Published Online: June 5, 2012
Published in Print: June 6, 2012, as Critics Ask Courts to Change Calif. Teacher Policy

Critics Ask Calif. Courts to Change Teacher Policies

As other states have passed bill after bill to reshape their teacher-quality policies, California has largely lagged behind. But now, proponents of such changes in the Golden State appear to be turning to a different tactic: litigation.

At least three lawsuits have taken aim in the past two years at district and state rules governing teacher evaluation, seniority, or due process. One of them, Reed v. California, has already yielded a settlement shielding a handful of Los Angeles schools from seniority-based layoffs. ("L.A. Settles ACLU Suit on Layoffs," Oct. 13, 2010.)

In a second case, Doe v. Deasy et al., a court hearing was scheduled for this week. It seeks to enforce a state law requiring "pupil progress" as a criterion for evaluating teachers.

And a third lawsuit, filed just last month in Los Angeles Superior Court and by far the most sweeping of the three, seeks to overturn five state laws relating to teacher evaluation, tenure, and due process.

In effect, the suits are slowly building the argument that equal access to good instruction is guaranteed under the state constitution—not merely equal access to funding or facilities, the basis of most prior education civil rights lawsuits in the state.

"It is a modern civil rights movement that recognizes that we are not going to get the change in the law from a legislature where money is the mother's milk of politics," said Gloria Romero, a former California Senate majority leader and now the director of the California chapter of Democrats for Education Reform, or DFER, a political action committee supportive of the lawsuit.

"And I served there," she said. "I've sat in all those meetings. So we've taken a lesson from history and said we will take it to the courts to seek remedy. When the courts rule, the legislature must act."

Civil Rights Context

DFER is among the groups that are helping to advise Students Matter, the nonprofit organization bankrolling the most recent lawsuit, Vergara v. CaliforniaRequires Adobe Acrobat Reader.

The thread running through all three cases is that the policies violate students' civil rights by denying them access to good teachers. The Vergara suit, for instance, contends that the laws, in conjunction, disproportionately concentrate the weakest teachers in the low-performing schools.

The state's laws, it argues, allow tenure to be granted after only two years, before a teacher's performance has been well documented; create some dozen steps in due process for dismissing teachers for poor performance, which the plaintiffs say allows the process to drag on for months or years; and mandate that seniority, rather than performance, be the primary factor in determining which teachers are laid off during reductions-in-force.

The Judicial Route

Reed v. California, et al.
Filed: Feb. 24, 2010
Status: Settled Jan. 21, 2011
The settlement directs the Los Angeles school district to shield 45 low-performing schools from layoffs and caps layoffs in other schools. It also calls for an incentive program to retain teachers and principals in low-income schools.

Doe v. Deasy, et al.
Filed: Nov. 1, 2011
Status: Hearing scheduled for June
5, 2012 The suit seeks to compel the Los Angeles school district to evaluate teachers in accordance with a state law requiring evaluations to consider “pupil progress” toward state standards, as measured by state tests where applicable. It also seeks to prohibit the school district from entering into collective bargaining contracts that do not comply with this law.

Vergara v. California, et al.
Filed: May 14, 2012
Status: Awaiting hearing
The suit seeks an injunction against five state statutes relating to teacher tenure-granting, due process, and layoff policies. It also seeks to prohibit future laws or contracts that would put similar restrictions into place.

The five laws governing those policies "inevitably present a total and fatal conflict with the right to education guaranteed by the California Constitution, because it forces an arbitrary subset of California students to be educated by grossly ineffective teachers," the complaint reads.

The Doe v. Deasy suit, which was scheduled to be heard June 5, says that the Los Angeles district has not complied with the state's 40-year-old teacher-evaluation statute, thus failing to ensure students are taught by teachers capable of helping students reach the state's academic-content standards.

A ruling in the lawsuit could have implications for California's many other school districts.

"You can pass great laws, but you have to get people to actually apply them," said Scott J. Witlin, a partner at Barnes & Thornburg LLP, the law firm representing the plaintiffs in the suit.

The lawsuits have some powerful supporters, including the superintendent of the 665,000-student Los Angeles district, John E. Deasy.

Though the district is named as a defendant in all three lawsuits, Mr. Deasy said he largely agrees with their thrust and has sought similar changes to teacher-quality policies as those envisioned in the lawsuits.

"I've testified as much," he said.

Mr. Deasy has, for instance, pressed the district teachers' union to accept "value added" student test-score-based calculations as one of several measures for evaluating teachers, something that United Teachers Los Angeles has steadfastly refused to consider.

Over the union's objection, Mr. Deasy also began a pilot teacher-evaluation program incorporating such information in more than 100 schools. Next school year, he plans to roll out a similar system throughout the district.

Though the district is deep in the middle of negotiating a new teacher contact, Mr. Deasy argues that the contract covers only the implementation of such a system, not its shape.

Related Blog

The president of UTLA could not be reached for comment.

Challenges Ahead

The Vergara lawsuit doesn't have a court date set, and for all its star power—famed litigators Theodore J. Boutrous Jr. and Theodore B. Olson are representing the plaintiffs—legal experts say it may not be an easy one to win.

Stuart Biegel, a faculty member in both the education and law schools at the University of California, Los Angeles, is of two minds on the suit. He agrees that low-income students of color tend to be disproportionately negatively affected by the small number of low-performing teachers.

But he drew a contrast between the settlement in the Reed case, which was limited to a subset of schools, and the broad remedy sought in the Vergara suit.

"We don't know very much about the plaintiffs or why they are specifically being denied equal protection. It's very, very generalized," Mr. Biegel said. "It may work to their disadvantage, because they're basically asking the state to throw out key protections that were not easily won over time.

"And then what? If they were asking for something that would be more limited, more focused," he said, "I think they would havean easier chance."

Teachers' unions generally view the lawsuits as thinly veiled attacks on unions and on teachers' prerogatives.

In addition, the Vergara suit has come under scrutiny because of its backers. The advisory board for the Students Matter group includes Parent Revolution, a Los Angeles-based group that supports "parent trigger" legislation to turn around underperforming schools, and StudentsFirst, headed by former District of Columbia Schools Chancellor Michelle A. Rhee.

Such groups have challenged the unions' political power in various instances. ("Tensions Mark Relationships Between New Organizations and Teachers' Unions," May 23, 2012.)

The Students Matter nonprofit was started by David F. Welch, the founder of the Sunnyvale, Calif.-based telecommunications firm Infinera. He estimates that he kicked in $200,000 to support the lawsuit, though it has now received donations from more than 100 other individuals.

Mr. Welch said he was inspired to begin the nonprofit as it became clear to him that certain laws were inhibiting student achievement, and that there wasn't an appetite in the legislature to change them.

"When one branch of the government isn't able to do the right thing, you have to use one of the other branches of government," he said.

Though the Vergara suit takes aim at some teacher-dismissal protections, teachers would still be covered by state laws that give all public employees due process rights, Mr. Welch noted.

Other stakeholders aren't convinced. Los Angeles school board member Steve Zimmer was quoted in The Los Angeles Times as saying that the groups behind the lawsuit wanted to "eliminate public-sector unions."

Vol. 31, Issue 33, Pages 21,23

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