Several weeks ago, a California judge delivered a ruling that, if upheld, would represent a devastating blow to teacher unions in that state and set a very dangerous precedent nationwide. The ruling in Vergara v. California by Judge Rolf M. Treu decrees that the state’s teacher tenure laws are unconstitutional because they deprive students from receiving a quality education.

Tenure is essentially the right to due process before being fired; without it teachers are employees at will who can be fired with relative ease. Tenure is granted after a teacher has been in the classroom for a minimum period of time (usually two or three years) and has been deemed competent to teach by his or her supervisor. In his decision Judge Treu claimed that it is essentially impossible to fire a teacher for incompetence in California and that the alleged proliferation of bad teachers was violating the civil rights of poor and minority students by condemning them to a substandard education. The judge furthermore declared that the scores of a teacher’s students on high stakes tests should be the key factor in determining competence. Treu’s ruling also overturns the legal basis for using seniority in layoffs, meaning that if a school has to layoff teachers, the least senior go first.

Who is Behind Vergara and Why

The Vergara case was brought by nine students in Los Angeles. But the group behind the case, Students Matter, is bankrolled by David Welch, a Silicon Valley capitalist, who also paid all the legal fees. Since the ruling a similar suit has been filed in New York and Students Matter is talking about filing lawsuits in at least six other states. It is clear that almost unlimited funds to pursue these suits will be available from “Wall Street philanthropists”, as the New York Times charmingly described them (3 July 2014).

Vergara is in one sense just the latest step in a very long campaign waged by corporate America and with the full support of the leadership of both major capitalist parties to subvert public education through privatization and union busting. The main weapon in this campaign, which is misnamed “education reform”, has been high stakes testing which was fully unleashed by the 2001 Federal legislation No Child Left Behind (NCLB) backed by George Bush and Ted Kennedy. High stakes testing has been used to close a huge number of schools especially in poor inner city neighborhoods thereby creating chaos and the space for ever more charter schools. It has also been used to underpin merit pay schemes for teachers and most recently in the creation of allegedly more “objective” evaluation systems for teachers.

The Bill Gates Foundation, the Walton Family Foundation (owners of Walmart) and assorted hedge fund managers have invested many millions in this campaign for a range of reasons which flow from the dominant neo-liberal ideology of the past period. These include opening up the massive public education sector to private profit and trying to turn education as a whole into a marketplace where parents and students are “consumers” with choices rather than citizens with rights. But the associated goal of undermining or even destroying the teachers unions, the National Education Association (NEA), the nation’s largest union, and the American Federation of Teachers (AFT), was possibly the biggest prize for many of the “reformers”. This is because the public sector remains the one area with a significant union density (only 7% of private sector workers are now unionized) and the teacher unions are (or were) the strongest public sector unions. Crippling the teacher unions was therefore key to crippling public sector unionism generally.

Vergara as the New Brown v. Board

All of this has been done in the name of ending the racial gap in education. Education deform has been called the “new civil rights movement” by corporate hacks in the media. Disgustingly the Vergara case was compared by Judge Treu in his ruling to the landmark Brown vs. Board of Topeka Supreme Court decision in 1954, which paved the way for a partial desegregation of public schools.

The reality is that the promise of Brown has been steadily reversed over the past twenty years. American public schools are now more racially segregated than they were in 1954. Furthermore, schools in poor neighborhoods are now far more under-resourced than they were at the start of the NCLB “civil rights movement” in 2001. The massive austerity unleashed in the wake of the 2007-8 financial meltdown hit public education particularly hard. The cuts to education in poor communities were disastrous.

This, along with the devastation caused by high stakes testing, are the real reasons why the quality of education offered to poor black and latino students is getting markedly worse, not the alleged epidemic of bad teachers. As Diane Ravitch, the nation’s leading critic of education reform wrote in response to the Vergara decision: “If they were truly interested in supporting the needs of the children the backers of this case would be advocating for smaller classes, for arts programs, for well-equipped and up-to-date schools, for after-school programs for health clinics, for librarians and counselors, and for inducements to attract and retain a stable corps of experienced teachers in the schools attended by Beatriz Vargara and her co-plaintiffs.”

The Truth about Tenure and Seniority

As Marxists we are deeply committed to the right of working class and poor youth to a decent education. We also believe that teachers as education workers have rights which should be respected. We do not say that a teacher has a right to keep his or her job no matter what they do, but what is the real purpose of tenure and seniority?

Without tenure and a degree of job security you can rapidly shift to a high turnover, casualized teacher workforce which exists in constant fear of being fired and therefore is far less likely to stand up for itself, demand higher wages, etc. Sound familiar? This describes most workplaces in the United States. It also describes the reality in most charter schools. In these circumstances, a union might theoretically still exist but it would be drastically weakened.

Likewise, without using seniority as the means for determining who will be laid off, a union’s power is severely reduced. Without seniority, management will find ways to get rid of workers they don’t like, including union activists. Seniority may be a crude instrument for deciding who gets laid off, but the alternative is far more dangerous.

The drive against tenure in the public schools has been going on for years. One tactic employed is to make tenure much harder to get. There are schools in New York City, for example, where the bulk of teachers are untenured. It is not surprising that at many of these schools no one is prepared to step forward to be the elected union representative. Do parents really want their children to be taught by cowed teachers afraid to take any initiative? Do students really want to see their teachers constantly replaced because they are not meeting bogus “performance” criteria defined by test data?

As one New York teacher recently wrote in a Daily News opinion piece:

“Tenure doesn’t only protect the so-called bad apples, or teachers accused of misconduct or incompetence. It protects all teachers. This is a tough job, and despite what you read in the papers, it also entails advocating for our students, your kids, whether or not the administration is comfortable with it.

“I meet passionate and effective teachers everywhere I go. How many will stand up for your kids when schools don’t provide the services they need? How many will demand deserving kids pass classes even if they fail a standardized test? How many will tell state Education Commissioner John King that failing 70% of New York City’s students is not only counterintuitive, but also counterproductive?

“It’s hard to say.  Abolish tenure and that number will drop very close to zero.”

Full Court Press on the Unions

The reason why the backers of Students Matter pushed the Vergara case and are now preparing a national offensive is that, despite the massive upheaval caused by education reform, they feel the job is still only half done. They want to decisively cripple the teacher unions which remain an objective obstacle to their goals, despite their awful leadership who have spent the last fifteen years trying in vain to negotiate the terms of education deform rather than fighting back. And what is quite striking here is that it is not just the union-hating Republicans who are jumping on the Vergara bandwagon, but the leadership of the Democratic Party as well.

The decision was effusively welcomed by Secretary of Education Arne Duncan. And it has also come out that a number of former aides to President Obama, including the former White House press secretary Robert Gibbs, are planning to play a key role in the national public relations drive to support Vergara style lawsuits.

It may seem strange that Obama who received huge resources from the unions, including the NEA and AFT, for both his presidential runs, would be prepared to directly and indirectly support such an overt union-busting stance. Remember how Obama declared his sympathy for the public sector workers of Wisconsin whose union rights were targeted by Republican governor Scott Walker? We in Socialist Alternative made the point at the time that the difference between the Republicans and the Democrats on the question of the public sector unions is that the Republicans want to smash them outright and the Democrats want to leave their hollow shells so that they can continue funneling millions into the coffers of Democratic candidates.

From his full-throated support for the mass firing of all the teachers at the allegedly “failed” high school in Central Falls, Rhode Island in 2010 to the Race to the Top competition designed to see which states could come up with the most effective ways to use test data to undermine union strength, Obama, along with the rest of the Democratic Party establishment, has been absolutely unstinting in his support of corporate education reform. It is worth pointing out though that as the effects of the reform policies have been deeply unpopular with most African American and latino parents and increasingly with liberal middle class parents i.e., with key parts of the Democratic base, this opposition has been reflected by some Democratic politicians, particularly from the party’s growing populist wing.

How Will the NEA and AFT Respond?

The NEA and AFT held their biennial national conventions in the wake of the Vergara ruling. Both conventions were marked by a clear change in tone from the leadership. In particular the NEA passed a resolution calling for the resignation of Arne Duncan. Besides anger at the Vergara ruling, the NEA has taken an enormous hit from bipartisan austerity policies and mass layoffs leading to the loss of 230,000 members over the past two years. The union’s new president, Lily Eskelsen Garcia spoke sharply at the convention against widening the use of high stakes tests and has said the NEA should not automatically support Democrats. In practice though this means endorsing some Republicans as well.

The AFT, led by Randi Weingarten, had already shifted its tone before Vergara, partly in very belated recognition of just how much ground the teacher unions have lost in the past decade. Last October the AFT published a document entitled “The Principles That Divide Us” which stated that, “The divide between rich and poor in the United States is vast and growing. Millions of children grow up in oppressive poverty while the super-rich advocate for policies that increase their wealth at others’ expense. For the past 20 years, we have watched as corporate interests attempt to dismantle public education and create a new, market-based system of schooling.”

This is certainly to the point. However, there is absolutely no indication that Weingarten and the Progressive Caucus which dominates the AFT has learned the lesson that their “strategy” of negotiating concessions and trying to be “partners” with allegedly progressive education reformers like Bill Gates has contributed directly to the drastic diminishing of union strength.

Just this spring the flagship AFT local in New York City, the United Federation of Teachers (UFT), negotiated a new contract containing yet more concessions despite the favorable circumstance of having a new mayor, Bill de Blasio, who is a critic of high stakes testing and co-locating charter schools in public school buildings. The contract provides, among other things, for the introduction of a form of merit pay and allowed up to 200 New York City schools to opt out of almost all provisions of the union contract, a clause correctly described even in the mainstream media as a form of union-endorsed “charterization” (read our full analysis of the UFT contract). The UFT contract was presented by the leadership at the AFT convention as a template for other locals to follow.

There are signs, however, of increasing opposition within both the AFT and the NEA. Alex Caputo-Pearl, a longstanding militant, was recently elected president of the United Teachers Los Angeles (UTLA) at the head of the Union Power slate. In Massachusetts, Barbara Madeloni, a fierce critic of high stakes testing and compromise unionism, was elected president of the Massachusetts Teachers Association (MTA).

At the AFT convention, the Chicago Teachers Union (CTU), led by Karen Lewis, pushed for a resolution against the Common Core standards now adopted in 44 states which have generated increasing opposition from educators. The CTU is the most prominent left-led teachers union in the country. In 2012, the CTU waged a nine day strike with huge support from working class parents against Chicago Mayor Rahm Emmanuel which electrified educators nationwide. The strike was successful in pushing back some of Rahm’s most aggressive demands, but the CTU has unfortunately been far less successful against his drive to close schools in the wake of the strike.

The Way Forward

The Vergara ruling is a potentially decisive moment for the teacher unions in the U.S. and for the future of public education. The California Teachers Federation says it is confident of winning on appeal. But it is absolutely clear that even if they are successful (and this may take some time) this will not be the end of this particular offensive by the corporate reformers and their political servants. In order to decisively end the assault on public education and the teacher unions there will need to be mass struggle led by reinvigorated unions who have decisively broken from the collaborationist policies that misleaders like Weingarten have so assiduously promoted.

Teacher unions will have to fight on several fronts. They need to rebuild their internal democracy from the school level up, train shop stewards in how to fight and be prepared to follow the example of the CTU and go on strike. But if there is one lesson that Vergara also should really burn into the minds of teacher activists it is the urgent need to end the abusive relationship with the Democratic Party and begin supporting independent working class candidates.

In Chicago, a recent poll showed Karen Lewis ten points ahead of Rahm Emmanuel in the race for mayor next year. Lewis has not declared that she is a candidate, but imagine the impact if she were to stand as an independent and as a trade union leader who openly attacks neo-liberal policies and endless austerity. Kshama Sawant, the first socialist elected to the Seattle city council in nearly 100 years, has shown the way. It is time to take the next step in challenging corporate politics. Such a development could do for the fight to defend public education what Kshama’s victory did for the fight for higher pay for low wage workers. We do not have to accept that the war to defend public education will be inevitably lost. There is a way forward and we must take it.