Sigrid Bathen

Writer • Editor • Teacher

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Tackling the teacher tenure issue

March 17, 2016 /

The reasons for job security provisions are valid and date back decades, but the system needs streamlining.

by Sigrid Bathen published May 20, 2009

 

Well into the 20th century, teachers in the United States were treated as school property, paid meager salaries and expected to do the bidding of boards and principals. Black teachers of either sex could teach only in substandard segregated schools, and female teachers — black or white — could be summarily dismissed for all variety of reasons: wearing skirts above the ankle, being out in the evenings or even getting married.

Mary Louise Phillips was a young elementary school teacher in Phoenix in the fall of 1941. She was teaching her first class of third-graders in a segregated school and quietly seeing a fellow teacher she had met in college, Wilson Riles, who worked seven hours of treacherous mountain roads away, at a one-room school for the children of black sawmill workers in the tiny northern Arizona town of McNary.

The two young teachers wanted to get married — but if they did, she would lose her Phoenix job immediately. “Wilson said I had to consent to marry him,” recalls Mary Louise Riles, now 89, “or he’d have to stop making that drive.” So they eloped, managing to keep the marriage secret for a couple of months, until she joined her husband as a teacher in McNary, where the rules for married teachers were less rigid.

Three decades later, Wilson Riles would be elected California superintendent of public instruction, becoming California’s first African American elected to statewide office.

The origins of teacher tenure are firmly rooted in rank discrimination against women and were closely tied to the women’s rights movement. California was the first state to mandate “permanent” status for teachers, after two years on the job, in 1921. Other states followed. But most of those gains were swept away in the midst of the Depression. And in one form or another, capricious, even sexist rules governing teachers were commonplace well into the 1960s and ’70s. All teachers were at risk if they spoke out at board meetings or engaged in political activity that went against prevailing opinions in their districts.

In one key California case, Paul Finot, who taught at John Muir High School in Pasadena, was reassigned to home teaching in 1963 for refusing to shave a beard he’d grown over the summer. Eventually vindicated by an appeals court, he was asked in a lower court hearing if his beard was “an outgrowth” of his “radicalism,” and he replied that it was “an outgrowth of my six-week fishing trip.”

It was in that era that newly emergent teachers unions used their growing clout to challenge the laws and push for tenure everywhere — along with better pay, collective bargaining and due process in disciplinary actions that included the establishment of a quasi-judicial system to oversee dismissals. But nearly four decades after those victories, the system originally designed to improve working conditions and protect teachers against arbitrary terminations has evolved into a tangled and costly bureaucratic nightmare.

Critics argue that tenure protects incompetent teachers beyond all reason, keeping them on at a time when schools face draconian budget cuts, high dropout rates and gaping inequalities. Teachers’ groups counter that teachers deserve due process and that administrators fail to properly document and prove poor teaching.

Although measures to curb abuses of the dismissal process, and even to abolish tenure altogether, have been recently introduced in several states, such measures continue to meet fierce opposition from teachers unions, which are loath to give up any of the hard-won job protections built up over decades.

Clearly, the public’s patience is wearing thin. (A recent Times series documented the cumbersome discipline and dismissal process for teachers in horrific detail.) The layoffs of thousands of mostly younger, newly minted teachers in budget-strapped California has only exacerbated disaffection with the deeply troubled seniority system, which governs layoffs as well as assignments of “surplus” teachers when schools are closed or programs cut.

Privately, and sometimes publicly, traditionally warring education organizations — teachers unions and school administrators — insist they want lousy teachers removed from the classroom. But they rarely stand together on even the general parameters of a viable solution. Schools need better documentation of incompetent teaching, more support for teachers and fewer standardized directives on how to teach. All of this requires cooperation and compromise, and costs money.

Any overhaul of “post-tenure” teacher discipline must peel away multiple layers of administrative and legislative changes made over decades in order to create a more sensible and coherent system — one that recognizes the due process rights of teachers as well as ways to help them move on.

But any movement toward streamlining the process must begin with less finger-pointing and more serious dialogue among the key players in state education policy. This is not a new sentiment — but one that remains singularly unpopular in the state Capitol, where teachers unions (and their hefty campaign contributions) wield enormous clout.

 

Sigrid Bathen is a longtime education writer who teaches journalism at Cal State Sacramento.

A Success Story for Kids Who Can’t Make It in Regular School

March 17, 2016 /

by Sigrid Bathen published January 02, 2000

 

For 30 years, Miles P. Richmond was a special-education teacher and administrator in some of the poorest, toughest schools in the Sacramento area, retiring in 1990 as director of special ed for the Grant Joint Union High School District. He is legendary for maintaining a model special-ed program in the impoverished, fractured, politically volatile district that, most recently, made national headlines when a popular senior was murdered in a shop classroom after school, allegedly by an ex-con working as a janitor.

Grant is not a district usually touted as a model to follow in this age of education reform. But Richmond and a group of mostly retired colleagues are quietly working small miracles in a battered old school in a bleak north Sacramento neighborhood. They are part of a growing “alternative school” movement, education bureaucratese for programs that offer alternatives to the regular classroom for the huge population of students who cannot, for many reasons, attend regular classes. While they are students most clearly in need of help from an education system now targeted for unprecedented infusions of attention and cash, it remains to be seen how much they will actually benefit. Veterans like Richmond are understandably skeptical.

Unlike the developmentally disabled kids who were the focus of Richmond’s work for decades, students at the Grant Independent Learning Center, in general, are not physically or mentally limited. Their low achievement has more to do with their lives at home, where drug use, abuse and grinding poverty narrow their options. They may be in foster care, wards of the juvenile-dependency court, and they may have committed crimes. Many are teen mothers headed straight for public dependency. Some are unusually bright, bored and uninspired by the regular curriculum.

They are kids like Jessica (not her real name), who never believed that she could succeed in school. Gifted in art and a voracious reader, she was unable to enroll in the regular school curriculum because she is needed at home to help care for her mother and baby brother. Five other siblings were removed from the home because of her mother’s lifestyle, which Richmond described simply as “men, booze and drugs.” There is no mention of a father.

One of Jessica’s recent paintings was of a forest after a fire. “All the trees were burned, but there was some green coming up out of the earth,” says Richmond. “It was about her mom, her family, the drugs.” When Jessica met Richmond’s wife, Betty, she wanted to know how long they had been married. Answer: 46 years.

Long-term personal commitment isn’t a quality the kids at Grant Independent Learning Center know well, if at all. The stories of the 2,500 kids who have gone through the program in the past five years–most have graduated, many going on to college–are nothing if not daunting.

Like the homeless girl living with her family in their car, who was at the center for two weeks, then disappeared. While at the center, she wrote a poem about homelessness. Entitled “The Other People,” it spoke of “babies in the street, families without hope” and urged onlookers “disgusted” by the homeless not to be too quick to judge. “If you ask me,” the girl concluded, “without the money and the fancy things, we’re all the same.”

“That just grabbed my heart,” recalls Richmond. “We’re going to lose some really bright, valuable kids unless we discover them, and they’re not all wearing Polo sweatshirts.”

A key element of Richmond’s work with the kids in this alternative school, who must sign a contract, complete all assignments and meet with their teachers once each week–more frequently if they don’t finish their work–is the creation of a personal journal. Every morning, students take 15 minutes to write their thoughts down–about anything they choose. There are no computers, no word processors, not even any typewriters in this classroom, and generally none in the homes where the kids live.

Like many unusual and largely unsung alternative programs throughout California, the Grant center is something of a haven for these kids, though it mirrors inner-city schools everywhere–inadequate facilities and funding for books and supplies, technology or the arts. “We’re lucky if we have enough paper and pencils,” says Richmond, “and for a while last winter, we didn’t have any heat.” Yet, the kids have become so enamored of their newfound ability to put thoughts on paper that if he forgets to have them do their journal writing, they remind him.

He especially remembers one student’s entries. “She had a perfect attendance record, was doing great and thinking maybe she really could be a writer,” says Richmond. “One day before school, her boyfriend came over. He had the day off and was pestering her to stay home with him.” She persistently refused, saying she had to go to school, and he kept pressuring her to stay home.

“Finally–and she wrote these very words in her journal that day–she told him; ‘F— you, I’m going to school.’ ” And she did.

“We thought about translating that into Latin, if that’s possible,” Richmond mused, “and putting it on a banner on the wall as a kind of monument to this one girl’s determination to go to school. She lives in two worlds: the world here in independent study, where she has dignity, and the other world, where she is a survivor.”

The personal hurdles many of the kids in programs like Grant’s must overcome are often so overwhelming that their teachers mainly concentrate on just getting them to attend school. While many teachers give mightily of their own resources and time to kids with seemingly insurmountable problems, as Richmond did and does, many others “do their time” and get out, transferring as soon as possible to schools in better neighborhoods.

The 11,000-student Grant district, which includes 12 senior high and middle schools, has expanded the successes of the five-year-old Independent Learning Center (recently named Keema High School, after a popular former district superintendent, Elwood J. Keema) into four community outreach centers, and will send teachers into students’ homes if necessary. Randy Orzalli, director of education options for the district and principal of Keema, is working to expand the program further. He hopes to make the school a center for training teachers in the needs of alternative-school students.

Richmond and his mostly retired-teacher colleagues–the program includes five former principals on its faculty–meet every school day with the kids in the independent learning center, bringing magazines and books from home, eating lunch with their students, saving souls–and a life or two or three–and skeptical that the intense public and political focus on education will translate into money, attention or reform for the state’s most troubled schools and the kids most in need of help. To accommodate the push for class-size reduction, it has been estimated that some 250,000 new teachers must be trained in the next decade. California’s teacher-training system, widely criticized for its rigidity and its mediocrity, will face some serious testing of its own in coming years. Gov. Gray Davis, in his continuing push for education reform, has said he will make teacher training a major priority in his annual budget proposal.

“We can put up a modern building and buy new desks and chairs and bright, shiny textbooks,” says Richmond, “but too often we’ve lost the creativity in education. I don’t think Christ had a credential, or Gandhi, and Plato taught from a stump. Sure, we could use computers, and we need a safe, clean building to work in, and only as many students as you can handle. . . . We have 1975 National Geographics and used textbooks, and we use the free Sacramento Bees we get: the kids say they want practical education, and the stock quotes in the paper are great for teaching math.

“Kids are coming out here, and they’re writing and reading and computing. It’s teaching on the stump. And it works.”

Sigrid Bathen, an adjunct professor at Cal State Sacramento, has written extensively on education.

The Deeper Inequality Behind the AP-Course Suit

March 17, 2016 /

by Sigrid Bathen published October 17, 1999

SACRAMENTO — A class-action suit challenging that most fundamental of equal education rights–access–may well force the state’s education establishment to examine its two-tier system of public education, one for the children of the reasonably well-to-do, the other for everybody else. The suit has been likened to the landmark 1971 Serrano vs. Priest, which forced the state to address “wealth-related disparities” in school funding.

“Legally, it’s not a hard case,” said Mark D. Rosenbaum, legal director for the ACLU of Southern California and the lead attorney on the ACLU suit. “The state can turn this case into a model of response. California could, with an appropriate response to the question of these disparities, reassert itself as the crown jewel of education.”

The ACLU sued the state of California, not the governor, who has made education reform his “first, second and third” priority, and not the University of California, though UC’s admissions standards are at the heart of the controversy. Neither does the suit directly target inequality in the early grades, where it all begins, nor UC admissions policies, which were challenged earlier this year in a federal-court suit by a coalition of civil rights groups. Rather, it focuses on the vaunted system of “advanced-placement” college-prep courses that earn extra grade points and are increasingly critical to a student’s admission to UC schools.

In 1998, according to the suit, UC Berkeley rejected 8,000 applicants whose GPAs were 4.0 or higher, instead admitting students who had earned the extra grade points associated with the more rigorous AP courses. At UCLA, last year’s applicants had an average GPA of 4.19, and those students had taken an average of nearly 17 AP and honors classes. These courses are not widely available to predominantly minority students in many inner-city high schools nor to many white students in rural schools.

Although the suit is aimed at all schools with limited AP offerings, the named defendant, in addition to the state and Superintendent of Public Instruction Delaine Eastin, is the Inglewood Unified School District, which offers few AP courses to its predominantly African American and Latino students. The ACLU cites some sobering statistics: Inglewood High School offers only three AP courses; 129 California public high schools with 80,000 students do not offer any AP classes; and 333 schools offer four or fewer. In contrast, Beverly Hills High, with a student body that is 76.6% white, offers 14 AP “subjects” and 45 AP classes; the 144 public high schools in California that offer more than 14 AP classes are 65% white or Asian American. “In the face of its own data,” says Rosenbaum, “with its eyes wide shut, California places hundreds of thousands of its children on uneven playing fields sodded with quicksand.”

Legal hyperbole perhaps, but there is certainly no shortage of hard data to support it. There are also increasing indications that the state’s education bureaucracy is poised to take action on several fronts. Since nobody in the hydra-headed education leadership is interested in taking on the ACLU and its largely unassailable statistics in court, some kind of negotiated settlement is likely and long overdue. The gathering storm of data is overwhelming: the steep drop in minority admissions to UC since passage of Proposition 209 in 1996, and, just last month, the announcement of an alarming disparity between whites and other ethnic groups in college entrance exams.

Michael E. Hersher, general counsel in the state Education Department, says a “programmatic solution” is likely to the dilemma raised by the ACLU suit. “It may take a couple of months to work out between the superintendent and the governor and the plaintiffs, but we have a history of working things out with the ACLU, and they have a pretty pragmatic sense of how far we can go. . . . This is a genuine equity issue, and I think it will have enough political push to bring about a solution.”

In California’s quirky, often unmanageable education-governance system, the elected state superintendent heads the Education Department, but policy is made by the state Board of Education, which is appointed by the governor. Eastin and Gov. Gray Davis are both Democrats but historically sometimes at odds. Davis has been clear from the outset of his administration that it is he, not the superintendent, who sets the state’s education agenda.

Davis’ education secretary, former state Sen. Gary K. Hart, will be a key player. While not addressing the suit directly, Hart says Davis is “certainly enthusiastic” about AP courses. “It is consistent with his theme, his philosophy, his expectations. . . . Anything that encourages students to reach higher and take the toughest courses, he certainly supports that.”

AP courses are a subject Hart knows well. When director of the California State University Institute for Education Reform, Hart initiated a study of AP courses and their impact on student achievement and college readiness. The 21-page, largely unpublicized report, by William Furry, a veteran education advisor to the Legislature and deputy state education secretary in the administration of former Gov. Pete Wilson, reviewed AP courses in California secondary schools for 1997-98.

Noting that the AP program “has enjoyed explosive growth in California high schools in the past decade,” the report concluded that this growth has come “with little public attention and even less analysis.” At the same time, competition for admission to top universities, including UC, has become staggeringly intense, often hinging on the successful completion of AP-course work, which, according to the Furry report, makes college applications “more alluring and weighted for success.” The study utilized state and national databases to determine the availability of AP classes, the rate of student participation and their performance on the crucial AP exams.

In 1988, 39,040 public high school students took 56,668 AP exams. A decade later, those numbers had risen to 87,683 students and more than 145,000 exams. In the fall of 1997, 210,000 students were enrolled in AP classes, although Furry notes that the statewide database does not account for the number of individual students participating in the program, and many students take more than one AP class.

The report notes “certain key concerns,” in addition to the lack of statistical and programmatic analysis, about AP courses. Among them: the “elitist” nature of the program, which favors those “who have access to the best academic preparation–essentially providing only one favored subset of students with important tools for career success.” A corollary concern: “whether there is systematic bias against students because of location, gender or ethnicity.” Although AP courses are offered in inner-city schools, their availability is nowhere near that of many schools in suburban areas. Rural schools fare no better. More than 90% of California’s high schools offer AP courses, but many students, across all ethnicities and socioeconomic strata, have limited AP opportunities.

Furthermore, the report concludes, “in schools across all levels of AP-program size,” Latinos and African Americans participate at rates “substantially below their share of total school enrollment.” Those who do participate score lower than white and Asian students, and nearly one-third don’t take the required post-course exams. In a range of 1-5 (5 being the top score, 3 a passing score), blacks had the lowest scores: 64.6% scored a 1 or 2, Latinos only slightly better. By contrast, 32.7% of whites and 37.4% of Asians who took tests scored 1 or 2.

“In the final analysis, it’s not so much the availability [of AP classes] as the preparation [for them],” Furry says. “In schools with large populations of low-income minority students, the minority students, by and large, are not participating.” But he said the assertion that suburban schools have “a plethora of AP classes” and minority, low-income schools do not “is just not true.” Many schools have added AP courses in the past two years.

“The bottom line is that mandating AP classes is not going to solve the problem,” he says. Asked what will, he said: better preparation, “beginning in kindergarten.”

Better preparation translates into many things: better schools, better teachers, smaller classes, well-equipped facilities and that sometimes elusive but crucial requirement, stable home lives. The idea that kids from impoverished, fractured families in unsafe, drug-ridden central cities have an even chance is ludicrous on its face. But the notion that they can’t succeed if given real opportunity in the form of better schools, textbooks, computer labs and, most important, good teachers is the worst kind of institutional race and class discrimination.

The readiness of students to embark on an AP curriculum without having been prepared throughout their school lives is the deeper issue that educators and politicians are often loathe to address. “It’s not just race, it’s class as well,” says the ACLU’s Rosenbaum. “If it were Beverly Hills High School or Pacific Palisades that had no AP courses, that situation would last for a nanosecond.”

Sigrid Bathen, an adjunct professor of journalism at Cal State Sacramento, has written extensively on education

The Elderly Health-Care Crisis Sneaking Up on Davis

March 17, 2016 /

by Sigrid Bathen published March 07, 1999

As Gov. Gray Davis relentlessly presses his education-reform agenda, other state business is seriously neglected. State department heads remain unappointed and policy in many key areas is virtually paralyzed. Many admirers and critics alike blame Davis’ legendary propensity to micromanage for the administration’s slow pace. One story has it that Davis is so obsessed with the minuscule details of his new administration that he has been known to spend 20 minutes pondering which secretary to send out on the next Federal Express run.

Perhaps nowhere is the current dearth of broad policy reexamination more apparent than in health care. Millions of children are without health care, and their elders face the daunting prospect of life in one of the state’s many substandard nursing homes, increasingly targeted by consumer activists.

This crisis in care for the state’s burgeoning elderly population could well become Davis’ health-care debacle, much as appalling conditions in state mental hospitals hammered his former boss, Gov. Edmund G. “Jerry” Brown Jr., in the 1970s. Recent reports about substandard conditions in state-licensed care facilities must have a deja-vu quality for Davis, who was frequently put in the awkward position of having to clean up the media and administrative messes in health care created by his unfocused boss. It may well be Davis’ memory of those years that infuses his achingly deliberate pace, but his caution could blow up in his face.

Last summer, the General Accounting Office (GAO), the investigative arm of Congress, issued a highly critical report on the quality of care in the state’s more than 1,400 nursing homes. Federal investigators found that one-third of them had been cited by state inspectors for “serious or potentially life-threatening care problems.” Many of the cases examined by the GAO involved the “early deaths” of elderly residents whose conditions went untreated.

The report is a sad and seemingly endless litany: patients lying in urine- and feces-soaked beds, bedsores to the bone; patients pleading for help and repeatedly ignored; nursing-home staff reporting therapy that was not provided, falsifying documents, failing to provide fluids and food, refusing to take patients to the toilet, failing to notify physicians or family members about the serious deterioration of patients.

It is troubling but familiar terrain for elder-care advocates like Charlene A. Harrington, a nursing and sociology professor at UC San Francisco. Director of licensing and certification of health-care facilities in the old state Health Department in 1975 and ’76, Harrington is doubtless remembered by Davis, who was Brown’s chief of staff at the time. Harrington was fired by Brown after she “decertified” state-run hospitals because of repeated, egregious licensing violations; parallel efforts to toughen enforcement sanctions against nursing homes were also largely ignored. She recalls that a scathing Little Hoover Commission report on nursing homes nearly a quarter-century ago came up with the same proportion of substandard nursing homes as the recent GAO report. “We’re not regulating the industry,” she says. “We’re not enforcing what is on the books now, and what is on the books is too low.” Much as she did more than two decades ago, she recommends tougher enforcement of licensing and care standards for nursing homes.

She and other elder-care advocates point to surveys showing that only about one-third of nursing-home budgets are spent on patient care, a figure the industry hotly disputes, and that CEO salaries and profits of the big nursing-home chains that increasingly dominate the industry are rising fast. (In 1997, industry revenue was about $5 billion, 70% of which was public funds.) In contrast with CEO compensation, the wages of “certified nursing assistants,” the backbone of the nursing-home industry, average just over $7 an hour. Industry officials agree that staffing and salaries must be improved, but they balk at increased fines.

But stiffer fines–the maximum is currently $25,000–and tougher enforcement are likely to command considerable legislative attention this session, as will efforts to tighten the current appeal process so that fines assessed by licensing inspectors are actually paid. “If you’re going to fine a facility for killing your mother,” says Patricia L. McGinnis, executive director of California Advocates for Nursing Home Reform (CANHR), “make it $100,000, not $25,000. My God, you can leave someone naked and tied to a wheelchair and you get a $500 fine. There are higher fines imposed for killing a dog in California.”
Recognizing the expanding universe of elder care, advocacy groups like CANHR and the American Assn. of Retired Persons are devoting more and more resources to other forms of in-home and residential care beyond the state’s nursing homes, which have beds for 120,000. As the population ages, the political climate may finally be ripe for major reform. As Californians increasingly “age in place,” that is, remain in their own homes as long as possible, services must become more available, affordable and safer. State law only recently required that nursing assistants and home health-care aides have criminal-background checks, but nonmedical, county-based In-Home Support Services personnel, funded by the state and federal governments, have no such requirement.

Criminal prosecutions involving elder abuse are increasing in frequency, and the state attorney general’s office is likely to step up such prosecutions in nursing homes through its Medi-Cal Fraud Bureau, which filed few cases under former Atty. Gen. Dan Lungren but is expected to have a much higher profile under Bill Lockyer. At the local level, prosecutors say it’s often pure happenstance when a case comes to the attention of law enforcement. Although some cases involve murder or assault by family members, other “caregivers” and nursing-home employees, more and more cases grow from financial exploitation of seniors, often in their own homes.

If stepped-up criminal prosecutions and increased state sanctions don’t stimulate nursing-home reform, civil suits and the threat they pose to companies’ bottom lines may be the spark. The California Supreme Court, in a landmark decision last week, upheld lower-court decisions awarding nearly $400,000 to the family of 88-year-old Kay Delaney, who died in 1993 at a Lake County nursing home after suffering from severe bedsores and lying in her own waste. In the unanimous ruling, justices raised the financial-liability limits of health-care providers that recklessly endanger the elderly. Also last week, the family of 75-year-old Ruth Witten, who choked to death last November in a nursing home near Sacramento, filed suit, contending that chronic understaffing at the Roseville Convalescent Hospital led to her death.

Fortunately, there are some signs that Davis is taking up health care. Early on, the governor named Grantland Johnson, a former federal health administrator and Sacramento County supervisor, as his health and human services secretary. “We have to look at tougher and more effective enforcement,” Johnson says. “We can be tough on the books, but if it’s not effective, it’s meaningless.” Johnson added, “It’s going to take us a while to settle on a methodical approach to this.”

But nursing-home and other residential care for the elderly has been the subject of countless state and federal hearings and reports over the decades. There are mountains of data pointing to horrific suffering and early deaths in nursing homes. The last thing elder-care reform needs is a “methodical” approach, which generally, in the language of government, means it will take a lot of time–a luxury Davis does not have.

Sigrid Bathen is senior editor of the California Journal, a monthly magazine about politics and government.

Can Another Task Force Lead Us to Education Reform?

March 10, 2016 /

by Sigrid Bathen published November 22, 1998

The day after Lt. Gov. Gray Davis’ gubernatorial victory, Assemblywoman Kerry Mazzoni (D-San Rafael), a former school-board member and current chair of the Assembly Education Committee, made a telling observation. “The voters have thrown us the ball,” she said. “We’d better not drop it.”

Not only had voters elected as governor a candidate whose No. 1 issue was education, they had passed a whopping $9.2-billion statewide school bond and numerous local bonds and sent a strong message that the state’s crumbling education system must be fixed. Mindful of this, Davis moved swiftly to appoint a 13-member task force on education, naming Barry Munitz, the former California State University chancellor and current president of the J. Paul Getty Trust, to head it. The team is charged with making immediate recommendations on how to fix California’s education network.

Yet another study group to ponder the state’s ailing education system, with its complex and special mix of problems, is hardly a new idea, though Davis’ task force is something of a precedent. The difference now is the extraordinary attention and money being focused on the schools, at all levels, and the pressing sense of urgency that reforms must come before yet another crop of ill-educated students graduate.

What is especially striking about Davis’ education task force is the influence of higher education on the panel (six of the 13 members are connected with the state college and university systems), which partly reflects the growing concern over the sorry state of teacher training, the main duty of the state’s colleges, and the heavy demands being placed on the system by unprepared high-school graduates who require intensive remedial education in college. California also needs to train considerably more, better-prepared teachers for schools facing huge population increases, as well as to meet the demands of class-size reduction.

Although the panel represents a broad spectrum of the education community–teachers’ union representatives, a pioneering elementary-school principal, the superintendent of a large district (San Diego), and charter-school advocates–it also includes business leaders and pointedly excludes the heads of several major statewide education groups routinely named to such study groups in the past. “Everyone wanted a seat,” Munitz says, “but this is not like a two-year study commission to look at the root causes of problems in K-12. We have key deadlines to meet, and we have to move quickly. . . . Our single most important deadline is to call a concurrent special session [on education].”

Among the notably absent are the state’s overburdened community colleges, with their maze of locally elected boards and a statewide governance system with limited authority. Nor are the state’s plethora of local school boards represented–some 1,000, all elected, with wide variations in district size and, many critics say, general competence–or the obscure county boards of education, one for each of California’s 58 counties, all elected, except for L.A. County’s, which is appointed by the Board of Supervisors. Perhaps the most daunting task of the education panel will be what, if any, recommendations it makes about this unwieldy system of governance, a subject hardly mentioned in any of the quick-fix political-reform proposals but at the heart of the state’s education quagmire. “It’s got to be streamlined,” Munitz says. At some point, he added, “we have to take a look at this massive truckload of an education code.”

Not only does California have a constitutionally mandated state superintendent–Delaine Eastin, elected to a second term–who has little real power over either the state education budget or local schools, but policy authority is vested in an 11-member state Board of Education appointed by outgoing Gov. Pete Wilson. Since Davis will have at least five–six by this summer–appointments to the board, the currently divisive relationship between the board and Eastin will doubtless change. It is unclear what, if anything, Davis will do about the “education secretary” position created by Wilson, the latter’s attempt to create a Cabinet-level education post that was repeatedly rebuffed by the Legislature.

While Eastin and Davis reportedly have dealt with the fallout from Eastin’s decision in the primary to do a TV ad extolling then-Democratic candidate Al Checchi for supporting her education-funding proposals, she will be expected to toe the line and defer to the governor-elect on education. Munitz puts it bluntly: “[Davis] is the sole, senior intellectual leader, and she is a member of that team.”

A key member of the Davis task force is Gary K. Hart, a former state senator and Santa Barbara high school teacher who is codirector of California State University’s Institute for Education Reform. Former chair of the Senate Education Committee, Hart says the diverse backgrounds of task-force members represent both “its strength and its challenge” in reaching consensus on such issues as teacher preparation, early reading instruction and the twin reform buzzwords of “accountability” and “excellence.” A school-accountability measure, which would have held local school-site officials responsible for student performance, was vetoed by Wilson last session. Some type of accountability proposal–“one with teeth,” Munitz says–will probably be a centerpiece of the education package Davis submits to the Legislature. “We have to explore many options,” says Hart. “No one has a corner on this market. If you want to put together a package that is credible, and will get through the Legislature, all sides have to come to the table. Everyone, including the employee groups [the teachers’ unions] will have to give up something.”

Task-force members are moving through some uncharted territory in devising legislation for a special session. The announcement Thursday by the state legislative analyst that a $1-billion budget deficit may be looming for the 1999-2000 fiscal year puts a damper on new spending proposals. But the legislative proposals will probably target teacher preparation and training, school accountability and early reading proficiency, to name a few.

The California Teachers Assn. was a major Davis contributor and will certainly influence the content of the task force’s recommendations, though Munitz says “no constituency owns this governor.” The task force’s staff director, named two weeks ago, is Rick Simpson, a former teachers association lobbyist and longtime legislative staffer who is education advisor to Assembly Speaker Antonio R. Villaraigosa (D-Los Angeles). He takes on the staff role, he says, “with the speaker’s” blessing.

Simpson concedes that the accountability or “rewards and consequences” aspect, clearly one of the most difficult legislative elements of the education-policy stew, will present the most formidable challenge for the panel. What rewards? What consequences? At the individual, school or district level? What about factors such as poverty and language differences? “It is fraught with political land mines,” he says, “and some technical land mines, as well. . . . You need to do it carefully, and not punish them for factors that are not in their control.”

Sigrid Bathen, a longtime education writer, is senior editor of California Journal, an independent monthly magazine that covers state government and politics.

Whose Test Is It, Anyway?

March 10, 2016 /

by Sigrid Bathen published July 12, 1998

As director of research and evaluation for the state Department of Education for 12 years, Alexander Law was responsible for the statewide testing of students under the California Assessment Program, or CAP. In retirement, he has continued to observe the twisted history of the state’s efforts to measure student achievement, including the furor surrounding the STAR (Standardized Testing and Reporting) program, which utilized the Stanford 9 as the test. Alarmingly, it is a tale increasingly political, with worrisome consequences for education. It also raises the question of whether a standardized, statewide test can truly tell us anything meaningful about the academic progress of California’s diverse student population.

Law was both a designer and an overseer of CAP, which replaced the standardized tests of the 1950s and ’60s. “The early standardized tests were fairly straightforward, but they took several class periods, which in modern times does not seem inordinate, but then was,” recalls Law. “So we had to develop a test that took a class period or less and was broad enough to assess a variety of commonly taught skills.” The result was a “matrix” system that tested a student’s mastery of subject matter, with students getting different sets of questions from the matrix.

CAP only produced scores in various subject areas. It did not individualize results, although it did offer comparisons among districts and groups of students. “The best part of CAP was that it was tailored to the state’s curriculum,” says David W. Gordon, who worked under Law and is now superintendent of the Elk Grove Unified School District near Sacramento. “We were always confident that we were testing what people expected to be taught. With a national standardized test [like the Stanford 9], by definition, you’ll never get that.”

CAP chiefly fell victim to the political wrangling between then-Gov. George Deukmejian and then-Superintendent of Public Instruction Bill Honig. It also lost out to a growing testing movement that favored more subjective, essay-type questions, which were thought to measure student achievement more accurately. The resulting test, called the California Learning Assessment System (CLAS), debuted in 1992-’93 and was quickly dumped, criticized for, among other things, being too subjective.

California’s latest entry into statewide testing, the STAR program, has been no less controversial than its predecessor. From the outset, the use of a $35-million, “off-the-shelf,” standardized test was opposed by virtually every major education group, in part because of Gov. Pete Wilson’s insistence that the test be administered only in English and in part because state educators have been laboring to devise academic standards that would serve as a basis for a California-specific test. In the absence of such standards and corresponding curricula, the Stanford 9 results are all the more ambiguous, because any relationship the test may have with current curricula is coincidental.

An 11th-hour court ruling blocked release of some district scores, but test results have dribbled out, and reactions to them have ranged from outrage to disbelief, from resignation to disgust, all in an atmosphere of utter confusion. For example, when the Los Angeles Unified School District first released test results, it cheerfully reported that the district’s overall scores, year-to-year, had improved. On second look, however, it soberly announced that the improvement was not as great as previously announced, because the results of limited-English-proficient students had not been included. (Interestingly, in some school districts, scores of bilingual students who have mastered English were higher than their English-speaking counterparts).

Not surprisingly, Stanford 9 scores in well-heeled districts were generally high, while in poverty-stricken ones low. The belief that education in California is patently unequal is nowhere borne out more starkly, and with less explanation of variables, than in standardized testing.

Educators caution that the first test period is a foundation year and that results, accordingly, should not be given too much weight. They shouldn’t be dismissed, either. “It’s important that people ask questions–what is working, what isn’t?–as we begin to change the test, augment it, make it more aligned to the standards,” says Robert L. Trigg, a member of the state Board of Education and former district superintendent.

Yet, does a standardized test, given only in English, make any sense in a state whose student population is as ethnically and culturally diverse as California’s? Law thinks that testing non-English-speaking students in English is “absurd on its face.” Instead, he says, California needs two types of testing. “Level A are tests selected by the individual districts and schools to assess their programs. And you need state-level oversight–a temperature-taking, if you will–not of all grades, not every year, but a consistent, coherent program that would give you state-level information like CAP [did].” Where language differences are great, as in L.A. Unified, he says, the problem “is close to insoluble” using traditional testing methods. “You should not include scores into your aggregate of students who, by definition, cannot take the test.”

Regardless of the bilingual issue, the point is that California’s kids should be able to compete with children across the nation. Ultimately, that may mean dual testing. “We want individual results,” says Trigg, “and we want programmatic results. . . . You need both sets of information.”

Of course, you need a curriculum first, and California’s educators are working to develop one. Meantime, the STAR program is a poor substitute. “There are 5 million kids in California, and 4 million were tested,” says Education Department testing administrator Richard Diaz. “A lot of problems can occur. It was a compressed time period. There may have been some misunderstandings about what was to be tested. All these things are playing into this.”

Testing, moreover, has become an especially potent political tool in the education wars. Beginning with Deukmejian and CAP on down through Wilson’s demand last year that California’s schoolchildren be tested only in English, the issue polarizes to the point that “nobody trusts anybody else to do a plan,” said one prominent state educator. “In the ’70s and ’80s, people pretty much trusted [the state Department of Education] and, as a consequence, they had the space to do some logical planning. Now, there is such polarization between [state Supt. Delaine] Eastin and the board and the governor that everyone is scrambling for political advantage rather than doing what is logical.”

Because of California’s fractured system of education governance, Eastin, who is running for reelection, has no real policy-making power. That authority falls to the state board. Although Eastin ostensibly heads the bureaucracy in the Department of Education, she has virtually no control over the education budget and almost no rapport with the governor and the board he appoints.

Such fragmentation is exacerbated by the fact that individual districts, not the state Department of Education, legally hold the contracts with Harcourt Brace, publisher of the Stanford 9. When problems– including reports of defective magnetic tapes containing thousands of test scores and student scores being posted in the wrong district–arise, there is no central clearing house to vet technical glitches and quality control. As one frustrated superintendent put it: “For what we’re paying Harcourt Brace, we ought to just do our own test, absolutely tailored to our own curriculum. We should have a statewide test, but there is no spirit of cooperation [at the state level]. Nobody is blameable or blameless, really. But it’s a system with a lot of rancor and animosity.”

Sigrid Bathen is senior editor of the California Journal, a monthly magazine about politics and government.

Three Education Initiatives Make for Odd Bedfellows

March 10, 2016 /

by Sigrid Bathen published May 31, 1998

When Kevin Gordon, governmental affairs director for the California School Boards Assn., showed up in mid-May for a scheduled cable-TV debate on Proposition 223, which would limit school-district spending on administration, the “pro” side didn’t send a representative. A few weeks earlier, at a debate sponsored by the League of Women Voters, Gordon again appeared as scheduled. Again, the “pro” side didn’t show. “There have been many events where we’ve done it by ourselves,” Gordon says.

The lopsided debates over 223, known as “95-5,” are just one slightly bizarre turn in California’s continuing obsession with government by initiative. The fact that educators are at the epicenter of this season’s initiative wars, sometimes on different sides, underscores how intense is the debate, and how high the stakes, in the public demand for education reform. Indeed, two other initiatives, directly or indirectly, affect education, and the state’s powerful education lobby finds parts of itself moving in opposite directions and in a quandary over where to put its limited resources.

Proposition 223 pits school administrators, board members, nonteaching employees and many teachers against the 37,000-member United Teachers of Los Angeles. (The California Teachers Assn. and the California Federation of Teachers are neutral.) Proposition 227, which would end bilingual education, has drawn the ire of organized education groups but enjoys substantial voter support. Proposition 226, which would force unions to seek permission to spend dues on political campaigns, is opposed by the California Teachers Assn., which expects to spend at least $3 million to help defeat it.

“We’ve never had so many mega-issues [on the ballot],” says Davis Campbell, executive director of the California School Boards Assn. and a longtime deputy superintendent of the state Department of Education under then-Superintendent of Public Instruction Wilson C. Riles. “There are multiple issues in the Legislature as well–the school facilities battle, academic standards.” Unfortunately, says Campbell and other state education leaders, there is something of a “reform du jour” mentality in the rush to improve California schools.

Regardless of their views on the ballot measures, educators bemoan the huge expenditures necessitated by big-issue campaigns–money that is not going to the classroom, or to improve teacher training at a time when California is facing a huge teacher shortage, or to repair aging schools and build new ones. “I hate to be trite,” says Campbell, “but the devil is in the details. . . . They take our time and energy away from real solutions.”

Leading state educators dispute the perception that the education community–never a monolith on issues, but never so visible as it is now with public attention focused so intensely on the schools–is fractured and divided on the details of reform. Some blame Gov. Pete Wilson for creating this impression. He is clearly intent on being remembered as California’s “education governor” for his class-size reduction and other reform proposals while, to the angst of educators, vetoing bipartisan bilingual-reform legislation, sponsoring 226, supporting 227 and insisting all California students be tested in English whether or not they are proficient or even vaguely schooled in the language.

Although slightly leading in the polls, Proposition 223 seems to have no clear public presence as the primary draws near. Seemingly based on a simple premise–who among us with any knowledge of the state’s crumbling education system would not favor, at least in principle, the notion that less could be spent on administration of the schools, more on “direct services” to students?–it is facing heavy opposition. Opponents, including the school-boards association, the Assn. of California School Administrators, the state PTA and several major business groups, were expected to spend upward of $2.5 million in the homestretch on TV ads and phone banks to influence public opinion. It’s working. The most recent Los Angeles Times Poll found support for the initiative had dwindled from 55%, in April, to 40%, with an almost equal percentage opposed (38%), up substantially from 26% in April.

Admitting there are disagreements among teachers on 223, which would levy major fines on school districts spending more than the 5% permitted on “administration,” the initiative’s backers at UTLA say they cannot afford to spend heavily on 223. Privately, critics of 223 say UTLA leadership realizes the initiative, which is confusing on the key element of what constitutes administrative expenses, enjoys waning support and decided to put their remaining resources elsewhere.

UTLA leadership is unfazed by its lone-wolf image on 223. “We knew that CTA was going to be neutral, just as the CFT (California Federation of Teachers) was,” says Michael Cherry, UTLA-AFT vice president. “It’s a misunderstanding, a fear of the unknown. . . .” Cherry insists many smaller districts support 223, though opponents say they stand to be big losers if it passes. As the state’s largest school district, L.A. Unified would be the big winner, according to the opposition campaign.

Gordon insists the “split” among educators over 223 is “really not a split, but a splinter–a split assumes there is an equal number on both sides. Not one statewide group supports it. There is not one issue in the 10 years that I have been representing public schools that we have been on the same side as the Howard Jarvis Taxpayers Assn., and this one we are.”

Perhaps the most worrisome initiative for the education lobby, principally the teachers’ unions, is Prop. 226, which does not, on its face, affect education. Yet, the initiative is seen by teachers as a slam at the power of their union to block vouchers. “The people who are behind this are the same people who want to privatize public education,” claims the CTA’s principal lobbyist, John Hein.

While many teachers are dissatisfied with the glacial pace of “transitioning” non-English-speaking students to “regular” classes, they generally oppose Proposition 227, although individual teachers support it. There are an estimated 1.4 million children in California, nearly one-fourth of them in L.A. Unified alone, who are not proficient in English. Most educators believe that while bilingual education can be vastly streamlined, abruptly dumping immigrant kids from many cultures into English-only classes would be disastrous.

Yet, solid opposition to Propositions 226 and 227 in no way means educators are agreed on how to reform the state’s education system. Educators are notoriously fractious and argumentative. They seem even more so now because their disputes are fully exposed to public view under the unforgiving microscope of political notoriety and expediency.

The spate of education initiatives and legislative wrangling over reform offer some indication of the intractable nature of the problem. But if there is one thing upon which educators agree, the initiative process is not the way to accomplish substantive change. It surely isn’t the least expensive, or the quickest–drawn-out court fights after passage are the rule rather than the exception.

Marion Joseph, a battle-scarred veteran of California’s education wars, longtime top administrator in the state Department of Education, now a member of the state Board of Education, says Californians have “this whole notion of systemic reform” that will somehow, magically, change the schools, preferably overnight. “I feel like a keeper of the history. I keep thinking, we did that, we didn’t get that done, why?”

“The problem,” she adds, “is that the systemic reform has often stopped at the classroom door.”

 

Sigrid Bathen is senior editor of The California Journal, a monthly magazine about politics and government.

Viewpoints: Plan to close UC Center seems ill-advised

March 10, 2016 /

by Sigrid Bathen, special to The Bee published November 13th, 2009

Twenty-five University of California students and graduates from UC campuses were gathered around a long table in a windowless basement conference room in downtown Sacramento for a brown-bag lunch. On one side were 10 recent graduates, many working in and around the Capitol, who had participated in a popular public policy program – a program they say prepared them more than any other college experience for the realities of working in politics and public policy. Across the table at the recent gathering were 15 current students, many about to graduate with bachelor’s degrees from UC in such diverse fields as political science, mathematics, economics, sociology, psychology and literature.

The session was part of an intensive orientation at the University of California Center in Sacramento before students begin internships in state legislative and government offices, at nonprofits and lobbying and consulting firms. The grads were advising the new students on what to expect in their internships, how to get the most benefit from the experience. “Don’t be afraid to ask questions,” they said. And “show initiative.”

More than 500 students have completed the program since it began in 2004. But this gathering was “bittersweet,” as one student put it, because the fall-quarter class may be the last in a widely praised program that was abruptly suspended by UC President Mark Yudof in August, as UC officials struggle to balance a precarious budget. The action has generated a storm of criticism, and UC administrators are reportedly rethinking how they can keep the effective program in Sacramento.

One of the grads at the brown-bag lunch, Kelly Bradfield, came to the center as a “scholar-intern” in the summer of 2007; she was about to graduate from UC Berkeley with an English degree, specializing in gender and sexuality in literature. While considering a public policy career, she lacked practical experience. Placed in an internship with Planned Parenthood, she wrote a paper on the public policy aspects of mandatory vaccination for the HPV virus that causes cervical cancer and was later hired as a policy analyst at the UC Center. Echoing the views of other grads, she said the program “prepared me more than any other academic experience” for working in the Capitol.

Bradfield’s job and those of four other staffers, several adjunct professors and a visiting scholar were eliminated. Director Gary Dymski, who founded the center six years ago and taught many of its public policy classes, is teaching the current – and likely final – class but is expected to return to his tenured position as a UC Riverside economics professor.

Associate Director A.G. Block, a veteran Sacramento political editor who was hired in 2005 to oversee the center’s summer public affairs journalism internship program, remains as the center’s administrator. While the UC Berkeley Graduate School of Journalism is one of the finest in the nation, UC has no undergraduate journalism major and offers few journalism classes; the intensive summer program was an effort to fill that gaping academic void.

University officials say the cuts to the UC Center saved the budget-strapped UC system $850,000, but those familiar with the center’s most recent proposed budget say it had been slashed to a bare-bones $650,000.

One block from the Capitol, the center served a rich mix of academic and public service functions and fostered an unusual sharing of public policy and media expertise among UC and California State University faculty, legislative and administration officials, nonprofits, lobbyists and other policy experts who participated in seminars on wide-ranging policy issues.

“It’s too valuable an institution to lose,” said Barbara O’Connor, a communications professor who heads the Institute for the Study of Politics and Media at CSUS. She suggests UC administrators help “break down the silos” so ingrained in academic politics and work with CSU and the California Community Colleges to keep the center open.

State legislators and members of the UC Board of Regents have also reportedly urged Yudof to reconsider his decision. Rich Zeiger, chief of staff to Assemblyman Tom Torlakson, D-Antioch, whose daughter was a UC Center intern and whose office employs another intern as a scheduler, said the UC Center is “one of the few programs that demonstrates to policymakers exactly what the university does – the teaching, the research and the public service. All are brought directly into legislators’ offices every day.” To abruptly discard that role is foolish, he added “particularly when UC relations with legislators are not the best.”

UC spokesman Peter King said the UC administration is engaged in “more detailed discussion” about the future of the center, and a decision will likely be made in December. UC Davis spokeswoman Maril Stratton confirmed reports that UCD administrators are having “initial discussions” with Yudof’s office about a possible “lead role” in maintaining the center.

Placing administrative responsibility for the center on one campus creates its own set of political hurdles and potential for inter-campus rivalries. “At the end of the day,” said Zeiger, “this needs to look to the students and the Legislature as it looks now – an independently functioning unit.”

 

Sigrid Bathen teaches journalism at California State University, Sacramento, and is a volunteer editor and mentor in the University of California Center journalism program. She can be reached at [email protected].

Doctors’ drug tests: a divisive issue

October 19, 2014 /

Doctors’ drug tests: a divisive issue

by SIGRID BATHEN posted 10.19.2014
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On Oct. 23, 2013, San Diego physician Dr. Scott D. Greer submitted urine and hair samples to an investigator for the Medical Board of California, which oversees physician licensing and discipline.  Laboratory tests found the samples to be positive for opiates and oxycodone, but not for alcohol. Nearly one year later, on Sept. 8, according to Medical Board records, Greer was placed on probation for seven years by the board.  His license was suspended for 30 days, effective Oct. 24; he agreed to myriad restrictions and requirements, including submitting to regular, random alcohol and drug testing and monitoring.
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“If he tests positive for anything, he will be notified to immediately cease practice,” said Cassandra Hockenson, public affairs manager for the Medical Board.

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The issue of testing doctors for drug use is a key part of Proposition 46, which has become the focus of huge campaign spending — most of it spent to defeat the initiative.  The measure also would raise the cap on pain and suffering awards in medical malpractice cases, which has been $250,000 since the 1970s, to reflect cost-of-living increases. If approved, the new cap would be about $1.1 million.

The tragic deaths of two young children in 2003, killed by a drug-impaired driver who had been prescribed prescription narcotics by several doctors – a practice called “doctor-shopping” — helped spark the measure, which would also require physicians to consult a state prescription database before prescribing addictive drugs. Bob Pack, the father of Troy and Alana Pack — 10 and 7 when they were killed — left his tech job to pursue legislative solutions, and is a principal spokesman for Prop. 46.

Opponents of Proposition 46, mainly medical malpractice insurers and the powerful California Medical Association, are pulling out all stops – dumping some $57 million into the “No” campaign, roughly $50 million more than supporters of the measure, primarily consumer groups and trial lawyers.

In the case of Greer, 62, he had voluntarily sought help for his long history of alcoholism and drug use after an “intervention” by his family in 2012. He had tried to kick his decades-old habit many times before. For several years, starting in 2003, Greer participated in a beleaguered “doctor diversion” program, administered by the Medical Board and abandoned in 2008 as ineffective, failing to protect patients in the care of participating doctors.

Greer admitted to investigators that he relapsed, providing false urine samples while in the controversial diversion program, which was scrapped by the state after multiple government and independent audits revealed major flaws.

In addition to random laboratory drug-testing, a major part of Greer’s probation includes twice-daily use of the Soberlink breathalyzer test. Results are immediately transmitted with a photograph of the subject via a mobile phone attached to the device.

 “The measure as written is a mess,” says Jason Kinney, a spokesman for the No on 46 campaign. “The drug testing provision is particularly problematic.”

The Greer case marks the first use of the technology by the state board for monitoring physician compliance on probation. “It’s potentially a very powerful monitoring tool for those with alcohol problems,” said Greer’s attorney, David Balfour of Carlsbad, who specializes in physician discipline cases, “because it can provide results instantaneously, [unlike] a random urine screen, which is typically how the board has monitored [physicians].”

Details of the disciplinary actions against Greer and other physicians are posted on the state Medical Board website, www.mbc.ca.gov.

Critics of Proposition 46 say the initiative is flawed.

“The measure as written is a mess,” says Jason Kinney, a spokesman for the No on 46 campaign. “The drug testing provision is particularly problematic.”

But testing doctors for drugs is popular with focus groups and in polls of likely voters. It is privately favored by many physicians, especially those recovering from addiction issues, who argue California needs more official incentive for doctors to seek help – and liability protections for colleagues who may be reluctant to report them.

“At its peak, the diversion program had 300 to 400 participants,” says Balfour, yet the number of Medical Board enforcement actions is considerably lower. “Two-thirds are not getting treatment. In the larger context, if 10 percent of the population [has addiction issues], 12,000 doctors would need some level of help. Not having any official program is a bad outcome.”

The investigative function of the Medical Board, a so-called “self-funded” agency supported by physician licensing fees, was moved in July to the state Dept. of Consumer Affairs.

More than 128,000 physicians are licensed to practice in California, and Greer is believed by critics of the state’s doctor-discipline system to be one of hundreds – perhaps thousands — of physicians who abuse alcohol and drugs. Many may well be practicing while “impaired” and do not seek help from a patchwork physician treatment system long acknowledged by experts to be ineffectual and potentially dangerous to patients in the care of drug- or alcohol-addled doctors.

According to the Medical Board’s annual report, 394 physicians were disciplined in some way in 2012-2013, with actions ranging from license revocation (11) to probation (41) or public reprimand (47). Reasons ranged from “gross negligence” (130) to sexual misconduct (24).

Disciplinary actions for “self-abuse” of alcohol or drugs numbered only 46, with nearly half being placed on probation.

California is one of the few states in the U.S. without an official program to direct physician substance abusers into treatment and monitoring. Legislation to create a new diversion/treatment program has repeatedly failed in the state Legislature.

The investigative function of the Medical Board, a so-called “self-funded” agency supported by physician licensing fees, was moved in July to the state Dept. of Consumer Affairs after Gov. Brown signed legislation last year to reorganize board staff. In the spring of 2013, legislative oversight hearings and intense consumer-group protests over excessive physician prescribing of painkillers prompted sharp legislative criticism of the board’s failure to “protect consumers.”

The Legislature ultimately approved extending the board for four more years, but in July moved its 100-plus investigators to the Division of Investigations within the Consumer Affairs Department. The state Attorney General’s office has long had prosecutorial responsibility for board enforcement actions.

The latest legislative effort to create a physician diversion program was AB 2346 by Assemblywoman Lorena Gonzales (D-San Diego), which proposed a diversion program similar to a State Bar program for lawyers.

Julianne D’Angelo Fellmeth, administrative director of the Center for Public Interest Law at the University of San Diego Law School, has long followed physician discipline issues in California, and is a former state monitor for the Medical Board, issuing one of several scathing audits of the physician diversion program.  She often testifies in the Legislature about physician-discipline issues, and is widely regarded as an expert in the field.

“There are now three layers,” she said of the recent Medical Board reorganization. “The Medical Board, the Division of Investigations and the Attorney General’s office. We won’t know the actual impacts until after the move.” Fellmeth said she would have preferred that investigators be placed in the Attorney General’s office, to work more closely with prosecutors on enforcement cases involving physicians.

Highly critical of the diversion program, she does not favor creation of a similar successor.

“All the doctors insist that [the program] must be secret and confidential, otherwise no doctor will go into it,” she said. “So if there is a program, it [will be] secret. Patients aren’t going to find out about it.” She recalls attending a Medical Board meeting when the diversion program was in effect, when a patient appeared, uninvited, at one of the board’s public meetings, after learning that a plastic surgeon who operated on her, and several others, several years earlier, was in the diversion program.

“It was a botched plastic surgery,” Fellmeth said, “and she told the board she knew a bunch of people who had been injured by him, and they [former patients] had put up a website. Her surgery was in 2001. The physician’s license was finally revoked in 2009 for lying to investigators.”

The latest legislative effort to create a physician diversion program, Fellmeth said, was AB 2346 by Assemblywoman Lorena Gonzales (D-San Diego), which proposed a diversion program similar to a State Bar program for lawyers. “She insisted it be absolutely confidential,” Fellmeth recalled. “The State Bar program has been around for 10 years, and only 11 percent have completed it. I don’t consider that to be a successful program.”

‘A Lame Program’
“The decision to get rid of diversion was progress,” she added. “It wasn’t protecting patients, or doctors. It was a lame program. It could be gamed.”

Many hospitals require some form of drug-testing, but not all doctors have hospital privileges.

“In my experience, the problems are with doctors who don’t have privileges, who work in clinics,” Fellmeth said, citing the highly publicized 1990 case of Dr. Milos Klavana, a Valencia obstetrician who was convicted of second-degree murder in the deaths of eight infants and one fetus. The Medical Board came in for harsh criticism from patient advocates and the judge in the case for failing to intervene.

The recent Greer case is particularly instructive as a bellwether of the discipline system – and the use of high-tech, instantaneous drug testing to monitor doctors on probation.

Greer has been open about his addiction since seeking treatment in 2012, agreeing to a rigorous monitoring program and admitting to past failings. He acknowledged to investigators that he had long been abusing alcohol and drugs while still treating patients, and Medical Board public records show four DUI arrests between 1992 and 2002, with three convictions in 1992, 2000 and 2002. He entered the diversion program in 2003.

“There is no way to trace that. It’s like near-misses, like a drunk driver who has driven 300 times drunk before being caught.”

Medical Board investigators also note several brushes with San Diego law enforcement over assault allegations in 2012 involving a reported attack on a male friend, a former patient, whom Greer threatened with an ax, and an alleged “incident of domestic violence” involving a girlfriend, also a former patient, for whom he was prescribing painkillers. Neither pressed charges, according to Medical Board records, and there were no convictions, although the Sept. 8 disciplinary action by the Medical Board includes writing prescriptions for the former girlfriend without performing a required examination.

“Amazingly, there is no evidence that [Greer’s] drinking has ever resulted in any mistreatment of a patient under his care,” Dr. Mark Kalish, a psychiatrist who evaluated Greer, wrote in a report to the board. “I also don’t think there can be any question that if [Greer] continues to abuse alcohol, patient care will be compromised. The question is not if it will happen, but only when.”

Unless patients are seriously injured, or die, or file lawsuits, it is difficult to determine how many patients may have been harmed by alcohol- and drug-impaired physicians, and patient advocates blame the secrecy of the system for preventing patients from easier access to information about investigations and prosecutions. Statistics and many medical-journal articles show that physicians who do seek help, and are treated by effective programs – called Physician Treatment Programs (PTP’s) or Physician Health Programs (PHP’s) – have a very high rate of success over time, as high as 80 or even 90 percent, according to some articles.

Dr. Stephen Loyd, 47, a Tennessee physician who 10 years ago sought help for his heavy addiction to prescription pain killers through a Tennessee state program, is a frequent, albeit out-of-state, spokesman for Prop. 46. He says “nobody knows” how many patients have been harmed by drug- or alcohol-addled physicians. “There is no way to trace that. It’s like near-misses, like a drunk driver who has driven 300 times drunk before being caught.”

“I had all kinds of potential for harm,” Loyd added. “I wasn’t mean. I wasn’t psychopathic, but I harmed patients in other ways. I had a patient that I got to give me back pills one time. When he found I had gone into treatment for drug addiction, he told me he felt like he ‘caused’ me to ‘get addicted’. . .That is harm, although it didn’t dawn on me at the time that I owed him an apology. I’ve since apologized.”

For doctors who are hiding in bathrooms, they’re miserable, they’re dying. When you first intervene, they’re not going to be happy campers.”

Loyd, chief of medicine at the Mountain Home Veterans Administration Medical Center in Johnson City, Tenn., and an associate professor at East Tennessee State University Medical School, went into treatment after his father confronted him about his drug use. “I’d evaluated myself,” he said. “I was drowning, dying. I self-reported [to the state], and I was in compliance from Day One. I am one lucky SOB. I love my damn life. I get to be a doctor. I used to fuss about the check I had to write every two years for my license. I look at life differently. As bad as it was, my professional life was not suffering. But my wife had had it.”

His son and daughter were 7 and 9 when he went into treatment. His son, now a 20-year-old college sophomore, wants to go to medical school and become an addiction specialist.

Loyd said he supports Prop. 46 because, unlike Tennessee and other states, California has no official system for doctors to get help. “Assuming 2 percent prevalence, there are 2,500 to 3,000 docs who are actively addicted,” Loyd said, “but there is no mechanism, no leverage, to get them into treatment programs.” And while random drug testing of physicians – as called for in Prop. 46 — “won’t be the magic bullet,” he said, “it is an initial deterrent.”

“People look at this as being punitive,” he added. “But for doctors who are hiding in bathrooms, they’re miserable, they’re dying. When you first intervene, they’re not going to be happy campers.”

A September USC/LA Times poll showed weak support for the measure, with 50 percent opposed, 37 percent in favor and 12 percent undecided. Dave Kanevsky of American Viewpoint, the Republican pollster in the bipartisan survey team, characterized approval for the measure as “a mile wide and an inch deep.” Support “looks strong but starts to fold when voters hear both sides,” he told the Los Angeles Times. Sixty-eight percent of those polled favored the provision for drug-testing of doctors.

“We ought to be able to do as well as Alabama, where we were doing about 80 physician interventions a year, in a state with 13,000 practicing physicians.”

Dan Schnur, director of the Jesse Unruh Institute of Politics at USC, said proponents of the measure – mainly consumer groups and trial lawyers – “were very smart. They tried to cover up a controversial measure (limits on malpractice awards) with a popular one (doctor drug testing).” But, he added, “a ballot measure is only as strong as its weakest link.”

Like most legislating-by-initiative, lacking action by a state Legislature repeatedly unable to agree on workable laws to effectively regulate either physician drug use or doctor discipline, the measure is widely regarded as legally flawed – and, like most initiatives, likely to be challenged in court.  Once again pitting doctors and lawyers over malpractice caps, the measure includes provisions such as random drug testing – and a requirement that doctors consult a statewide prescription drug database before prescribing addictive drugs – which are sure to capture public interest.

California Needs Education, Intervention
According to Medical Board records, Greer had been licensed to practice since July 27, 1981. He had graduated magna cum laude in 1974 from UC-Irvine with a Bachelor’s degree in biological sciences, received a Master’s in biochemistry from California State University, Long Beach, in 1976, and a medical degree from the University of Utah in 1980. He did his internship and residency in internal medicine at Los Angeles County/USC Medical Center and a fellowship in gastroenterology at Scripps Clinic.

He entered private practice in 1985 and currently works for the Center for Family Health in San Diego. He is by many accounts a conscientious and caring physician, when he’s clean and sober, which his attorney says he has been since his family intervened and he entered treatment in 2012.

Dr. Gregory Skipper, an addiction specialist and author of many medical-journal articles on physician addiction treatment, is director of the Promises Physician Treatment Program in Santa Monica, where Greer was treated. He cannot discuss specific patients, but is quoted in Medical Board documents as one of the physicians who treated and/or evaluated Greer. Skipper has run or advised physician treatment programs in other states, including Alabama and Oregon, and says California is remiss in not having a program for doctors needing help.

“It’s such a startling fact that California doesn’t have [a program],” Skipper said. “There needs to be a program for education and intervention, which is what other states have. We ought to be able to do as well as Alabama, where we were doing about 80 physician interventions a year, in a state with 13,000 practicing physicians. We are so behind in this in California.”

“If it’s just discipline and enforcement, that’s not enough,” he added. Protection for colleagues who may want to report an impaired physician – sometimes called a “snitch law” – is necessary, he said, which requires physicians to report a colleague’s impairment, but protects the reporting physician from liability. As for drug testing, he said, “if it’s done willy-nilly, it will be unsuccessful.” He favors drug testing of physicians at key junctures in their careers — “before appointment to a hospital, for license renewal.”

And, like most physicians, he favors confidentiality for doctors receiving treatment. “It’s a medical condition,” he said. “It should be private. If doctors refuse to cooperate, they should be reported immediately.”

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Ed’s Note: Sigrid Bathen, a Sacramento journalist who has frequently written about physician discipline, is a regular contributor to Capitol Weekly. She teaches journalism at California State University, Sacramento and can be reached at [email protected]

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