This article was first published by The McAlvany Intelligence Advisor on Friday, June 13, 2014:

The Tipping Point: How Little Things Can Make ...

The Tipping Point: How Little Things Can Make a Big Difference (Photo credit: jgarber)

A subtitle might be “Olives, Dominoes, Tipping Points, and Judge Treu.” It’s common knowledge that the first olive out of the bottle is always the hardest, that after that the rest come out a little more easily. It’s common knowledge that once the first domino falls, the others topple immediately afterwards. As Malcolm Gladwell, the author of The Tipping Point, put it:

The tipping point is that magic moment when an idea, trend, or social behavior crosses a threshold, tips, and spreads like wildfire.

Just as a single sick person can start an epidemic of the flu, so too can a small but precisely targeted push cause a fashion trend, the popularity of a new product, or a drop in the rate.

Los Angeles Superior Court Judge Rolf Treu pushed over the first domino on Tuesday, setting in motion the inevitable end of teacher tenure. It’ll take a while, but its demise is certain. He ruled in Vergara v. State of California that union rules set in place to protect incompetent teachers and secure their everlasting flow of dues to the unions were unconstitutional: all five of them.

The defendants – the CTA and the CFT (the California Teachers Association and the California Federation of Teachers) – were defenseless once the evidence started piling up. Heaven knows, the unions tried to quash this lawsuit from its birth back in 2012. But every time they demanded a summary judgment or a dismissal, the courts said no, you’re going to trial over this.

And so they did. After four weeks of testimony the judge had had it, and ruled in a veritable explosion of anger. Here’s what he had to say about each of those rules:

The Permanent Employment Statute does not provide nearly enough time for an informed decision to be made regarding … tenure….

As a result, teachers are being [granted tenure] who would not have been had more time been provided for the process….

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….

Most states have tenure statutes with a minimum of three, often four, and sometimes five years before a school official must decide whether to grant tenure or not. California’s rule is two years, but even that is incorrect: it’s more like 16 months. With 275,000 teachers in the system, it’s easier for a school superintendent to rubberstamp tenure rather than take the time to see if the teacher really can teach. And once in the system, it’s nearly impossible for them to be expelled.

Which brings us to the second rule (three rules actually) called the Dismissal Statute. The process of prosecuting and expelling a teacher for anything short of felonious sexual assault is so daunting and time-consuming and expensive that most superintendents don’t bother. When Treu learned about that, he wrote:

The evidence this Court heard was that it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion under the Dismissal Statutes….

Given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases.

Once aboard, they stay aboard, regardless. Gotta keep those dues flowing.

When lawyers for the unions protested that ending these rules would impair teachers’ to due process, Treu went ballistic:

This Court heard no evidence that [the] dismissal process … violated due process.

Why, then, the need for the current tortuous process required by the Dismissal Statutes for teacher dismissals…?

This is the dirty little secret: tenure is forever. It has nothing whatever to do with teaching the little ones. The judge learned that even the teachers themselves want to rid themselves of the incompetents:

This is particularly pertinent in light of evidence before the Court that teachers themselves do not want grossly ineffective colleagues in the classroom….

Based on the evidence before this Court, it finds the current system … to be so complex, time-consuming, and expensive as to make an effective, efficient, yet fair dismissal of a grossly ineffective teacher illusory.

Thus the Court finds the Dismissal Statutes unconstitutional….

He saved the best (or the worst) for last: FIFO. This rule mandates that during layoffs the last teacher hired is the first teacher fired, regardless of their skills or competency. No exceptions. No waivers. “First in, first out.” So long, ciao baby, have a nice day. The judge began to look for words to express his outrage. He came up with a good one:

This statute contains no exception or waiver based on teacher effectiveness. The last-hired teacher is the statutorily-mandated first-fired … when lay-offs occur….

The logic of this position is unfathomable….

[The Court] thus finds the LIFO statute unconstitutional….

Unfathomable. A good word to explain why the unions tried to keep this lawsuit from going public.

The from the usual suspects was predictable. Members of the fourth estate claimed that because the lawsuit was largely funded by a Silicon Valley entrepreneur, he must have an agenda. They claimed this was an “all-out assault on teacher tenure” (true), and that “wealthy benefactors” were behind the scenes (true) wanting to “force their policy views on the state” (false). An especially flagrant example of whining came from the president of the National Education Association, Dennis Van Roekel:

Let’s be clear: this lawsuit was never about helping students, but is yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education.

In to those canards, David Welch, the entrepreneur in question, explained that the real reason behind his willingness to spend a few million was because he wanted to rectify some wrongs. His own kids were in California public schools, and he had witnessed firsthand what incompetent teachers were doing to them. He said:

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.

Not every liberal on the planet jumped on the bandwagon with other critics. One remarkable exception was hard-core California Democrat Rep. George Miller, who rejoiced over the ruling:

It is not only Californians who should celebrate today’s decision, but families in every state and school district across the country….

Unfortunately, school districts nationwide have policies in place that mirror those challenged in Vergara….

This is simply indefensible. Today’s ruling puts every school with similar policies on notice.

And so they are, or soon will be. Welch is just getting warmed up. With this victory in his pocket, he has called on his merry band of litigators to file a similar lawsuit in every one of the following states: New York, Connecticut, Maryland, Oregon, New Mexico, Idaho, and Kansas. Legislators in these states have been stymied and frustrated at their attempts to end tenure there, but teacher unions have prevented much from happening. With this court ruling in hand, those unions will find themselves defanged. The CTA and the CFT are among the largest and most powerful unions in the country, and they have just been emasculated. Said Welch’s lead attorney Theodore Boutrous:

This is going to be the beginning of a series of these lawsuits that could fix many of the problems in education systems nationwide…

Somewhere Malcolm Gladwell is no doubt enjoying the moment.



Politico: California teachers unions lose big in court

Washington Post: California court rules teacher tenure creates impermissible unequal conditions

Vergara v. State of California

Huffington Post: California Teacher Tenure Law Unconstitutional

The New York Times: Judge Rejects Teacher Tenure for California            Summary

The New American: California Teachers Unions Threatened in Lawsuit Over Hiring, Firing Rules

Amazon: Malcolm Gladwell’s The Tipping Point

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