Law & Courts Opinion

A Crafty, Limited Decision on Vergara

By Charles Taylor Kerchner — June 10, 2014 4 min read
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If you followed the Twitter feed Tuesday morning (including our own tweets, we admit), you learned that Los Angeles Superior Court Judge Rolf Treu’s decision in the Vergara case was momentous, huge, sweeping. Allies of Students Matter, the organization that bankrolled the lawsuit, celebrated the “Victory for Students!” The California Teachers Association, in contrast, bemoaned “A California Judge Picks Big-Money over Teachers and Students.” The political horserace blogs have been similarly melodramatic, and some mainstream media outlets have summarized the case in pretty broad terms.

As we read and re-read Judge Treu’s 16-page opinion today, we were increasingly struck by how crafty and limited it was. It shook the system, but on the Richter Scale it was about a four; windows rattled, cans fell off the shelves, but the civil service model of teaching did not collapse. Time will tell whether there are cracks in the foundation. Three reflections on the day:

1. The dog caught the car.

Students Matter may be relative newcomers to education politics, but they’ve certainly gotten our attention. They took on the California Teachers Association, the state legislature, and a lot of the old K-12 establishment, and they scored a big win. In an earlier post on the case, we puzzled over why litigators Theodore Boutrous and Ted Olson had agreed to participate in what seemed a quixotic case, since they were “not accustomed to losing.” Well, they didn’t lose. And NPR reported that Student Matters intends to go national with this litigation strategy.

On the other hand, we now have to see what the dog does with the car. The judge’s opinion throws out the laws at issue, but now Students Matter will be challenged to explain what should be enacted in place of those laws. So far, Students Matter has had an easy target in a handful of statutes that the defendants should have corrected years ago. But Students Matter is after bigger game.

Supporters of the case, such as Roy Romer and Marlene Canter, who responded to our earlier post, suggested that a successful outcome would “encourage the creation of a modern teacher career structure.” Organizations such as Education Trust are already waiting eagerly to “work with policymakers, educators, and community leaders to take advantage of this opportunity to develop employment systems that put the needs of every student front and center.” So the open question is what, ultimately, do the plaintiffs want: an end to tenure, evaluation by student test score, employment where principals can hire and fire at will?

We’ll be fascinated to hear what a new career and employment system might look like in a state that tilts heavily Democratic.

2. The equity argument in Vergara will have national implications for K-12 litigation.

For years, we heard that “equity lawsuits” over K-12 education were passé, obsolete relics from the 1960s and 1970s. Instead, we heard, it was all about “adequacy” suits demanding that states and school districts improve the quality of education for all students.

But Judge Treu’s decision was mostly about equity. Yes, he found that all California children have a fundamental right to an education. But he took particular interest in the disproportionate harms these laws did to the most vulnerable. "[This court finds that] the challenged statutes impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.” [p. 8]

As the judge’s decision gets national attention, it may give heart to progressive attorneys and organizations considering lawsuits. Some have predicted that the floodgates of litigation will open. Goodness knows there are a lot of targets for potential equity lawsuits out there, including lawsuits over the increasing racial segregation of California and U.S. schools. Already, another suit has been filed in California charging that uninterrupted learning time is “disproportionately distributed to kids as a function of their ZIP Code.”

3. In actual policy, there may be less to this decision than meets the eye.

When you climb down inside this brief opinion, you discover that the court’s objections to laws could mostly be fixed quite easily. Judge Treu threw out the California law giving teachers tenure after two years, but had no objection to tenure after, say, three years. He threw out the byzantine teacher dismissal statutes, but emphatically endorsed “due process” and even offered that teachers could legitimately be protected under the laws covering non-teachers in the state’s schools. [For law wonks out there, Treu cited Skelly favorably.]

On what could have been the most consequential part of the decision, throwing out the state’s “Last In, First Out” law requiring that all layoffs be done on a seniority basis, Judge Treu seemed only to demand that layoff rules must “consider” student impacts of layoffs “among other factors” that could include seniority.” [p. 14]

It seems to us that the state legislature could quite easily tweak the voided laws to make them constitutional under Judge Treu’s ruling. We hope that Gov. Jerry Brown calls for just that, making the Vergara case moot and pre-empting appeals.

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