FUNDING LITIGATION (VERGARA V CALIFORNIA) WHOSE GOAL IS TO IMPROVE THE QUALITY OF TEACHERS IN CALIFORNIA. IN THIS CAPACITY IT IDENTIFIED THE ATTORNEYS WHO SERVE AS LEAD COUNSEL IN THE LAWSUIT. IT FURTHER ASSISTED BY HELPING TO IDENTIFY EXPERT WITNESSES AND TO ANALYZE STUDIES THAT HAVE BEEN CONDUCTED IN THIS AREA TO HELP ESTABLISH THE STRATEGY FOR THE PROSECUTION OF THE LAWSUIT. THE RESULTS OF THIS LITIGATION WILL IMPACT VIRTUALLY EVERY STUDENT IN THE STATE OF CALIFORNIA.

Note that the above statement stops just short of claiming that StudentsMatter played any role in “identifying” the individual plaintiffs, who must have serendipitously happened upon an astroturf ed reform organization that just happened to be planning to sue the state in the name of teacher quality. An amazing coincidence, to be sure, but less likely as one continues reading the info in the SFF 2012 990:

THE ORGANIZATION HELPED TO MANAGE A CAMPAIGN FOR EDUCATIONAL REFORM AND OUTREACH IN SUPPORT OF THE LITIGATION. IN SOME INSTANCES THE ORGANIZATION WAS ALIGNED WITH OVER ONE HUNDRED EDUCATIONAL ORGANIZATIONS TO CREATE A COMMON VIEWPOINT. THE CAMPAIGN ALSO CREATED THE NECESSARY OUTREACH TO EDUCATIONAL ORGANIZATIONS INCLUDING SCHOOL SUPERINTENDENTS, EDUCATION PROFESSIONALS AND OTHER PHILANTHROPIC ORGANIZATIONS.

“Creating a common viewpoint.” Now that’s not serendipity.

The above “common viewpoint” campaign cost SFF $491,758.

This next part is my favorite: Creating grass-rootsish buy-in for top-down-birthed education litigation. Also included on the second 2012 tax form:

THE ORGANIZATION ENGAGED IN A PROGRAM OF COMMUNITY OUTREACH TO CREATE A GRASS ROOTS EXPANSION OF ITS EDUCATIONAL PHILOSOPHY AND STRATEGY WITHIN THE COMMUNITY. THE ORGANIZATION SUCCESSFULLY CREATED AWARENESS OF ITS VISION, MISSION AND THE BENEFITS ITS ACTIVITIES WOULD BRING TO THE COMMUNITY.

That 2012 grass roots only cost SFF $40,000.

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.”

By the end of 2013, the SFF total liabilities had risen to $5,576,311, and its total net assets was listed in the red, at -$5,128,268.

Even though SFF reported total 2013 revenue of $2,752,824, it costs a lot of money to sue; Gibson, Dunn and Crutcher was SFF’s highest paid independent contractor, at $5,693,876, for “project srvc.” The second highest expense was $608,012 to Griffin Schein for “public relation.”

As to the SFF 2013 revenue, top donors included

  • Arthur Rock Foundation, $500,000
  • Bill and Susan Oberndorf Foundation, $100,000
  • Bloomfield Family Foundation, $100,000
  • East Bay Community Foundation, $150,000
  • Emerson Collective, $200,000
  • Schwab Charitable Fund, $212,000
  • Silicon valley Community Foundation, $357,000
  • Tammy and Bill Crown, $500,000
  • Walton Family Foundation, $500,000

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.

As was true in 2012 and 2013, in 2014, SFF’s highest expense was Gibson, Dunn and Crutcher, this time for $3,842,832 in “project srvc”; the second highest expense was to a Los Angeles-based organization, Rally: $809,955 for “public relation.”

The largest contributions to SFF in 2014 (> $100,000) include

  • Dave and Heidi Welch Foundation, $250,000;
  • Tammy and Bill Crown, $250,000;
  • Walton Family Foundation, $1,250,000;
  • Silicon Valley Community Foundation, $3191,800;
  • Bloomfield Family Foundation, $200,000;
  • Arthur (misspelled as “Author”) Rock, $250,000;
  • Jewish Communal Fund, $100,000;
  • Schwab Charitable Fund, $317,350, and
  • John Scully, $500,000.

By the end of 2014, SFF paid the balance owed to Dave Welch, $480,429. However, that Bancorp loan increased by roughly $60,000 to a total end-of-year balance of $4,308,029, presumably from accrual of the 2.5% interest rate. However, the terms of repayment for the Bancorp loan was supposedly “interest only payments.”

By the end of 2014, SFF was in the hole for over $4 million due to expenses related to its astroturf-incited Vergara suit, which appeared to be in the bag based upon Judge Rolf Treu’s June 2014 ruling that teacher job protections, such as tenure, violate student civil rights. The 2014 SFF tax form includes the following description of the organization’s “direct charitable activities”:

The Organization believes the future of a high quality education for each student depends on every child having an effective teacher in every classroom on each and every instructional day. The Organization believes Californian’s can create an education system that gives every child an effective, passionate and motivated teacher and gives those teachers the respect and rewarding careers they deserve. In carrying on this mission, management has assembled a quality public relations firm and an outstanding legal firm to sue the State of California for legislation written into the California Education Code that is being challenged as unconstitutional, as follows; the permanent employment law – tenure, grants or denies permanent employment to teachers after eight-teen months of employment, which does not provide enough time to determine a teacher’s performance. In addition, dismissal statutes require an inordinate amount of documentation to terminate ineffective teachers and layoff rules under the statute require the newest teachers to be riffed first, regardless of performance. On June 10, 2014 the Superior Court of California issued a historical decision striking down five harmful provisions of the California Education Code as unconstitutional. According to the court the laws in question that cover teacher tenure, dismissal and layoffs impose substantial harm on students by forcing administrators to push passionate and inspiring teachers out of the school system and keep grossly ineffective teachers in the classroom year after year.

However, Vergara was not over, and when it was, it was not a win for StudentsMatter. Still, one year after the initial Vergara ruling, StudentsMatter filed its second lawsuit, Doe vs. Antioch (July 2015, noted above), and then, the initial Vergara decision was overturned (April 2016) and was officially appealed as StudentsMatter petitioned the California Supreme Court (May 2016).

And now, the day after StudentsMatter’s appeal to the California Supreme Court was denied review, StudentsMatter files Martinez vs. Malloy previously discussed in this post.

Looming question: How is SFF able to afford its astroturf ed litigation? SFF owes Bancorp over $4 million, and SFF paid 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.

in the red

____________________________________________________________

Released July 2016– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

CA Charter Operator Recruits Foreign Students, Charges Them Tuition, and More…

California-based Tri-Valley Learning Corporation (TVLC) is the center of a complex investigation that was apparently prompted when in February 2016, two foreign exchange students were apparently moved from one TVLC school to another without parental consent.

According to the July 08, 2016, East Bay Times, CA Superintendent of Public Instruction Tom Torlakson went to the school campus from which the students went missing, in Livermore, California. Torlakson’s visit led to investigation of TVLC by the district attorney.

As the East Bay Times continues:

Although the District Attorney’s Office can’t discuss exactly what is being investigated, assistant district attorney Annie Esposito said the case is complicated and involves many pieces.

The missing students sparked a domino affect, leading to allegations of fiscal mismanagement, lack of transparency and not following state education code. …

Charters operate independently with their own boards, and are not allowed to charge tuition because they receive state funds.

Yet, TVLC charged $15,300 in tuition and $16,000 in housing per year to the 60 foreign students it recruited. The company argued the charges were legal reimbursements for expenses related to its exchange program. …

Chris Van Schaack, assistant superintendent of the Livermore Unified School District, said he hopes the corporation can clean up its mess, because the charter schools provide an alternative to students who do not want to be in bigger schools.

Apparently several hundred TVLC parents decided that those bigger, district schools are preferable to TVLC chaos and confusion. As the Mercury News reports on August 22, 2016:

LIVERMORE — On the first day of school, more than 500 new students swarmed into Livermore public schools, the vast majority fleeing the city’s two embattled charter schools in light of a litany of accusations ranging from fiscal mismanagement to criminal wrongdoing.

The Livermore Valley Joint Unified School District got nearly double the number of new students it was expecting as parents a few weeks ago began pulling their children out of Livermore Valley Charter School and Livermore Valley Charter Preparatory.

The company that runs the charter schools, the Tri-Valley Learning Corp., is facing allegations of financial mismanagement; illegally charging foreign exchange students tuition and transferring them to a school in Stockton against their will; an investigation by the Alameda County District Attorney’s Office for potential criminal charges; and, most recently, hiring a principal who made an online reference to empathizing with mass shooters. …

By mid-afternoon Monday, 308 new students had showed up in kindergarten through eighth grade, and about 220 new students enrolled in high school, said Chris Van Schaack, assistant superintendent for the Livermore school district. He said 80 percent of the increase came from the two charters. The district will evaluate at the end of the week if new teachers will need to be added.

The newly-hired principal in question apparently posted about his unemployment woes, including stating that he “UNDERSTAND[s] those who go postal” in relation to the 2016 Orlando, Florida, and Santa Ana, California shootings. Parents read the blog post and pressured TVLC to revoke its offer of employment.

In reporting on the August 22, 2016, TVLC student exodus, ABC7.news adds that TVLC’s problems also include failing to make teacher retirement payments. Still, the issue of shuttling foreign exchange students (and associated potential criminal charges) tops the charts, even as asst super Van Schaack continues rooting for TVLC:

Livermore Superintendent Kelly Bowers says about 400 parents have decided to pull their kids out of Livermore’s charter schools this week and put them in public schools.

Some are still trying to decide what to do and some teachers have also called her, worried, because they haven’t received their retirement payments.

“We did meet with about 28 teachers who are very concerned from the charter school, who were worried about their STRS [state teachers retirement system] payments. They were worried about their paychecks that had come late sometimes. And they’re very concerned about their own future,” Bowers said.

Administrators say they have been investigating the schools since February and are doing their best to try and get the schools back on track.

“It’s almost never in the best interest of students to shut down schools. So that’s not a direction that we want to go, we want them to fix their problems,” Asst. Superintendent Chris Van Schaack said.

The problems, according to Livermore administrators, include not paying rent, not paying teachers and transferring foreign exchange students to Stockton against their will.

The last one has drawn the attention of prosecutors who are looking into whether a crime occurred.

“My understanding is false imprisonment, taking students against their will and moving them,” Van Schaack said.

Wow. But let’s try to save the fiscally-tottering, potentially-criminally-charged, opaquely-operated schools that were apparently off of any effective accountability radar to begin with.

tri valley ca

____________________________________________________________

Released July 2016– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

BREAKING: CA Supreme Court Will NOT Review Vergara Ruling

The case of Beatriz Vergara et al. vs. the State of California et al. has been working its way though the courts for over four years now, since May 14, 2012.

The journey is over. Petition denied:

The petition for review is denied. Chin, Liu and Cuéllar, JJ., are of the opinion the petition should be granted. STATEMENT by Cantil-Sakauye, C. J. The court, recently having resumed issuing, from time to time, statements by one or more justices dissenting from the denial of a petition for review, has adopted a policy that such statements, when they pertain to an appellate court opinion that has been published in the Official Reports, will also be published, appended to the original appellate court opinion in the Official Reports. With these policies now in place, separate statements will afford members of the court an opportunity to express their views regarding the denial of a petition for review, but of course any separate statement represents the views solely of the authoring justice or any justice signing the statement. In addition, it remains the case that an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below. Rather, an order denying review represents only a determination that, for whatever reason, a grant of review is not appropriate at the time of the order. (See People v. Davis (1905) 147 Cal. 346, 349-350; see also, e.g., People v. Triggs (1973) 8 Cal.3d 884, 890-891.) Similarly, that a justice has not prepared, responded to, or joined a separate statement should not be read as reflecting the views of that justice concerning any separate statement that has been filed by any other justice. Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ., concur.
DISSENTING STATEMENT by Liu, J. This case concerns the constitutionality of California’s statutes on teacher tenure, retention, and dismissal. The plaintiffs are nine schoolchildren – Beatriz Vergara, Elizabeth Vergara, Clara Grace Campbell, Brandon Debose, Jr., Kate Elliott, Herschel Liss, Julia Macias, Daniella Martinez, and Raylene Monterroza – who attend California public schools. They allege that these statutes lead to the hiring and retention of what they call “grossly ineffective teachers” (i.e., teachers in the bottom 5 percent of competence) and that being assigned to a grossly ineffective teacher causes significant educational harm. Plaintiffs further allege that they have suffered or are at risk of suffering these harms and that the harms fall disproportionately on minority and low-income students. After hearing eight weeks of evidence, the trial court ruled that the challenged statutes violate the equal protection clause of the California Constitution (Cal. Const., art. I, § 7, subd. (a)), noting that the evidence of detrimental effects that grossly ineffective teachers have on their students “is compelling” and “shocks the conscience.” The Court of Appeal reversed, holding that plaintiffs failed to establish a viable equal protection claim. (Vergara v. State of California (2016) 246 Cal.App.4th 619 (Vergara).) Plaintiffs now seek this court’s review. One of our criteria for review is whether we are being asked “to settle an important question of law.” (Cal. Rules of Court, rule 8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted in this case. As the trial court observed: “All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school.” The controversy here is whether the challenged statutes are to blame for the hiring, retention, and placement of grossly ineffective teachers. Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review. The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state’s highest court.
I. As the Court of Appeal explained, this case involves equal protection claims by two groups of students. “Group 1” is “a ‘subset’ of the general student population, whose ‘fundamental right to education’ was adversely impacted due to being assigned to grossly ineffective teachers. According to plaintiffs, the students comprising this subset [are] located throughout the state, in all sorts of schools, and [are] of substantially the same age and aptitude as students of the general population. The Group 1 members [are] disadvantaged, however, because they received a lesser education than students not assigned to grossly ineffective teachers.” (Vergara, supra, 246 Cal.App.4th at p. 629; see Cal. Const., art. IX, §§ 1, 5; Serrano v. Priest (1971) 5 Cal.3d 584, 607-609 [recognizing fundamental right to education under the Cal. Const.]; Butt v. California (1992) 4 Cal.4th 668, 685-686 (Butt) [same].) “Group 2” is “made up of minority and economically disadvantaged students. Plaintiffs alleged that schools predominantly serving these students have more than their proportionate share of grossly ineffective teachers, making assignment to a grossly ineffective teacher more likely for a poor and/or minority student.” (Vergara, at p. 629.) For reasons discussed by the Court of Appeal, there appear to be significant problems in plaintiffs’ case with respect to Group 2. Quoting a report by the California Department of Education that was entered into the record, the trial court found that ” ‘[u]nfortunately, the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators. Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequalities.’ ” Further, the trial court found that “the churning . . . of teachers” – that is, the recurring transfer of ineffective teachers from school to school – “caused by the lack of effective dismissal statutes and [the seniority-based reduction in force statute] affect high-poverty and minority students disproportionately.” However, the record does not appear to include substantial evidence that the concentration of grossly ineffective teachers in poor and minority schools is caused by the challenged statutes as opposed to teacher preferences, administrative decisions, or collective bargaining agreements. The Court of Appeal, finding insufficient evidence of that causal link, held that plaintiffs failed to establish that the challenged statutes on their face violate equal protection by disadvantaging poor or minority students. (Vergara, supra, 246 Cal.App.4th at pp. 649-651.)
The Court of Appeal’s treatment of Group 1 is more problematic. In overturning the trial court’s judgment with respect to this group, the Court of Appeal said the group is not “an identifiable class of persons sufficient to maintain an equal protection challenge” because “to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute.” (Vergara, supra, 246 Cal.App.4th at p. 646.) On this point, the Court of Appeal likely erred. In Butt, supra, 4 Cal.4th 668, this court made clear that an equal protection challenge may be brought and will trigger strict scrutiny “whenever the disfavored class is suspect or the disparate treatment has a real and appreciable impact on a fundamental right or interest.” (Id. at pp. 685-686.) There, the Richmond Unified School District decided to shorten its school year by six weeks because it had run out of money, and a group of parents claimed that this would violate their children’s fundamental right to education. We said it is “well settled that the California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts. The State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.” (Id. at p. 685.) Observing that the district’s “students faced the sudden loss of the final six weeks, or almost one-fifth, of the standard school term originally intended by the District and provided everywhere else in California, ” we held that this “extreme and unprecedented disparity in educational service and progress” violated the state equal protection guarantee. (Id. at p. 687; see id. at p. 685 [“Whatever the requirements of the free school guaranty [(Cal. Const., art. IX, § 5)], the equal protection clause precludes the State from maintaining its common school system in a manner that denies the students of one district an education basically equivalent to that provided elsewhere throughout the State.”].)
The students in Butt suffered a denial of equal protection not because they belonged to any identifiable class but because they were enrolled in a distressed school district. Here, as in Butt, students have asserted an equal protection claim on the ground that they are being denied significant educational opportunities that are afforded to others. The inequality in Butt arose from the fortuity of attending a school district that, unlike other districts, ran out of money. The inequality in this case arises from the fortuity of being assigned to grossly ineffective teachers who, in comparison to competent teachers, substantially impede their students’ educational progress. The Court of Appeal’s insistence that “to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute” (Vergara, supra, 246 Cal.App.4th at p. 646) appears inconsistent with Butt. The claim asserted by students in Group 1 is simply an instance of a cognizable equal protection claim alleging arbitrary deprivation of fundamental rights. (See, e.g., People v. McKee (2010) 47 Cal.4th 1172, 1197-1198 [classifications in civil commitment laws are subject to strict scrutiny because the fundamental interest in liberty is at stake].) The Court of Appeal cited Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220 and Altadena Library District v. Bloodgood (1987) 192 Cal.App.3d 585 in support of its view. Both of those cases relied on Gordon v. Lance (1971) 403 U.S. 1. All three cases involved constitutional challenges to supermajority voting schemes on the ground that voters who were members of a majority but not a supermajority would have their votes diluted. The plaintiffs in Gordon challenged a state requirement that any measure to raise taxes or incur bonded indebtedness be approved in a referendum by 60 percent of voters. The high court observed that it is permissible for the federal or state governments to constrain “majoritarian supremacy” in any number of ways. (Gordon, at p. 6.) What is constitutionally objectionable, as past cases had held, was “the denial or dilution of voting power because of group characteristics-geographic location and property ownership-that bore no valid relation to the interest of those groups in the subject matter of the election; moreover, the dilution or denial was imposed irrespective of how members of those groups actually voted.” (Id. at p. 4.) Guardino and Altadena, both of which involved supermajority voting requirements on local tax measures, relied on Gordon in concluding that such requirements do not give rise to an equal protection claim unless the burdened voters comprise an identifiable class. (Guardino, at pp. 255-258; Altadena, at pp. 590-591.)
It is doubtful that the principle established in Gordon can be generalized beyond the context of voting rights. (See Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities (2007) 156 U.Pa. L.Rev. 313, 327 [explaining that many laws burdening voting rights “receive light-touch judicial review” because “judicial review of election laws presents a distinctive set of challenges”].) The idea that vote dilution through supermajority requirements is constitutionally acceptable so long as no identifiable class is subject to discrimination has no analog when it comes to the fundamental right to education. As several leading constitutional law scholars explained in an amicus curiae letter in support of plaintiffs’ petition for review, both state law and federal law have long recognized that plaintiffs asserting an equal protection claim involving a fundamental right need not be identifiable on a basis other than the alleged harm: “There is no basis in law or in logic for the Court of Appeal’s central holding in this case that, without a showing that all the students injured by the challenged state laws share a ‘common characteristic, ‘ the Equal Protection claim they make is not ‘meritorious’ and cannot be ‘maintained.’ ” II. There is considerable evidence in the record to support the trial court’s conclusion that the hiring and retention of a substantial number of grossly ineffective teachers in California public schools have an appreciable impact on students’ fundamental right to education. The trial court credited “a massive study” by Stanford economist Raj Chetty finding that “a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” The trial court also cited a four-year study by Harvard economist and education professor Thomas Kane finding that “students in [the Los Angeles Unified School District] who are taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.” Moreover, the trial court found “no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms” and cited testimony of the state’s own expert estimating that 1 to 3 percent of California teachers are grossly ineffective, which translates to 2, 750 to 8, 250 teachers statewide.
The trial court also found that the challenged statutes substantially contribute to the hiring and retention of grossly ineffective teachers. The evidence is particularly suggestive with respect to the dismissal statutes. These statutes provide extensive procedural protections to teachers subject to dismissal for poor performance. (Ed. Code, §§ 44934, 44938, subd. (b)(1), (2), 44944, 44945.) At the time of trial, the laws required a district to first give a teacher a written statement of specific instances of unsatisfactory behavior, allow the teacher 90 days to improve, and then provide a written statement of charges and intent to dismiss. The teacher then had 30 days to request a hearing, which had to begin within 60 days of the request. The hearing was conducted by a three-member panel comprised of an administrative law judge, one teacher selected by the district, and one teacher selected by the teacher subject to the hearing. The panel had to issue a written decision, and the decision was subject to judicial review. If the district lost, it had to pay the hearing expenses and the teacher’s attorney’s fee. If the district won, the parties split the hearing expenses and paid their own attorney’s fees. (Vergara, supra, 246 Cal.App.4th at pp. 630-631; see id. at pp. 631-632 [discussing 2015 amendments to the dismissal statutes].) The trial court found that “it could take anywhere from two to almost ten years and cost $50, 000 to $450, 000 or more to bring these cases to conclusion under the Dismissal Statutes, and that given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases.” The trial court did not dispute that providing teachers with due process before dismissal was a legitimate and even compelling interest. But it concluded that this interest could be pursued without what it called the “über due process” that leads to retention of grossly ineffective teachers. The trial court observed that classified (i.e., nonteacher) school employees, who are afforded due process rights to notice and a hearing under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, “had their discipline cases resolved with much less time and expense than those of teachers.”
The trial court also concluded that other features of the challenged statutes contribute to the hiring and retention of grossly ineffective teachers. California is one of only five states with a two-year probation period before tenure, in contrast to three or more years in other states. The trial court cited “extensive evidence presented, including some from the defense, ” that two years “does not provide nearly enough time for an informed decision to be made regarding the decision of tenure (critical for both students and teachers).” Further, California is one of only 10 states that use seniority as the sole factor or as a factor that must be considered in laying off teachers. (Ed. Code, § 44955, subds. (b), (c); see id., § 44955, subd. (d) [narrow exceptions].) The trial court noted that many other states either treat seniority as one factor that may be considered or leave layoff criteria to the district’s discretion. The trial court’s findings do not suggest that teacher tenure invariably burdens students’ fundamental right to education; instead, they suggest that California’s particular scheme does. III. Plaintiffs have styled this claim as an equal protection challenge, perhaps because this approach is supported by Butt and other cases that have applied strict scrutiny to equal protection claims alleging harms to fundamental rights. With respect to Group 1, however, this lawsuit at bottom states a claim that the teacher tenure and dismissal statutes, to the extent they lead to the hiring and retention of grossly ineffective teachers, violate students’ fundamental right to education. Plaintiffs locate the source of that right in sections 1 and 5 of article IX of the California Constitution. These are the same provisions at issue in Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896, an education adequacy case in which this court also denies review today. The two cases involve different yet complementary claims concerning the importance of resources and reform to improving the education system. Both cases ultimately present the same basic issue: whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall. This issue is surely one of the most consequential to the future of California.
Despite the gravity of the trial court’s findings, despite the apparent error in the Court of Appeal’s equal protection analysis, and despite the undeniable statewide importance of the issues presented, the court decides that the serious claims raised by Beatriz Vergara and her eight student peers do not warrant our review. I disagree. As the state’s highest court, we owe the plaintiffs in this case, as well as schoolchildren throughout California, our transparent and reasoned judgment on whether the challenged statutes deprive a significant subset of students of their fundamental right to education and violate the constitutional guarantee of equal protection of the laws. I respectfully dissent from the denial of review.
DISSENTING STATEMENT by Cuéllar, J. What Beatriz Vergara and eight of her fellow public school students allege in this case is that they, and vast numbers of children in our state’s public schools, are burdened by certain statutes governing teacher dismissal, retention, and tenure that create a surplus of grossly ineffective teachers. After a 10-week bench trial, the trial court found that these statutes result in the denial of equal protection not only because they assign grossly ineffective teachers to classrooms where the children are disproportionately minority and poor, but also because the enduring effects of these statutes disproportionately burden an arbitrary subset of children. The evidence supporting this conclusion, according to the trial court, “shocks the conscience.” In a public school system responsible for educating millions of children, “a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom.” And students in the Los Angeles Unified School District “who are taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.” Yet the statutes in question make it exceedingly difficult, the trial court concluded, to remove a grossly ineffective teacher from the classroom or properly evaluate a teacher before long-term employment is granted. Beatriz Vergara and her fellow plaintiffs were part of that arbitrary group of thousands of children attending California public schools that the trial court found to be deprived of equal protection. According to the trial court, plaintiffs had “proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact” to the detriment of these students’ fundamental right to equality of education. At no time did the Court of Appeal dispute this conclusion. What was instead fatal to the claim advanced on behalf of the arbitrarily burdened children, according to the appellate court, was plaintiffs’ failure to prove the existence of an identifiable group treated differently by the challenged laws, a group separate and apart from the individuals allegedly harmed by those laws.
Nothing in California’s Constitution or any other law supports the Court of Appeal’s reasoning. When a fundamental right has been appreciably burdened, we apply strict scrutiny. (See Butt v. State of California (1992) 4 Cal.4th 668, 685-686 (Butt); Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 (Fair Political Practices); Serrano v. Priest (1971) 5 Cal.3d 584, 597 (Serrano I).) The appellate court did not. Instead it erected a novel barrier — not only for Beatriz Vergara and her fellow student plaintiffs, but for all California litigants seeking to raise equal protection claims based on a fundamental right. Such a right could be unquestionably burdened, the decision implies, but if that burden is imposed at random rather than on a discrete and identifiable group, then no relief is available under the equal protection provisions of our state Constitution. (See Vergara v. State of California (2016) 246 Cal.App.4th 619, 646 (Vergara) [“Here, the unlucky subset is not an identifiable class of persons sufficient to maintain an equal protection challenge. Although a group need not be specifically identified in a statute to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute” (fn. omitted)].) Even if one ignores the appellate court’s inconsistency with settled law, the question its approach begs is as simple as it is important: Why? Certainly not because we have ever held that arbitrarily denying the fundamental rights of schoolchildren — or any Californian — is acceptable when a burden is imposed more or less at random, by the anodyne machinery of a statutory system’s gears and pulleys rather than by any person’s deliberate choice to target some people instead of others. Would it make sense to treat as cognizable an equal protection claim to vindicate a fundamental rights violation — but only because all the affected children were victimized for wearing purple shirts, or because they happened to live in rural towns in Southern California — even as we cast aside the claims of the children in this case?
Beatriz Vergara and her fellow plaintiffs raise profound questions with implications for millions of students across California. They deserve an answer from this court. Difficult as it is to embrace the logic of the appellate court on this issue, it is even more difficult to allow that court’s decision to stay on the books without review in a case of enormous statewide importance. We grant review where necessary to forestall infringement of a fundamental right. (See, e.g., In re Marriage Cases (2008) 43 Cal.4th 757, 809 [right to marry]; Fashion Valley Mall, LLC v. National Labor Relations Board (2007) 42 Cal.4th 850, 865 [right to free speech]; Gould v. Grubb (1975) 14 Cal.3d 661, 670 [right to vote].) This, too, is a case that merits review so we can address the problems with the Court of Appeal’s approach in a matter of considerable statewide importance, and clarify that an equal protection claim under the California Constitution calls for searching scrutiny where it arises from the imposition of an impermissible burden on a fundamental right. And if the appellate court had addressed the fundamental rights issue perfectly against a legal backdrop that was crystal clear, there still would be compelling reasons to grant review. I. We treat certain rights as fundamental under the California Constitution — the right to vote, for example, or to marry, to access our courts, to an expectation of privacy, and to an education — because they are foundational to how we choose to define our personal and civic lives. But it would border on madness to think that because these rights are fundamental, we can routinely expect perfection when the state protects — or through its activities, vindicates — these rights. The nature of any person’s actual relationship to his or her fundamental rights is as much affected by ordinary governance — polling place and school locations, routine agency practices, long-past histories, and unexpected emergencies — as it is by a shared aspiration articulated in constitutional text or a judicial opinion that government honor such rights. Yet these realities make it even more important to distinguish routine shortcomings of implementation, or instances where government legitimately chooses to harmonize competing goals in a given way, from the infringement of a fundamental right by the imposition of an appreciable burden thereon.
The trial court found that such a burden was shown to exist in this case. The evidence, according to the trial court, established that the quality of education received by California’s millions of schoolchildren depends substantially on the quality of instruction. The evidence further established that the existence of a substantial number of grossly ineffective teachers in the California school system – about 1 to 3 percent statewide, or 2, 750 to 8, 250 teachers – “has a direct, real, appreciable, and negative impact on a significant number of California students.” Yet teacher dismissals “could take anywhere from two to almost ten years and cost $50, 000 to $450, 000 or more to bring these cases to conclusion under the Dismissal Statutes, and that given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases.” There was also evidence, which the trial court credited, showing that two years is too short a time to properly evaluate teacher competence, and that California is one of only 10 states that use seniority as the sole factor in determining whether to lay off teachers. The Court of Appeal never disputed these findings. These findings instead failed to justify a remedy, according to the Court of Appeal, because there was no identifiable group explicitly targeted or uniquely burdened by the statutes. This conclusion is, at best, in stark tension with settled law. We have long recognized that equal protection challenges may be brought “whenever the disfavored class is suspect or the disparate treatment has a real and appreciable impact on a fundamental right or interest.” (Butt, supra, 4 Cal.4th at pp. 685-686.) Strict scrutiny applies to both types of equal protection claims. (See ibid.; see also Fair Political Practices, supra, 25 Cal.3d at p. 47 [“It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied”].)
We can understand plaintiffs’ claims here as involving equal protection grounded in a fundamental interest, or as ultimately predicated more directly on the argument that a fundamental interest has been unduly burdened. Under either conception, the Court of Appeal failed to appreciate the distinction we have drawn between claims involving a fundamental interest and those centered on a suspect class. To state a fundamental interest claim sounding in equal protection, the alleged disparate treatment need not be focused on a suspect class. (See Bd. of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 914; accord, Bullock v. Carter (1972) 405 U.S. 134, 144 [finding a denial of equal protection even though the affected group “cannot be described by reference to discrete and precisely defined segments of the community”].) When a fundamental interest is at stake, the sole preliminary inquiry is whether the challenged law has a real and appreciable impact on the exercise of that interest. (Butt, supra, 4 Cal.4th at p. 686; accord, Bullock, at p. 144; see generally Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591, 597 [“It is well settled that the Equal Protection Clause ‘protect[s] persons, not groups . . . .’ “].) If it does, the law will be invalidated unless the state can show it is necessary to achieve a compelling governmental interest. (Serrano I, supra, 5 Cal.3d at p. 610.) It is no answer under any standard of review – much less strict scrutiny – that violations of a fundamental right will be tolerated so long as they are felt at random. And even if the law were more opaque, my doubts are grave about whether one could articulate a reasonable understanding of fundamental rights under the California Constitution that would countenance the imposition of material burdens on those rights without strict scrutiny or even the opportunity for judicial review under any standard, so long as those burdens were imposed largely at random. Invidious classifications deserve strict scrutiny even where fundamental rights are not at issue, while ordinary instances of treatment that could arguably be described as unequal do not merit particularly searching scrutiny where they do not involve fundamental rights. Where fundamental rights are at issue, however, we have never held that an equal protection challenge may proceed without the searching scrutiny that fundamental rights merit. We shouldn’t start now simply because those rights may have been burdened arbitrarily. True: Arbitrary selection has at times been considered a means of rendering a governmental decision legitimate. (See Samaha, Randomization in Adjudication (2009) 51 Wm. & Mary L.Rev. 1, 24-27.) But where an appreciable burden results — thereby infringing a fundamental right — arbitrariness seems a poor foundation on which to buttress the argument that the resulting situation is one that should not substantially concern us.
Just as the arbitrariness of the alleged injury is no cause to deny review, neither is the nature of the fundamental right so injured. That education is the right at issue has posed no insurmountable bar in the past. (See Butt, supra, 4 Cal.4th at p. 686 [“education is . . . a fundamental interest for purposes of equal protection analysis under the California Constitution”]; Serrano I, supra, 5 Cal.3d at pp. 608-609 [“We are convinced that the distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a ‘fundamental interest’ “].) Why should we treat differently the material interference with a fundamental right arising from the challenged statutes – interference the trial court found to exist, and the Court of Appeal did not dispute – from the disruption occasioned by a shorter school year (see Butt, at p. 686), or the drastic inequities in funding that undermine equal access to an education (see Serrano I, at pp. 590-591)? The harmful consequences to a child’s education caused by grossly ineffective teachers – the evidence for which the trial court found compelling – are no less grave than those resulting from a shortened period of instruction or financial shortfalls. In considering this case, we must respect the role of the representative branches of government and the public itself in shaping education policy. But our responsibility to honor the court’s proper constitutional role makes it as important for us to review a case that merits our attention as it is for us to avoid a dispute beyond the court’s purview. This case is the former. It squarely presents significant questions of state constitutional jurisprudence that our court, rather than the Legislature or the executive branch, is best suited to address. Moreover, even in a world where we clarify our fundamental rights jurisprudence as this case requires — and address concerns associated with the Court of Appeal’s decision – considerable room would remain for the legislative and executive branches to decide how best to address the important balance between honoring the fundamental right to education and addressing other goals, such as retaining protections for public employees from arbitrary dismissal.
Had we accepted our charge to ensure uniformity of decision on legal issues of statewide importance (see Cal. Rules of Court, rule 8.500(b)(1)), and had we declined to adopt the Court of Appeal’s approach, I am confident we would have appreciated the practical constraints that sometimes result in different educational inputs or outcomes for different children. Our track record suggests as much. (See Butt, supra, 4 Cal.4th 668; Serrano I, supra, 5 Cal.3d 584.) But there is a distinction between such conventional differences and what the trial court concluded was occurring as a result of these statutes – namely, that they resulted in “a direct, real, appreciable, and negative impact on a significant number of California students.” That is a difference we should not ignore. For it is certainly possible to conclude that the extent of the interference with students’ fundamental right to education has legal consequences, while at the same time acknowledging the role of the Legislature and the importance of maintaining flexibility within the context of the state’s constitutional responsibility to honor this most fundamental right. II. The Court of Appeal also failed to apply the standard for facial constitutional challenges that ordinarily governs cases involving fundamental rights. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 343 (American Academy) [requiring proof of a constitutional conflict in only “the vast majority of [the law’s] applications”].) What the appellate court did instead is apply the more stringent “must be unconstitutional in all its applications” standard, without any apparent justification. (See Vergara, supra, 246 Cal.App.4th at pp. 643, 648.) At a minimum, the court did not wrestle with the “uncertainty” in our case law surrounding the governing standard for facial constitutional challenges. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th 197, 218.) By granting review, we could have brought much-needed clarity to this frequently recurring issue of constitutional law.
The court below concluded that a successful facial challenge depends on showing that the challenged law ” ‘ “inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions” ¼ ” in all the law’s applications. (Vergara, supra, 246 Cal.App.4th at p. 643; accord, Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 181.) Only rarely have we applied the more stringent standard alone (see East Bay Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 693, 709), and not when a fundamental right is involved (see American Academy, supra, 16 Cal.4th at p. 343 [“a facial challenge to a statutory provision that broadly impinges upon fundamental constitutional rights may not be defeated simply by showing that there may be some circumstances in which the statute constitutionally could be applied”]). In fundamental rights cases, we require a showing of unconstitutionality in only “the vast majority of [the law’s] applications.” (Ibid.) Had the Court of Appeal applied this standard, and properly deferred to the trial court’s factual findings on causation, it is difficult to see how it could have rejected the trial court’s conclusions. The Court of Appeal also appears to have confused the question of whether a facially discriminatory statute exists with the question of what showing is required to prove that statute is invalid on its face. “Because plaintiffs did not demonstrate any facial constitutional defect, ” the appellate court stated in a footnote, “they certainly did not show that such a defect existed in the generality or vast majority of cases.” (Vergara, supra, 246 Cal.App.4th at p. 649, fn. 14.) Not so. Just because a statute does not discriminate on its face – i.e., does not “demonstrate any facial constitutional defect” – does not necessarily mean a facial challenge to that statute does not lie. If this were the case, facial challenges in this day and age would be dead on arrival. Moreover, it cannot be that because plaintiffs failed to satisfy the more stringent standard for bringing a facial challenge they, by necessity, failed to satisfy the less stringent one. What determines instead whether plaintiffs have succeeded in making such a challenge is whether they must prove a constitutional conflict in all of the statute’s applications, or in just the great majority of them. This is precisely the uncertainty we could have clarified by granting review.
III. There is no right without an adequate remedy. And no such remedy exists without review by a court of last resort when the decision of the appellate court, the importance of the case, and the question presented so clearly merit review. Denying review in this case leaves in place a decision that is in considerable tension with existing law and accepts with little explanation the notion of material interference with the fundamental right to an education – interference that the trial court here found was caused by the challenged statutes. The Court of Appeal then concluded that our law permits the wanton imposition of material burdens on or even deprivations of fundamental rights, as long as such imposition is sufficiently wanton that the burden does not fall on an “identifiable group” defined by some characteristic other than the burden imposed by the statutes themselves. No one should doubt that plaintiffs’ lawsuit raises difficult questions and implicates a variety of concerns, including the importance of protecting public employees from arbitrary dismissal. (See California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 335-336 [explaining that because “the state not only has monopolized the process of determining whether permanent public school teachers should be dismissed or suspended, but it also is the entity seeking to deprive teachers of their constitutionally protected liberty and property interests, ” it is therefore “required by the due process guarantee to provide the teacher a meaningful hearing”].) Public institutions must often reconcile their protection of a fundamental right with the realities of governing, the resolution of competing priorities, and the imperfections of any system forged and adapted by human hands. But here, the trial court concluded that a fundamental right was infringed when it was appreciably burdened by statutes protecting grossly ineffective teachers — and the evidence “shock[ed] the conscience.” There is a difference between the usual blemishes in governance left as institutions implement statutes or engage in routine trade-offs and those staggering failures that threaten to turn the right to education for California schoolchildren into an empty promise. Knowing the difference is as fundamental as education itself. Which is why I would grant review.

In August 27, 2014 (with tentative ruling dated June 10, 2014),  Los Angeles County Superior Court Judge Rolf Treu ruled that three of California’s teacher employment statutes violated the state’s constitution.

On April 14, 2016, the California appeals court overturned Treu’s June 2014 Vergara ruling.

As noted in my July 08, 2016, post, the appeals court found that

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, 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.

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” [Emphasis added.]

On May 24, 2016,  Vergara attorney Theodore Boutrous filed a petition for review with the California Supreme Court. On July 05, 2016, the Court extended its time for deciding if it would review Vergara “to and including August 22, 2016,” at the latest.

On August 22, 2016, the California Supreme Court decided that it would not review the appellate court reversal that declared Vergara unconstitutional.

So, four years after it began, Vergara is over.

CA state seal

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Released July 2016– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

On My Situation with Louisiana’s Flooding

I have had a number of people contacting me to ask how I am given Louisiana’s catastrophic flooding in some areas. I had not planned to write a post about it but decided to do so because of the many concerned readers who have contacted me and who are wondering how I am.

The short answer is that I am fine. I am not facing the terrible consequence of having my house flood. My house did not take on water due to any overflowing waterways or overwhelmed drainage system.

I have had some water in one room of my house, due to an unusual circumstance.

My house is an older structure that includes a couple of additions made over the years, sometimes by individuals who cut corners. One such renovation involved adding several rooms built on a second slab that happened to be higher than another. The result is that I have one room that is about four inches lower than the other rooms. The room in question was originally a patio, and when the other rooms were added onto the house, the person who did so did not bother to raise the slab of the room that was once a patio.

I use the room as a rec room.

So, this lower room sits below the water table, and water has been seeping into the wall where the two uneven slabs come together. Based on the water damage inside of the walls, the water has been an issue for years; however, it was not until this incessant, month-long rain hit that water began saturating the carpet in the room.

On Thursday, August 11, I stepped in the carpet in the room in question and noticed it was wet in spots. By Friday, the saturation had spread to about a third of the room. I walked around the room to see where the carpet was wet and moved my belongings.

I did not lose any furniture, and the few belongings that were wet were fine once I dried them.

On Saturday, my neighbor came over and helped me remove the wet section of carpeting and padding, and he cut a section of the wall so that we could discover where the water was entering the room.

We found the seam between the two uneven slabs and saw it leaking.

The solution is to raise the slab in this room so that it is the same height (above the water table) as the other rooms. Interestingly, there was no water damage on the wall that was at the exterior of the house, which means that the water is rising from under the house. Once the slab is raised, the water could still travel between slabs, but at that point, the water will be under the house.

I covered the exposed area, which was moldy, until the next weekend.

On Saturday, August 20, I moved all furniture out of the room; borrowed tools from my neighbor, and removed 14 inches of sheet rock, paneling (underneath sheet rock), and some of the 2″x 4″ plate which served as the base of the frame of the wall. My goal was to remove any moldy material and expose the wet wood to fresh air.

wall  Wall with uneven slab (click to enlarge)

corner Corner; black is wet wood

lower slab  Room is lower than other rooms

slab White spot to lower left (in shadow) is actually the higher slab.

The floor will need to be raised, but my situation is not the emergency that many in southern Louisiana are facing right now; so, I will just not use that room until the floor can be raised. If more water comes into the room, there is nothing for it to ruin. I can just wipe it up.

I am in no danger. I have treated the wet wood to prevent mold; I am at best inconvenienced; I have use of all remaining rooms in my house; there is no urgency about performing the renovations, and I will have the renovation completed when the state of emergency over this flooding has passed.

To all who have asked about me, thank you. I am fine.

 

Brand New NY-Based Charter-Boosting Nonprofit Has Michigan as First Customer

The School Empowerment Network (SEN) is a Brooklyn, NY-based nonprofit that received its nonprofit status in February 2016.

Just-born SEN specializes in three services: principal development, teacher development, and new school development. Its home page features an obvious link entitled, “START A NEW CHARTER SCHOOL.”

SEN’s three board members are computer science major Daniel Pasette as president; former TNTP (The New Teacher Project) and NYDOE exec director Alex Shub, and former NYDOE COO (Portfolio Planning) Eduardo Contreras.

As of August 18, 2016, it lists on its website a single funder, the Walton Foundation, and a single client: Michigan’s state-takeover Education Achievement Authority (EAA). It turns out that paint-barely-dry-on walls SEN is “leading” EAA, as the SEN website notes:

The Education Achievement Authority of Michigan (EAA) is a public system of schools whose mission is [to] turn the lowest performing schools in Michigan into the highest performing schools through people development, proven instructional strategies, and seamless operations.

At the EAA, School Empowerment Network is leading the design and implementation of teacher development pathways as well as an Achievement Leadership Institute (ALI) to prepare the next cohort of school administrators. As teachers build a track record of success in EAA schools, they have opportunities to reach more students, earn more money, and grow professionally by moving up our career ladder, from “Model” to “Lead” to “Master” Teacher—and eventually, if they are so inclined, into school administration positions.

SEN is also leading the implementation of Small Learning Communities (SLCs) to improve student academic and social/emotional outcomes. Our model assigns a cohort of staff to a specific grade or grade band of students, building one-year-at-a-time a clearly defined school culture which is modeled and embodied by all. As a result, small school communities are able to understand and meet the needs of each and every student. In 2015-2016, two SLC academies were launched in the district, and School Quality Review results already show evidence of new and much stronger school cultures, where clearer behavioral expectations have been established and are largely being met.

What lovely SEN marketing– and such a contrast to EAA reality, which includes likes of EAA embarrassment, former chancellor John Covington, who cut out as EAA leader amid questionable financial management issues.

Though Michigan’s state-run EAA is in its final year, the schools remain under the auspices of the state’s school reform office. The future jurisdiction of these schools is connected to a restructuring of the Detroit Public Schools.

Given the timing of the legislated EAA dissolution and the establishment of SEN as a nonprofit, it is possible that SEN was created to oversee the EAA school transition. SEN could be the chicken, but it could also be a Walton-funded, EAA egg. Note that SEN won the EAA contract under highly questionable circumstances, as the Detroit Free Press reported in November 2015:

The district running Michigan’s lowest-performing schools awarded a $1.7-million training contract to a company that scored 8th out of 10 companies seeking the work, according to documents reviewed by the Free Press.

The School Empowerment Network, or SEN, has no office, no listed phone number, an unfinished website and a seven-member staff. Its initial bid of $2.3 million was more than twice the $1-million bid submitted by the highest-scoring firm, Boston-based Public Consulting Group, which has 60 offices in the U.S., Canada and Europe.

Most of SEN’s current staff worked formerly for New York City schools at the same time Veronica Conforme, the current chancellor of the financially troubled Education Achievement Authority, also worked there. The EAA is SEN’s only client. …

The contract was awarded as the EAA is under siege because of poor academic performance, declining enrollment and an FBI investigation into kickback schemes involving vendors.

Nothing like relying on a then-not-even nonprofit that is more costly and low-scoring in its bid to lead critical clean-up of obvious corporate reform failure.

As for that Walton Foundation funding, SEN has this explanation:

In 2016 School Empowerment Network received a grant from the Walton Family Foundation to launch our Charter School Intensive Development Program (CSIDP). CSIDP recruits, selects, and trains transformational educators to open high-performing New York City charter schools, offering students from underserved communities more quality school options that prepare them for success in college, careers, and the competitive world beyond.

Founding a new school through the Charter School Intensive Development Program provides a unique opportunity to implement a distinct vision for serving NYC’s students and families and offers an unparalleled educational leadership experience. Participants in the program will receive high level support from SEN’s experienced principal coaches and partner organizations. We provide our future leaders with three years of support – from the charter application through the end of the first year of operation –  to help develop a charter leadership and school pipeline that creates new high-quality options for NYC students and families.

Of course, since SEN is a brand new nonprofit, there is little information available to the public regarding the connection between SEN and other corporate-reform-promoting nonprofits.

But there is some.

For the following information, I am using the nonprofit search engine, citizenaudit.org, for which I have a membership graciously purchased by a number of my readers. Since SEN does not yet have 990 tax forms on file, some of the information I cannot link to directly, but I can report the results of my search here.

Anyone with a membership to citizenaudit.org is able to verify the information below. (One could also verify on sites like 501c3lookup.org.)

The important name here is Cherie Velez, who is listed as the contact person for the SEN nonprofit. (It is possible that the Cherie Velez in question is this Florida-based Cherie Velez of Liberty Consultants, who “specializ[es] in providing customized financial, operational, and human resource solutions to a wide variety of businesses, including for-profit and non-profit.” However, I have not confirmed this.)

Cherie Velez is the name listed as the contact for five nonprofits.

The first is Campbell Brown’s Partnership for Educational Justice (PEJ) (EIN 464462811). PEJ is described as an “educational organization.” Despite having been awarded nonprofit status in September 2014, PEJ has yet to file any 990 tax form. However, PEJ has found the time (and money) to bring suit against teacher tenure in both New York and Minnesota.

The second is the Philos Project, Inc. (EIN 471182714), awarded nonprofit status in February 2015, and located at 79 Madison Ave., New York, NY. Brown’s husband, Dan Senor, sits on the board of this religious-affiliated nonprofit.

The third is also a religious-affiliated organization, the Shabbat Project, Inc. (EIN 464715368), which was awarded nonprofit status in April 2015, and also located at 79 Madison Ave., New York, NY. The Shabbat Project 2015 990 is inaccessible for some reason; however, the fact that it shares an address with the Philos Project is enough to establish a highly-probable connection with Senor.

The fourth Velez-associated nonprofit is The 74 Media, Inc. (EIN 472788684), more commonly known as The 74– co-founded by editor-in-chief Campbell Brown. Described as an “educational organization,” the 74 received nonprofit status on March 2015 and is due for its first 990 tax filing, uh, now.

And, of course, the fifth Velez-associated nonprofit is the one named at the outset of this post, charter-school-helper, SEN (EIN 474058445), a “charitable organization: education services and schools”…

…which one might logically conclude is connected to corporate-reform-pusher, Campbell Brown.

campbell brown 4  Campbell Brown

______________________________________________________________

Released July 2016– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

Stolen Language: Charter Schools Are Not “Public” Schools

On August 15, 2016,  the Post News Group published an op-ed entitled, “There’s No Such Thing as a ‘Public Charter School.'”

The piece was written by retired San Francisco State University adjunct professor, education activist, and Oakland, CA. resident, Ann Berlak. In short order, Berlak lays bare the lie behind the popularized message, “charter schools are public schools,” in such a clear, direct manner that I thought it worth sharing with my readers:

This year, more than a quarter of Oakland’s 49,000 students are attending one of its nearly 40 charter schools, far more per capita than anywhere else in the state.

Is this something for Oaklanders to boast about?

Not long ago I visited a school in Oakland to read to third graders on “Literacy Day.” On 
the way to the classroom I asked my guide if this was a charter or a public school. The 
immediate and decisive response: “We’re a public charter school.”

On June 14th the LA Times informed the public: “Charters are independently operated, free public schools.”

The California Department of Education makes no bones about it: “A charter school is a public school.”

However, the term “public charter school” was developed by a PR firm to reframe the way we understand schooling in relationship to “public” and to democracy.

The campaign has been wildly successful. However, though the term “public charter school” is increasingly ubiquitous, charters are not public schools.

Public institutions—schools, libraries, zoos—are, at least in theory, funded by 
taxes from all the people in its jurisdiction—local, state and national—and are held accountable to and by those people through that fundamental process we in a democracy call voting.

Most public schools are accountable to an elected school board made up of community 
members. Residents of that community have the right to be present at Board meetings, weigh in 
on votes and debates, and access public financial documents.

Charter schools are run by executive boards, committees or corporations whose members often 
live outside the community in which they are located and are not accountable to parents or 
the taxpayers/community members who fund them.

If you don’t like what your traditional public school is doing, you can make your voice heard by 
addressing administrators, voting for new leadership or taking a leadership role yourself. If 
you don’t like what your child’s charter school is doing and you express yourself, you may be 
asked to leave. There is no democratic mechanism for spearheading policy change.

Public institutions are the motors of democracy. Their purpose is to 
promote and preserve the fundamental values of a democratic society: liberty, equality and 
the public welfare or common good.

Public schools recognize that the welfare of everyone’s children and grandchildren is 
intimately linked to the welfare of all. Through support and oversight by the community, 
public schooling is intended to serve the common good and preserve fundamental qualities that sustain 
democracy beyond getting students “college and career ready.” If public schools have not always lived up to their promise then it is necessary to redouble our efforts to have them do so, not to abandon them.

When students leave public schools for charter schools they take their per pupil expenditures –which in California averaged $9,794 last year–with them, leaving public schools with less revenue but the same overhead.

The federal government also spends millions on charters at the expense of public schools. Taxpayers paid one consulting firm nearly $10 million to the U.S. Department of Education Charter Schools. That’s $10 million fewer federal dollars for public schools.

The law forbids local districts, which in California are the main authorizers for new charters, from taking into account the potentially crippling impact of new charters on district financing when considering approving new schools.

So even if you find an excellent charter to send your own child to, you are reducing the chances of every student remaining in the public school having their own excellent education.

Charter schools’ claim they enhance democracy is disingenuous.

The highly touted freedom of individual parents to choose their child’s school comes at the heavy price of reducing two other essential functions of democracy: providing for the general welfare of a society that requires well funded public schools and insuring equal opportunity for all children.

Competing with traditional public schools for space and funding reduces the quality of the remaining public schools, and ignores patterns of clear advantage for the children of savvy parents, thus assuring that some children will be better schooled than others.

Being publicly funded, charters cannot be considered private. However, their private governance and their marginalization of fundamental democratic values disqualify them as public.

The most accurate label for charters is “Publicly–funded private schools.” Don’t let them abscond with our language. There is no such thing as a public charter school.

In its July 29, 2016, resolution seeking a moratorium on charter schools, the NAACP confronts a number of problems stemming from the handing off of public (and public education) funding to charter schools, including “seek[ing] legislation to strengthen investigative powers of those bodies that oversee charter school fraud, corruption, waste” and “seek[ing] to pass legislation at the State and Local levels that will ensure that parents have access to Charter School Advocacy Boards.”

The NAACP resolution is also clear that charter schools funded using taxpayer money are “publicly funded charter schools,” not public schools.

Diverting public funding to an entity does not make that entity “public” any more than receiving a blood transfusion from Barack Obama would make me president.

white house

____________________________________________________________

Released July 2016– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

La. Supt. John White Asks Private Schools to Take Voucher Kids for Free

Louisiana has a voucher program. It is not working test score wonders. In December 2015, Danielle Drelinger of the Times-Picayune noted, “If the voucher schools were their own school system, it would be the fifth-worst of 76 in the state.”

Most Louisiana voucher students (41 percent, it seems) come from New Orleans, a city where school choice already reigns in the form of charters.

Based on Louisiana Department of Education (LDOE) data, only 1,420 new students applied for the program for the 2016-17 school year.

No definitive, positive research exists to justify the continued existence of Louisiana’s voucher program, which is supposed to provide low-income students with the option to attend private school using public money in order to escape the so-called failure of public schools, where failure is determined via school letter grades of C, D, and F. However, there is plenty of negative research (see here and here and here, for example) to show that in Louisiana, sending public money to private schools isn’t delivering on the corporate-reform payout of higher test scores. Louisiana’s voucher program is not outdoing local public school systems– yet Louisiana state superintendent John White wants that voucher program to live.

As it stands, LDOE does not have enough money to pay for all 7,807 students seeking vouchers for 2016-17. It has to cut 362 students. Thus, White is asking private schools to accept the students for free– as a foot-in-the-door to goad the state into later paying the private schools for the remaining students. As Melinda Deslatte of the Associated Press reports, White reasons that the cost to educate these student will be “nearly the same amount” and that he has written legislators to try to convince them to pay the extra $2 million even as he is asking private schools to enroll the students for no cost. Though that issue of voucher cost effectiveness is in dispute, the greater question concerns why Louisiana taxpayers should continue footing the bill at all for a voucher program that does not do what it purports: “save” students from failing schools.

Still, the school choice arm of the University of Arkansas (UArk) is attempting to come to White’s rescue by publishing a working paper advancing the idea that eliminating Louisiana’s voucher program would increase state costs. (Co-author of the piece, Julie Trivitt, who is herself Walton-funded to the degree that her department advertises ‘We are Walton,” once stated on FB that she “bet” I was “funded by the teachers union.”)

In short, the UArk message for Louisiana is to keep the state’s failing voucher program– not because the program works– but because it is cheaper.

The title of the UArk working paper is, “Squeezing the Public School Districts: The Fiscal Effects of Eliminating the Louisiana Scholarship Program,” which makes it sound like the state’s keeping a failing voucher program is good because it is good for the public school bottom line.

The supposed savings it promotes are for a flunkie program.

If my car is on blocks, I save on gas, but I go nowhere.

If the voucher schools were their own school system, it would be the fifth-worst of 76 in the state….

car on blocks

____________________________________________________________

Released July 2016– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

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