School & District Management

Teacher Protections Violate Student Rights, Calif. Judge Finds

By Stephen Sawchuk — June 11, 2014 8 min read
Alex Caputo-Pearl, the president-elect of United Teachers Los Angeles, speaks with the media before a press conference outside the Stanley Mosk Courthouse in Los Angeles on Tuesday after a judge ruled that key job protections for teachers violate the state's constitution. "This decision today is an attack on teachers, which is a socially acceptable way to attack children," said Mr. Caputo-Pearl.
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California’s laws governing teacher tenure and dismissal unfairly saddle disadvantaged and minority students with weak teachers, infringing on those students’ right under the state constitution to an equitable education, a state superior court judge ruled June 10.

The tentative ruling in the high-profile case strikes down the laws in question. It will be finalized within 30 days, and spells what appears to be a complete victory for the plaintiffs, nine California students and their families.

The landmark decision in Vergara v. California says the state’s constitutional guarantee includes having equal access to quality teaching—a step beyond the right to sufficient instructional time and money that rulings in previous equity suits have established.

The state’s teachers’ unions, which intervened as defendants in the suit, said they would seek an appeal. Judge Rolf Treu stayed any changes in the state laws until those appeals are settled.

Outside legal experts say the outcome of an appeal could go either way.

Still, in his ruling, Judge Treu said the plaintiffs had met the burden of proof.

“Evidence has been solicited in this trial of the specific effect of grossly ineffective teachers on students,” Treu wrote in the 16-page tentative ruling. “The evidence is compelling. Indeed, it shocks the conscience.”

It was not immediately clear whether California’s legislature, fearing additional litigation and the weight of more bad press, might seek to rework the laws in question on its own.

The ruling “is a signal to the legislature that these laws need to be not just tinkered with, but drastically reconsidered,” said Katharine Strunk, an associate professor of education and an expert on teachers’ unions at the University of Southern California, in Los Angeles. “The question now is whether there’s the willpower to do something about it—and the capacity to do something about it.”

Silicon Valley entrepreneur and founder of Students Matter David Welch makes comments on the Vergara v. California lawsuit verdict in Los Angeles on Tuesday.

Context for Trial

The lawsuit was brought by the nonprofit Students Matter on behalf of nine California students. It was argued by a high-powered legal team chaired by famed litigators Theodore Boutrous and Theodore Olson. The plaintiffs sought to overturn five sections of the state education code that, they contended, allow teachers to receive tenure before proving their success; make it virtually impossible to fire abysmal teachers; and concentrate such weak teachers in schools serving low-income and minority students because of seniority rules.

The defendants argued that teacher tenure is necessary to attract and retain teachers, and that there’s little evidence that the laws in question had a disparate impact on poor or minority students. They said “well managed” districts had no problems addressing teacher quality, and that the entire trial distracted from more important concerns, such as the need to provide financial resources and supports for teachers and students in high-poverty, high-minority schools.

Oral arguments in the bench trial, which was heard in Los Angeles County Superior Court, spanned nearly two months. Education researchers, economists, administrators, and teachers took turns debating the laws’ effects.

Judge Treu sided with the plaintiffs on all counts. In unsparing language, he called the defense’s arguments in favor of the layoff procedures “unfathomable,” the mismatch between the tenure and teacher-induction timelines “bizarre,” and the expeditious, fair removal of a teacher “illusory,” owing to an “uber due process” above and beyond that afforded to public employees in the state. Notably, Judge Treu on several occasions cited the defense’s expert witnesses to bolster the argument that too many cases of ineffective teaching go unaddressed. And he also cited research literature based on the use of “value added” methods, which use statistical techniques to isolate teachers’ impact on student test scores. The defense had sought to paint value-added as a flawed and unreliable tool.

National Debate

The arguments in the case reflect national battles over so-called education reform. Over the past decade, philanthropies and newly emergent advocacy groups have worked to reshape the political landscape of K-12 education, favoring policies supporting teacher accountability and weakening ironclad tenure.

Even by the standards of today’s charged policy environment, Vergara stands alone for the controversy it has generated.

To the lawsuit’s supporters, the case has highlighted continuing deep inequities in the resources poor, black, and Hispanic children receive compared with their more-advantaged and white peers. But critics saw the lawsuit, at best, as an attempt to legislate through the courts, and at worst an attempt to undermine the teachers’ unions and force unproven policies on students.

Neither the plaintiffs nor defendants went unscathed in a seemingly unending volley of public relations.

Critics played up Students Matter’s funding, which was provided by a Silicon Valley entrepreneur, David Welch, and the group’s connections to other deep-pocketed donors, such as philanthropist Eli Broad, who has a history of butting heads with the teachers’ unions.

To some, those connections demonstrate the workings of what New York-based advocate and education historian Diane Ravitch has termed a “billionaire boys’ club” willing to spend millions to influence education policy. Just days before the ruling, a missive from the American Federation of Teachers implored reporters to “follow the money”; the National Education Association, in a statement after the ruling, said that it reflected “yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students.”

Yet in defending the laws, the teachers’ unions faced their own PR challenges. They were put in the unenviable position of arguing that the state guarantee to an equitable education does not extend as far as access to quality teaching. And in California, the unions historically have resisted efforts to tweak the state’s dismissal laws, even in the worst cases of alleged malfeasance. (The California Teachers Association, however, recently endorsed a bill, passed by the California Senate June 9, that would make some changes.)

Nor have unions been particularly receptive to alterations to the state’s tenure-granting laws. The CTA, for instance, recently refused to allow its San Jose, Calif., affiliate to extend the probationary period by an additional year to some teachers, citing concerns about the precedent that action might set.

The ruling also comes as more states take a critical look at teacher-tenure and -dismissal rules. Nationally, some 16 states have taken steps to tie tenure-granting to teacher performance; seven return tenured teachers with weak evaluations to probationary status. Florida and Kansas have eliminated either the continuing employment or due process associated with tenure; North Carolina passed legislation outlawing continuing contracts in 2013, but that move was recently declared unconstitutional.

Judicial, Legal Implications

As yet unknown are how the ruling will play out both in California and nationally.

Some observers, though sympathetic to the plaintiffs’ claims, have expressed concerns about possible judicial implications from the ruling, both in the Golden State and elsewhere.

Because of its disparate-impact argument, “the floodgates could open for litigation calling for even greater judicial control over California’s schools,” wrote Joshua Dunn, an associate professor of political science at the University of Colorado-Colorado Springs, and Martha Derthick, a professor emerita of government at the University of Virginia, in a recent online article for the journal Education Next. “Anyone could challenge any law, however neutral in design, with a claim that it was somehow related to an unequal outcome.”

For another, legal observers say the slim ruling—at just 16 pages—leaves room for a successful appeal.

“I was a little taken aback at the fact that the legal analysis was so skeletal,” said Stewart 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.”

As for its potential use for future cases, Mr. Boutrous and his team have expressed interest in taking the core legal strategy in Vergara elsewhere. Dozens of other states also have education-equity clauses in their constitutions. But case law on such matters in each state differs, as do their interpretations of educational equity and even teacher tenure.

The most immediate question, in the wake of the ruling, may well be whether California’s polarized legislature will seek to rewrite the laws so that they pass constitutional muster. The bill that cleared the California Senate this month, for instance, would make it somewhat quicker to fire a teacher for “egregious misconduct,” but it’s less clear how it would affect dismissal for poor performance.

Adding a wrinkle to the process, the plaintiffs’ attorneys said that Judge Treu has the supervisory authority to determine whether any alterations in the law meet the terms of the injunction.

Some observers saw bread crumbs for possible changes sprinkled throughout the ruling. For example, Judge Treu noted in his ruling that most other states have a tenure period of at least three years.

“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 at the University of Maryland’s education school. “Ultimately, the legislature will change the law, 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.”


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