Due process targeted along with teachers

Bill Knight column for Thurs., Fri., or Sat., July 17, 18 or 19

A lot of attention is understandably being paid to the U.S. Supreme Court’s recent “Harris v. Quinn” ruling, which eliminated agency-fee arrangements for Illinois’ home health care workers who benefit from union representation but don’t want to contribute to collective bargaining.

However, an earlier court decision that hurts labor – especially teachers – shouldn’t be overlooked.

“Vergara v. State of California” undermines the fundamental principle of the presumption of innocence.

True, “presumption of innocence” isn’t exactly in the U.S. Constitution.

In fact, guarantees spelled out there don’t even exist in workplaces – unless a union contract establishes rights such as due process.

But now, after a stunning June 10 court ruling in California, the presumption of innocence and due process may not be allowed even in collective bargaining agreements.

Los Angeles County Superior Court Judge Rolf Treu struck down teacher tenure, layoff rules, seniority and other employment-related provisions as unconstitutional, opening up the possibility of retaliation against educators and a move to privatize public education. The decision is being appealed.

The case was brought by corporate special interests that seek to blame teachers, not inequitable funding or other factors that affect children's ability to learn, according to teachers unions.

Treu claimed that he believes that due process is essential, but he ruled California’s protections for teachers unconstitutional because he believes two years is not long enough for probation.

“This lawsuit was never about helping students,” the NEA said, “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. Research shows experience enhances teacher effectiveness and increases student productivity at all grade levels.”

In the private sector, probation is usually weeks, often 60 days. In academia, from public schools to universities, tenure isn’t earned for years, and even then it’s followed by annual retention evaluations.

Like any employees, teachers can be discharged for misconduct, incompetence, etc. But like any workplace, job security is vital. In education, it’s called tenure, a protection against unfair acts by management that can include discipline or discharge. Built around due process established in union contracts by grievance and arbitration language set up to maintain operations while disputes are settled, the presumption of innocence is akin to the criminal justice system’s protection against incarceration, execution or “lynch law” based solely on suspicion or malice.

In U.S. jurisprudence, the presumption of innocence derives from English common law and the Magna Carta. It’s accepted to be implicitly part of the 5th and 6th Amendments in the Bill of Rights (prohibiting citizens from being deprived of life, liberty or property without due process, among other things, and a speedy trial by an impartial jury, respectively). Also, the 14th Amendment, passed in 1868, extends such protections to the states.

Employment, of course, is livelihood, not life; a real stake, if not precisely property. But the parallels are there.

“Our opponents have spent months – and millions of dollars – vilifying California teachers to push a political agenda,” said American Federation of Teachers president Randi Weingarten. “If we want every child to have a chance to thrive, we must retain and support a stable teaching force – especially in high-poverty schools. By attacking the rules that protect and support teachers, the ‘Vergara’ decision destabilizes public education.”

Indeed, the ruling “may do little to systemically raise student achievement,” wrote Dana Goldstein, author of the forthcoming book “The Teacher Wars: A History of America’s Most Embattled Profession” in The Atlantic.

“For high-poverty schools, hiring is at least as big of a challenge as firing,” Goldstein said, “and the ‘Vergara’ decision does nothing to make it easier for the most struggling schools to attract or retain the best teacher candidates.”

Focusing on who should be laid off in times of budget crises, Treu omits the bigger problem of adequate funding of schools so kids have access to the classes and opportunities they need.

“While the court used its bully pulpit to criticize teacher protections,” Weingarten said, “there was no mention of funding inequities, school segregation, high poverty or any other out-of-school or in-school factors that have been proven to affect student achievement and our children.

“The judge argues that no one should tolerate bad teachers in the classroom,” she continued. “We agree. But in focusing on teachers who make up a fraction of the workforce, he strips the hundreds of thousands of good teachers of any right to a voice.”

[PICTURED: AFT union president Randi Weingarten at a rally in Detroit, from ei-ie.org.]