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Vergara: The Campaign for What? And Why?

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By David Menefee-Libey and Charles Kerchner

Since the June verdict in the Vegara ruling that overturned California's teacher tenure, dismissal, and layoff laws, the organization that brought the case has mounted an expensive campaign to sustain attention to the case and to gain national visibility.  But what actual policies does Students Matter want to enact in response to their lawsuit, and what do they hope to accomplish with their public relations campaign in California and elsewhere?

On Monday, September 9, we had an opportunity to find answers to both questions.  Marcellus McRae, one of the lead plaintiffs' attorneys in case, spoke to a student audience at Pomona College, where one of us (David) teaches.  McRae's talk, billed as "Tenure on Trial," was sponsored by the Pomona Student Union.

McRae answered the "what" question by restating the case's announced ambitions.  He framed his presentation carefully from the outset.  Despite the dramatic title PSU had chosen, he said, "We didn't actually put tenure on trial."  On the contrary, he said, he had no objection to teacher tenure in general.  "We challenged a specific tenure law, which leaves the time to tenure unduly compressed."

With that caveat, McRae walked the audience through a scaled-down version of the closing arguments he presented to Los Angeles Superior Court Judge Rolf Treu's courtroom in March of this year.  Backed by about half the slides from the full 122-slide PowerPoint presentation from March, McRae summarized his arguments on the three core issues of the case, batted aside various defense arguments from the trial, and explained Judge Treu's ruling.

To be sure, his presentation has a healthy dose of lawyerly hyperbole.  He spoke in sweeping terms about the injustices done to students under the challenged laws, and of the "landmark" importance of the ruling, which he compared with Brown vs Board (1954) and Serrano vs Priest (1971).  He also implied that the ruling could transform educational provision and life opportunities for all students in California, and particularly low-income students and students of color. 

But he also spoke in numbing detail and incremental policy changes.  For example, after detailing the plaintiff's claim that 17 onerous steps were required to fire a grossly incompetent teacher, he argued that teachers should still be protected from arbitrary dismissal by more limited due process rules that cover the state's public employees under the "Skelly" ruling.

Similarly, after arguing that "Last In, First Out" dismissal statutes cost the state's children billions of dollars of lost income, he argued that many states reasonably include seniority among other considerations when laying off teachers.

(We have written extensively about the Vergara case on this blog—for example, here, here, here, and here—so the reader can follow those links to read about the specifics of the challenged laws on tenure, dismissal, and layoffs.)

Given these fairly limited policy prescriptions, the "why" question remained unanswered for me.  Why would a Gibson, Dunn, and Crutcher attorney spend his evening talking to 75 college students about the case pro bono on behalf of Students Matter?  And why would he make such sweeping claims about the case and the laws in question, only to offer incremental alternatives?

One possibility is that he was being disingenuous.  The lawyers at Gibson-Dunn are sophisticated people.  Maybe they talk about limited remedies in front of selected audiences to avoid triggering a backlash from teachers and other concerned supporters of public education.  They know the world of politics and policy well, and they know how in legal history one thing leads to another.  

In Q&A, McRae expressed openness to minor changes in current policies, allowing the audience to believe he saw the Vergara verdict as requiring only technical tweaks to existing employment law.  But the legal and policy implications of this decision are far from minor and technical, especially for dismissal and layoff laws.  The legal precedent would challenge the entire employment system for teachers.  It's hard for us to believe that the people sponsoring the suit don't know this.

Answers to the "why" question remain cloudy for us.  We can't help but suspect more sweeping motives when we consider practices and statements made by the financial sponsors of Students Matter about what kind of an employment system they really want for teachers.  The modesty of the announced goals doesn't match the size of the public relations campaign.  It would be helpful if the plaintiffs were more transparent.

(David Menefee-Libey is professor of politics at Pomona College)





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