Wednesday, September 10, 2014




          For three months, the time bomb that is the Vergara vs. California court decision lurked in the background as two of this fall’s major political contests gradually took shape.

          Those are the races for governor and state schools superintendent, both offices now occupied by Democrats strongly backed by teachers unions: Gov. Jerry Brown and Supt. Tom Torlakson, a longtime state legislator before he moved up.

          Each now faces an opponent who has long backed the essence of Vergara. If upheld by appeals courts, the decision would essentially throw out California’s teacher tenure system and end rules that make it harder and more expensive to fire teachers than other state employees.

          For three months it was not certain Brown and Torlakson would appeal the ruling by an obscure Los Angeles County Superior Court judge, Rolf M. Treu.

          But once Treu finalized his decision in late August, Brown and Torlakson instantly appealed.

          Both Republican gubernatorial nominee Neel Kashkari and Torlakson’s charter school-oriented, nominally Democratic opponent Marshall Tuck had long demanded that the two incumbents accept Vergara and revamp the rules for teachers substantially.

          Brown and Torlakson were not moved. Both emerged from the June primary election with huge margins over their respective rivals and neither feeling particularly threatened. Brown actually won a majority of the vote last spring, but a wasteful and unreasonable twist of the top two system demands that even candidates who get a primary election majority must run again in the fall. Torlakson, meanwhile, came within less than two percentage points of a majority, besting Tuck by about 20 percent of the vote.

          Neither will turn his back on their leading supporters, as Torlakson made clear in appealing. “No teacher is perfect,” he said. “(But only) a very few are not worthy of the job. School districts have always had the power to dismiss those who do not measure up.”

          Responded Tuck, “Kids should not have to sue to get a quality education.” It was essentially the same thing he’s been saying since starting his campaign in early spring, when he decried the fact that teachers, who can get tenure after two years on the job, often are assured they’ll win that status after only 16 months of work. Not long enough, Tuck said in an interview, for them to prove they're worthy of a lifetime sinecure.

          This was always going to be a major fall issue, but no one could say much until Treu finalized his opinion. Treu himself is a bit of a time bomb. Appointed to a municipal court judgeship by ex-Gov. Pete Wilson in 1995, Treu should have expected to hear traffic cases, misdemeanor trials and some criminal arraignments, but never to get the chance to make education policy for the nation's most populous state.

          But Treu morphed into a more powerful superior court judge when municipal courts were eliminated three years after his appointment. The result is that the most important education decision in decades was not made by a qualified expert or even an elected lawmaker, but a judge nicknamed “The Wolf” by some lawyers who practice in his court and described by other attorneys on The Robing Room blog as “sanction happy” and “reminiscent of a cop with a (traffic ticket) quota system.”

          So it was no wonder Brown’s notice of appeal laconically said “changes of this magnitude, as a matter of law, require appellate review,” a point he repeated in the fall's only gubernatorial debate.

          Regardless of the judge’s background, the debate is the same: Does the relative ease of gaining teacher tenure combined with the difficulty of dismissing teachers create poor quality education? Or does tenure attract talented people to teaching, people who might otherwise take higher-salaried jobs in private industry, but like the job security they get from tenure?

          That is the essence of this fall’s loudest California campaign disagreement. For purposes of the election, it really doesn’t matter which way the legal case will eventually go. Since most existing working conditions are determined not only by state law, but also by local union contracts, there’s a good chance Vergara will be overturned. That’s especially true since two Brown appointees, with a third due early next year, have shifted the seven-justice state Supreme Court leftward.

          But both Kashkari and Tuck know educational quality is an emotional issue, and each needs one to make up his huge primary election deficit. This one has now fallen into their laps.


    Email Thomas Elias at His book, "The Burzynski Breakthrough, The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit

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