June 13, 2014
On June 10, 2014, Los Angeles County Superior Court Judge Rolf M. Treu issued an historic decision in Vergara v. California, striking down five provisions of the California Education Code relating to the tenure and dismissal of public school teachers as unconstitutional under the equal protection provisions of the California Constitution.
The plaintiffs, nine California public school students, filed suit against the State of California in May 2012 with the assistance of Students Matter, a non-profit organization dedicated to improving public education. The plaintiffs contended that the five challenged statutes violate their fundamental right to equality of education by effectively preventing school districts from making personnel decisions that serve students’ best interests. Specifically, the lawsuit targeted California’s "Permanent Employment Statute," which forces administrators to either grant or deny permanent employment to teachers after an evaluation period of less than 18 months–long before administrators are able to assess whether a teacher will be effective; three "Dismissal Statutes," which create a Byzantine process for dismissing a single ineffective teacher that involves numerous steps, requires years of documentation, costs hundreds of thousands of dollars, and rarely ever works; and the "Last-In, First-Out" ("LIFO") Statute, which forces school districts to make layoff decisions based on seniority alone, with no consideration of teachers’ performance in the classroom. Plaintiffs argued that these statutes create a system in which grossly ineffective teachers obtain and permanently retain employment in California public schools, harming students year after year, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.
In May 2013, the state’s two largest teacher unions, the California Teachers Association and the California Federation of Teachers, intervened in the case to defend these statutes alongside the State.
Following a nine-week trial that commenced on January 27, 2014, the court ruled that plaintiffs "met their burden of proof on all issues presented" and enjoined enforcement of all five statutes, with the injunction stayed pending appellate review. The court held that plaintiffs’ evidence regarding the impact of grossly ineffective teachers on students "shocks the conscience." The court recounted key testimony, for instance, from noted Harvard economists Raj Chetty and Thomas Kane that a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom and results in 9.54 months of lost learning compared to students assigned to average teachers. And because no party disputed that thousands of grossly ineffective teachers are currently employed by California schools, it "cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact" on California students by "substantially undermin[ing] . . . [their] ability to succeed in school."
In rendering its decision for plaintiffs, the court concluded that the State and the unions failed to demonstrate that any of the challenged statutes are necessary to serve a compelling state interest:
The court also concluded that the challenged statutes disproportionately harm poor and minority students. A report written by the State itself concedes that "the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers" and therefore "bear the brunt of staffing inequalities." This disproportionate impact is amplified by the pernicious "Dance of the Lemons," in which ineffective teachers that districts struggle to dismiss under the Dismissal Statutes are transferred to schools serving predominantly low-income and minority students, as well as seniority-based layoffs, which devastate inner-city schools staffed with a disproportionate number of junior teachers.
The Vergara decision follows a long line of California cases, including Serrano v. Priest and Butt v. California, in which the California Supreme Court has recognized that a child’s right to equality of educational opportunity is a fundamental interest guaranteed by the California Constitution. Whereas Serrano and Butt focused on inequalities in school funding and the length of the school year, Vergara confirms that this right extends to the quality of instruction provided in the classroom. This landmark decision represents a complete victory for the plaintiffs and a resounding vindication of their struggle to give students a voice in the key personnel decisions that shape public education in California. The New York Times Editorial Board described Judge Treu’s ruling as an "important decision" that "opens a new chapter in the equal education struggle" and "underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well." U.S. Secretary of Education Arne Duncan also praised the decision, calling it a "mandate to fix these problems" and encouraging all stakeholders to work together "to increase public confidence in public education" and "build a new framework for the teaching profession that protects students’ rights to equal educational opportunities."
* * * *
Gibson Dunn attorneys Theodore B. Olson, Theodore J. Boutrous, Jr., Marcellus M. McRae, Theane Evangelis, Joshua S. Lipshutz, Enrique A. Monagas, Kyle A. Withers, Lindsey Greer, Brandon J. Stoker, Kevin Ring-Dowell, Peter Squeri, Quynh K. Vu, Sam Siegel, Lauren Escher, and Joanna L. Powell represent Beatriz Vergara and the other 8 plaintiffs.
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work in the firm’s Appellate and Constitutional Law Practice Group or the following authors of this alert:
Theodore J. Boutrous, Jr. – Los Angeles (213-229-7000, [email protected])
Marcellus A. McRae – Los Angeles (213-229-7675, [email protected])
Theane Evangelis – Los Angeles (213-229-7726, [email protected])
Enrique A. Monagas – Los Angeles (213–229–7913 , [email protected])
Joshua S. Lipshutz – San Francisco (415-393-8233, [email protected])
Brandon J. Stoker – Los Angeles (213-229-7574, [email protected])
© 2014 Gibson, Dunn & Crutcher LLP