Teaching Profession

High-Profile California Lawsuit on Teacher Protections Begins

By Stephen Sawchuk — January 27, 2014 6 min read
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Los Angeles

A controversial and potentially precedent-setting trial begins in Los Angeles Superior Court this week, with the plaintiffs essentially looking to overturn three of the teachers’ unions holy grails: seniority, tenure, and dismissal procedures.

The lawsuit, Vergara v. California, stands to have implications far beyond the Golden State. It’s a touchstone for some of the most heated debates in K-12 education, particularly how to promote effective teaching—and whether policies relating to teacher employment help or hinder that effort.

Brought by nine California students and their parents, the suit charges that five sections of the education code run counter to the state’s constitutional guarantee to an equitable public education. The statutes in question, they say, mean that most teachers are granted tenure before they’ve established a successful track record, that it’s virtually impossible to fire abysmal teachers, and that seniority rules concentrate “grossly ineffective” teachers in schools serving low-income and minority students.

“You have someone voted the Teacher of the Year one day and a couple years later is laid off because she’s junior compared to other people,” said Theodore Boutrous, one of the litigators representing the plaintiffs, in a conference call last week with reporters. “It’s really creating an irrational, unequal process that the political system hasn’t been able to fix.”

The lawsuit is being bankrolled by an advocacy group, Students Matter, set up by David Welch, a Silicon Valley technology entrepreneur. Its board includes several figures who have a reputation for battling the unions on policy, and such ties have led the California Teachers Association to paint the suit as a thinly veiled attack on unions.

“It’s disappointing because putting professional rights of teachers on trial hurts students,” CTA President Dean E. Vogel said in a statement. “This most recent shenanigan by corporate special interests and billionaires to push their education agenda on California public schools is resulting in a waste of taxpayer dollars and time—time that should be spent focusing on providing a quality education to all students as the economy improves.”

The CTA and the California Federation of Teachers—the state affiliates of the National Education Association and the American Federation of Teachers, respectively—were not named in the suit, but chose to join it as “intervenors” in March of last year.

Legal Issues

There’s plenty of star power on display: The plaintiffs have hired a team from the law firm Gibson, Dunn & Crutcher, and they include former U.S. Solicitor General Theodore Olson, fresh off his Supreme Court win in the Prop. 8 case on same-sex marriage.

Legal arguments in the case are likely to hinge on whether the statutes themselves deny students’ constitutional rights, or whether they have merely been poorly implemented by administrators.

The trial is by far the most sweeping of several lawsuits related to teacher quality filed in the state, but that’s no guarantee of success. As Education Week reported previously, some legal experts wonder whether the scope of the lawsuit might work at cross purposes for judges, who might favor a more narrowly tailored form of relief.

If the court rules in favor of the plaintiffs, it isn’t clear how teachers and districts would be immediately affected. That’s in part because whichever way the ruling goes, it’s likely to be appealed to the state Supreme Court. And it is further complicated because the tenure rules and dismissal processes for California teachers are layered on top of existing protections, known as Skelly rights, that protect all public employees from arbitrary dismissals.

Witness Lists

The case is expected to last up to 20 days, which means testimony will go through February. Witness lists released by the parties provide some clues as to what kinds of evidence each side will offer. (Education Week reached out to several witnesses for comment. Most demurred, citing their status as witnesses; others have already recorded depositions.)

Slotted to be called by the plaintiffs are several researchers who have conducted studies on the impact of teachers on student outcomes. They include Raj Chetty, a Harvard professor whose 2012 study with two colleagues found that students taught by effective teachers, as measured by student test scores, had higher lifetime earnings and were more likely to attend college; Thomas Kane, the Harvard professor and researcher behind the Bill & Melinda Gates Foundation’s Measures of Effective Teaching study, which examined value-added and other evaluation tools; and Stanford University’s Eric Hanushek. Hanushek is no stranger to the witness box, having argued in several school-finance cases that more educational spending by itself doesn’t significantly correlate to better learning. And he’s the author of a controversial thought-piece suggesting student achievement would significantly improve if districts fired the bottom 10 percent of teachers each year.

Most of those researchers probably won’t be called until the trial’s second week. Expected to be among the first up on the stand is Los Angeles Superintendent John Deasy, who has pressed the district to include measures of academic progress in teachers’ evaluations.

The defense, meanwhile, plans to call Linda Darling-Hammond, the chairwoman of the state’s teacher-credentialing board and an opponent of using value-added measures in teachers’ evaluations; Jesse Rothstein, a University of California, Berkeley, assistant professor whose research has found fault with “value added” approaches to gauging teacher effectiveness, and who has written several papers critical of the Gates MET work; and Steve Zimmer, who serves on the board of the Los Angeles district. Zimmer has dismissed the Vergara lawsuit as an attack on teachers’ unions.

A Gradual Shift

Beyond the immediate action in California, the trial marks the latest in a gradual shift in the definition of educational equity. Once, that concept was thought of almost exclusively in terms of access to integrated schools, more funding, or adequate facilities. Teachers’ unions have been important supporters of such lawsuits.

A decade of research has shown, though, that of the factors within schools’ control, teacher quality is both the most important for learning—and widely variable across classes. In California, such findings have gradually been building the case that the constitutional right to an equitable public education includes access to good teaching.

It is clear, also, that the plaintiffs are already eyeing how to take any victory statewide.

“Even though we’re focused in California constitutional provisions, we think it could provide a model for challenging the laws of other states that have the same arbitrary unequal effects on rights of students,” said Boutrous, the plaintiffs’ lawyer. He notes that the legal team has received inquiries from other jurisdictions and states.

Education Week will be closely following this lawsuit, so stay tuned to this blog and edweek.org.

Photo: A relief on the Stanley Mosk courthouse in downtown Los Angeles depicts the scales of Justice. Photo courtesy of Students Matter.

A version of this news article first appeared in the Teacher Beat blog.