Vergara v. California

Vergara v. California
Court California superior courts
Decided June 10, 2014

In May 2012 lawyers for nine public school students filed the lawsuit of Vergara v. California in California state court. The suit alleged that several California statutes violated the California Constitution by retaining some grossly ineffective teachers and thus denying equal protection to students assigned to these teachers. Further, according to the complaint, these statutes had disparate impact on poor and minority students who were more likely to be assigned to a grossly ineffective teacher. In June 2014 after a two-month trial, Judge Rolf M. Treu of the California Superior Court issued a preliminary ruling[1] finding that all of the statutes challenged by the plaintiff students were unconstitutional.[2] In August 2014 this ruling was finalized.[3] The decision was subsequently appealed by Governor Jerry Brown.[4]

The challenged statutes

The lawsuit identified five separate statutes that kept ineffective teachers in the classroom. The argument by the plaintiffs in the lawsuit was that tenure decisions had to be made too quickly, and that once tenure was granted it was too difficult to remove a teacher if a mistake had been made in granting tenure. The presence of ineffective teachers necessarily meant that some students were denied their constitutional right to a good education. The defendants argued that it was possible to remove bad teachers and that these laws did not cause bad teachers to be in the schools.

Tenure ("permanent employment") statute

Before being struck down in the Vergara case, certain provisions of the California Education Code conferred "permanent employment" status (or tenure) on any teacher who had not been informed that his or her teaching contract had been cancelled by March of the second year of teaching. Permanent status required school districts to follow specific evidentiary and procedural requirements before firing a teacher. Lawyers for teacher's unions in Vergara argued that this was not equivalent to lifetime employment, but instead just recognition of the due process requirements that would have to be satisfied if teachers were to be fired for any one of a number of specified reasons.

Firing ("dismissal") statutes

A series of three statutes in California specified a series of procedural requirements that had to be satisfied if a tenured teacher was to be "dismissed," or fired. These requirements, the plaintiffs argued, put undue cost on districts if they wished to remove a teacher. They were also considerably beyond the normal due process rights for other civil servants in California. John Deasy, Superintendent of the Los Angeles Unified School District (LAUSD), testified that the statutes harmed students.[5]

LIFO layoff statute

The final challenged statute told district administrators how to prioritize which teachers would be laid off if they were to reduce the size of their teaching staff. The California law required strict use of reverse seniority rules, i.e., last in first out, or LIFO. With a few exceptions, before any tenured teacher could be laid off, the district had to remove all of the more junior, nontenured teachers. It was impermissible to use information about teacher effectiveness in making layoff decisions.

The decision: the tenure, firing and layoff statutes "shock the conscience"

On June 10, 2014, the court ruled that the statutes at issue produced disparities that "shock the conscience"[6] and violate the equal protection clause of the California Constitution.[7]

As background, the court began the Vergara opinion with a discussion of the U.S. Supreme Court case of Brown v. Board of Education (1954) and the California Supreme Court cases of Serrano v. Priest I (1971), Serrano v. Priest II (1976), and Butt v. State of California (1992).[8] "While these cases addressed the issue of a lack of equality of educational opportunity . . . here this Court is directly faced with issues that compel it to apply these constitutional principles to the quality of the educational experience."[9]

The court examined the challenged California statutes under strict scrutiny judicial review.[10]

Evidence regarding teacher effectiveness

School administrators asked the judge to review a copy of "California Standards for the Teaching Profession" (2009 Edition) as evidence. The court pointed out that the opening sentence of those Standards state: "A growing body of research confirms that the quality of teaching is what matters most for the students' development and learning in schools." (Emphasis added by the court).[11]

"Based on a 4 year study, Dr. [Thomas] Kane testified that students in LAUSD [the Los Angeles Unified School District] who are taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers."[12]

"Dr. [David] Berliner, an expert called by [California school administrators], testified that 1 - 3% of teachers in California are grossly ineffective. Given that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250."[13]

A tenure period of less than two years was insufficient

The court found that California's tenure period was actually less than the two year period ostensibly outlined in the statute. This was because a tenure decision had to be made in March, before the end of a new teacher's second school year. In contrast, the credentialing induction period for new teachers lasted two full school years. "Thus, a teacher reelected [for tenure] in March may not be recommended for credentialing after the close of the induction program in May, leaving the applicable district with a non-credentialed teacher with tenure."[14]

"There was extensive evidence presented, including some from [school administrators that the tenure statute did not] provide nearly enough time for an informed decision to be made regarding the decision of tenure (critical for both students and teachers)."[15]

Jesse Rothstein and David Berliner were experts who testified for the defendant school officials during the trial. Both stated that two years was not the optimal amount of time needed to make a tenure decision. Three years to five years was instead suggested as a better time frame to make the tenure decision for the mutual benefit of students and teachers.[16]

Surveying tenure periods in other U.S. states, the court found that as of the trial (January 27 to March 27, 2014)[17] 4 states had no tenure system at all, 9 states had tenure periods of four to five years, 32 had a three year period, and 5 (including California) had a period of two years or less.[18]

Firing a teacher in California was too expensive and time consuming

Lawyers for the plaintiff school students alleged that it was "too time consuming and too expensive to go through the dismissal process as required by the Dismissal Statutes to rid school districts of grossly ineffective teachers." The court agreed, concluding that "such time and cost constraints cause districts in many cases to be very reluctant to even commence dismissal procedures."[19]

The court noted that school administrators and teachers unions had raised "the entirely legitimate issue" of protecting a teacher's due process rights when she or he was faced with the possibility of being fired. However, the court decided that "given the evidence . . . the Dismissal Statutes present the issue of uber due process."[20]

"This Court is confident that the independent judiciary of this state is no less dedicated to the protection of reasonable due process rights of teachers than it is of protecting the rights of children to constitutionally mandated equal education opportunities."[21]

Teacher layoffs prioritized solely by seniority harm students

California's LIFO-only layoff statute required "the last-hired teacher [to be] the statutorily-mandated first-fired one when lay-offs occur."[22]

The statute did not contain "an exception or waiver based on teacher effectiveness."[23]

"No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one . . . is separated from [the students] and a senior grossly ineffective one . . . is left in place."[24]

"The logic of [this statutory scheme] is unfathomable and therefore constitutionally unsupportable."[25]

Surveying layoff rules for teachers in other U.S. jurisdictions, the court found that as of the trial (January 27 to March 27, 2014)[26] 2 states provided that seniority could not be considered; 18 states and the District of Columbia left the layoff criteria to school district discretion; 20 states provided that seniority could be considered among other factors; and 10 states (including California) provided that seniority was the sole factor, or one that had to be considered.[27]

Litigants

Funding for the plaintiff school students was provided by David Welch, a Silicon Valley entrepreneur.[28] The school students were represented by the Gibson Dunn law firm. The defense for school administrators was provided by the California Attorney General. The California Teachers Association intervened on the side of the defense and was represented by Altschuler Berzon.

Plaintiff experts

The plaintiff school students' experts included a group of economists who examined various aspects of teacher effectiveness under "value-added modeling". The original complaint was built on the analyses of teacher effectiveness and the estimated economic cost of ineffective teachers by Eric Hanushek of Stanford University.[29][30] Raj Chetty[31] (Harvard University) and Thomas Kane (Harvard University) testified on the distribution of ineffective teachers in California and particularly in Los Angeles. Dan Goldhaber (University of Washington) testified on the impact of LIFO layoff statutes. Plaintiff rebuttal testimony was provided by Eric Hanushek and by Dr. Anthony Smith, former superintendent of the Oakland Unified School District.

Defense experts

Linda Darling Hammond (Stanford University), David Berliner (Arizona State University), and Susan Moore Johnson (Harvard University) testified on their understanding of the problems of tenure and of the impact of ineffective teachers. Jesse Rothstein of the University of California at Berkeley testified that tenure restrictions served the interest of student achievement.

Implications

The day after the Vergara decision was announced, the Associated Press described it in a USA Today article as "a landmark decision that could influence the gathering debate over tenure across the country."[32]

In reaction to this ruling, a similar lawsuit was filed in New York State.[33][34]

The court's ruling found the statutes to be unconstitutional but did not specify what should be done. The California legislature is responsible for devising any alternative statutes.

References

  1. ↑ Vergara v. California - Tentative Decision (Superior Court of the State of California, County of Los Angeles June 10, 2014). Text
  2. ↑ Medina, Jennifer (June 10, 2014). "Judge Rejects Teacher Tenure for California". The New York Times.
  3. ↑ Vergara v. California - Judgment (Superior Court of the State of California, County of Los Angeles August 27, 2014). Text
  4. ↑ Nagourney, Adam (August 30, 2014). "California Governor Appeals Court Ruling Overturning Protections for Teachers". The New York Times. Retrieved December 6, 2014.
  5. ↑ Deasy, John (June 10, 2014). "Op-Ed: L.A. Unified’s Deasy applauds Vergara ruling on teacher rules". Los Angeles Times. Retrieved December 5, 2014.
  6. ↑ Vergara (2014) - Judgment, page 7, line 21. Text
  7. ↑ Vergara (2014) - Judgment, page 3, lines 19-27. Text
  8. ↑ Butt v. State of California, Volume 4, California 4th Reporter, page 668 (1992).
  9. ↑ Vergara (2014) - Judgment, page 2, lines 23-28. Text
  10. ↑ Vergara (2014) - Judgment, page 8, lines 19-24. Text
  11. ↑ Vergara (2014) - Judgment, page 7, lines 8-11. Text
  12. ↑ Vergara (2014) - Judgment, page 7, lines 24-26. Text
  13. ↑ Vergara (2014) - Judgment, page 8, lines 2-4. Text
  14. ↑ Vergara (2014) - Judgment, page 9, lines 1-19. Text
  15. ↑ Vergara (2014) - Judgment, page 9, lines 21-25. Text
  16. ↑ Vergara (2014) - Judgment, page 10, lines 10-12. Text
  17. ↑ Vergara (2014) - Judgment, page 6, lines 13-15. Text
  18. ↑ Vergara (2014) - Judgment, page 10, lines 14-17. Text
  19. ↑ Vergara (2014) - Judgment, page 10, line 25 to page 11, line 3. Text
  20. ↑ Vergara (2014) - Judgment, page 11, lines 21-23. Text
  21. ↑ Vergara (2014) - Judgment, page 12, lines 23-26. Text
  22. ↑ Vergara (2014) - Judgment, page 13, lines 18-19. Text
  23. ↑ Vergara (2014) - Judgment, page 13, lines 17-18. Text
  24. ↑ Vergara (2014) - Judgment, page 13, lines 19-23. Text
  25. ↑ Vergara (2014) - Judgment, page 14, lines 4-5. Text
  26. ↑ Vergara (2014) - Judgment, page 6, lines 13-15. Text
  27. ↑ Vergara (2014) - Judgment, page 14, lines 10-14. Text
  28. ↑ Callahan, David (February 3, 2014). "Meet the Tech Entrepreneur Putting Teacher Tenure on Trial". The Huffington Post. Retrieved December 6, 2014.
  29. ↑ Hanushek, Eric (Summer 2011). "Valuing teachers: How much is a good teacher worth?". Education Next (Hoover Institution, Stanford University) 11 (number 3). Retrieved December 5, 2014.
  30. ↑ Hanushek, Eric (June 2011). "The economic value of higher teacher quality". Economics of Education Review (Elsevier) 30 (3): pages 466–479. Retrieved December 5, 2014.
  31. ↑ Chetty, Raj; Friedman, John N.; Rockoff, Jonah (September 2014). "Measuring the Impacts of Teachers II: Teacher value-added and the student outcomes in adulthood". The American Economic Review (American Economic Association).
  32. ↑ Associated Press (June 11, 2014). "Judge strikes down California teacher tenure: Judge also took issue with laws that say last hired must be first fired". USA Today. Retrieved November 25, 2014.
  33. ↑ Baker, Al (July 3, 2014). "Lawsuit Challenges New York’s Teacher Tenure Laws". The New York Times. Retrieved December 8, 2014.
  34. ↑ Brody, Leslie (June 23, 2014). "New York State Challenge Planned on Teacher Tenure Law: Advocacy Group Contends Laws Violate Children's Constitutional Right to a Sound Basic Education". Wall Street Journal. Retrieved November 25, 2014.

Further reading

External links