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Vergara decision: Big win for students, big loss for teachers union

Michael Janofsky | June 10, 2014

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Students lawyer Marcellus McRae at Vergara Press Conference LAUSD

Students’ lawyer, Marcellus McRae, discussing Vergara decision.

This story is updated throughout the day

In a stunning defeat for California’s public school teachers unions, a state superior court today ruled in favor of students challenging teacher protection laws in Vergara v California.

It was a total triumph for the nine student plaintiffs, giving them a victory on all counts in an equal protection case aimed at striking down five laws that govern tenure, seniority and dismissal that the students argued kept ineffective teachers in their classrooms.

In his decision, Judge Rolf Treu said, “evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscious.”

He concluded that “all Challenged Statutes are found unconstitutional.”

The decision is temporary; final judgement may take as long as 30 days, depending upon any changes or modifications to the ruling. Meanwhile, Judge Treu stayed any changes in the laws, pending appeals.

“This is a monumental day for California’s public education system,” said Ted Boutrous, the lead attorney for the students. “By striking down these irrational laws, the court has recognized that all students deserve a quality education. Today’s ruling is a victory not only for our nine plaintiffs; it is a victory for students, parents, and teachers across California.”

Los Angeles Unified Superintendent John Deasy, who was the first witness to testify on behalf of the students in the eight-week trial, said: “This is a truly historic day for our education system. Today’s decision is a call to action to begin implementing, without delay, the solutions that help address the problems highlighted by the Vergara trial. Every day that these laws remain in effect is an opportunity denied. It’s unacceptable, and a violation of our education system’s sacred pact with the public.”

The plaintiffs in the case were nine California school children who claimed that they were deprived of a quality of education by the application of the laws. The state was the chief defendant, joined by its two biggest teacher unions — the California Teachers Association (CTA) and the California Federation of Teachers (CFT).

The state and the unions intend to appeal the decision, which requires filing within 60 days of the finalizing of Judge Treu’s decision.

Josh Pechthalt, the CFT president, said, “We know that this is not the last word on the case. We know what’s in the record of evidence, and we have a high degree of confidence that we will prevail on appeal.”

Added Jim Finberg, a lawyer who represented the unions in the case, “I don’t think this opinion reflects the substantial evidence presented at trial. We believe the statutes do work well and serve an important government interest.”

Appeals are expected to take months, if not years before the case could reach the California Supreme Court. While Judge Treu’s ruling could spur the legislature to rewrite the laws he struck down before final resolution, the ruling would discourage state lawmakers from minor changes in an effort to satisfy the court’s concerns.

“The legislature could see the handwriting on the wall, that student needs are not being met,” said Josh Lipshutz, another of the students’ lawyers. “But what they can’t do is tinker with the laws, making cosmetic changes to avoid Judge Treu’s decision.”

The trial became a proxy argument nationally over root cause of poor educational outcomes in highly urbanized settings. Are ineffective teachers partly to blame for low-income students falling behind their more affluent peers, as the plaintiffs argued? Or, as the defendants contended, is student performance less related to teacher effectiveness and more symptomatic of larger societal problems, like unending cycles of poverty and neighborhood violence?

The case also became a battle over the power of teacher unions to preserve protections that are not always available to other public employees. The state and the unions argued that the laws help school districts attract and retain teachers while the plaintiffs countered that they keep in place ineffective teachers whose instructional skills deny students the promise of a quality public education.

Judge Treu was unambiguous in how he viewed the facts, pointing to unchallenged evidence that thousands of ineffective teachers in California are impacting the quality of education for thousands of students and their lifetime earnings potential as a result.

Citing two earlier cases that forced changes in state laws regarding students’ rights to quality education through money spent and time of instruction provided, as well as evidence in Vergara, he said the plaintiffs “have proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact on students’ fundamental to quality of education and that they impose a disproportionate burden on poor and minority students.”

In Judge Treu’s 16-page decision, he broke down the rationale for his decision on each of the challenged state statutes:

  • Permanent Employment, commonly known as tenure: He concluded that the state’s two-year requirement to make a decision on tenure is inadequate, finding that “both students and teachers are unfairly, unnecessarily, and for no legally recognizable reason (let alone a compelling one) [are] disadvantaged” by the current law. As a result, he said he finds it unconstitutional under the state’s equal protection clause.
  • Dismissal: Judge Treu concluded that teachers have every right to due process in the event of a dismissal, but he said the evidence convinced him that 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.”
  • Seniority, commonly known as Last in, first out: Judge Treu called this law, which requires the most recently hired teachers to be dismissed first in times of budget constraints a “lose-lose situation” that often removes quality teachers while leaving ineffective teachers in place. “The logic of this position is unfathomable and therefore constitutionally unsupportable.”

Judge Treu also concluded that the laws in questions disproportionately affect low-income and minority students and that a “lack of effective dismissal statutes and LIFO” harm them through the so-called “dance of the lemons,” a tactic often used by districts to send the least effective teachers into classrooms with the high concentrations of vulnerable students.

Alex Caputo-Pearl, the incoming president of the Los Angeles teachers union, UTLA, said the decision is harmful to students. “The outcome of this is going to be that it actually creates more instability at the very schools and with the very kids who need stability.”

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