Archives For Vergara Decision

by John Giambalvo


Judge Rolf M. Treu’s decision in the case of Vergara vs. California is, by most accounts, the decision that shocked the education world. This week, the judge rendered illegal three sections of California education law.

Taken together, those sections afforded some public school teachers of that state the courtesy of due process before being terminated. Each of the sections, the one governing the procedures for granting tenure (here), dismissing tenured teachers and laying them off from their jobs (both here), had exempted teachers with tenure from California’s law of firing employees “at-will”. With regard to teacher tenure, the judge ruled that the two year time frame the law gave for teachers to earn tenure was much too short. The judge went on to say that California’s “Dismissal Sections” were “tortuous” and granted “uber due process” procedures to teachers -protections that other state employees did not enjoy. “LIFO”, decided the judge, prevented the “junior gifted [teacher]” from keeping his job during times of layoffs while the “grossly ineffective one” remained in the classroom. That, said the judge, violated the state constitution’s “Equal Protection” clause as well and it had to go.

If allowed to stand, the results from this lawsuit, which is sure to be replicated in states across the nation, will expose any teacher in California to be fired in much the same way as “at-will” employees are: With no chance for an impartial hearing (unless the teacher decides to sue in court) and with little to no notice at all (here).

Treu’s conclusion, that teachers have too many workplace protections, is ironic. This is because he is not exactly an “at-will” employee himself. Judges in California enjoy some of the most stringent job protections of any employee in the nation. Superior Court Judges are elected to six year terms. Treu was elected in 2001 (here) and has been reelected twice since. Unless faced with an actual opponent, he will be automatically reelected at the end of every term without his name even appearing on a ballot (here and here). Given that the judge’s wife is a donor and former staffer of Republican Congressman Gary Miller (read his “Thank You” to her on the official Congressional Record here), I doubt that anyone will be challenging him anytime soon. And, being as only three judges in the entire state have lost reelection since the Great Depression (here),  I doubt that his chances of losing that election would ever be a concern.

You will be happy to know the judge’s job is also well protected if he ever finds himself in hot water. In the state of California, judges can only be removed through their own “tortuous” process called a recall vote (see here). If someone ever wants him fired, they must first collect vast amount of signatures from concerned citizens all across his district. They must then win a general vote.  As of 2008, no California judge had ever been recalled (here again). These protections are in full force whether the judge is highly effective or ‘grossly ineffective’.

Talk about uber due process!

Of course, anywhere from 1%-3% of any professional from any profession may be ‘grossly ineffective’ at what they do. This is true for my profession as it is for his. In his decision, the judge briefly examined the damage that ‘grossly ineffective’ teachers may cause if left in the classroom. Let’s briefly examine the damage that ‘grossly ineffective’ justices from his state may cause if allowed to stay on the bench.  There are 2,287 judges in California (here), the extrapolated number of ‘grossly ineffective’ judges may range from 23 to 68. Now there are 38 million people who live in California. That’s one judge for approximately every 16,615 people. You may be surprised to learn that just 23 bad judges from California have the potential of adversely effecting the lives of 382,145 people. 68 bad judges can negatively effect the lives of 1,129,820!   If we’re only considering how bad judges may adversely effect the lives of school children, (California has 9,240,219 school aged children (here) or one judge for every 4,040 children), then  23 ‘grossly ineffective’ judges can hurt 92,920 students in that state and 68 ‘grossly ineffective’ judges can hurt a whopping 274,720! I don’t think too many people could refute an assertion that this large amount of bad judges may have, to paraphrase judge Treu, “a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said [judges] hold their positions…”. And yet the judge continues to enjoy stringent workplace protections.

In fact, everyone who was involved in the presentation and decision of the Vergara case had some type of job protection above and beyond the “at-will” status that the rest of Californians have.

The Lawyers who argued the case have their protections. They are only prevented from practicing their craft if they are disbarred. California has it’s own special court, called the State Bar Court of California, just for making these decisions (here). That court boasts that attorneys who practice in California do so in “the only state in the nation with independent professional judges dedicated to ruling on attorney discipline cases”. That’s a nice protection!

The court reporter and clerk, as well as the officers who ensured the safety and security for all involved in the Vergara case, have special job protections too. They are considered “court employees” and their due process includes “a system of progressive discipline and termination “for cause” rather than “at will” employment” (here).

A progressive discipline process is something that tenured teachers in California do not have. Neither do they have their own ‘special court’ to determine whether or not they should be removed.

The fact that anywhere between 1% and 3% of any of these professionals may be ‘grossly ineffective’ at what they do has not stopped the entire state judicial system from insulating its employees from an “at will” termination process. They offer these protections knowing full well that the ‘grossly ineffective’ professional may adversely effect a large number of the many people who come in contact their profession each day.  I am not sure why this is the case, but I suspect the reasoning has something to do with protecting the other 97%-99% of these dedicated public servants from unfair dismissals. One thing is for sure. They do not feel that their state’s “at will” termination process for employees is fair to them.

I actually feel the same way! Not only is the work they do important to our society, but it is also important to them, as people. Those job protections allow the men and women in that system to provide for themselves and for their families with security as they pursue their own version of the American Dream. That, in itself, is an important right. FDR felt exactly the same way. “We have come to a clear realization” he said way back 1944, “that true individual freedom cannot exist without economic security and independence” (see here and read carefully!).

One way to ensure the economic security and independence of Americans is to afford them the simple workplace protection of due process.

Due process itself is as American as Apple Pie. It is enshrined in the US Constitution as a basic political right.  FDR made the observation that “As our nation has grown in size and stature … political rights proved inadequate to assure us equality in the pursuit of happiness”. In other words, he said political rights were no longer enough.

“At will” employment laws create the potential for Americans to have that equality taken from them simply because another person feels like doing it. The laws expose people to capricious, even ‘grossly ineffective’ supervisors and place employees on a less even playing field with employers than they already are. The US is the only wealthy nation on Earth that still subscribes to the “Employment At Will Doctrine (here)” (here) and many nations, like Germany (cited only because it is the richest nation in Europe (here)), have laws that specifically spell out the type of due process every employee should have when faced with possible termination (here).

That’s why, instead of taking due process rights away from teachers, the better thing to do is to just give them to everyone else. Let’s not make judge Treu and his colleagues, nor me and my colleagues, the exception. Instead, let’s work to make that standard -that no person can have their job taken from him or her simply because another person “wills” it- the rule. Let’s not make this a rule just for teachers or just for judges, but for every person in California and beyond.

Our job as teachers, however, is incredibly important.  No less than the future of an entire generation of Americans depends on the work we do in our classrooms each and every day. So let’s resolve to not leave ourselves in a position where we have to win an entire election just to remove one person who isn’t very good at what he does. By all means, let’s go after the 1% to 3% of ‘grossly ineffective’ workers -everywhere. But let’s allow a person who has been accused of not being effective the simple courtesy, the dignity, of defending him or herself before someone else decides he or she should be terminated.

And, once that standard has been established, let’s start with Judge Rolf M. Treu

by James Eterno, Chapter Leader, Jamaica High School

[The following is a compilation of two different reports, originally posted at the ICE blog, about Wednesday's DA]

President’s Report


President Michael Mulgrew opened the June Delegate Assembly by talking about California.  He said the decision of the judge to get rid of tenure and seniority rights because they violate the California Constitution is very troubling but we are confident about the appeal.  We knew once the case was assigned to this particular judge that it would be difficult to win.
The premise of school reform is that public education is failing but this isn’t true.  Judge said students were having their civil rights violated because of bad teachers.  The judge is wrong because the problem is poverty and teacher retention and not subpar teachers.  We expect copycat lawsuits in New York State from front groups like Students’ First.

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