Pending lawsuit, if successful, could precipitate monumental changes

October 28, 2013

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Seth Rosenblatt

With all of the discussion around the Local Control Funding Formula (LCFF), the Common Core State Standards, and Smarter Balanced Assessments, we may be missing the biggest potential change to sweep California public education since Serrano v. Priest. This change could come from a small organization called Students Matter, which is targeting some very specific structural changes in California’s K-12 public education system. Founded by a Silicon Valley entrepreneur and inspired by the gross inequities that currently exist among public schools just in the San Francisco Bay Area, their first major initiative has resulted in the lawsuit Vergara v. California.

The Vergara case is premised on the legal theory that the California Constitution’s guarantee of students’ equal opportunity to quality education is incompatible with current laws (specifically five statutes in the California Education Code related to permanent employment, dismissal procedures, and seniority-based layoffs) that do not allow local school districts to manage their teaching staffs based on quality and effectiveness. The plaintiffs claim that because effective teachers are so crucial to ensuring students’ academic success, ignoring teacher effectiveness is tantamount to not giving all students a quality education. They further argue that such harm is borne disproportionately among minority and low-income students. The Vergara arguments hark back to those made by the plaintiffs in the Serrano case forty years ago, except that Serrano was focused more on financial resources.

Without debating the arguments of the case itself (and my goal is not to create such a debate in this forum) and not being an attorney, I would not attempt to handicap the lawsuit’s chance of success. However, there is no doubt that there is much dissatisfaction among school districts, school board members, administrators, and even many teachers around the myriad of human resource rules contained in the Ed Code. It is difficult to argue that the way teachers are evaluated (or not evaluated), how dismissal notices are handled, and “last in first out” rules are compatible with building a public education system in a 21st century design. And certainly many communities have stories where such regulations have disproportionately negatively affected those schools and students with the greatest needs. The lawsuit has created interesting alliances – for example, although the Los Angeles Unified School District was originally a defendant in the case (it’s since been dropped), Superintendent John Deasy is expected to testify for the plaintiffs. Students Matter believes it has an excellent chance at winning the case (scheduled to begin January 27, 2014) and says it has been collecting evidence and statements from board members, administrators, and teachers up and down the state that support their premise.

Regardless of whether one is supportive or not of Vergara, the immediate implications of its potential success would be staggering, and it would completely make moot all of the current discussions around Sacramento on this topic. Relationships between local school districts and their bargaining units would be forever altered, and school districts and teachers would have to quickly find a new paradigm for hiring, evaluating, and firing staff. However, the folks at Students Matter are quick to point out that Vergara would not eliminate due process protections that currently exist in California Government Code for all public employees, including teachers.

For me, the most fascinating aspect of the lawsuit – even more so than the immediate implications – would be its larger meaning. As I mentioned before, the premise is similar to that used in the Serrano case. One can certainly argue that the current system of funding public schools has hardly met the spirit of Serrano, and even LCFF doesn’t make that big a dent in fixing inequities. If Vergara is successful, it would open the door for some to re-litigate the principles of the Serrano case on a similar legal theory. Other groups or individuals could target, based on similar legal theories, many other aspects of the California Education Code that may also be viewed as incompatible with the guarantee of equal opportunity to quality education – everything from grade structures to school facilities to lack of universal preschool. The legal question will likely be whether the impact of such other regulations reaches a threshold, as stated by the California Supreme Court, of having “a real and appreciable impact” on children’s access to quality education. The education community could of course be proactive and not wait for a lawsuit – is it not time to dedicate a task force to identify the barriers in California’s Education Code that are preventing public schools from providing 21st-century learning environments?

I suspect very few school board members, administrators, and teachers (except maybe in the largest districts) are truly paying attention to this suit and to both its short-term and long-term implications. Again, regardless of one’s opinion on the matter, it is crucial that we follow these events closely.

Of course, it’s possible that Students Matter will be unsuccessful. Last month, the defendants in Vergara filed a motion for summary judgment of dismissal of the suit, and a hearing for this motion is scheduled for Dec. 13, with an actual trial in January if the motion is unsuccessful. Even if unsuccessful, the political implications of this effort may provide urgency for policymakers in Sacramento to find reasonable solutions around many of these issues. But if the suit is successful, we should definitely watch for the floodgates to open and for new dialog around many other education code regulations that most probably haven’t thought about for decades.

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Seth Rosenblatt is a member of the Governing Board of the San Carlos School District. He also serves as the president of the San Mateo County School Boards Association and sits on the Executive Committee of the Joint Venture Silicon Valley Sustainable Schools Task Force. He has two children in San Carlos public schools. He writes frequently on issues in public education, including in both regional and national publications as well as on his own blog.

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