Can Vergara Fix Our Schools?

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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