California State Judge: Teacher Employment Statutes Are Unconstitutional

California State Judge: Teacher Employment Statutes Are Unconstitutional

 LOS ANGELES — (Mealey’s) Five California statutes regarding the employment and retention of teachers that were challenged by California students are all unconstitutional, a Los Angeles County Superior Court judge found in a tentative decision issued today (Beatriz Vergara, et al. v. State of California, et al., No. BC484642, Calif. Super., Los Angeles Co.; See April 2014, Page 28).

“This Court finds that Plaintiffs have met their burden of proof on all issues presented,” opined Judge Rolf M. Treu, who presided over the two-month-long bench trial.

Constitutional Challenge

Nine students, with Beatriz Vergara as the lead named plaintiff, sued the State of California, the governor, the state superintendent of public instruction, the California Department of Education, the State Board of Education, the Los Angeles Unified School District (LAUSD), the Oakland Unified School District (OUSD) and the Alum Rock Union School District on May 13, 2012, in the Superior Court. They amended their complaint on Aug. 15, 2012.

They claimed that California’s laws related to the employment of teachers are “outdated” and “are preventing school administrators from maintaining or improving the quality of our public educational system by denying them the flexibility to make teacher employment decisions driven by the needs of their students. Instead, these laws force school administrators to grant new teachers ‘permanent employment’ after only 18 months on the job — well before the teachers’ effectiveness can be determined — and force school administrators to keep teachers in the classroom long after they have demonstrated themselves to be grossly ineffective.”

The challenged statutes were California Education Code Section 44929.21, subdivision (b), Section 44934, Section 44938, subdivisions (b)(1) and (2), Section 44944 and Section 44955.

In addition, the plaintiffs alleged that the challenged statutes have a disproportionately adverse effect on minority and economically challenged students. “[A]s a direct result of the Challenged Statutes, a certain number of grossly ineffective teachers who are unable to minimally prepare students to compete in the economic marketplace or to participate in a democracy obtain and retain employment in the California public school system. Rather than dismiss grossly ineffective teachers for their poor performance, the Challenged Statutes cause school administrators to transfer those teachers to other schools within the district, a phenomenon sometimes referred to as the ‘dance of the lemons.’  Often, and disproportionately to the number of schools within a school district, grossly ineffective teachers are transferred to schools that serve high concentrations of economically disadvantaged students, students of color, and English learners,” the plaintiffs argued.

Motion To Intervene

On March 27, 2013, the California Teachers Association (CTA) and the California Federation of Teachers (CFT) moved to intervene as defendants in the suit. They argued that they were entitled to intervene “because CTA, CFT, and the teachers that they represent have a strong, immediate, and concrete interest in defending provisions of the Education Code that both protect the quality of California public school and provide important employment benefits to the teachers that CTA and CFT represent because disposition of this action may impair the ability of CTA and CFT to protect those interests; and because the existing parties will not adequately represent those interests.”

Alternatively, they argued for intervention “because CTA, CFT, and the teachers they represent have a strong interest in this action, their participation will not enlarge the issues in this litigation but will provide this Court with valuable insight into the actual operation of the challenged statutes, and there are no countervailing interests that outweigh the interests favoring intervention.”

The court issued a tentative ruling on May 1, 2013, granting the motion to intervene. It noted that “Plaintiffs raise a concern that intervention may result in prejudice to Plaintiffs. However, the Court finds no indication that CTA and CFT intend to enlarge the issues of this action. Notably, this action concerns the constitutionality of the Challenged Statutes with respect to Plaintiffs and the proposed Complaint in Intervention only denies that the Challenged Statutes violated Plaintiffs’ constitutional rights.”

Summary Judgment Requested

In September 2013, the state defendants and the intervenors moved for summary judgment. Those motions were denied Dec. 11.

On Dec. 22, both the state defendants and intervenors filed a petition for writ of mandate and/or other extraordinary relief from denial of summary judgment and summary adjudication.

The writ of mandate was denied by the Second District Court of Appeal, Division 2, on Jan. 14. The trial began Jan. 27 and originally was expected to last 20 days. The plaintiffs rested their case on Feb. 18. The plaintiffs and intervenors filed motions for judgment. Those motions were denied March 4, and the trial resumed.

Following the closing arguments, Judge Treu stated that the parties’ additional briefs were due April 10 and that he had 90 days to issue a decision.

Strict Scrutiny

In his 16-page decision, Judge Treu opined, “[The Court] finds that based on the criteria set in Serrano I and II [Serrano v. Priest, 5 Cal.3d 584 (1971) [an enhanced version of this opinion is available to subscribers] and Serrano v. Priest, 18 Cal.3d 728 (1976) [enhanced version]] and Butt [v. State of California, 4 Cal.4th 668 (1992) [enhanced version]], and on the evidence presented at trial, Plaintiffs have proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students. Therefore the Challenged Statutes will be examined with ‘strict scrutiny’, and State Defendants/Intervenors must ‘bear[] the burden of establishing not only that [the State] has a compelling interest which justifies [the Challenged Statutes] but that the distinctions drawn by the law[s] are necessary to further [their] purpose.’  Serrano I, 5 Cal.3d at 597 (original emphasis).”

He then addressed each statute, starting with the permanent employment statute. “This Court finds that both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let along a compelling one), disadvantaged by the current permanent Employment Statute,” Judge Treu wrote.

As for the dismissal statutes, the judge opined that it was “particularly noteworthy” that the admitted number of grossly ineffective teachers currently employed across the State of California range fall somewhere between 2,750 and 8,250 and that in LAUSD alone, there are 350 the district wished to dismiss at the time of the trial but had not yet initiated the dismissal process. While he noted that the state defendants and intervenors had legitimately raised the issue of due process, “based on the evidence before this Court, it finds the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

Last-In, First-Out

Finally, Judge Treu opined that the seniority-based layoff statute, commonly referred to as “Last-In, First-Out,” is unconstitutional under the equal protection clause of the California Constitution.

“This statute contains no exception or waiver based on teacher effectiveness. The last-hired teacher is the statutorily-mandated first-fired one when lay-offs occur. No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one, who all parties agree is creating a positive atmosphere for his/her students, is separated from them and a senior grossly ineffective one who all parties agree is harming the students entrusted to her/him is left in place. The result is classroom disruption on two fronts, a lose-lose situation,” the judge held.


Theodore J. Boutrous Jr. and Marcellus A. McRae of Gibson, Dunn & Crutcher in Los Angeles along with Theane E. Kapur and Enrique A. Monagas in Los Angeles, Joshua S. Lipshutz and Kevin J. Ring-Dowell in San Francisco and Theodore B. Olson in Washington, D.C., all of Gibson, Dunn & Crutcher, represent the plaintiffs.

Supervising Deputy Attorney General Susan M. Carson, Deputy Attorney General Nimrod P. Elias, California Attorney General Kamala D. Harris, Senior Assistant Attorney General Julie Weng-Gutierrez and Deputy Attorney General Gregory D. Brown in San Francisco represent the state defendants.

James M. Finberg, Jonathan Weissglass and P. Casey Pitts of Altshuler Berzon in San Francisco and Glenn Rothner of Rothner, Segall & Greenstone in Pasadena, Calif., represent the intervenors.

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