Courting big change in schools

EDUCATION POLICY DEBATES these days are heated and issues are often cast in black and white. That makes David Welch either a behind-the-scenes hero or the villain behind the curtain.

The 55-year-old Silicon Valley tech executive is the driving force behind the Vergara case, a lawsuit filed in 2012 on behalf of poor and minority students in California that has sent shock waves across the country. In June 2014, a Los Angeles county superior court judge ruled that California’s policies on teacher tenure and dismissal saddled too many students with ineffective teachers, violating their rights to an adequate education under the state constitution.

People have turned to the courts for decades in the quest for educational equity — from the landmark 1954 US Supreme Court desegregation ruling in Brown vs. Board of Education to numerous cases in state courts challenging funding systems for public schools. The Vergara case opened a new front by asking a court to apply constitutional principles to much more nuanced policy matters related to how school districts operate — in this case, how teachers are hired and fired, and on the use of seniority to determine layoff procedures.

The case is having ripple effects across the country, with a similar suit filed in New York and others being contemplated elsewhere. In Massachusetts, a lawsuit is challenging the state’s cap on charter schools claiming it deprives students of the adequate education mandated by a 1993 Supreme Judicial Court ruling on school funding.

In the Vergara case, the court threw out five California laws — one governing tenure, one mandating the use of seniority as the basis for determining which teachers are laid off during a budget crunch, and three that relate to the process for dismissing ineffective teachers. In his slim 16-page decision, Judge Rolf Treu wrote that the evidence presented on the harmful effect of “grossly ineffective teachers” was compelling and “shocks the conscience.” He cited research showing the short-term learning loss from being a classroom with such teachers as well as the long-term impact on lifetime wage earnings.

The judge found that the period of time before teachers are granted tenure was inadequate, that it was too difficult to fire grossly ineffective teachers, and that seniority-based layoffs produce a “lose-lose situation,” with gifted younger teachers summarily dismissed while “senior grossly ineffective” teachers are left in place.

Treu ruled that the five statutes harmed California students overall and that they “impose a disproportionate burden on poor and minority students.”

The case is named for lead plaintiff Beatriz Vergara, a 15-year-old high school student in Los Angeles at the time she testified at trial and one of nine California students on whose behalf the case was filed. The ruling, which is now under appeal, was hailed as a victory by school reform leaders, including US Education Secretary Arne Duncan, but vilified by others as an attack on teachers that ignores poverty, inadequate funding, and all the other factors that impede student achievement.

Welch, an electrical engineer who holds more than 130 patents, is a successful Silicon Valley executive. He cofounded and serves as president of Infinera, a manufacturer of optical telecommunications systems with a market cap of more than $3 billion.

In 2011, he founded Students Matter, which bills itself as a national nonprofit organization focused on “sponsoring impact litigation to promote access to quality public education.” Welch has been the organization’s principal benefactor — though he declines to say how much money he and a foundation his family has established have put into the group and the Vergara case. A lead attorney for the plaintiffs is Theodore Olson, the former US Solicitor General who successfully argued the Bush vs. Gore case before the US Supreme Court and later teamed up with his adversary in that case to challenge California’s ban on same-sex marriage.

Welch, a father of three, says he’s motivated by concern for public education. He bristles at the charge that he and other well-heeled business titans have been able to buy their way to big changes in education. In fact, he tries to turn the tables on that claim. Welch says groups like Students Matter are simply putting competing arguments on an equal footing with unions, which have long had outsized influence in education laws and policy. All the Vergara case did, he says, was put questions about tenure, dismissal, and layoff policies before a court and ask whether they meet the California constitution’s standard for ensuring quality education.

Welch was in Boston earlier this month to deliver a keynote address on the Vergara case at a dinner hosted by the Pioneer Institute. I had a chance to sit down with him that afternoon at the CommonWealth offices. What follows is an edited transcript of our conversation.

COMMONWEALTH: Your organization spearheaded the Vergara case. It’s been described a bombshell decision that could have ripple effects across the country. Obviously you think those ripples are to good effect. Why?

DAVID WELCH: The pillar of Vergara is this question: Is this system there to serve the child? If the child is the primary purpose of the education system, we’d probably do some things differently. That was the challenge of Vergara, whether some of the key tenets of the education system were there to serve the child. The ruling said, yes, the child is the most important thing in the education system, and it is the state’s responsibility, at least in California, to deliver that constitutional right of equal access to that education.

CW: One thing that’s interesting about the case is how it figures in the history of education litigation. Things like the Brown decision talked about racial segregation, and a lot of cases, including the landmark Serrano ruling in California, like the McDuffy case here in Massachusetts, have focused on funding. But this case breaks into a new area by trying to gauge the effect of policies on the quality of schooling. Isn’t that a whole new front that’s been opened up?

WELCH:  I’m going to reframe your question a little bit and say, well, why did we choose the tactic that we did?  And my belief in talking with our diverse set of advisers, and the belief of others, was that by far the most important piece that education delivers to the child is the teacher. If you don’t have that strength in your teaching core, it’s pretty much impossible to deliver a good education, even if you pour lots of money into the rest – the infrastructure, technology, the curriculum. When we looked at the history – at Serrano [the California school funding case] and even the Brown versus Board of Education decision, Vergara is really just drilling down and saying, well, what are the key tenets of what’s needed to deliver a quality education uniformly across the system, or more uniformly across the system, and ensuring a quality teaching staff to do the job is absolutely critical.

CW: People in that system would say we have things like teacher training, teacher certification. We have all sorts of things that are designed to bring quality teaching to classrooms.

WELCH: I think most people enter the teaching profession with all the proper passion and aspirations. But, like we know in all jobs, in all professions, some people aren’t in the right profession. They’re not able to meet the standards of those professions. It’s not a large percentage, but it’s a meaningful percentage. The teaching profession is just like every other profession — it’s going to have that. What’s different in the education system than it is the case with writers for CommonWealth or, in my case, with engineers, is that the state actually has a constitutional responsibility to deliver something to society. So the standard of, are you getting the quality people into system, has a different hierarchy when you go through and look at what your constitutional rights are.

CW:  How out of synch with that do you think the policies are in California?

WELCH: An interesting fact that came out at trial — and this is what I love about the courtroom setting because it’s not a rhetoric setting, it’s a factual setting – had to do with comparing the bottom 5 percent teachers in Los Angeles Unified, which is one of the largest school districts in the country, to those in New York City or to an aggregate of half a dozen other cities in the country. If you had a bottom 5 percent teacher in LA Unified you received the equivalent of two weeks of education a year, which is substantially worse than in these other cities and is completely unacceptable in terms of the state’s responsibility of delivering education.

CW: Two of the principal researchers whose work was relied on were Harvard economists, Raj Chetty [who has since moved to Stanford] and Tom Kane. I think it was Tom Kane’s work that was the basis for the figure you just cited from LA. This raises another question about the evolution of education litigation, and that is that we’re now getting into awfully finely-grained arguments. You can compare funding allocations across districts, as earlier cases did, and pretty clearly make arguments about disparities. Now we’re bringing into court arguments around the merits of value-added analyses of teacher effectiveness and things like that. There’s still a lot of debate around whether they’re really ready for prime time.

WELCH: Vergara certainly isn’t about whether value-added is or is not a good metric.  I see it slightly differently than the way you present it. The premise that the education system is there to serve the child in many regards has left the system — and left the consciousness of the parties, be they the legislators, the administrators, the decision makers in the system. That’s what Vergara‘s about. It’s not about the tactical aspects of whether the value-added metric a good metric or not. I’m assured it’s flawed, but the problem is there is no other.

CW: But it has to have some credence or else some of the arguments are hard to hold up, right?

WELCH: No. We certainly presented value-added metrics and we utilized research from Dr. Chetty and Dr. Kane. And there was actually a third [professor] from Harvard that was brought in from the defense side [Susan Moore Johnson]. Kane testified, Chetty testified, and also Johnson. But the trial does not hinge on whether value-added is a good metric, a bad metric, or somewhere in between, because it was complemented by direct testimony of superintendents who had run the organization, from teachers who tried to operate within the organization, from parents. The trial brought in witnesses from throughout the system. The laws don’t specifically say, “We’re going to deliver bad education to you,” or they don’t specifically say, “We’re going to discriminate against a particular class.” But the question is, do they effectively do that? We believe they did, and the judge validated that.

CW: There were three big areas that the judge ruled on: tenure, dismissal procedures, and layoff policy. In terms of tenure, the judge wrote in his decision that California is one of only five states that has a period of two years or less in the classroom for new teachers before that decision is made, and the judge wrote that it is ends up effectively being closer to a year.

WELCH: It’s about 16 months of effective evaluation.

CW: So is this a problem of degree or of kind?  In other words, do you think the systems that have three or four years of teaching before granting tenure are reasonable, or it is the whole tenure idea wrong?

WELCH: I’ll answer it tactically and strategically. Tactically, even the witnesses for the defense concurred that two years was inadequate time to evaluate the quality of a teacher in that process. And in the judge’s ruling, you’ll notice he is referring to the commentary predominantly of the defense witnesses when he states that two years is inadequate. But that’s a tactical or incremental issue. What the judge also acknowledged is that the system can’t be about time in the system; it has to be about quality. The constitutional right of the child doesn’t say, I have the right to a teacher that’s been in the system for X years. It says, I have the right to a teacher that’s capable of delivering the education I need to function in our society. The current system is all metric-ed by time. And they have purged the processes of any understanding of whether there is quality there. Thank God that the vast majority of teachers in the system measure up to a good quality. But there is a reasonable fraction, or a substantive fraction, that don’t, and unfortunately those end up affecting more the lower income, more the minorities within the state.

CW: You said before that you didn’t necessarily oppose the idea of the tenure system, per se.

WELCH: If there is an assurance of quality of that teacher in front of the student, then you can apply whatever word you want to that. If I have a quality individual and they sustain that quality and I can give them a contract and make them feel comfortable of their longevity, great.

CW: Tenure is usually more related to the quality of their protections than to the quality of their service.

WELCH: Sure.

CW: Teachers unions would say all they want is a level of due process.  If you read the case, Judge Treu says what they had was…

WELCH:  …“Uber due process.”

CW: Right. It made it incredibly onerous for districts to try to terminate a teacher, he says. But in other states people say it’s really school administrators who have fallen down on the job. They’ve failed to evaluate teachers rigorously and use the tools they have to do this, and now they sort of want to throw the rules out — rules they haven’t really put their shoulder to the wheel to use.

WELCH: The accountability system within our public school systems is flawed from bottom to top. The expectations that we have put in front of our children and what we think they can achieve has degraded. The expectations of what an effective teacher is, what an effective administrator is, what a school board member’s responsibilities are, has just degraded from bottom to top. We need to fix that. But to not fix the expectations of delivering a quality teacher to our children doesn’t make sense.

CW: Where is the case now?

WELCH: The original suit was filed against the state parties — the districts, the state board of education, the governor. The teachers union [California Teachers Association], as an interested party, petitioned the court to intervene. We let the unions become a defense intervener. So after the ruling, both the unions and the state filed for appeals.

CW: What’s been the national fallout in your view from this?

WELCH: It created an event across the country. The Economist has published on it, newspapers in Canada have published on it, publications across the world have looked at this and said, yes, we [also] have some things in our system that are flawed in their support of our children. I wasn’t anticipating that outcome. It’s been fantastic to see. Editorial boards have come out in support of the Vergara ruling. The New York Times and the Wall Street Journal on the same day agreed, which is a rare event. The topic transcended the typical political lines, and it reframed the question as, are we doing the right thing by our children?  Our belief is we’re not.

CW:  I’ve seen some references to a similar case being filed in New York and talk of it in other states.

WELCH:  There is now a similar case in New York and it has passed the demurrer process [an early stage of proceedings in which a defendant seeks to have a case dismissed] and is moving toward trial. There has been legislative action in a number of states. Pennsylvania changed their seniority-based layoff laws. In a number of other states the legislature has moved forward to address this and reimaged the child as the pillar that the education system is built around.

CW: I understand that the plaintiffs and your organization say they’re focused on putting kids at the center of education policy. But critics say it’s part of a trend in which folks like yourself, very deep-pocketed people, are inserting themselves into education policy and in a sense short-circuiting or bypassing the usual process — the give and take of the political system of sorting things out — and basically bankrolling an end-around through litigation. How do you respond to that?

WELCH:  We’re not bypassing the system at all. The system is fully established to have an executive branch, a legislative branch, and a court system. And the court system is, frankly, there to protect the individual’s rights when the other two branches don’t. So we’re not bypassing the system, we’re acting within the system. In fact, I’ll stay on California, the legislative system and the executive branch have not respected the laws that protect the children’s rights to education, so we’ve asked the courts to chime in. So it’s absolutely the process that our country is built upon. As far as deep-pockets’ interest, there is no greater deep-pockets interest than the teachers union, especially on this topic. The quality of our lawyers was no lesser or greater than the quality of the union’s lawyers in that courtroom. It was important to have the courts listen to the arguments and rule, because the legislature and the executive branch have repeatedly shown their inability to address the issues.

CW: In terms of this idea that you played very much within the system of the three branches, there certainly is this argument, though, that the political or legislative process is where we should hope to see most things sorted out. The other path gets put under the broad category of “judicial activism.” To go back to your comment about how the traditional political lines don’t always apply here, conservatives have generally bristled at the strong power of unions on this issue around tenure and other things. But there is also a strain of conservative thought that is troubled by the use of courts to this extent. Here’s what someone wrote about the case: Brown versus Board of Education showed that courts “can ensure access to education,” but they “do a poor job promoting quality.” He wrote that, “they’ve often imposed unworkable, bureaucratic requirements, failed to weigh costs and benefits.” If judges can abolish tenure, could they “require that preschool teachers serving poor or minority children have a teaching credential from a school of education? Can judges order schools to adopt the Common Core if they think that will ensure that all students are held to an equal standard?” And on and on. That was written by Rick Hess, a conservative-leaning education policy guy, and it appeared in The National Review. He is basically worrying that Vergara could become the camel’s nose under the tent, with courts now asked to decide all sorts of more detailed education policy questions.

WELCH: I think we’d all agree that a system without a court system would be a bad system.

CW: Right. It’s a matter of how often we go to it.

WELCH: Do we want a court system to uniquely define what gets done in society? Absolutely not. It’s not meant for that. And do we want a system which is solely driven by the legislature? Absolutely not. But the legislature has to be able to drive policy, executional policy. When the legislature starts getting out of being guided by the rights of the individuals, then the courts need to say, you need to work within a particular framework.  And this is where I get back to the issue of what the Vergara ruling really means. It doesn’t mean tenure goes away. I’m not sure I’d encourage that tenure go away. But I am encouraging that the system needs to respect access to quality teaching and not protect ineffective teachers that compromise the child. To me that is what the Vergara ruling states. It states that we have let our system develop policies that are knowingly robbing children of an education needed in order to function in our society.

CW: But are you worried at all, though, about all sorts of policies now being subject to court challenges? In his piece in National Review, Rick Hess quotes a Washington Post story in which Kevin Welner, of the National Education Policy Center, a think tank generally sympathetic to teachers unions, says, “Although I can’t help but feel troubled by the attack on teachers and their hard-won rights,” the Vergara decision “could be a very good thing” for winning court rulings on all sorts of education policies. “If the relatively anemic facts and evidentiary record in Vergara support the striking down of five state statutes, it’s almost mind-boggling what the future may hold for education rights litigation in California,” says Welner.

WELCH: My biggest fear is we do nothing and that millions of children don’t receive an adequate education. We know that the current system is worse. Does this open up new challenges for society to make sure that they have the appropriate balance between the court system and the legislature? Absolutely. Should we have done Brown vs. Board of Education? Absolutely. Did it create issues on a tactical level? Certainly. But what was being done was the destruction of human rights, which our country can’t tolerate.

CW: So you hope the impact from this extends far and wide?

WELCH: I hope people get the argument of education back to what truly benefits the children. Far too often people send me stories of ineffective or inappropriate issues within the education system that really hurt individuals. I happened to be visiting a number of low-income neighborhoods and their schools a couple of weeks ago across the country. Multigenerational poverty is very problematic. Poverty in and of itself is bad. When you get multigenerational poverty, you really develop kind of a destructive system. The only sustained way of ensuring to break that generational problem is education.

CW: Most people don’t dispute that teachers are the most important in-school variable. But some argue that in-school variables are dwarfed by all the other stuff. So we can have these very polarizing battles over things like tenure that may matter. But does it matter more at margins, or account for a much smaller share of what’s holding kids back than all this other stuff we should be tackling? Years after these funding lawsuits, there are arguments again about disparities in what kids have access to in terms of actual resources.

WELCH: There is a lot to be done and there will always be a lot to be done to ensure that our educational system works. And the issues range from funding and facilities and personnel and societal factors. Is poverty a real issue? Absolutely it’s a real issue. Imagine trying to learn with some of these issues these children have to deal with when they go home. They’re tough. But you’re never going to find a single bullet, a single solution that solves all. And so when you see something wrong, you need to fix it. And it’s clear when we have an education system that doesn’t value the quality of teachers, the most important in-school factor in educating children, when we don’t value the quality of that, we’re just not operating properly. Is it going to solve all? Absolutely not. Is it going to help recenter the conversation so we prioritize the teaching experience and the child outcome? I hope so.