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Have the Vergara Plaintiffs Unwittingly Helped Their Reform Adversaries?

Kevin Welner:; (303) 492-8370
William J. Mathis:; (802) 383-0058

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Boulder, CO (June 9, 2015) - The California Court of Appeals is currently considering arguments about whether the uphold or reverse the trial court decision in Vergara v. State of California, which declared unconstitutional a set of state statutes that provide teachers with due process protections, seniority-based layoffs, and a two-year review period before a tenure decision. Yet a new law review article contends that the Vergara plaintiffs, in their eagerness to take on teachers, may be inviting litigation by those with rival goals for school policy and reform.

When the Vergara decision was first handed down last August, it was met with celebration among advocates who see a need to boost the process of teacher dismissal, particularly dismissal of teachers with low results derived from value-added models of gains in students’ standardized test scores. These accountability-focused reformers have been engaged in a pitched battle with a very different set of reformers, who argue for enriched learning opportunities and more resources for students.

Kevin Welner contends in the new article, titled Silver Linings Casebook: How Vergara’s Backers May Lose by Winning, that Vergara’s advocates of test-based accountability and easier teacher dismissal may be unwittingly setting the legal table for those who seek student resources and opportunities.

Welner is an attorney and professor of education policy at the University of Colorado Boulder School of Education, where he also directs the National Education Policy Center. Although he is critical of legal and factual reasoning in the trial court’s written opinion, he contends that the legal rule as outlined and applied by the trial court judge would – if embraced by the appellate court – open the door for considerable progress by a wide variety of education rights litigants.

Among other possibilities, Welner points to litigation challenging (a) tracking systems that ration college-prep classes, (b) disparities in working conditions between teachers in wealthier and in lower-income communities, (c) laws and policies that result in inequities in class size, (d) access to high-quality preschool, (e) grade retention, (f) exclusionary discipline, (g) access to enriched and engaging curriculum, (h) transportation, (i) buildings and facilities, (j) funding formulas, (k) access to and use of technology, (l) testing and accountability policies, and (m) school choice policies.

“The Vergara case itself may be poorly targeted, but there are plenty of worthy targets roaming in the fields,” said Welner.

His article, titled, Silver Linings Casebook: How Vergara’s Backers May Lose by Winning, is published in the Maryland Law Journal of Race, Religion, Gender and Class available at and at


The mission of the National Education Policy Center is to produce and disseminate high-quality, peer-reviewed research to inform education policy discussions. We are guided by the belief that the democratic governance of public education is strengthened when policies are based on sound evidence.  For more information on NEPC, please visit