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Published in Print: April 27, 2016, as Vergara Reversal Leaves Questions, Equity Concerns

Vergara Reversal Spotlights Ongoing Equity Concerns

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Despite the thousands of dollars spent on glossy PR, both pro and con, over the Vergara v. California case, last week's decision by a state appeals court to uphold teacher job protections hinged on a far less flashy factor: the arcana of California constitutional law.

From the beginning, both sides in the polarizing case acknowledged that it would probably end up before the state's supreme court, and those gears are already cranking, with the plaintiffs planning to seek review there.

But regardless of which way any future decision goes, the fallout from the appeals decision has made several things clear.

First, it is unlikely to stop legal challenges to California's teacher-employment laws, although future lawsuits could well take a different tack. Second, there appears to be little appetite among either party to strike a legislative compromise to rework portions of the laws in question.

And finally, although the new ruling has been billed as a win for the teachers' unions, Vergara has already brought significant attention to the sometimes counter intuitive processes by which teachers are hired, fired, and assigned. As a result, unions are likely to continue to face pressure to come up with or accept changes.

Teacher Job Protections on Trial: A Timeline

May 14, 2012
A handful of students, with help from Students Matter, a nonprofit funded by Silicon Valley entrepreneur David Welch, file the Vergara v. California suit. They allege California’s teacher job-protection laws harm students, especially poor and minority students who bear the brunt of bad teaching.

May 2, 2013
California’s teachers’ unions join Vergara as intervenors on behalf of the defendants.

Jan. 27, 2014
Oral arguments begin in Vergara v. California. The trial court ultimately lasted two months.

June 10, 2014
Los Angeles Superior Court Judge Rolf M. Treu rules on behalf of the plaintiffs, striking down the state’s rules for granting tenure, dismissing tenured teachers, and laying off teachers in order of reverse seniority. The ruling is stayed pending appeals.

June 30, 2014
A lawsuit modeled on Vergara, Davids v. New York, is filed in New York state court.

July 28, 2014
A second New York lawsuit, Wright v. New York, is filed in that state. It was soon combined with the Davids case.

Feb. 25, 2015
Oral arguments in the Vergara are heard before the California Court of Appeal.

April 14, 2016
A third copycat lawsuit is filed, this time in Minnesota. Just hours later, the California Court of Appeals reverses the trial court’s decision in Vergara.

May 24, 2016
Deadline for the Vergara plaintiffs to file for review by the California Supreme Court.

"We have to be the people who offer solutions, and for years we've been content to say no, what we won't put up with or tolerate," said Jennifer Thomas, the president of the San Jose Teachers Association. "We're at a place where saying no just won't do anymore."

A Vitriolic Debate

Filed four years ago on behalf of nine California students, the Vergara suit sought to overturn three key aspects long considered sacrosanct by teachers' unions: the timeline for granting teachers tenure, the rules for dismissing teachers for performance, and layoff procedures that prioritize teacher seniority. It claimed they violated poor and minority students' constitutional rights to an equitable education.

Eventually, the lawsuit came to embody a decade of tumult over so-called "education reform," with all the players in sight: wealthy backers, a powerful teachers' union in opposition, and students sharing heart-wrenching stories of neglect. There was also an intense amount of vitriol. Vergara deepened tensions between teachers' unions and groups that have been calling for changes to employment policies, split researchers and policy advocates, and even led to the unions calling for the resignation of a U.S. Cabinet-level official—and a Democrat at that.

In June 2014, Superior Court Judge Rolf M. Treu handed a complete win to the plaintiffs. But in its April 14 decision, the appeals court reversed course.

In essence, that court said, it's likely, even probable, that the statutes in question result in poor-quality teachers in some California schools—but that administrators, not the statutes themselves, are responsible for how, and to which students, those teachers are assigned.

"The court's job is merely to determine whether the statutes are constitutional, not if they are 'a good idea,' " Presiding Justice Roger Boren wrote on behalf of the three-judge appeals panel.

To a much greater extent than the trial court's decision did, the appeals court delved into the nuances of constitutional law in rendering its decision.

The Vergara lawsuit is a "facial" challenge, meaning it alleged that the laws on their face are unconstitutional because they inevitably harm students. Since overturning laws wholesale can carry sweeping effects, such a challenge typically carries a high burden of proof for the plaintiffs.

In its ruling, the appeals court seemed to suggest that an "as applied" constitutional challenge to the statutes might be more appropriate. That approach assumes the laws are neutral and, instead, targets how they're implemented. And it may be how critics of the laws conceive any future challenges, said Hailly Korman, a former education litigator.

But, she added, an as-applied constitutional challenge is hardly a cakewalk. Though it varies greatly due to the different constitutional protections each state affords, courts often want to see an intent to discriminate against certain groups in an as-applied challenge, not merely a disparate impact, she said. California courts tend to be more sympathetic to disparate-impact claims, but any such suit would still require much evidence about how specific districts grant tenure and assign teachers, and to show how they inflict constitutional harm on students.

And that means such challenges might have to proceed district by district, or even school by school.

"I think in a state like California, you have so many people contributing in very small ways to this ultimate phenomenon, it is very hard to amass evidence of the turning points where ordinary decisions become constitutional problems," said Korman, now a principal at Bellwether Education Partners, a consulting firm.

Josh Lipshutz, a partner with Gibson, Dunn & Crutcher, the high-powered Los Angeles firm representing the Vergara plaintiffs, said his team knew that bringing a facial challenge to the laws would be difficult. But in his view, the evidence in the case is incontrovertible, and the court erred in striking down the facial challenge by pointing to administrative middlemen as the key problem.

"If the statutes are trapping the ineffective teachers in the system, someone has to put them somewhere," he said. "It's sort of a red herring, to blame the local districts for not better matching these teachers."Lipshutz said bringing an as-applied challenge to the laws "could be a possibility," if his team proves unsuccessful with the state Supreme Court.

No Legislative Movement

Teachers' unions, for their part, have largely celebrated the ruling, saying that it affirms the laws as currently written.

"[The April 14] ruling reversing Treu's decision overwhelmingly underscores that the laws under attack have been good for public education and for kids, and that the plaintiffs failed to establish any violation of a student's constitutional rights," said Eric Heins, the president of the California Teachers Association, in a statement.

But in strongly worded language, the court called school districts' staffing arrangements "deplorable," calling out not just administrators' decisions, but also how they're influenced by teachers' preferences and collective bargaining.

And that means those factors will continue to invite scrutiny, say experts who follow teacher policy.

Research has documented meticulously that needy students and students of color get worse teachers, however defined—whether defined by years of experience, paper credentials, or level of teaching effectiveness. Vergara thrust those inequities firmly into the limelight, and it could be difficult to put that genie back in the bottle, said Katharine Strunk, an associate professor of education policy at the University of Southern California.

"The court really calls out the district-level policy and the collective bargaining agreements. Because of the way they are playing out at the local level, kids are not being treated well or equitably," she said. "That is quite a statement."

Since Vergara was filed, there has been little sign of compromise between the teachers' unions and those who support revisions to California's teacher job-protection statutes.

A recent proposal, introduced by assemblywoman Susan Bonilla, a Democrat, would allow districts to take up to three years, rather than the current two, to grant tenure and require due process hearings brought over performance to be conducted by an arbitrator. The CTA opposes the bill, and a spokesman for Students Matter, the nonprofit that funded the Vergara lawsuit, said only that the group has been engaged in "ongoing conversations" with Bonilla's office.

Charles Taylor Kerchner, a professor at Claremont Graduate University who studies institutional change in public education, thinks the teachers' unions aren't doing themselves any long-term favors by not supporting some legislative changes, and by neglecting to use Vergara to engage in broader conversations about how to improve the teaching profession. (Kerchner also writes an opinion blog on edweek.org.)

"These are relatively technical, minor fixes," he said. "They could be agreed to over an afternoon with a beer in Sacramento."

A Fresh Start?

But now that a legal Sword of Damocles isn't hanging over the teachers' unions, some observers remain optimistic that they and districts could begin to take a fresh look at the teacher policies together.

Ideally, said William Koski, a Stanford University law professor, the ruling will lead to more productive conversations about ways of balancing both protections for teachers and the real disparities students face with regard to access to quality teaching.

"The teachers' unions are deft if they get out in front of this and say, 'Let's make sure our members are protected and supported, while giving assurances that no tenure decisions are going to harm students,' " he said.

It's a point of view shared by Thomas, the San Jose union president. She backs such changes as teacher peer review and, potentially, instituting a longer time to document whether teachers should be granted tenure. But those reforms should be a matter of local experimentation, and will require some difficult changes, such as fixing outmoded teacher-evaluation systems, she said.

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"The harder reality is that we are going to have to push through bitter and broken relationships in some districts to reach a place for a fresh start," she said. "We're going to have to organize our communities for support, acknowledge that stopped clocks are right twice a day, and make common sense changes to address what isn't working."

All of that leaves the state Supreme Court's course of action still a mystery. Even if it decides to review the appellate court's decision, some scholars believe that the Vergara plaintiffs are unlikely to prevail.

"The court of appeal's opinion is very, very sound and well-reasoned. I think it's going to be an uphill battle," Koski said.

Vol. 35, Issue 29, Pages 1,13

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