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Law Office Management
Aug. 2, 2015
Can Vergara Fix Our Schools?
The epic battle over teacher tenure reaches a California appellate court.
Two years ago, the San Jose Unified School District seemed to have done the impossible.
In an effort to close the stark achievement gap among its students, the district's
administrators and teachers broke through the usual rhetoric regarding public education,
shifting the seemingly intractable positions of labor and management, and bringing
compromise to the polarized politics of those who would upend teacher job protections
and those who defend their necessity. Years of work went into their novel agreement
on a compensation and evaluation system to provide teachers with more opportunity
to advance, and district officials with more flexibility to manage employees.
Without a court order or legislative process, the San Jose educators seemed to have
worked out many of the conflicts that are the subject of a nationwide debate.
Central to the agreement is a panel comprising an equal number of teachers and administrators
that recommends whether teachers in their probationary period should be granted permanent
status, and whether veteran teachers are candidates for discipline or promotion. The
plan includes the option to extend new teachers' probationary period, in some cases,
from two years to as many as three.
Alas, the state's teacher tenure law prescribes something different.
California statutes give districts just two years to make a decision on permanent
employment of teachers (see Cal. Educ. Code § 44929.21), so the San Jose district
had to appeal to the state Department of Education for a waiver to implement that
part of the agreement. (See Cal. Educ. Code §§ 3305033053.)
But no dice. No way. No how. No compromise. Not while there's a war going on: a separate,
epic battle between the politically powerful statewide teachers' unions and reformers
seeking to crack open the state's (and the nation's) public education system.
The state board denied San Jose's waiver request in May 2014 in a 72 vote, saying such a policy change was best left to the Legislature. The California
Teachers Association (CTA) also opposed the request; a spokesperson said the union
believes the current system works well and that different probation lengths in different
districts would be a problem.
Less than a month later, a Los Angeles Superior Court decision in an unrelated lawsuit
reverberated throughout the state: California's teacher tenure laws were unconstitutional.
(Vergara v. California, 2014 WL 2598719 (Los Angeles Super. Ct. tentative decision issued June 10, 2014).)
The Vergara case presents a legal challenge to teacher tenure as an unconstitutional hardship
for students in poor and minority communities. The plaintiffs also assert the right
of all students to have effective teachers. It is now on appeal. (Vergara v. California, No. B258589 (Cal. Ct. App., 2d Dist.).)
Similar lawsuits have been filed in New York (consolidated as Davids v. State of New York, No. 101105/14 (Sup. Ct. N.Y. [Cnty. of Richmond] filed July 3, 2014)). Other states?including
Massachusetts, Michigan, and Ohio?have changed teacher employment statutes, giving
less weight to seniority in determining layoffs.
The Vergara case was brought by advocates who in the name of reform would end the job protections
that they argue prevent freely hiring and (mostly) firing teachers; some also support
charter schools for the same reasons. Defending the current laws are the politically
powerful teachers' unions and the state's education administration. The outcome of
the case could lend momentum to efforts across the country in favor of using student
test scores and other merit-based tools to measure the quality of teaching, and eliminating
seniority as the primary criterion for determining who stays and who goes.
At the same time, like-minded groups have turned to the courts seeking to weaken unions
by challenging long-established laws regarding mandatory fees collected from nonunion
teachers.
Depending on whom you ask, these cases may mark either a landmark in education reform
or an enormously expensive assault on public schools that has the potential to drive
good teachers out of the profession.
"There seems to be an unusual amount of activity in the courts right now around a
student's right to an education," says William Koski, director of the Youth and Education
Law Project at Stanford University. "I think there is great frustration that schools
are not able to provide a great education. ... And we are still so far from ensuring
that kids have the resources that they need."
In the spring of 2012, a well-financed organization known as Students Matter filed
Vergara on behalf of nine students attending California public schools. The action challenged
five state statutes having to do with teacher layoffs and dismissal ("tenure"). (See
Cal. Educ. Code §§ 44929.21, 44934, 44938, 44944, 44949, and 44955.)
The plaintiffs sued the state?Gov. Jerry Brown and State Superintendent of Schools
Tom Torlakson?in Los Angeles Superior Court. (Although the original complaint named
the Los Angeles Unified, Oakland Unified, and Alum Rock school districts as defendants,
each of them was later dropped from the case.) In 2013 CTA, the state's largest teachers'
union with 325,000 members, and the California Federation of Teachers (CFT), the other
statewide teachers' union, intervened to defend the statutes.
CTA is affiliated with the National Education Association. CFT is an affiliate of
the American Federation of Teachers, an AFL-CIOassociated union that also represents faculty members in higher education and has
about 120,000 members in California. Together, they are considered among the most
powerful teachers' unions in the country. They often work in tandem on issues of common
concern.
Meanwhile, California Attorney General Kamala Harris, who is running for the U.S.
Senate in 2016, has remained largely silent on the case she's defending for the state,
without so much as a press release. During trial, the defense was frequently led by
the teachers' unions' legal team, according to the plaintiffs' lawyers. So, it was
clear early on that Vergara would really pit Students Matter against the teachers' unions.
As a lawsuit, Vergara resembles a high-tech start-up with a heavy-hitting legal lineup funded by Silicon
Valley money. In fact, Students Matter is the creation of Silicon Valley entrepreneur
David F. Welch, and the nonprofit organization appears to exist specifically for this
fight. Welch, a multi-millionaire with a PhD in engineering, is co-founder and president
of Sunnyvale-based Infinera Corporation, creator of high-speed optical networks.
He also has been an investment partner in the NewSchools Venture Fund, which funds
charter schools and education technology. Welch is joined there by a powerhouse of
other wealthy charter-school advocates, including Laurene Powell Jobs (widow of Steve
Jobs), and Silicon Valley investment giants John Doerr and Brook Byers.
To bring a case that would inevitably center on issues of equal protection and due
process into the courts, Welch hired the litigation team that got California's ban
on same-sex marriage overturned: Theodore B. Olsen and Theodore J. Boutrous Jr. at
Gibson, Dunn & Crutcher, in Washington, D.C., and Los Angeles, respectively, who led
the legal fight to invalidate Proposition 8. Starting in March 2012, Boutrous and,
later, Marcellus A. McRae, a former assistant U.S. Attorney in Los Angeles, led a
handful of other seasoned Gibson Dunn attorneys, including Joshua S. Lipshutz, a San
Franciscobased partner who also worked on the Prop. 8 litigation (Hollingsworth v. Perry).
"The mandate from Students Matter was to promote quality education," says Lipshutz.
"We traveled around the state talking to people in education about what was preventing
improvement. The dismissal statutes were tying their hands."
The plaintiffs' side had spent millions on Vergara even before the trial started. Some of the money went to the Los Angeles public relations
firm Griffin/Schein (now rebranded as Rally), best known for representing Prop. 8
opponents and for developing campaigns against gun violence on behalf of parents who
lost children in the 2012 Sandy Hook school killings. The firm handles press, communications,
and advocacy, promoting public support for Students Matter and its cause of public
education reform in Vergara.
To consult on the appeal, the plaintiffs brought in Laurence H. Tribe, a Harvard law
professor and preeminent constitutional law scholar who counts President Barack Obama,
Chief Justice John G. Roberts Jr., and Justice Elena Kagan among his protÃ(C)gÃ(C)s.
At the trial in early 2014, the plaintiffs argued that the existing teacher job-protection
laws cause a disproportionately high number of ineffective teachers to be continually
assigned to lower-income and minority schools. Therefore, the plaintiffs argued, the
statutes violate the equal protection clause of the California Constitution?specifically,
the students' fundamental right to an education.
The plaintiffs pointed to a study by Harvard University education expert Thomas Kane,
in which he determined that students who had an ineffective teacher lagged months
in learning behind students who had effective teachers. Another study, this one by
Harvard economist Raj Chetty, estimated a loss of $50,000 in lifetime earnings per
child in a class with an ineffective teacher.
The teachers' unions and the state countered that layoffs based on seniority are appropriate
and fair. Not only are the relevant statutes constitutional, they argued, but they
actually improve the educational system by protecting effective teachers from arbitrary
dismissals?those fueled, for instance, by patronage or philosophical differences.
Any imbalance of teachers in schools populated by low-income or minority students,
they pointed out, is a management problem at the local level, not a statewide problem
caused by the challenged statutes. If you want to fix education, the unions argue,
provide the funding and support to make schools run more efficiently, and deliver
the full range of pedagogical services to students.
Both sides agreed that competent teachers are critical to student success, and that
grossly ineffective teachers are an impediment to student learning. However, they
differ greatly in determining what a "grossly ineffective" teacher is, as well as
on the significance of other factors involved in student learning.
In his tentative decision in June 2014?confirmed in a final judgment two months later?Judge
Rolf M. Treu ruled that all five of the challenged statutes were unconstitutional.
He found that the statutes cause poor and minority students to be disproportionately
underserved, noting a 2007 California Department of Education study that showed poor
and minority students are significantly more likely to attend a school populated by
teachers and administrators who are inexperienced, ineffective, or "out-of-field"
(outside their subject matter expertise).
"It shocks the conscience," Judge Treu wrote in his decision. (Vergara v. California, 2014 WL 2598719, at *4.) In the 16-page ruling, Treu applied the "strict scrutiny"
standard to review the constitutionality of the laws in question. This high standard
meant essentially that the state had the burden of proving that the statutes are strictly
necessary to advance a compelling state interest.
Treu concluded that the state failed to meet that burden. He also found that the laws
provide a relatively short probationary period for teachers before permanent status
is granted, that they base layoffs on seniority, and create a "tortuous process" for
dismissal of ineffective teachers.
"The decision is a bit slim," says Stephen D. Sugarman, a law professor at UC Berkeley
who four decades ago argued a key case addressing equity in public education funding
(Serrano v. Priest, 5 Cal. 3d 584 (1971)). "It's vague in terms of who is affected by tenure rules.
Meaning, who is harmed?"
Given both the law and the stakes involved in the Vergara case, it seemed clear going in that the trial would be merely the opening act. Treu
stayed his order pending review by the Second District Court of Appeal. By early September
2014, both the state and the unions had filed a notice of appeal, and opening briefs
were filed by May.
The state and the unions claim that Treu misapplied strict scrutiny and that the plaintiffs
offered no evidence at trial showing the statues directly caused the assignment of
"ineffective" teachers to certain students.
"The trial court's invalidation of the Legislature's statutory scheme was entirely
without legal or factual justification," attorneys for CTA and CFT wrote in their
opening brief. That means, essentially, that the plaintiffs had not shown they were
harmed by the challenged statutes. In fact, the attorneys point out, it is the administrators
in each school district who decide whom to hire, assign teachers to classrooms, and
determine when to pursue termination of underperforming teachers.
In its opening appellate brief, the attorney general's office stresses that the state
constitution "does not give courts the right to make policy judgments of this sort"
and that the "law does not permit a court to strike down a state law that ... creates
no disfavored class and is perfectly capable of being constitutionally applied." The
brief argues that it's the job of the Legislature, not the courts, to make the sensitive
policy decisions that are required in public education.
The lawyers for Students Matter at Gibson Dunn argue that the teachers' unions are
in effect asking the court of appeal to retry the case. "The trial court found evidence
that the law harmed students' education," says Lipshutz. "It's not appropriate to
bring up the facts again. The evidence supported the judge's decision."
In their appellate brief, the Gibson Dunn lawyers point out that the superior court
heard testimony from more than 50 witnesses?"including school district superintendents,
administrators, principals, teachers, parents, students, economists, researchers,
and distinguished professors, among many others"-and considered hundreds of documentary
exhibits. Also, they argue, their equal protection challenge to the statutes does
not require showing harm to all students, nor "express classification into groups."
Last April a USC/Los Angeles Times poll showed that California voters overwhelmingly favor changing some provisions
of the state's teacher-dismissal laws. Several major newspapers, including the New York Times and the Wall Street Journal, have supported the plaintiffs' arguments in editorials.
However, the CTA holds a political lock on the state's Democrat-controlled Legislature,
and it has long enjoyed the political companionship of Gov. Jerry Brown, whom the
union helped elect.
Veteran appellate lawyer Michael Rubin of Altshuler Berzon in San Francisco is an
attorney for the interveners on appeal, representing the CTA and the CFT, along with
Pasadena labor lawyer Glenn Rothner of Rothner Seagall & Greenstone and Altshuler
Berzon litigator James Finberg, who also worked on the case at trial.
Students Matter's attorneys explain that what they are attempting to do in court could
not be done legislatively because of the teachers' union's political clout. Between
2000 and 2012, CTA outspent all other special interests in California?including corporate
players such as AT&T and Chevron?pouring more than $250 million into lobbying and
political contributions, according to the Los Angeles Times.
CTA has acquiesced to some teacher work-rule changes. Last year the Legislature passed
AB 215, which expedites the discipline process for teachers accused of egregious misconduct
such as sex offenses or selling drugs to minors, and streamlines the hearing process
in teacher discipline cases. A more recent show of force by the unions, however, was
the April defeat of five Republican-sponsored education bills introduced after the
Vergara superior court ruling, which would have changed how public school teachers are evaluated,
hired, and fired.
In the field of education, radical change has often come from the courtroom before
it emerges from the statehouse. In fact, Judge Treu issued his Vergara ruling just after the 60th anniversary of Brown v. Board of Education (347 U.S. 483 (1954)). In the intervening years, numerous court challenges have rested
on the idea that all Americans are entitled to an equal opportunity to receive an
education. If anything, increased attention to the national achievement gap that leaves
poor and minority students lagging significantly behind their peers has elevated education
as a civil rights issue.
"This is one of the most critical constitutional and civil rights issues of our generation,"
says Gibson Dunn's McRae. "You have a convergence of people really recognizing that
it's completely rhetorical to talk about people participating in a democracy or having
an opportunity to achieve with a level playing field unless they really have a quality
education."
In recent decades, the U.S. Supreme Court has left many education decisions to state
and local officials. And California's Education Code calls for "equal rights and opportunities
in the educational institutions of the state." (Cal. Educ. Code § 200.) The California
Supreme Court addressed inequities in funding among districts, which led to statewide
school-finance reform. "The right to an education in our public schools is a fundamental
interest which cannot be conditioned on wealth," the court said. (Serrano, 5 Cal. 3d 584, 588.)
Other significant education-equity challenges followed, concerning funding, facilities,
and school time. But until Vergara, no court had been asked to rule on the inequity of education based on the state's
statutory teacher-employment scheme.
"We thought it was very important to present the statutes as a whole," says Gibson
Dunn's Lipshutz. The theory of the case, he explains, is that harm to students is
the result of the legislative scheme of teacher-dismissal statutes, working individually
and together.
In some ways, the Vergara case was born out of the worst of times. Education, by design, consumes the largest
share of the state budget. When California's economy hit the skids around 2008, school
districts were hurt by a series of deep and relentless budget cuts, which meant layoffs.
In all, the state lost 32,000 of its teachers?about 11 percent?between 2008 and 2012,
according to the California Legislative Analyst's office.
The situation quickly focused attention on the laws governing which teachers would
get pink slips. California is one of only about a dozen states that rely on seniority
as the primary factor in determining who stays and who goes, and its teacher-layoff
statutes are some of the nation's strictest: Under the law, performance may not be
considered.
It's also true that, owing largely to seniority, veteran teachers often have more
say in where they work, and they tend to choose less-challenging schools. The result
is that schools in disadvantaged areas have a disproportionate number of teachers
coming and going?a revolving door that hurts the overall quality of their students'
education.
This was the impetus for a 2010 lawsuit brought by the ACLU of Southern California
and Public Counsel in an effort to stop budget-based layoffs at three Los Angeles
middle schools that had been disproportionately hurt by earlier layoffs. At the plaintiffs'
schools, which mainly serve low-income and minority students, 46 to 60 percent of
teachers were sent layoff notices, while the district average was 17.9 percent.
The school district and the plaintiffs settled the case in such a way that protected
a number of troubled schools from layoffs. Then, United Teachers of Los Angeles, the
local teachers' union, challenged the settlement in court on the grounds that it ignored
established seniority rights. In 2011 a trial court upheld the district's plan to
exempt low-performing schools from layoffs, but that ruling was overturned on appeal.
(Reed v. United Teachers Los Angeles, 208 Cal. App. 4th 322 (2012).) The lawsuit ended in another settlement in 2014,
this one including the teachers' union. Additional resources were allocated to the
low-performing schools, but teachers kept their seniority rights.
One significant challenge Students Matter faced?inside and, mostly, outside the courtroom?was
the accusation it was "anti-teacher."
"[The Vergara complaint] takes pains to explain that the majority of teachers in the state of California
are doing a fine job," McRae says. "They have a hard job. This case isn't about them.
... [We had to] educate people that, really, the way they should be looking at it
... is that there are ineffective teachers on one side and effective teachers, students,
parents, administrators, and the public at large on the other," he says. "No one wants
ineffective teachers."
Judge Treu cited testimony that 1 to 3 percent of California teachers are "grossly
ineffective," extrapolating that number to about 2,750 to 8,250 of the state's roughly
275,000 teachers. He also cited evidence that the process for dismissing a teacher
with tenure was burdensome and expensive, costing districts anywhere from $50,000
to $450,000 per case.
As Altshuler's Finberg and others point out, California hovers near the bottom of
state rankings in education spending per student. And in recent years it has faced
a continuing teacher shortage. Offering teachers job security and saying they can't
be fired for political or arbitrary reasons, he argues, is one way to attract them.
"Everybody would like our kids to get the best education they can," says Finberg.
"I don't think teachers should be the scapegoats.
"Statutes don't assign teachers to a classroom," Finberg continues. "The statutes
don't say anything about race or poverty. Districts assign teachers to various schools
with various populations." In the Vergara trial, CTA argued that ineffective management was to blame for the mismatched placement
of newer teachers more likely to be subjected to layoffs into predominantly minority-populated
schools.
"Put stronger principals in those schools," says Finberg. "Put resources into those
schools. You won't have that phenomenon."
Even if the appeals court upholds Vergara, teachers?as public employees?would retain some due process rights, particularly
in any disciplinary proceedings. (Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975).)
Tenure, or permanent employment, is an additional protection for teachers. In his
ruling, Treu referred to teachers' employment rights as "1/4ber due process." (Vergara, 2014 WL 6478415, at *5.)
But tenure didn't happen by accident. It has been a part of California's teaching
profession for more than a century, dating back to laws championed by CTA founder
John Swett in San Francisco in the early 1900s. There are good reasons to make it
difficult to dismiss a teacher. Public education operates in a system of local control.
School districts are run by locally elected governing boards, most of whom are brought
into office and retained in elections with low voter turnout, by voters who often
have no children in public school. Also, knowing anything about education is not a
requirement to serve on a local school board.
Moreover, particularly in low-income areas and during economic downturns, school districts
can be attractive employers. The first moves to establish teacher tenure had more
to do with keeping patronage from overrunning the system. In the absence of laws governing
teacher dismissal, union defenders argue, teachers would fall victim to favoritism
and graft.
Tenure also helps preserve academic freedom, as the defendants in Vergara pointed out. During the trial, a former teacher testified about challenges she faced
when teaching about Islam. Another teacher described how tenure allowed her to try
new techniques in the classroom. Without some job protection, the unions argue, teachers
could be fired to appease an influential local faction.
Vergara will likely bring a third act: Whichever side loses is likely to appeal to the state
Supreme Court.
"The case has already served the function of drawing increased attention to the tenure
system we have," says Sugarman, at UC Berkeley. It's not clear that the courts will
uphold Vergara, he says, but it could trigger legislative responses.
As Vergara advances at the appellate level, other groups have turned to the courts seeking to
weaken unions by challenging long-established precedent that allows mandatory fees
to be collected from nonmembers and used by public-sector unions to support their
political positions.
In April, StudentsFirst?a Sacramento advocacy group founded by former Washington,
D.C., chancellor of schools Michelle Rhee?funded a lawsuit against CTA, CFT, the National
Education Association, and the American Federation of Teachers (among others) on behalf
of four public school teachers. The plaintiffs allege that 45 to 40 percent of their
union dues are used for political purposes, including donations to candidates and
lobbying. If they choose not to pay that portion of the dues, the plaintiffs' argue,
they can't vote in union elections and are denied economic benefits such as better
disability and life insurance policies, which are provided only to full duespaying members. Such an arrangement violates the teachers' free-speech rights, they
argue. (See Bain v. California Teachers Ass'n, No. 15-CV-2465 (C.D. Cal. filed April 3, 2015).)
The Bain lawsuit mimics another suit currently pending before the U.S. Supreme Court, Friedrichs v. California Teachers Ass'n (No. 14-915, cert. granted June 30, 2015). The Center for Individual Rights, a libertarian
public-interest law firm, filed the suit on behalf of ten California teachers and
the Christian Educators Association, arguing that a state law requiring nonunion members
to pay "agency fees" violates their First Amendment rights because the money is used
for political purposes. The plaintiffs' attorneys specifically urged a Los Angeles
federal judge to rule against them so they could challenge a standing precedent on
appeal. The case was then fast-tracked through the Ninth Circuit last year so plaintiffs
could ask the Supreme Court to review and overturn Abood v. Detroit Board of Education (431 U.S. 209 (1977)), thereby invalidating "agency shop" arrangements as contrary
to free-speech principles.
Such a decision could prove financially devastating to the teachers' unions, which
argue that well-established precedent in this area has been repeatedly upheld. They
say the lawsuit is merely an attempt to weaken opposition to changing education policy.
No one can predict when oral arguments in the Vergara appeal will be scheduled. Meanwhile, the education community in San Jose is taking
its work-rules campaign to the capitol.
District and union officials turned to Assemblymember Nora Campos (D-San Jose), who
introduced legislation on their behalf (AB 1184). Her bill, still pending, would not
affect districts in the rest of the state, but it would allow San Jose Unified to
implement the final parts of its compromise plan.
Lisa Davis is a freelance writer and author of The Sins of Brother Curtis: A Story
of Betrayal, Conviction, and the Mormon Church. She teaches journalism at Santa Clara
University.
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Donna Mallard
Daily Journal Staff Writer
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