California’s teachers’ unions were reeling after losing a landmark court case. A judge had issued a blistering ruling essentially accusing them of forcing schools to retain incompetent teachers at the expense of low-income and minority students, saying the evidence “shocks the conscience.” High-profile Democrats, including then-President Barack Obama’s education secretary, celebrated the decision, and the press questioned whether teachers’ unions were on the cusp of losing power. A New York Times editorial accused the labor groups of defending “shameful” and “anachronistic” laws.
But then-California attorney general Kamala Harris offered respite for her union allies—and major campaign donors: She would join them in their appeal. Together, Harris and the unions argued that even though the Golden State’s constitution guaranteed children an education, that didn’t mean it had to be a quality education.
The appellate court determined that California schools were indeed disproportionately harming minority and low-income children by retaining bad teachers, but ruled in favor of Harris and the unions. The three-judge panel said school administrators were the problem, not the teacher tenure and dismissal laws the nine student plaintiffs had challenged.
“[Harris] had every opportunity to stand up for the kids of Oakland and San Francisco,” Gloria Romero, the former California Senate majority leader, told the Washington Free Beacon. “Today, most kids in her hometown district of Oakland, across the board, Latino and African American, aren’t at basic levels of proficiency in reading and math.”
Reform efforts that had begun after the lower court’s ruling stopped in their tracks. Teachers’ unions rebounded, and just four years after the appellate ruling, were widely influential in keeping schools closed and mask mandates in place during the COVID-19 pandemic.
Critics argue that by joining unions to overturn the students’ initial victory, Harris helped kneecap California parents’ ability to challenge their districts. When Los Angeles parents sued to reopen their shuttered schools in 2021, administrators pointed to the case as justification for keeping kids in ineffective online learning.
“[The district] basically said, it doesn’t matter if we’re giving you a mediocre education because constitutionally, children in California do not have a right to a quality education,” said Negeen Ben-Cohen, a Los Angeles attorney and parent who helped lead that lawsuit.
Harris Defends Laws Students Say Protect Incompetent Teachers
Beatriz Vergara, her sister, and seven other California students sued the Golden State in 2014, taking aim at five laws, including one that made teachers eligible for tenure after 18 months—among the shortest in the nation—and another that established a first in, last out layoff policy. The students argued that the probationary period was too short to make informed decisions; that schools were forced to fire newer, high-quality teachers and retain senior educators regardless of ability; and that tenured teachers were simply too hard to fire.
The California Teachers Association and California Federation of Teachers intervened and voluntarily joined Vergara v. California as defendants. Harris and the unions argued that the laws were necessary to recruit and retain teachers, particularly at less desirable low-income schools.
Vergara described teachers who let students smoke marijuana in class and called them “stupid” and “cholos”—a racially derogatory term. “Teachers are supposed to motivate you, encourage you, and not put you down,” the 15-year-old told the court.
One expert witness presented a study showing that a single year spent under an incompetent teacher’s tutelage costs students some $1.4 million in lifetime earnings. A second demonstrated that students taught by Los Angeles’s bottom-tier teachers lost nearly 10 months of learning. Another testified that firing incompetent teachers with tenure could take anywhere from 2 to 10 years and cost between $50,000 and $450,000.
Even the state’s witnesses acknowledged that California schools employ thousands of “grossly ineffective” educators.
“The evidence is compelling. Indeed, it shocks the conscience,” Judge Rolf M. Treu wrote in his 16-page decision siding with the students and drawing comparisons to Brown v. Board of Education. “Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students.”
Reformers, including many mainstream Democrats, celebrated the students’ victory. Lawmakers in the state legislature began bipartisan work on reforms they saw as possible with the longstanding laws struck down, a staffer involved in the negotiations told the Free Beacon.
“My hope is that today’s decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift,” Obama’s education secretary, Arne Duncan, said following the ruling. “Every state, every school district needs to have that kind of conversation.”
The decision also prompted a Politico article, “The Fall of Teachers Unions,” focused on a range of challenges the labor groups faced.
A New York Times editorial said Treu’s ruling “pointed to the stupidity” of the short probationary period and “underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.”
“[T]he unions can either work to change the anachronistic policies cited by the court or they will have change thrust upon them,” it continued.
The unions ignored the warning. They vowed to appeal before Treu’s decision was even finalized.
“Every day that these laws remain in effect represents another opportunity denied,” John Deasy, then-Los Angeles Unified School District superintendent, said at the time. “With all deliberate speed. I don’t think we need to watch for two generations more to fix this.”
But Treu kept the laws in place so the pending appeal could play out. They remain 10 years later.
‘These Schools Will Stay Crappy’
While appealing Treu’s ruling in 2016, Harris and the unions’ arguments aligned: Students didn’t have a right to a quality education.
“Even significant variances in students’ educational experiences … are not necessarily sufficient to establish a constitutional deprivation,” Harris’s office argued.
The California Teachers Association and California Federation of Teachers argued that Treu “failed to address” whether the tenure laws “actually cause any of the alleged harms” (emphasis theirs) or “how the risk of being assigned by a school district to a so-called ‘grossly ineffective’ teacher violates any students’ equal protection right to basic educational equality—the only constitutional right at issue in this lawsuit.”
Harris and the unions had enjoyed an alliance for years at that point. In 2014, the year she vowed to appeal, the California Teachers Association gave Harris more than $27,000 for her reelection bid for attorney general. She raked in nearly $26,000 from the unions during her 2010 bid.
Harris’s first major legislative project was to criminalize parents for their kids’ truancy—a law backed by the California Teachers Association. It led to the arrest of the mother of a girl with sickle cell anemia whose hospitalizations frequently forced her to miss school. While the law remains on the books, California school districts now largely ignore it as overly punitive and ineffective.
“The same person who wanted to throw the low-income, mostly African-American mothers into jail for truancy from these chronically failing schools went to court later to say, ‘These schools will stay crappy,’” Romero, the former state senate majority leader, said.
The appellate panel called it “extremely troubling” that incompetent teachers were transferred to schools primarily serving low-income and minority students instead of being fired. But the judges ruled that administrators, and not the tenure and dismissal laws, were to blame.
“The challenged statutes do not in any way instruct administrators regarding which teachers to assign to which schools,” the panel wrote in the April 2016 ruling.
A month later, the California Teachers Association poured nearly $66,000 into Harris’s U.S. Senate campaign. That August, the state supreme court upheld the appellate decision.
Harris’s court victory continues to reverberate across California’s public schools. Even modest tenure reforms are killed before they can receive a full vote. Legislation to extend the probationary period for newly hired teachers to three years, like in most other states, has repeatedly failed to reach the floor.
The unions also rebounded in full force. The California Teachers Association perennially ranks as one of the top lobbying spenders. And four years after the appellate ruling, state leaders, under pressure from the unions, imposed the nation’s longest COVID-19 school closures. Even when schools reopened, they helped persuade Gov. Gavin Newsom (D.) to preserve mask mandates for students even though they had been lifted for almost everyone else.
Meanwhile, California students have languished, with reading and math scores falling significantly below the national average and struggling to recover following the pandemic closures. Black, Hispanic, and poor students’ test scores remain far below their peers, with less than half of each group meeting state standards. In Oakland, Harris’s self-proclaimed hometown, just 2 in 10 black and brown students are reading at grade level, according to a March report.
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