June 10, 2014

Venue Shift – Gates Moratorium And Why Vergara Matters

By Bellwether

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Two significant and related pieces of education news today.

First, in Vergara v. California a state court struck down five laws regarding education personnel decisions there including the state’s teacher tenure law, last in and first out layoff policy, and its dismissal statutes (pdf). The decision, which was stayed pending appeal, puts the issue of how to design these policies in the legislature’s hands. It was a win for the plaintiffs – the judge actually cited defense/intervenors witnesses in support of plaintiffs arguments, which is never a sign your case is all that strong – on all issues. The decision is well-worth reading, some punchy prose but also a revealing look at the difference between arguing about education policy on Twitter, in the blogs, or at rallies and actually having to bring evidence.

That decision is juxtaposed against the announcement today from the Gates Foundation (pdf) that they are calling for a two-year moratorium on consequences for students or teachers attached to the new Common Core state standards.  If you read the earlier blog posts by Gates’ Vicki Phillips on this issue you can see that the position is not a total reversal – as it’s being portrayed in some circles – but more of an evolution toward a more specific call for a moratorium that dovetails with the moratorium the teachers’ unions have sought. There are certainly some places that need to be careful with Common Core implementation but moratoriums are blunt instruments. In this case the Gates position gives cover to those who want to slow things down in states where it is going well as well as those where it is not and even in non-Common Core states, where – surprise! – there isn’t much of an appetite for accountability either. States are all over the place on timelines so the effect of a moratorium is somewhat muted but the broad call will create an additional political headwind. For its part the foundation is playing a long-game that keeping teachers onboard with Common Core is the crux of a transformative education strategy (and people decrying Gates yesterday after the Washington Post story now think they’re Solomon-like). Whether that strategy can survive the union politics roiling it is an uncertain proposition.

So there is an old legal adage that says, ‘if you have the law on your side argue the law, if you don’t have the law argue the facts, and if you don’t have either then pound the table.’ You may have noticed an awful lot of table pounding lately. But the key thing about the Vergara  case is that it took the argument out the political realm, where anything goes in terms of “facts” and “evidence” and into a venue where there are actual rules about evidence and facts. It’s also a venue where claims can be challenged – watch the Vergara cross-examinations for some of that. And the result was a completely one-sided decision on statutes that very few analysts would even defend.  Not every state has constitutional language like California – and if it was easy to clear the constitutional hurdle more states would have school finance systems that are fair to poor kids  – but the strategy will have purchase elsewhere.

Reacting the the verdict California Federation of Teachers President Josh Pechthalt said,

“Their case was weak but they had good lawyers,” Pechthalt said. “Their case was underwritten by some very wealthy people and they employed one of America’s top corporate law firms,” Gibson Dunn & Crutcher LLP.

It reminds you of the post-race at the Belmont Stakes and other reactions have the same flavor. It’s a good example of the issue here – you can argue like that out of court but not in court where those issues have nothing to do with how the judge ruled.

That’s why today may be recalled as the day when reform seriously shifted to the courts. Reformers struggle in the hothouse of politics. The education system is decentralized, the special interests organized and strong, the public somewhat disengaged. And reformers aren’t all that good at politics anyway – and their opponents are.  The lesson many will take away from today’s events is that you’re better off in the courts than the arena.

They might be right.

Update: Also check out Ben Riley’s take on this.  He takes a break from the NZ fly fishing to look at some of the legal points to watch going forward.

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