This article was first published at The McAlvany Intelligence Advisor on Friday, January 31, 2014: 

By all accounts David Welch is a modest man. An engineer by training, he founded an obscure company in Silicon Valley that makes fiber optic communications equipment. His company, Infinera, now employs 1,000 people.

Hardly headline news.

But when he sent his kids to public schools, he noticed that they weren’t being challenged. When he started looking into the situation, he saw union rules that were protecting incompetent teachers. He looked further and saw how those rules were turning out students that failed miserably in math and reading skills. He decided to do something about it. He got out his checkbook and, three years later, his case is being heard by the Supreme Court.

Welch explained what he learned:

When it comes to educating the leaders and innovators of tomorrow … California ranks behind almost every other state in the union. At the fourth grade level, California is 46th in the nation in reading and 45th in math, based on the 2011 National Assessment of Educational Progress. At the eighth grade level, the situation is even worse, with California ranking 48th in both subjects.

The state that once was known for having the best public education system in the country is now failing its children. And the sad irony is that California is imposing this tragedy on itself by failing to employ the strategies that have made it so successful.

Instead of demanding results and rewarding achievement, California’s education system is tethered to a handful of statutes that refuse to distinguish between good teachers and bad. These laws encourage the retention of seriously underperforming teachers, require schools to tolerate failure among their teaching ranks, and devalue talented teachers.

Put simply, these laws are destroying California’s public education system, demoralizing the teaching profession, and robbing California’s children of their future.

What are these “laws”? They’re union rules that protect incompetent teachers. First is the requirement that administrators must decide whether or not to grant tenure to new teachers after they’ve been in the system for 18 months. Welch claims that this is scarcely enough time to know if a teacher is a keeper or not. Most administrators grant tenure as a matter of course.

Once tenured, a teacher is nearly impossible to fire, even if he/she commits mayhem or sexual assault on his students. The school administration is faced with onerous requirements to prove teacher incompetency, with mounds of paperwork, approvals from the union, the likely appeals process involving expensive attorneys, and so forth.

But the one that really got Welch’s goat was the “last in, first out” rule when a school administrator is forced to downsize due to budget constraints. It’s called “reverse seniority” – the last to be hired are the first to be fired, even if they’re competent. This protects the incompetent the longer they’re in the system.

Here’s what Welch said about these rules:

Across the state, public school administrators are forced, by law, to grant permanent employment status to new teachers after only 18 months, before they even complete their beginner teacher training program and way before administrators can assess whether or not a teacher will be effective long-term.

Then, because of the elaborate dismissal procedures for teachers with permanent status, administrators cannot fire even the most egregiously ineffective teachers without navigating an expensive and time-consuming bureaucratic maze.

One attempt at dismissal often costs school districts hundreds of thousands of dollars and takes years upon years of hearings and appeals. The dismissal procedures go so far beyond due process … that make it impossible to protect students from ineffective teachers.

Perhaps the piece of the puzzle that makes the least sense is the “last-in, first-out” layoff law, which forces school districts to conduct layoffs based solely on teacher seniority. This law forces schools to dismiss passionate, effective teachers and keep some apathetic, ineffective teachers, just because they have seniority.

He decided to file suit as the most expeditious way to force the elimination of those rules:

We chose to utilize impact litigation to drive sorely needed changes in our public school system – and to shake up the political system that has let American schools, once the envy of the world, decline so far and so fast.

That’s how an engineer says: I’m mad and I’m not going to take it anymore.

In November 2010, Welch founded Student Matters, hired the best lawyers he could find, and found nine students and their parents who would serve nicely as fronts for his lawsuit – “interested parties” – and, in May 2012 filed suit: Vergara V. California. He named the state of California, the governor, the department of education, and the superintendents of two of the largest school districts in the state as defendants in the suit.

What happened next could make a good storyline for a novel. The defendants filed a response asking the court to throw out the suit. The court said no. The defendants appealed. The appeals court said no. In February 2013, the California Superior Court set the public jury trial date for January 27, 2014 – this past Monday.

And that’s when the real targets woke up as to what was afoot: the California Teachers Association (CTA) and the California Federation of Teachers (CFT). Perhaps they were hoping the courts would throw the suit out, and they wouldn’t have to be bothered or concerned that their precious rules would be exposed to the light of day. In May 2013, they asked the court to join the defendants, which the court allowed.

In September, the two school districts named in Welch’s suit wanted out to which Welch was only too happy to agree:

Like all other school districts in California, LAUSD [Los Angeles Unified School District] is hindered by rigid and outdated state laws that harm students.

We believe the trial should be focused on the actors who are chiefly responsible for devising, promoting, enacting, and maintaining those laws – namely, the state of California and the teachers’ unions.

Now it truly was David versus Goliath: Welch had called out the and they were ready for war. They immediately filed for a summary judgment – a decision without a jury – so that there would be little publicity. Again the court said no: this thing is going to trial, sorry about that.

Then the began the union “thing”: filling the airways and the media with claims that “wealthy benefactors” and “special interests” were behind the lawsuit, using their financial power to “force their policy views on the state.” This was a classic case of and deflection that has proved successful in the past: look at those evil rich people over there attacking us poor innocents over here. And the union pulled out their hoary argument that the real reason the kids weren’t learning anything was because of “inadequate funding.”

When Mish Shedlock looked at the unions’ predictable responses, he had his own translation:

  1. Teachers first.
  2. We don’t give a d—n about the kids.
  3. We protect the incompetents and the molesters alike.
  4. Molesters pay dues, kids don’t.
  5. Those dues pad our pockets.
  6. Padding our pockets allows us to bribe legislators for more rules we want.

In an interesting twist to the case, the defendants in the original case – the superintendents of the school districts – are publicly supporting Welch!

It’s way too early to say how the Supremes will rule on the case. The case is getting national attention, however, and in public polls unions’ continues to decline, along with their membership. If the court rules wisely here, the implication could reverberate far beyond California. A good decision would strike directly at union power to control teachers and administrators in their quest to protect themselves.

And all because one single individual, a quiet unassuming man, got mad and decided to do something about it.



Mish Shedlock: California Students File Constitutional Challenge to Teacher Firing Practices; Unions are the Child Molester’s Best Friend

Reuters: California students challenge teacher employment rules in lawsuit

Los Angeles Times: Testimony begins in trial over California teachers’ job protections

Students Matter: Case Status

Students Matter: Case time line

Welch’s company, Infinera 

Students Matter: Hear more from Dave Welch

Students Matter: Comments made when filing the lawsuit in May 2012

Orange County Register: David Welch: Trial could shake up schools for the better

Students Matter: Press release when filing in May 2012

Students Matter: Court’s Ruling gives lawsuit OK to move ahead in November 2012

Students Matter: Teachers unions join defendants in the lawsuit

Los Angeles Daily News: LAUSD dropped as defendant in teacher tenure, seniority lawsuit

Students Matter: Vergara v. California headed to trial

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