Vergara Roils California Teacher Tenure System

Vergara v. State of California, No. BC484642 (LA Sup. Ct. 06/10/2014), a trial decision made final on August 28, holds that specified California statutes relating to teacher tenure are violations of student equal protection and State Constitutional provisions regarding the creation and maintenance of a public education system.

As the trial court anticipated, an “intense public debate” has begun. U.S. Secretary of Education Arne Duncan issued a modest Statement:

“For students in California and every other State, equal opportunities for learning must include the equal opportunity to be taught by a great teacher. The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students. Today’s court decision is a mandate to fix these problems.

This elicited a parry from American Federation of Teachers President Randi Weingarten: “[T]eachers across the country are wondering why the secretary of education thinks that stripping them of their due process is the way to help all children succeed.”

For some, the focus will be on further examining our public school education system, and for others, the subject of the opinion are rules questioning “guild” rules governing a profession.

The statutes in question are Education Code section 44929.21(b), dealing with permanent employee status or tenure; sections 44938(b)(1) and 44938(b)(2), 44934, and 44944, relating to dismissal of teachers; and section 44955, specifying that “Last-in-First-Out” will govern reductions in force.

Section 44929.21(b) prescribes that after two consecutive years, employees shall be given permanent employee status at the beginning of the following school year. Employees are notified the March prior to the end of their second year, which means that in effect, they teach for about one and a half years before administrators decide to grant them tenure. The system “does not provide nearly enough time for an an informed decision to be made.”

Sections 44938(b)(1) and 44938(b)(2), 44934, and 44944 require that in proceedings for the dismissal of a teacher, the State cover at least half of the administrative costs, including lawyers’ fees; travel, meal, accommodation, and facilities costs for the hearings; and the teacher’s salary if he or she has been removed from the classroom. The requirements are too time-consuming and too expensive to implement in all cases.

Section 44955 mandates that when a teacher lay-off or other reduction in staff occurs, school districts will dismiss the most recent hire first, and the oldest hire last. Thus, date of hiring is the only criteria for order of layoffs, unless the administrator can prove that another teacher’s specific skill or certification is absolutely essential for students’ learning needs.

These statutes were found unconstitutional because they permit a significant number of “grossly ineffective teachers,” estimated from 2,750 to 8,250, to retain their positions and undermine the effectiveness of public education for all students in a “direct, real, appreciable, and negative” manner that “shocks the conscience.” This is particularly true because these teachers disproportionally affect poor and minority students.

No legally cognizable or compelling reason underlies the teacher early tenure provision. The dismissal provisions represent “uber due process” that is unnecessary given the standard Skelly dismissal rules for public servants. The lay-off rules are “unfathomable.”

The trial court established that education is a fundamental right in California. Section 1, Article IX of the California Constitution States:

“A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”

This provision has been in effect since 1879.

Brown v. Bd. of Education, 347 US 483 (1954) stated that “it is doubtful that any child may reasonably be expected to succeed . . . if he is denied the opportunity of an education [and] where the State has undertaken to provide it, [it] is a right which must be made available to all on equal terms.”

The State bears the burden of showing that distinctions drawn in fundamental areas of education are supportable under the Constitution. If the State differentiates between students, the differentiation is a suspect classification for which there must be a compelling justification. (Serrano v. Priest, 5 Cal.3d 584 (1971) and 18 Cal.3d 728)

In Butt v. State of California, 4 Cal.4th 668 (1992), the California Supreme Court stated:
“[T]he California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the public school system in a way which denies basic educational equality to the studenst of particular districts.”

The court’s decision to utilize constitutional law to gainsay teacher “guild” rules was hedged with its explicit limitation of its decision to the evidence before it and acknowledgement that the decision would be the subject of “intense political debate . . . “

However, each point in the discussion was directly or implicitly buttressed by substantial evidence and the bottom line was that the State had failed to meet its burden of demonstrating a “compelling interest justifying a suspect classification.”

On appeal, the decision, issued after trial, will be governed by the substantial evidence rule. Substantial evidence is evidence “of ponderable legal significance, … reasonable in nature, credible, and of solid value.” (People v. Johnson (1980) 26 Cal. 3d 557, 576)

When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.

When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (People v. Johnson, supra, 26 Cal. 3d 576-577)

Given the parameters of the substantial evidence rule, the statement of State Superintendent of Public Instruction Tom Torlakson, one of the defendants, “that the Court’s ruling is not supported by the facts or the law,” may not be a particularly fruitful approach on appeal.

After all, the State had the opportunity to introduce evidence to meet its burden of proof under strict scrutiny and necessarily left the decision to the judge. The process of appeal on this ground essentially reduces itself to a careful examination of the trial transcript and the logic of the trial court in teasing a decision from the facts.

The Notice of Appeal is hardly more informative than Torlakson’s statement as to the State’s strategy on appeal. The Attorney General argued that a decision of such scope needed to be made by a higher court and that the judge in this case had failed “to provide a detailed statement of the factual and legal bases for its ruling.”

However, decisions of great scope are often made by trial courts, being courts of general jurisdiction, and appellate courts exist only to correct them on matters of law. As to the latter ground, the decision is what it is, and whether it is detailed enough is not necessarily a basis for reversal.

All these suggested bases for appellate action probably represent only the State’s desire to technically initiate the appeals process without being especially concrete. Reference to the State’s April 10 Post-Trial Brief might be a better source for what will be argued on appeal.

The Brief, not having even the benefit of the June 10 trial court’s tentative ruling, does address some of the key issues picked as significant by the trial court. The Brief claims that the “grossly ineffective” teachers are not identified and that there is no basis for stating that the plaintiff students were ever affected by them. A fortiori, the plaintiff students were never affected by the “guild” statutes in question which permitted the bad teachers to be retained.

Therefore, the plaintiff students had not been harmed in a substantial way as had the students in Serrano or Butt. In those cases, the defaults in financing those students’ school districts necessarily must have negatively affected all of them.

Unfortunately, the Brief evidenced no prescience of the trial court’s decision to review the matter under the strict scrutiny test and we have no indication in it of the State’s approach towards countering this key legal ruling. The more the State argues that the evidence does not show harm, the more an appellate court will ask why the State didn’t definitively prove the lack of harm. Any defects in the “harm” argument are arguably the result of the State’s misreading of its burden of proof or its tactical decision to defer its admission of evidence on this point.

The State might more productively address not the sufficiency of the evidence on appeal but rather legislatively examine whether the statutes in question adequately balance the rights of students to an adequate education against the myriad employment rights now accorded to teachers. Such “political discourse” is a rational response to “the current intense political debate over issues of education” such as teacher tenure and the State’s uncertain prospects on appeal.

More by | James Ching James Ching , Law.com Contributor
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