Final ruling in Vergara could be years in coming

June 30, 2014
Students, parents and school officials stand at a podium to talk about their lawsuit.

Plaintiffs in the Robles-Wong v. State of California lawsuit announce the case at a press conference in Sacramento on May 20, 2010.

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Vergara v. State of California, in which a Superior Court judge struck down California’s teacher tenure, layoff and dismissal laws, may be headed for a lengthy appeals process. A clue to how long may lie in another far-from-resolved education lawsuit.

This month marks three years since Alameda County Superior Court Judge Steven Brick issued a tentative ruling in Robles-Wong v. State of California, which charged the state’s education funding was inadequate. And while it could happen this year, there’s no knowing when a Court of Appeal will rule on upholding or overturning Brick’s ruling in the case.

Lawyers are quick to say there is no precise timeline for moving a case through the appeals process. But the course of Robles-Wong may temper the expectations of those hoping that Vergara might take months, not years, to resolve.

On June 10, after a two-month trial, Los Angeles County Superior Court Judge Rolf Treu issued his tentative ruling in Vergara, declaring unconstitutional five state laws providing teachers’ employment rights. The lawsuit was brought by Students Matter, a nonprofit created by Silicon Valley entrepreneur David Welch on behalf of nine low-income, minority students from five school districts. Treu put his ruling on hold, pending an all-but-certain appeal by the state and its co-defendants, the California Teachers Association and the California Federation of Teachers.

Right to adequate funding

Before Vergara shifted the public’s attention to teacher protection laws, it was Robles-Wong and a companion case, Campaign for Quality Education v. California, that made headlines as the big education cases in California. The Robles-Wong lawsuit was filed in 2010 by three state education organizations – the California School Boards Association, the Association of California School Administrators and the state PTA, with the California Teachers Association later joining the case – along with Stanford Law School professor Bill Koski and pro bono attorneys on behalf of nine school districts and 60 students from across the state.

Campaign for Quality Education v. California was filed that same summer by the nonprofit law firm Public Advocates on behalf of a coalition of community groups serving low-income and minority students. Both cases eventually were merged.

Filed amid the recession, when the Legislature slashed K-12 spending by about 15 percent, the two lawsuits charged that the state’s “insufficient, irrational and unstable” funding of education violated children’s constitutional right to a sound education. Lawyers presented evidence of crowded classrooms, insufficient college-credit and elective courses, a shortage of counselors and librarians and insufficient money at the time to implement the Common Core State Standards. The lack of resources, they argued, prevented most students from mastering the state’s academic requirements and standards and didn’t prepare them for success in the 21st century.

But Brick took a hard line, ruling that it was the Legislature’s prerogative to determine what constitutes adequate funding. There is no equal protection right in the state Constitution for students harmed by inadequate funding, “however devastating the effects of such underfunding have been on the quality of public school education,” he wrote.

Brick did give the plaintiffs the option to narrow the case by asserting the claim that the state’s level of funding disproportionately disadvantaged minority children. That’s the thrust of the case that lawyers for the plaintiffs in Vergara v. California successfully made. They argued the statutes governing tenure, dismissal and layoffs led to the hiring and retention of a small but significant percentage of the worst-performing teachers, who were then concentrated at schools with large numbers of low-income and minority students.But lawyers for the plaintiffs in Robles-Wong and the Campaign for Quality Education insist that, besides being unfair for minority students, state funding is inadequate for the vast majority of California’s children, and so took the case to a three-judge panel of the California First Court of Appeal in fall 2011.

Next step: oral arguments

That’s where it is now. A court of appeal does not hear new testimony. It takes the same body of evidence that was presented to the trial judge and then reviews it to see if it supports the trial judge’s conclusion. The appeals court also invites both sides to offer written briefs and rebuttals, including briefs from groups with a direct interest in the case. These were all submitted in Robles-Wong by January 2013.

Students Matter attorney Marcellus McRae said there are ways to expedite the process “to bring the benefit of the ruling as quickly as possible,” but declined to discuss the tactics they may be considering.

The final stage will be one day of oral arguments. But appellate judges usually don’t schedule that, attorneys say, until they know how they are leaning in the case and perhaps have written most of their decision. That’s because court rules require them to issue a decision within 60 days of oral arguments.

The court of appeal hasn’t yet scheduled the date for oral arguments in Robles-Wong. A year and a half without a decision is on the longish side, attorneys say, but not exceptionally long. Whoever loses in the Court of Appeal could then take the case to the state Supreme Court, a process that could add another year or two. So it could be late 2015 or 2016 before the Supreme Court rules – five or six years after the initial suit was filed.

Because the case involves the right of education as defined in the state constitution, federal courts would have no jurisdiction to second-guess the outcome. Vergara might not take that long, though it’s one month behind schedule already. Treu has extended the date for issuing his final decision, which could contain significant wording changes, by 30 days, to late August. The state would then have 60 days to file an appeal.

Attorneys for Students Matter could try to speed things up by going directly to the state Supreme Court, but it would be unusual for the court to take the case directly, since there’s no pressing need to rule on it. Students Matter attorney Marcellus McRae said there are ways to expedite the process “to bring the benefit of the ruling as quickly as possible,” but declined to discuss the tactics they may be considering.

If the Court of Appeal eventually agreed with Treu and upheld his ruling, McRae said his team would ask the court to put the ruling into effect immediately, without a grace period. That would wipe out the current laws that establish tenure, or permanent status, for teachers after two years, guarantee layoffs based on seniority and create complex due-process procedures before a teacher can be fired.

“Based on the ruling and the evidence, there is no reason to delay this,” McRae said in an interview.

If state laws were voided, teachers would fall back on narrower due process rights guaranteed to all California public employees, called Skelly Rights. They include a notice of termination, a right to respond to it and a hearing before an impartial observer. “Basic due process rights were never under assault in the case, because teachers already have them,” McRae said. The Court of Appeal, like Treu, also could put its ruling on hold until the Supreme Court makes a final decision.

Lawmakers don’t have to wait

The other option is the Legislature amending the laws in response to Treu’s ruling – something that McRae said he would encourage. Neither Welch nor the attorneys have stated explicitly what they’re looking for: an end to tenure or just a longer probationary period leading up to it? Totally rewritten dismissal laws or just a less expensive, shorter process?

McRae said that the “ultimate arbiter” would be the courts. “You cannot have laws that are inconsistent with the ruling in the case and operate out of the bounds of the Constitution. That’s the point of checks and balances,” he said.

Some Republican lawmakers, including Senate Republican Leader Bob Huff, have called for action, but, with an appeal likely, Democratic leaders have shown no sign yet that they intend to get involved, at least this year. Students Matter is wasting no time, however. With Treu’s strongly worded ruling behind it, Welch plans to meet with citizens groups and lawmakers in coming months to talk about the implications of the decision. And he is going to other states to discuss lawsuits and legislative reforms of tenure and other labor laws. A group in New York may be the first, according to the Wall Street Journal.

The courts could take years to mull over Treu’s decision and eventually overturn it. Welch, meanwhile, is vigorously working the court of public opinion. It is not bound by delays or rules of evidence, and it is open 24/7.

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