Judge denies motion to dismiss lawsuit challenging teacher job protections

March 4, 2014

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Nine students and their families are suing the state, saying teacher job protection laws protect bad teachers and violate students' right to quality education. Credit: EdSource file photo

Nine students and their families are suing the state, saying teacher job protection laws protect bad teachers and violate rights to a quality education. Credit: EdSource file

With the end of intermission, there will now be a second act to the state’s education trial of the year, Vergara vs California, in which nine students are challenging the constitutionality of laws governing teachers’ job protections.

On Tuesday, Los Angeles County Superior Court Judge Rolf Treu rejected a motion to dismiss the case and ordered a resumption of the trial on the lawsuit challenging laws governing the hiring, firing and laying off of teachers. A Silicon Valley entrepreneur, filing suit on behalf of Beatriz Vergara, a Los Angeles high school student, and eight other public school students, asserts the laws protect the worst-performing teachers, who then are disproportionately assigned to low-income, minority children.

With little comment, Treu denied a request by attorneys for the state and the state’s two teachers unions asking him to dismiss the case on the grounds that, after presenting a month’s worth of evidence, the plaintiffs had failed to make their case. Treu listened to arguments Tuesday by attorneys for both sides before ordering them back to work; the trial is expected to last several months.

“The court finds there is sufficient evidence, credible evidence, to move forward with a trial,” Treu said.

Case continues

His decision, not unexpected, doesn’t indicate he is leaning one way or another, only that he wants to hear the defense’s side, which lawyers for the Attorney General’s Office, the California Teachers Association and the California Federation of Teachers will present in coming weeks.

The lawsuit was filed by Students Matter, a nonprofit created by business executive David Welch. It asserts that the laws – granting “tenure” or due process rights to teachers after two years on the job, laying out procedures for dismissal and requiring layoffs based on seniority – operate to deny poor, minority children their constitutionally guaranteed right to an equal opportunity for an education.

During a month of testimony before plaintiffs rested their case last month, a high-profile team of lawyers led by Theodore Olson and Theodore Boutrous of the law firm Gibson, Dunn & Crutcher presented 20 witnesses. They included Raj Chetty, an economics professor at Harvard, whose research showed that grossly ineffective teachers – roughly 5 percent of teachers – cause “irreparable harm” to students, lowering their odds of graduating and getting into a good college, with the result that they will earn less and save less for retirement over their lifetimes.

Los Angeles Unified Superintendent John Deasy and former Sacramento City Unified Superintendent Jonathan Raymond testified that the time and great expense of firing bad teachers, caused by onerous dismissal laws, led to triage, in which some bad teachers remained on the job.

A “last-in, first-out” law requiring, for the most part, layoffs by seniority, led to laying off great teachers who’d be protected, were layoffs done on the basis of effectiveness, not longevity. Because less experienced teachers predominate in high-poverty schools, those schools are two-thirds more likely to have a teacher laid off than low-poverty schools, said Arun Ramanathan, executive director of Education Trust-West, which advocates for poor children. Larissa Adam, a principal from Oakland, testified that the ineffective veteran teachers whom the district transferred to her high-poverty school after layoffs of newer teachers contributed to a disastrous decline in student achievement.

The statutes have a “real and appreciable impact on students’ fundamental right to education” and “directly cause school administrators to make vastly different teacher employment decisions than they would otherwise make if they were permitted to act in the best interests of students,” the plaintiffs’ attorneys argued in rebuttal to the dismissal motion.

Argument to dismiss

But in the motion to dismiss, Deputy State Attorney General Nimrod Elias argued that the plaintiffs acknowledged that most of the states’ 275,000 teachers are effective and that they failed to show that the laws, as opposed to inept handling of them, caused the hiring and retention of grossly ineffective teachers.

“The reality of ineffective teachers being in inner city schools is not caused by these statutes,” Elias told the judge in arguing for dismissal Tuesday, saying that the plaintiffs had not proven the high legal standards needed to make their case.

The plaintiffs also failed to prove Vergara and the other eight students (only five of whom testified) were disproportionately harmed by grossly ineffective teachers or that they even were taught by them. The students’ “personal views about these teachers were entirely uncorroborated,” the defense attorneys wrote in their motion. There was no evidence that students’ school districts gave these teachers poor evaluations or agreed that they were ineffective, they said. (The defense is expected to call to several teachers cited as ineffective in depositions.)

California is one of a handful of states that grant tenure or due-process rights to probationary teachers after only two years. In most states, tenure occurs after three to five years on the job. While on probation, however, districts can dismiss teachers without having to cite a cause.

In order to make a claim that the laws denied children their constitutionally protected right, the plaintiffs must show disproportionate harm to some students. They failed to show that was the intent of the laws or that the laws caused that impact on the nine students, the motion said.

“There was no evidence that – if the probationary period was longer – these particular teachers would have been denied tenure by their school districts,” the motion said and Elias echoed in his arguments. “There was no evidence that plaintiffs’ school districts ever identified these specific teachers as being ineffective and unsuccessfully sought to dismiss them pursuant to the Dismissal Statutes (or at least decided not to pursue dismissal because of the requirements found in the Dismissal Statutes). And there was no evidence that any plaintiff was actually taught by a grossly ineffective teacher who would have been laid off during a past reduction-in-force if teacher effectiveness could have been considered.”

If the plaintiffs can’t prove a discriminatory intent, with an unequal distribution of bad teachers, and a violation of students’ rights, then defense attorneys only need to establish that lawmakers had a valid reason in passing the laws. And they did, the defense attorneys argued. The three laws provide teachers with job security and protections, creating a stable job market. “Tenure helps recruit and retain teachers,” Jim Finberg, an attorney for the CTA, said in an interview.

In their rebuttal, the plaintiffs’ lawyers dismissed the defense of the tenure, dismissal and layoff laws as “absurd” and said that the standard of proof is not the intent of the laws but their real-world impact on students.

“These (statutes) are violating the constitutional rights to California school children each and every day,” Boutrous told the judge, adding that African American and Latino students are more likely than other students to have teachers in the “bottom 5 percent of teacher effectiveness.”

“Students stuck in classrooms with grossly ineffective teachers are being denied their right to a quality education,” he said.

The 20 witnesses testified to the effects of the laws in districts covering more than 20 percent of districts, and the evidence points to a much wider impact, the plaintiffs’ lawyers wrote. “The unavoidable byproduct of the challenged statutes – as they operate in the real world – is that poor and minority students are disproportionately harmed.”

John Fensterwald covers education policy. Contact him and follow him on Twitter @jfenster. Sign up here for a no-cost online subscription to EdSource Today for reports from the largest education reporting team in California.

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