Remember the good old days when Theodore Olson helped found the Federalist Society? Remember when Olson joined with Edwin Meese, Robert Bork, Antonin Scalia, John Roberts, Samuel Alioto, and Clarence Thomas to proclaim, "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
Now, the "astroturf" education policy group Students Matter has hired Olson to argue that it doesn't matter what the law is; what matters is what the billionaires think the law should be. They want the court to overturn the California education laws that they believe are wrong. So, they have filed Vergara vs. California which would strip Californians of their democratic right to an education system consistent with their beliefs.
Don't get me wrong. I would strongly support a civil rights lawsuit, grounded in the law and based on solid evidence, if it was likely to help -- not hurt -- poor children of color. Vergara, however, is based merely on the beliefs of some powerful non-educators.
Students Matter is remarkably silent about its constitutional argument. Its legal brief argues that a small number of "grossly ineffective" teachers are "disproportionately assigned to schools serving predominantly minority and economically disadvantaged students. Vergara thus asks the court to prohibit the enforcement of any policy that is "substantially similar to the framework" which is now the duly enacted law of California.
Vergara seeks that extreme ruling based on claims that are even more extraordinary. It argues, "The key determinant of educational effectiveness is teacher quality." In fact, up to 90 percent of the factors that determine student performance are beyond the control of teachers.
The heart of Vergara is the assertion that "California's schools hire and retain grossly ineffective teachers at alarming rates." Students Matter, like so many other market-driven "reformers" supported by the "Billionaires Boys Club," seems to be devoted to firing teachers. If it wins in California, the next step very well could be legal campaigns against teachers' due process and collective bargaining rights in other states.
But, why would Students Matter stop with the micromanaging of the terminations of teachers? Why does Students Matter not go to court and order principals to stop hiring "stagnant, disinterested and uninspiring teachers?" Granted, Students Matter links to research that admits "high-poverty schools typically receive fewer applications for each teaching position,"and top teachers are less likely to stay in those schools. But, the whole idea of Vergara is that the plaintiffs believe that they have better ideas for running schools than those enshrined in state law.
Striking down due process laws will accomplish nothing if qualified replacements do not apply for positions in high-poverty schools. So, shouldn't Vergara prohibit principals in the top schools from competing with high-poverty schools when hiring teachers? Should it not also prohibit principals in high-poverty schools from hiring anyone other than applicants from the top universities? Should it not create a statistical model that estimates the future effectiveness of teaching candidates and create a matrix determining what types of schools can hire the teachers that the billionaires would approve of?
And, why should the billionaires stop there? Once they have imposed their will on school board elections, starting in Los Angeles and moving across the country, what other hiring and firing practices will they mandate?
Vergara could make us yearn for the good old days when Olson and his Federalist Society buddies merely opposed government efforts to protect working people. Now, Olson and Students Matter also want impose the most indefensible corporate policies on public sector employees.