Lawsuit challenging teacher tenure, seniority protections goes to court next week
January 24, 2014 | By John Fensterwald | 21 Comments
The trinity of teachers’ rights in California – tenure, seniority and due process in dismissals – will be under attack next week in a trial in Los Angeles with statewide impact and national interest.
In Vergara v. California, a nonprofit organization, Students Matter, is suing the state to overturn five statutes in the Education Code on behalf of Beatriz Vergara, a Los Angeles Unified student who was 13 when the lawsuit was filed in 2012, and eight more students in five districts. The laws grant probationary teachers the right to obtain tenure, or permanent status, after two years on the job, require layoffs to be based primarily on seniority and lay out a dismissal process with complex due process procedures that the Legislature has tried, but failed, to amend for two years.
The California Teachers Association and the California Federation of Teachers, which the court has permitted to join the defense, view the lawsuit as an attack on teachers’ fundamental workplace protections. Their attorneys say that Students Matter lacks the evidence to justify overturning the laws as unconstitutional. Students Matter asserts that the laws together perpetuate a system that leads to hiring “grossly ineffective teachers” and protecting them from dismissal once they are in the classroom, to children’s detriment.
Students Matter was founded by David Welch, a Silicon Valley entrepreneur who has hired a high-profile team of lawyers led by Theodore Olson and Theodore Boutrous of the law firm Gibson, Dunn & Crutcher.
Olson, a former U.S. solicitor general, also was on the team that overturned Proposition 8, which banned same-sex marriages in California.
The trial by Superior Court Judge Rolf Treu is expected to run at least a month, perhaps much longer, in Superior Court in Los Angeles, but will likely end up before the state Supreme Court – a process that could take years. Meanwhile, a consultant for Sacramento-based Students First, a different organization created by former Washington, D.C., schools chancellor Michelle Rhee, wants to place some of the same issues before voters this November. The proposed ballot measure would abolish teacher tenure and rewrite the teacher evaluation law. Another proposed ballot measure, sponsored by Sacramento-based nonprofit EdVoice, would make it easier and less costly to fire teachers accused of egregious misconduct.
Vergara v. California asserts that the “outdated” tenure, dismissal and layoff statutes violate children’s fundamental right to an equal education under the state Constitution. The laws disproportionately affect minority and low-income schools, the lawsuit asserts, because they have a disproportionately large share of ineffective teachers. “Thus, the laws at issue perpetrate and widen the very achievement gap that education is supposed to eliminate,” it says.
Precedent for constitutional claim
Other, more narrowly constructed, fact-based lawsuits have had success making the same basic constitutional argument. In 2011, Los Angeles Unified reached a settlement shielding 45 schools from layoffs based on seniority, after Public Counsel and the ACLU of Southern California persuaded a Superior Court judge that the layoff law resulted in disproportionate staff turnover and hiring substitute teachers in three low-performing middle schools. ** EdVoice cited the right to education equality in its lawsuit that led a Superior Court judge in 2012 to order Los Angeles Unified to incorporate test scores in teacher evaluations, as required by a provision of the Stull Act, the teacher evaluation law passed in 1971 that districts often have ignored. And the right to educational equality was at the heart of arguments of the Williams class-action lawsuit, filed in 2000, that led the state to guarantee credentialed teachers, sufficient materials and clean facilities in low-performing schools.
But Vergara is the most sweeping and broad effort to overturn the teacher employment laws. And that has some civil rights lawyers privately worrying that such a big-stakes approach bears big risks, too, and could create harmful case law if the state Supreme Court rejects the constitutional argument.
Vergara will ultimately be decided on the strength of the evidence. Students Matter must make the case that the laws – and not a sloppy administration of them – create huge burdens preventing districts from weeding out ineffective teachers, and that there is a strong connection between the poor quality of teachers and “a grossly substandard education” that vulnerable children are getting.
“The system is dysfunctional and arbitrary due to these outdated laws that handcuff school administrators from operating in a fashion that protects children and their rights to equality of education,” plaintiffs’ attorney Boutrous said in a teleconference Wednesday.
California is one of a handful of states that still grant tenure in two years or less. Most states have moved to a minimum of three years, and a few have eliminated tenure altogether. During their two-year probationary period, California teachers can be dismissed at any point for any reason. However, because they must be notified by March of their second year whether they will get permanent status, the evaluation period ends up being 18 months or less. “In many instances the result is people slip through the cracks,” said Marcellus McRae, another attorney on the case, and administrators don’t have the time to adequately determine whether the teachers will be effective.
With tenure comes due-process rights, making it expensive and difficult to dismiss teachers “that the state defendants and the teachers’ union and everyone would agree are grossly ineffective and should not be in the system,” Boutrous said. If they aren’t left in place in one classroom, they are transferred “from school to school within the public school system, a phenomenon sometimes referred to as the ‘dance of the lemons,’” the suit says.
Over the past two years, the Democrat-controlled Legislature has struggled without success to reach a compromise between the teachers unions and school boards and administrators on how to pare down the dismissal law. The unions agreed to speed up the dismissal process but not relinquish the right to a hearing by an independent panel led by an administrative law judge. And unions have faulted administrators, not the dismissal laws, for poorly documenting problems in the classroom.
Seniority also protects ineffective teachers during layoffs, according to the suit, which also is challenging what it calls the “nonsensical” Last In First Out, or LIFO, statute. As a result, “You have someone who was voted Teacher of the Year one day and then a couple of days later is laid off because she’s junior compared to other people,” Boutrous said. A bill last year, Senate Bill 453, sponsored by Senate Republican Leader Bob Huff, R-Diamond Bar, that would have eliminated layoffs by LIFO failed to get out of the Senate Education Committee.
First up: John Deasy
Both sides are prepared to call dozens of witnesses, starting with Los Angeles Unified Superintendent John Deasy, the plaintiffs’ first witness on the first day of trial on Monday. Deasy has repeatedly called for rewriting the laws in question. Students Matter also plans to call on Hoover Institution economist Eric Hanushek, who has quantified the harmful effects of bad teachers on student achievement, and Arun Ramanathan, executive director of the The Education Trust-West, a non-profit organization that has supported legislation and lawsuits aimed at ensuring that low income students get high quality teachers. Superintendent of Public Instruction Tom Torlakson, State Board of Education President Michael Kirst and Stanford School of Education Professor Linda Darling-Hammond are also on the potential witness lists.
But Emma Leheny, chief counsel for the California Teachers Association, predicted that Students Matter would fail to prove the “sweeping nature of its abstract claims.” Based on what the plaintiffs have presented in the pre-trial discovery process, “the evidence is scant” to meet a very high burden, she said.
CTA plans to present their own experts who will state that other factors, such as poverty and a lack of resources, not the statutes under attack, are the primary cause of student underachievement. CTA also will call to the stand teachers singled out in depositions as ineffective, Leheny said, and principals and administrators who will testify that the laws can be implemented efficiently.
Leheny criticized the effort “to legislate from the bench and the attempt to remake entire swaths of laws that have been in place for decades.”
The CTA has characterized the lawsuit as an effort to undermine job protections that benefit the education system and that, if successful, it “would remove all checks on — to borrow the plaintiffs’ language — ‘grossly ineffective’ administration.”
Students Matter responds that a favorable ruling would not reduce teachers’ protections under state and federal law from discrimination and wrongful dismissals. Instead, it would “elevate the teaching profession by creating meaningful career ladders and opportunities for leadership.”
** A Court of Appeals in 2012 overturned the settlement between the district and the plaintiffs because the district hadn’t also sought the approval of United Teachers Los Angeles. The status of the deal remains unresolved, although there is no longer any urgency since Los Angeles Unified is now hiring, not laying off teachers.