Gibson, Dunn & Crutcher's Theodore Boutrous
Gibson, Dunn & Crutcher’s Theodore Boutrous (Diego M. Radzinschi)

A state trial judge in Los Angeles has tentatively struck down five California statutes governing how the state’s public school teachers are fired, laid off or granted tenure.

Tuesday’s order came in a case brought by Gibson, Dunn & Crutcher’s Theodore Boutrous on behalf of nine public school children who claim that the state laws have protected thousands of “grossly ineffective” teachers across the state, thereby depriving them of equal access to a public education under California’s constitution.

The suit, filed in 2012, alleged the statutes disproportionately hurt low-income and minority students.

Los Angeles County Superior Court Judge Rolf Treu found that all five statutes were unconstitutional. He stayed his tentative decision pending an anticipated appeal.

“Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students,” Treu wrote, citing the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education. “The evidence is compelling. Indeed, it shocks the conscience.”

The case had some heavy lifters on both sides. In addition to Boutrous, who was one of the lawyers who brought the case challenging the constitutionality of California’s ban on same-sex marriage, the case had the financial backing of Silicon Valley entrepreneur David Welch’s nonprofit, Students Matter.

On the other side were California’s largest teacher unions, the California Teachers Association and the California Federation of Teachers, which had intervened to defend the laws at issue.

Nicholas Pacilio, a spokesman for California Attorney General Kamala Harris, representing several of the state officials named as defendants, said: “We are reviewing the tentative ruling and consulting with our clients.”

But union attorney Jim Finberg promised an appeal. “I’m confident that eventually the Court of Appeal will reverse this decision and find that these statutes are constitutional,” he said.

Plaintiffs lawyers and Students Matter announced plans to move forward to overturn the laws and push for policy changes in California and nationwide to improve the public school system.

“I think this decision is going to reverberate powerfully, across California and across the nation,” Boutrous said at a press conference following the ruling.

U.S. Education Secretary Arne Duncan weighed in: “My hope is that today’s decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift. Every state, every school district needs to have that kind of conversation. At the federal level, we are committed to encouraging and supporting that dialogue in partnership with states.”

Treu, in his ruling, acknowledged the political ramifications of the case: “That this court’s decision will and should result in political discourse is beyond question,” he wrote.

Treu ruled that a statute requiring administrators to make tenure decisions within two years or less didn’t allow enough time to adequately assess a teacher’s performance. Statutes governing the dismissal of ineffective teachers were “complex, time consuming and expensive,” he added, and struck another statute that protects senior teachers from getting laid off.

At trial, the defendants had blamed ineffective teachers on poor management at the districts. They insisted that the statutes provided adequate means for administrators to evaluate or dismiss teachers.

“The existing statutory scheme does allow ineffective teachers to be taken out of teaching positions,” said Finberg, a partner at San Francisco’s Altshuler Berzon.

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