The Vergara Decision and the Shock of Inequality

“The evidence is compelling. Indeed, it shocks the conscience.”

— Judge Rolf M. Treu, Vergara v. California, June 16, 2014

Are there ineffective teachers in California classrooms? Undoubtedly.

Do students living in poverty find themselves disproportionately faced with ineffective teaching? Absolutely.

Is this a good justification for weakening unions and limiting due process in the termination of teachers? Not at all.

Let me explain.

When we look at inequality from the comfort of privilege, it does indeed “shock the conscience” –– especially the first time you really look at just how unequal our educational system has become.

Like Judge Treu, I am outraged at what Richard Ingersoll first identified as the “maldistribution of teachers.” This refers to the way the most qualified teachers disproportionately work with the highest achieving and most affluent students –– even within the same school.

In fact, international comparisons reveal that the United States stands out in this maldistribution problem: our country’s disparity in students’ access to qualified teachers is among the largest in the world.

Shocks the conscience, doesn’t it?

The diagnosis of teacher tenure as the root of this problem will not produce a cure. It’s the educational equivalent of putting leeches on the patient to let out “bad blood.”  It may make some intuitive sense based on our everyday educational discourse of “grit” and “innovation” –– but it also means you don’t actually understand the underlying causes of the problem.

What Ingersoll and other scholars have pointed to, time and again, are the organizational and working conditions that make it hard to staff high poverty schools –– so much so that there is a literature about “hard-to-staff schools.”

How hard-to-staff? As documented by Lora Bartlett in her book Migrant Teachers, between 2000-2010, US schools could not find enough teachers domestically to fill open positions, bringing in over 90,000 overseas trained teachers. They teach predominantly in urban schools with the highest poverty student populations in America.

With all the focus on Teach for America, Bartlett reports that “more overseas trained teachers have been sought to teach in America in the last ten years than there have been Teach for America teachers in the entire history of that program.”

The truth is that the problems facing our schools in the highest poverty communities exist so far off the experiential map of middle-class Americans that just seeing some of their challenges would provide a “shock of conscience.” Given that shock, the way is paved to point fingers at whatever bogeyman can be conjured.

In the Vergara case, the billionaire backers pointed to teachers unions and their role in giving teachers due process before termination.

Ironically, if research shows that poor working conditions are really the root cause of the maldistribution problem, reducing the negotiating power of unions is exactly the wrong solution.



8 thoughts on “The Vergara Decision and the Shock of Inequality

  1. Thanks for this Lani. You broaden the conversation in important ways – as always.

    As regards overseas trained – or internationally recruited – teachers – this group is situated in such a way that they are in essence exempt from tenure. Tenure is irrelevant when visa non-renewal by the employer is all that is needed to terminate employment. However the students of internationally recruited teachers in New York City Schools were found to have lower achievement scores in math. (as found in Kane, Rockoff, Steiger, 2006 The same study found that performance in the the first two years of teaching is the strongest indicator of teacher effectiveness.

    My book – Migrant Teachers – found that overseas trained teachers most often find themselves in schools that frame and treat them like low status transient workers. The receive few supports and are told things like “never send a student out of the room unless they physically threaten you.” Teachers in these climates are not effective. Schools that treat overseas trained teachers like transplants – that support them in their work and focus on maximizing their potential – experience increases in student achievement.

    The transplant model requires support, stability and – arguably – tenure.


    • Agreed that the workers’ rights issues for OTTs are not the point of Vergara. My point is that it is a fantasy that there are “qualified” teachers lining up to teach in really high poverty schools. Any time I tell people the numbers you found in your research — 90,000 OTTs in 10 years! –– they are shocked since it is an invisible phenomenon.

      I was using the OTT example to illustrate how much laypeople — even informed laypeople — don’t know about the labor market in high poverty schools.

      Thanks for the added information and the comment!


  2. I agree Lani. Most laypeople don’t know about the labor market in high poverty schools. And they know even less about the working conditions and ways that teachers’ work is undermined by poor organizational working conditions.

    Vergara’s focus on tenure is worse than narrow. It exacerbates the already challenging working conditions and is more likely to make the teaching in high poverty schools worse rather than better. There is a movement in this country to turn teaching work into short term, high turnover, low status work. This is part of that movement.


  3. I was with you until you said “the diagnosis of the root of the problem is tenure”. The Judge did not suggest that tenure was the problem. The Judge said that LAUSD’s approach to granting tenure so quickly on limited evidence was a problem. Even the defense conceded that 3 – 5 years is the norm. My reading of the ruling (as I blogged) is that the more important issue was LIFO – Last in, first out. And that is key to the maldistribution problem. So, the last paragraph is a straw man: it is based on what the Judge did not say.


    • The Judge nowhere says that tenure per se is against the educational right of children to equal quality educations nor does the ruling refer to tenure in general. This is specific to LAUSD. In fact, he says that the current short term and casual approach to tenure decision in LAUSD is harmful to teachers as well as students! Here is the key section of the ruling:

      “The Permanent Employment Statute does not provide nearly enough time for an informed decision to be made regarding the decision of tenure (critical for both students and teachers). As a result, teachers are being reelected who would not have been had more time been provided for the process. Conversely, startling evidence was presented that in some districts, including LAUSD, the time constraint results in non-reelection based on “any doubt, thus depriving l) teachers of an adequate opportunity to establish their competence, and 2) students of potentially competent teachers. This Court finds that both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statute.”


      • So I get from that excerpt that the ruling was against the timeline of tenure. I agree that LIFO policies are also a problem — too much instability for good new teachers. Do you read (2) in the judge’s ruling to be about LIFO?


  4. No, that occurs further down in the decision. He’s referring to the harm in #2 of premature tenure decisions on students, where in #1 it is the premature tenure decision on rejected teachers that he is writing about.


  5. Pingback: Surviving Incumbency – redqueeninla

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