Credit: Larry Gordon/EdSource Today
Students Matter attorney Theodore Boutrous addresses the media. To the right is the organization's founder, David Welch.

In a closely watched case affecting public schools and students throughout California, a state appeals court on Thursday heard vociferous arguments over whether employment laws protect incompetent teachers and disproportionately hurt low-income and minority children.

The one-hour hearing in downtown Los Angeles involved an appeal by teachers unions and the state government to reverse a 2014 ruling by a lower court judge who struck down laws that he said help keep bad teachers in classrooms. The impact on students’ lives “shocks the conscience,” Los Angeles County Superior Court Judge Rolf Treu declared in his August 2014 decision in Vergara v. California.

The three appellate judges on Thursday gave no overwhelming sense of how they might rule over the next 90 days, a decision with powerful implications for California’s 6 million public school students. But two of them expressed skepticism about some of the legal reasoning in Treu’s decision.

In their presentation Thursday in a full courtroom, attorneys for the California Teachers Association and the California Federation of Teachers, along with the state Attorney General’s office, sharply criticized Treu’s ruling.

Deputy Attorney General Nimrod Elias said the teacher employment rules – which include rights to tenure after two years, mandate that layoffs be based on seniority and set up complex dismissal procedures – have only a “highly indirect” influence on allowing ineffective teachers to stay and certainly not enough to merit “the extreme remedy” of throwing out the statutes.

Michael Rubin, attorney for the unions, emphasized that the statutes aid education statewide by providing some job protection to teachers. “They improve the overall quality of the teaching pool because they make the teaching profession more attractive,” he told the three-judge panel in the Court of Appeal’s Second Appellate District.

Rubin contended that Treu’s decision wrongly exaggerated the impact of the statutes and did not prove that a large, clearly identifiable group of students is being harmed. “Exposure to a single teacher in the bottom 5 percent (of teacher ratings) is not enough” to overturn the statutes, he said.

“There will always be some teachers who perform better than others,” Rubin said. The way to improve the process is for parents to complain about weak instructors and for principals to enforce standards but “not by blowing up the entire system,” he said.

Rubin insisted that school districts regularly remove grossly incompetent teachers. He argued that it is administrators’ fault, not the result of the laws, if a small number of underperforming instructors remain in their jobs.

In contrast, Theodore J. Boutrous Jr., attorney for the Students Matter organization that first filed the lawsuit on behalf of nine California schoolchildren, urged the judges to uphold the previous decision.

The employment laws, he declared “are absurd, they are irrational.” Boutrous noted that many educational experts in the original trial testified that the laws encourage dumping grossly incompetent teachers in the schools with the most faculty vacancies. And having teachers who are unable to properly move students through grade-level studies or control their classrooms costs low-income and minority students up to a year’s worth of lost education and harms their lifelong earning power, he said.

“This isn’t some complicated physics formula. It’s a simple equation of two plus two is four,” Boutrous said, describing what he said is a direct link between the laws and violations of the “fundamental right to educational quality.”

In his statements to the court, Boutrous said the laws result in a “dance of the lemons”– a term for not dismissing incompetent teachers but instead transferring them to other schools, usually those serving minority and poor children. “The statutes are harmful; they are injuring students,” he said.

Students Matter was founded by David Welch, a Silicon Valley businessman who is involved in school reform efforts that have antagonized teachers unions. Welch attended the hearing and later spoke at a press conference expressing confidence that the Vergara ruling would stand, even if it had to go to the state Supreme Court.

While both sides in the case later said they were pleased with how the hearing went, the Students Matter side clearly faced tougher questioning from the judicial panel.

Treu’s decision repeatedly referred to the historic Serrano v. Priest cases in the 1970s, which struck down the financing of schools based on local property taxes, a system that had hurt students in poor communities. The employment laws have similar effects, he wrote.

However, appellate judge Judith Ashmann-Gerst said that the Serrano cases correctly showed that unequal tax bases had a concrete and measurable impact on school funding and that the method discriminated against children in poor communities. “Here it’s not so clear,” she said of the employment laws’ supposed effect on students. She also questioned whether principals and administrators should be blamed rather than the laws. “Don’t administrators have the ultimate decision?” she asked.

Judge Brian Hoffstadt raised questions about whether there is a statewide impact as a result of clustering incompetent teachers and whether groups of students being harmed can be clearly identified. He asked how a small school district with only one elementary school can be depicted as dumping bad teachers. He also said that it appeared difficult to pinpoint a class of students harmed by the laws since the group “may change year to year.”

Boutrous countered that the Serrano cases did not show that every student in California was getting a bad education but it proved that enough of them suffered educational inequities to merit judicial action. The Superior Court testimony in the Vergara case, he said Thursday, clearly supports Treu’s decision, and he urged the appeals judges to concur. “Are rights being violated (by the employment statutes)?” he asked. “The record is clear: absolutely yes. I don’t think this is a close call.”

“I don’t know how the state can defend these statutes,” he added.

The case clearly has prompted strong political passions. And on Thursday, the two sides both held press conferences outside the state office building on Spring Street that contains the courtroom, and held phone conferences as well.

After the hearing, Boutrous said he “felt very good about how the arguments went today.” He said the judges asked “a lot of good questions” and would ultimately decide to strike down statutes that he said “are hurting our state, are hurting our kids.”

Welch said that the Vergara case already has had a positive impact by changing the public conversation about teacher employment. While some of the original student plaintiffs have already graduated from high school, he said many other youngsters around the state will be aided if the appeals court upholds Treu’s ruling.

“Californians deserve an appellate court ruling that puts politics aside and does what is right for the children of our state,” Welch said.

Just before the hearing, civil rights activist and farm worker organizer Dolores Huerta spoke on behalf of the California Teachers Association and the California Federation of Teachers. She described the Student Matters lawsuit as an attack on teachers and their rights.

“Teachers are not the problem,” Huerta said. “They need higher wages. They need smaller classrooms. They need more support from administrators and principals and more support from the public.”

She said she had been deceived at first in lending some support to the Students Matter organization but came to realize that its lawsuit will not improve education in California.

Attorney Rubin, in a press call after the hearing, said he was “delighted” with the way the arguments went. “Three engaged justices asked the right questions” and identified the flaws in Treu’s decision, he said. “We are confident we will prevail,” Rubin said.

Earlier, at a press conference before the court session, Rubin alleged that the original lawsuit was filed to help establish an “ideological political agenda” at the expense of the carefully refined laws passed by the Legislature. If the Vergara decision is upheld, he predicted that teachers will become “at-will employees who can be fired for any reason or no reason at all.” The result, he said, would “destroy the system of education to the detriment of schoolchildren.”

Treu issued his 16-page decision in 2014 following a two-month trial with 60 witnesses. He concluded that the plaintiffs had presented abundant evidence that the five statutes in question protected “grossly ineffective teachers” whose poor instruction interfered with students’ fundamental right of equal access to a quality education.

Lawyers for Students Matter and the state both agreed that the number of those awful teachers was small, between 1 and 3 percent, equal to 2,750 to 8,250 teachers in California. But for students assigned to those teachers, Treu said there is “a direct, real, appreciable and negative impact on a significant number of students now and well into the future as long as the teachers hold their positions.”

Rather than go through the expensive process of firing the worst-performing teachers, districts transferred them to the most challenging schools, Treu said. Treu called layoffs strictly based on length of service “a lose-lose situation,” in which ineffective veteran teachers stay on the job while effective, newer teachers are let go. The state’s defense of the status quo “is unfathomable,” he wrote.

He wrote that granting tenure or permanent status after two years hurts students and potentially some teachers by not allowing enough time to make “an informed decision” on teacher competence.

Treu dismissed the unions’ arguments that the current dismissal statutes are needed to project teachers’ due-process rights. There would be sufficient protections without the laws, which he said are “so complex, time-consuming and expensive, as to make effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

John Fensterwald contributed to this report.

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  1. S 9 months ago9 months ago

    Thank you for bringing this lawsuit and pursuing it through appeal! It is absolutely vital that all students have equal access to the best educators available. Tenure is the antithesis of this. Tenure does not protect the students, it only protects teacher’s right to continued employment with no regard to performance, quality, or student outcomes. The mere fact that tenured layoffs are determined by length of service and not quality or performance, not student or … Read More

    Thank you for bringing this lawsuit and pursuing it through appeal! It is absolutely vital that all students have equal access to the best educators available. Tenure is the antithesis of this. Tenure does not protect the students, it only protects teacher’s right to continued employment with no regard to performance, quality, or student outcomes. The mere fact that tenured layoffs are determined by length of service and not quality or performance, not student or parent input, not supervisor input, is more than sufficient to prove that this method adversely hurts the quality of education for students. All you have to look at is the utterly poor outcomes to know that the tenure system does not work for student success. It most obviously adversely affects poor students without educated parents since they are not equipped to overcome teaching deficiencies such as those with wealthier and educated parents. How is it unfair to teachers to be “at will” employees. There are sufficient due process protections available without tenure that are more than adequate for all other occupations that aren’t as important as educating our children. Eliminating tenure would no doubt finally up the performance standards for teachers and make them accountable which tenure has failed to do. As for it being the administrator’s responsibility, administrators are just teachers who have been promoted, who were part of the tenure system and they just protect their own. There are too many obstacles and costly difficulties wrapped into tenure to address poor teaching performance even if administrators wanted to. How can something as important as preparing future generations by educating our children be so devalued in the interest of unnecessary blanket protections which only protect non-performing teachers. It’s time teachers were the best qualified and best performing employees with the highest standards and best student outcomes. There are plenty of highly qualified, excellent professionals who would gladly teach, but there aren’t any openings for them when you never dismiss teachers who aren’t doing their jobs. There is no value at all in basing employment decisions on longevity rather than performance since there is no incentive for long time teachers to keep up with professional development and update their skills for new generations that they are teaching if tenure guarantees employment through number of years teaching and not performance. All you have to do is look at the business world to see that if tenure were good for production and outcomes the business world would have it too. When you look at the past 30 years nothing has improved in the way we educate our children in K-12 schools. We still use chronological age to determine what grade students are placed in rather than ability. We don’t focus on mastery of subjects that all other learning is based upon, such as reading, writing, and math. We are worried about teaching children to use computers or a second language in grade school without regard to their mastery in the basics need to learn all other things. This is because tenure breeds complacency and routine which eschews having to innovate and produce outcomes that result the best education possible.

  2. Gary Ravani 10 months ago10 months ago

    “'Here it’s not so clear,” she said of the employment laws’ supposed effect on students. She also questioned whether principals and administrators should be blamed rather than the laws. “Don’t administrators have the ultimate decision?” she asked." This has been a key argument against Vergara all along. School management hires new teachers and is responsible for seeing that they get appropriate professional development to improve teaching practice. Management is unilaterally responsible for supervision and evaluation of … Read More

    “’Here it’s not so clear,” she said of the employment laws’ supposed effect on students. She also questioned whether principals and administrators should be blamed rather than the laws. “Don’t administrators have the ultimate decision?” she asked.”

    This has been a key argument against Vergara all along. School management hires new teachers and is responsible for seeing that they get appropriate professional development to improve teaching practice. Management is unilaterally responsible for supervision and evaluation of teachers. If management cannot do their jobs in all of these instances, is it a problem with the laws, or “Don’t administrators have the ultimate decision?” as the judge asked? Yes, they do.

    It is the assertion of “plaintiffs” (actually the assertions of the billionaire backers and high priced corporate attorneys they hired) that ineffective teachers cluster at schools with poor and minority students. There is no empirical evidence of this; however, there is empirical evidence that new and inexperienced teachers cluster at those schools. Why is this? Because teachers leave those schools and districts as soon as they can manage a transfer, creating constant personnel churn at the schools. Do teachers leave because the children are too difficult to educate? Information from exit interviews of departing teachers suggests it is lack of resources to do their jobs (perhaps mitigated in the future by LCFF) and poor leadership (aka, management) that causes them to leave. Those are the real problems. Vergara did nothing to deal with the reality. Management at both high performing schools and districts and low performing schools and districts draw teachers from the same candidate pools and operate under the same laws. Some do their jobs and some do not.

    This is not to suggest that school management in districts and schools with high numbers of poor and minority students don’t have problems that management in higher performing, low poverty low second language, schools and districts don’t need to deal with. Solid research shows those higher wealth and native English speaking students have a significant academic advantage the day they enter Kindergarten. But that has nothing to do with teachers’ due process and seniority rights.

  3. David Page 10 months ago10 months ago

    How I would have responded; Poor teaching does not have equal effect on all students. It is most detrimental to a specific group of students that do not come from highly educated intact families with financial and intellectual means to overcome poor instruction or change schools. This is supported by multiple studies. The laws in question then have a sinister unequal effect on a class of students because they are not able to overcome the … Read More

    How I would have responded; Poor teaching does not have equal effect on all students. It is most detrimental to a specific group of students that do not come from highly educated intact families with financial and intellectual means to overcome poor instruction or change schools. This is supported by multiple studies. The laws in question then have a sinister unequal effect on a class of students because they are not able to overcome the pool of ineffectiveness that is the result of being forced to approve permanent employment too soon, being restricted from keeping the best and brightest over the oldest, not necessarily effective teachers. Judges asked questions that could have led to a better conclusion by responding affirmatively that there are school districts with significantly better pay scales that allow the district discrimination for higher standards, or that do not contain significant numbers of students that would be effected by poor teaching. This supports that there is a certain class of students that can not overcome the ‘Inequity” of bad teaching. Missed a plug for Charter schools that have more control over employee quality.

    Replies

    • Gary Ravani 9 months ago9 months ago

      There is no empirical evidence to show that schools and districts serving disadvantaged and minority students are plagued with "poor teaching" as you describe it. There is empirical evidence to show that those schools and districts are plagued by higher number of inexperienced teachers. Doing away with the statutes challenged by Vergara would make it easier for districts to dismiss senior teachers and exacerbate the problems with lack of experienced teachers. There is also the … Read More

      There is no empirical evidence to show that schools and districts serving disadvantaged and minority students are plagued with “poor teaching” as you describe it. There is empirical evidence to show that those schools and districts are plagued by higher number of inexperienced teachers. Doing away with the statutes challenged by Vergara would make it easier for districts to dismiss senior teachers and exacerbate the problems with lack of experienced teachers.

      There is also the fact that aside from empty assertions, as a judge noted, there is no discernible cause and effect relationship between the problems impacting schools of disadvantaged and minority students and the challenged statutes. Certainly Judge Treu’s 16 page ruling in the face of hundreds of pages of testimony (I know as I downloaded and printed them) did absolutely nothing to establish that relationship.

      And, BTW, there is little empirical evidence to show that charter schools are accomplishing much of anything aside from contributing to the further economic and ethnic segregation of the schools.

      • TheMorrigan 9 months ago9 months ago

        David Page does have a point, though, about charter schools. They do have "more control over teacher quality." In fact, it is so "good" that the majority of charter schools have a teacher retention rate that is worse than inner city traditional public schools. They have so much control that it is impossible to hold onto that "good" talent. Why would anyone – besides the fast food industry, that is – want to emulate … Read More

        David Page does have a point, though, about charter schools. They do have “more control over teacher quality.” In fact, it is so “good” that the majority of charter schools have a teacher retention rate that is worse than inner city traditional public schools. They have so much control that it is impossible to hold onto that “good” talent.

        Why would anyone – besides the fast food industry, that is – want to emulate that type of “control” is beyond my understanding, though.

        • Paul 9 months ago9 months ago

          Well said. I suppose some would argue that if all teacher employment became at-will, charter and district school teacher rentention rates would converge (downward, I'd say). I favor -- politically now, not practically anymore, as I left teaching several years ago to return to tech. -- 1. Due process/for-cause dismissal protection as early in a teacher's career as possible. Unlike a job at Wal-Mart or McDonald's, a teaching career requires ever longer and ever more expensive preparation. The … Read More

          Well said.

          I suppose some would argue that if all teacher employment became at-will, charter and district school teacher rentention rates would converge (downward, I’d say).

          I favor — politically now, not practically anymore, as I left teaching several years ago to return to tech. —

          1. Due process/for-cause dismissal protection as early in a teacher’s career as possible. Unlike a job at Wal-Mart or McDonald’s, a teaching career requires ever longer and ever more expensive preparation. The state, which pays most of the costs, doesn’t want districts throwing away that investment by dumping and replacing teachers instead of building them up. Teachers, for their part, invest much time, some cash, and much foregone income. They need early information about their performance. Dismissal without cause privides no such information, precisely because there is no cause.

          2. Not using layoffs to reshape the teacher workforce. How silly to use layoffs as an excuse for weeding out specific people, again, without having to give a reason! I would be fine with randomized layoffs, because randomization is fair: everyone has the same chance of staying or going, and the workforce after is statistically identical to the workforce before. Districts should be addressing any performance problems on an ongoing basis (see #1), rather than waiting for an economic crisis to create a layoff opportunity.

          • FloydThursby1941 9 months ago9 months ago

            Paul, your comments show you care more about what is fair to teachers being fired than with hiring those who serve kids the best. I believe those who don't serve kids the best are not trying as hard as those who do, so it's fair to hire those who are not working the hardest. Those who call in sick the maximum allowable, don't come to back to school night, don't work hard day … Read More

            Paul, your comments show you care more about what is fair to teachers being fired than with hiring those who serve kids the best. I believe those who don’t serve kids the best are not trying as hard as those who do, so it’s fair to hire those who are not working the hardest. Those who call in sick the maximum allowable, don’t come to back to school night, don’t work hard day in day out should be first to go regardless of age. We have to put kids first, not teachers. You seem to be bending in circles to protect teachers. Gary is blaming everyone but teachers. Yes, many parents are bad, but teachers can make up for that. Good teachers. Let it be like the free market. Imagine if the NBA had tenure and seniority, even with a 10-year limit. Imagine if any business had that. Sometimes you have to be able to tell bad performers, shape up, work harder, do more, get the results so and so is getting, or you’re out of here. If you were wrongly fired, you’ll get another job at another school, but we need to keep a record and if a teacher is fired from a couple schools, it should be illegal for another school to hire them. It needs to be easier to fire bad teachers. Gary is myopic on this, never admits anyone did anything wrong, never even admitted the LA union was wrong for getting Mark Berndt a 40k pay out just before he began a 26-year prison sentence. Does seniority make people work harder or better? Where do you see people working harder, Apple/Google, or the DMV? Teachers or a real estate sales office? Our kids deserve no less.