Published Online: July 7, 2014
Published in Print: July 9, 2014, as Teacher Case Raises Stakes in Equity Fight

For Vergara Ruling on Teachers, Big Questions Loom

Attorney Glenn Rothner speaks during a press conference in Los Angeles on June 10 after Los Angeles County Superior Court Judge Rolf M. Treu ruled that key job protections for California teachers violate the state's constitution. Mr. Rothner is one of the attorneys who represented teachers' unions in the case.
Attorney Glenn Rothner speaks during a press conference in Los Angeles on June 10 after Los Angeles County Superior Court Judge Rolf M. Treu ruled that key job protections for California teachers violate the state's constitution. Mr. Rothner is one of the attorneys who represented teachers' unions in the case.
—Francine Orr/Los Angeles Times/MCT

In the annals of education-equity cases, the decision in Vergara v. California was nothing less than a bombshell.

The ruling last month by a Los Angeles Superior Court judge said that aspects of California teachers’ tenure and due-process protections violated the constitutional rights of the state’s neediest children. Within minutes, advocates proclaimed it a win for students who have historically received lower-quality education; others, such as the California Teachers Association, saw it as an unbridled attack on teachers and unions.

To a degree, the cacophony of responses greeting the decision has obfuscated the fact that many of the implications of the lawsuit remain unclear, both in the Golden State and nationwide.

Among the lingering questions: Will the ruling, at a slim 16 pages, hold up on appeal? Will California’s notoriously polarized legislature, fearful of additional litigation and bad press, consider changing the statutes at issue on its own? And finally, will similar lawsuits elsewhere—one is already primed for introduction in New York—be as initially successful?

However those questions shake out, the policy fallout has begun, with inevitable ramifications for teachers and their unions.

“I do worry that this decision further polarizes what is already a pretty toxic debate,” said William Koski, a Stanford University law professor who studies education issues. “This changes the political conversation about these employment protections—and it doesn’t necessarily favor the CTA.”

National Debate

In his June 10 ruling, Judge Rolf M. Treu essentially agreed with the plaintiffs—nine California students—that the state’s laws governing teacher tenure and dismissal unfairly saddle disadvantaged and minority students with weaker teachers.

“Evidence has been solicited in this trial of the specific effect of grossly ineffective teachers on students,” Judge Treu wrote in a tentative decision chock-full of unsparing language. “The evidence is compelling. Indeed, it shocks the conscience.” (The judge must issue a final judgment, which could include modifications, within 30 days of the ruling.)

Proponents of the suit—mainly newly emergent advocacy groups that have worked to reshape the political landscape of K-12 education—declared the ruling a huge victory for low-income and minority students who have historically gotten weaker teaching than their wealthier and white peers.

Opponents, including the teachers’ unions, saw a far different picture. For them, the decision signaled that a band of well-heeled “corporate reformers” bent on deprofessionalizing teaching and weakening unions had bought another victory.

As such, Vergara has come to embody the national debate over so-called education reform and all of its loud, angry features.

In fact, the judge’s ruling accepted the testimony of some researchers that teachers with a history of boosting student test scores also seem to improve students’ long-term outcomes, including earnings. The defense had sought to paint that research as flawed.

Appeals Certain

A Primer on the Vergara v. California Ruling

The Laws

Vergara v. California focused on five portions of the state education code detailing:

• Teachers’ eligibility for tenure after two years of probation;
• The multistep process for dismissing a tenured teacher; and
• Requirements that junior teachers be laid off before senior ones.

The Ruling

Judge Rolf M. Treu ruled in favor of the plaintiffs on all counts, overturning the laws in question. He stayed the ruling until appeals can be settled, which could take months or even years.

The Trial

Nine California students, with financial backing from a Silicon Valley entrepreneur and a top legal team, contended that the state laws serve to saddle low-income and minority students with a disproportionate number of poorly performing teachers, in violation of their constitutional right to an equitable education.

Defendants, including the state and its teachers’ unions, argued that the teacher protections help to attract and retain teachers; that the laws do not discriminate against poor and minority students; and that “well managed” districts appropriately address teacher quality.

Legislation

A bill passed by both chambers of the state legislature would streamline the dismissal process for teachers accused of “egregious misconduct.” lt was introduced before the trial began, and does not address tenure or seniority statutes.

Spillover

A New York City-based advocacy group, Partnership for Educational Justice, plans to launch a similar lawsuit in that state. Both the Vergara legal team and other groups are beginning efforts to bring additional lawsuits elsewhere.

Appeals

California’s teachers’ unions will appeal the decision. State officials have not decided whether to appeal.

For California’s nearly 270,000 public school teachers, though, there will be few immediate changes. Judge Treu delayed the effect of his ruling until appeals are settled.

The state teachers’ unions, which intervened as defendants in the suit, plan to appeal. And they see several possible avenues to contest the decision, said James M. Finberg, a lawyer with the San Francisco-based firm Altshuler Berzon, which represented both of the state teachers’ unions in the suit.

“The evidence is undisputed that these laws are constitutionally applied in a majority of cases,” Mr. Finberg said. “To have a ‘suspect class’ claim for poor and minority students, you need to prove intent to discriminate, and there’s no evidence of that.”

Although it’s always tricky to handicap the chances of a successful appeal, legal experts agree that the decision leaves room for one.

“I was little taken aback at the fact that the legal analysis was so skeletal,” said Stuart Biegel, a faculty member in both the education and law schools at the University of California, Los Angeles. “The judge is making some broad generalizations about [prior education equity cases], and it’s, on some level, troubling.”

Meanwhile, even those sympathetic to the plaintiffs say they are concerned about other ramifications of the decision. Because the ruling establishes a qualitative aspect of educational equity—the right to access good teaching, not merely equal funding—the decision potentially opens up other policies and resources as potential fodder for litigation, scholars have written.

Indeed, at least one other lawsuit, a class action filed by the American Civil Liberties Union and others in May, argues that schools serving disadvantaged and minority students provide them with far less instructional time.

It remains unclear whether the state itself will appeal the decision. The California education department and the state attorney general’s office demurred when queried on the matter, and Democratic Gov. Jerry Brown’s office said it was still reviewing the tentative ruling.

Legislative Traction?

The most pressing question in the wake of the ruling is whether the California legislature will seek to rewrite the state’s laws on teacher tenure and dismissal so that they pass constitutional muster.

“The legislature, if it’s smart, will act so it doesn’t lose control of this to the judiciary,” Mr. Koski of Stanford University said.

Some observers see bread crumbs for possible changes sprinkled throughout the ruling.

For example, Judge Treu noted that most other states require that teachers serve at least three years before earning tenure, compared with about 18 months in California.

“I think it’s a clear signal from the judge that he thinks the legislature should fix this, and despite what he says in the conclusion, I think that’s exactly his intention in pointing out that California is not in line with other states,” said Ethan Hutt, an assistant professor in the University of Maryland’s education school.

“Ultimately, the legislature will change the law,” he predicted, “and my guess is it will move towards the pack in terms of tenure within three to five years, and create some discretion for the principal.”

Timing will be one challenge for state lawmakers. California’s two-year legislative session ends Aug. 31, and lawmakers are scrambling to address other already-introduced legislation.

Another wild card concerns the role of the powerful state teachers’ unions, which can count many allies in the Democratic-controlled legislature. The CTA and the California Federation of Teachers historically have resisted efforts to tweak the tenure rules, which they say are necessary to protect teachers from unwarranted punishment or dismissal.

The unions helped defeat, for instance, a 2005 ballot initiative supported by then-Gov. Arnold Schwarzenegger to extend teachers’ probationary period to five years.

More recently, the CTA, an affiliate of the National Education Association, refused to support a bid by its San Jose, Calif., affiliate to extend some teachers’ probationary period by an additional year.

Dismissal Process Eyed

There has been movement in the legislature on the matter of teacher dismissal. A bill predating the Vergara ruling was signed into law last month and would create an expedited process for firing teachers engaged in “egregious misconduct.” It would also require that due-process hearings, including those based on poor performance, be concluded within seven months.

The bill was endorsed by the CTA, which had opposed an earlier version. But the measure doesn’t deal with layoffs or with grants of tenure, and the CTA refused to say whether it might support changes to those laws in the wake of the court’s decision. The union said any commentary would be premature.

“We’re kind of taking a wait-and-see approach to understand what exactly the final or ultimate policy decision will be,” said Patricia Rucker, a legislative advocate for the union. “Even on appeal, there will be some shadings and clarifications on what the decision will mean if it’s reversed, or not.”

Successor Lawsuits

Nationally, observers are also watching to see how other states might respond to the ruling. Students Matter, the Menlo Park, Calif.-based advocacy group that provided funding for the California plaintiffs and their legal team, has expressed interest in taking the core legal strategy used in Vergara elsewhere.

Dozens of other states also have education-equity clauses in their constitutions. But states’ case law on such matters differs, as do interpretations of teacher tenure, potentially complicating that strategy.

Moreover, many states have been more aggressive than California on altering the fundamentals of teacher due process: Since 2009, some 16 states have taken steps to tie tenure-granting to teacher performance; seven return tenured teachers with weak evaluations to probationary status. Two states, Florida and Kansas, have eliminated either the continuing employment or due process associated with tenure.

Related Blog

Still, at least in one state, a successor lawsuit appears likely. In New York, advocates are taking aim at that state’s tenure, dismissal, and due-process laws, under the state’s constitutional guarantee to a “sound, basic education.”

The lawsuit is being supported by the Partnership for Educational Justice, a New York City-based organization run by former CNN and NBC news anchor Campbell Brown.

While the California ruling isn’t binding on New York courts as a matter of precedent, “I think a court would find it persuasive,” said Devora Allon, a litigation associate at the law firm Kirkland & Ellis in New York City.

“The statutes we’re challenging operate very similarly, so the types of evidence the court found persuasive in California are very similar to the kinds I think we’ll see here,” she said.

The law firm plans to file the suit this month.

Vol. 33, Issue 36, Pages 1,22

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