One by one, bills to change education policy are foundering in California.
Democratic legislators shelved a measure to extend from two to three years the time it takes for teachers to achieve tenure. They dispatched an effort to do away with the “last-in-first-out” policy that says the least experienced teachers should go first during budget-driven layoffs. They killed a teacher evaluation bill that sought to offer remedial training for struggling educators.
Each was opposed by the California Teachers Association, the 325,000-member group that has long exerted its influence over legislation and elections.
Thwarted at the Capitol – and on the ballot – a coalition of advocates working to overhaul the state’s low-ranking public schools increasingly have turned to the courts in search of more favorable outcomes. Current cases center on the effect of tenure and dismissal rules on students and the fees teachers pay to their unions.
Gloria Romero, a former Democratic state senator, contends the advocates have rightly focused their attention and resources on the judiciary – “where CTA money can’t buy the opinion.”
“What happens under the bubble of the Legislature is becoming less relevant to controlling the conversation,” Romero said. “The courts, and the history of education reform, have really solidified that this is where we are going to find some equity and justice.”
Among CTA’s recent triumphs was re-electing Superintendent of Public Instruction Tom Torlakson over fellow Democrat Marshall Tuck in a costly race that became a proxy battle between organized labor and self-described reformers. In the last election cycle, CTA gave about $11 million to state campaign committees, including $2.6 million to mostly Democratic legislative candidates. In 2012, it helped Gov. Jerry Brown pass a tax hike that became a bonanza for schools.
Their adversaries, Students Matter, StudentsFirst and the California Charter Schools Association, draw much of their backing from business interests. The coalition shares many of the same financial supporters as Tuck, who benefited from nearly $10 million in spending by an outside committee. The Center for Individual Rights, a Washington, D.C.-based public interest law firm, is another organization involved in the litigation.
In each of the court cases, CTA President Dean Vogel said, “it’s the same folks, the same PR firm, the same attack. All of this is in the guise of doing what’s in the best interest of kids, which I find very interesting considering you don’t see these people talking about providing clean and safe facilities or trying to get more funding. It’s really about trying to get the unions out of the way.”
He said it’s undeniable his opponents have “stepped up their game and are using the courts as a vehicle.”
“If I was them, and if I was trying to neutralize the unions, and I was having difficulty getting the right candidates elected or getting the right initiatives passed, I would certainly be looking at the courts,” Vogel said.
But he disagrees with the notion that the courts are an unassailable arbiter. Vogel pointed to Vergara v. California, where a judge ruled last year that the state’s tenure and dismissal rules deprived students of their right to a quality education.
Judge Rolf Treu of the Los Angeles Superior Court said the system disproportionately affects poor and minority students. “The evidence is compelling,” he said. “Indeed, it shocks the conscience.”
Vogel said he believed Treu “seemed to have delusions of grandeur” when before the closing arguments he linked the case to landmark decisions under former U.S. Chief Justice Earl Warren and ex-California Chief Justice Donald Wright.
Another high-stakes cases against the teachers union threatens to do what opponents have been unable to at the ballot box: erode its ability to deduct fees from members’ paychecks. Efforts in 1998 (Proposition 226), 2005 (Proposition 75) and 2012 (Proposition 32) all were rejected by voters, with the CTA spending tens of millions on opposition campaigns.
In Friedrichs v. California Teachers Association, involving 10 teachers and brought by the Center for Individual Rights, the plaintiffs are challenging “fair share” fees teachers pay in lieu of full union dues. Dues typically include funds for political purposes, but the fair share fees are designed to cover only the union’s costs of nonpolitical union business, such as contract negotiations.
The case was on hold before the 9th U.S. Circuit Court of Appeals but came off when the U.S. Supreme Court last year ruled that certain government workers do not have to join a union. The high court now has asked the California attorney general to weigh in before it decides whether to consider the matter.
The teachers union appears to be preparing for its worst case scenario – the loss of millions of dollars from its treasury. Members drew up a July 2014 presentation titled “Not if, but when: Living in a world without Fair Share.” In it, the group says a “cross-divisional” task force of managers was assigned to come up with recommendations for “a world where we lose fair share.” Another plan called for engaging staff with experience working in “right-to-work” states.
A CTA spokeswoman said members were acting responsibly by exploring all possible outcomes and developing many different plans.
Meanwhile, another group of four teachers backed by Students First filed a similar lawsuit last month against the CTA and another union, the California Federation of Teachers, alleging educators who choose to refrain from contributing the roughly one-third of their fees to political purposes lose out on important benefits as well as on the right to participate in union elections.
Plaintiff Bhavini Bhakta, a teacher in the Arcadia Unified School District, said she wants to be able to retain her voice in the union without funding political campaigns with which she disagrees. Bhakta believes she’s been harmed by union-supported teacher protection policies. In her first eight years, she received “pink slips” or was laid off six times, a combination of her seniority and the economic recession.
“You forced me to pay dues to you, and you are sitting up here fighting for the opposite of what I want,” she said.
Bhakta said most agonizing is hearing from lawmakers who she says tell her privately that their hands are tied by the political heft of the CTA.
Union officials take aim at what they say are numerous flaws in the Vergara decision, including a lack of evidence that the challenged laws cause harm. They argue the court “blatantly ignored” evidence proving the laws actually improve public education and that it “intruded on an inherently legislative function.”
Assemblyman Patrick O’Donnell, a high school teacher and Long Beach Democrat who chairs the Assembly Education Committee, is critical of recent Republican proposals that came in response to the Vergara case.
“If the state Legislature responded to every lawsuit working its way through the courts that’s all that we’d do,” O’Donnell said. “What we need to do is respond to the needs of the classroom.”
Not all Democrats are happy with the dynamics in the Legislature.
Assemblywoman Shirley Weber, D-San Diego, leaned into her colleagues when they rebuffed her bill to change the teacher evaluation system, an effort she deemed a “modest attempt at reform.”
A career educator who served on the school board in San Diego, Weber said her approach in the CTA-opposed Assembly Bill 1495 was not punitive. Instead, she said it addressed the unfairness of the current tenure process for new teachers who often are not given a chance to demonstrate their abilities or receive timely help.
“I know that there are a lot of issues, but it seems as if every time you try to open up the conversation it gets shut down,” Weber said.
“Californians believe in schools, and we want a school system that functions,” she added. “But at some point our patience is going to wear thin. You can see that in the kind of litigation that comes forward where people feel very frustrated.”