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Topic: Judge strikes down all 5 teacher protection laws in Vergara lawsuit
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Jerry P. Becker

Posts: 16,576
Registered: 12/3/04
Judge strikes down all 5 teacher protection laws in Vergara lawsuit
Posted: Jun 12, 2014 3:10 PM
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From EdSource - Highlighting Strategies for
Student Success, Tuesday, June 10, 2014. See
There are many reactions and comments to the
Vegara v California Decision at the end of the
article at the website - Statements from public
officials, advocates following Judge Treu's
ruling -- Source: Compiled from press releases
Judge strikes down all 5 teacher protection laws in Vergara lawsuit

By John Fensterwald

Los Angeles County Superior Court Judge Rolf Treu
reviews evidence during the Vergara trial in
January. Source: Court View Network

In a resounding defeat for the state's teachers
unions, today a Superior Court judge in Los
Angeles agreed with a lawsuit's claim that
teacher employment laws disproportionately hurt
poor and minority children, who are saddled with
the state's worst-performing teachers. In his
ruling, Judge Rolf Treu overturned five state
statutes giving California teachers firing
protections and rights to tenure and seniority.

The evidence of "the effect of grossly
ineffective teachers on students," Treu wrote,
"is compelling. Indeed, it shocks the conscience."

Treu's tentative, 16-page page decision in
Vergara v. California, which takes effect in 30
days, gives the first-round victory to Students
Matter and its benefactor and founder, Silicon
Valley entrepreneur David Welch. He sued the
state on behalf of nine students in five school
districts, including Beatriz Vergara, a high
school student in the Los Angeles Unified School
District, the first plaintiff named in the
lawsuit. The case has been closely watched
nationally as a bellwether that might prompt
similar lawsuits in other states.

In a joint defense with the state Attorney
General's Office, the California Teachers
Association and the California Federation of
Teachers had vigorously defended the workplace
protections as critical to recruiting and
retaining teachers. The unions charged Welch with
scapegoating teachers rather than addressing the
true source of the achievement gap: the impacts
of poverty and neighborhood violence on the lives
of poor children. They promised to appeal the
verdict, a process that could take years before
the state Supreme Court decides it.

"Like the Vergara lawsuit itself, today's ruling
is deeply flawed," they said in a statement. "We
will appeal on behalf of students and educators.
Circumventing the legislative process to strip
teachers of their professional rights hurts our
students and our schools."

Lawyers for the students in the Vergara lawsuit
argued that the laws shield the lowest-performing
teachers from layoffs and create costly,
"Byzantine" dismissal procedures. They claimed
the laws disproportionately harmed the students
and violated their fundamental right under the
state Constitution to an opportunity for an equal

Treu (pronounced Troy) agreed, and struck down
all five laws as unconstitutional, leaving it to
the Legislature to create an alternative. In a
teleconference, Ted Boutrous, the lead attorney
for Students Matter, called Treu's ruling
"powerful right down the line on every issue."

"This decision will reverberate powerfully across
California and the nation because teacher tenure
and dismissal laws touch on the forefront of the
debate on how to improve schools to help students
learn," Boutrous said. Welch has expressed an
interest in challenging similar laws in other

Treu agreed to an injunction, keeping the laws in
place during the appeals process. Boutrous said
that if the ruling is upheld during the appeals
process, school districts would have to
renegotiate contracts to comply with Treu's
decision or at least not enforce provisions of
the law ruled unconstitutional.

Voters or the Legislature could act sooner if
they choose, and that is what Welch, Los Angeles
Unified Superintendent John Deasy and Students
Matter attorneys urged in the phone call.

"The need for change is now," said the other lead
attorney, Marcellus McRae. "We cannot waste
another day, cannot waste another child."

Without proposing specific alternatives, Welch
said he would talk about the case with
legislators and urge them to pass policies "based
on common sense and research." The verdict is a
call to "seize the moment and move forward," he
said. Extending the probationary period,
replacing layoffs by seniority with factors based
on performance and rewriting dismissal laws all
would require more effective ways to evaluate
teachers. Until now, the Legislature and the
Brown administration have avoided taking on that

The Legislature is poised to pass Assembly Bill
215, sponsored by Assemblywoman Joan Buchanan,
D-Alamo, which would make it easier to fire
teachers accused of egregious misconduct, such as
sexual acts against children. But the bill, which
Gov. Jerry Brown said he would sign, would not
substantially affect the dismissal process for
teachers charged with poor performance, the focus
of the Vergara lawsuit. An initiative proposed
for the November ballot would substantially
rewrite the state's teacher evaluation laws,
including the elimination of seniority rights.
The sponsor, consultant Matt David, has not
spoken publicly about the initiative and has
until mid-July to obtain 505,000 signatures to
qualify for the ballot. (Update: David did not
pursue signatures this year; the earliest his
initiative could be on the ballot is now November

The verdict follows a two-month trial this spring
in which about 60 witnesses testified. Both sides
agreed that there is a small percentage of awful
teachers, and that they can have an outsized
impact on students. The decision cited testimony
by Thomas Kane, a professor at the Harvard
Graduate School of Education, that a student
taught by one of the worst 5 percent of teachers
would fall behind a year in math and nearly a
year in reading. Lawyers for the state and
teachers unions argued that the fault lies not in
the laws but in their implementation. In a battle
on the witness stand between disagreeing
superintendents, defense experts said well-run
districts can effectively fire poor-performing
teachers and filter out probationary teachers who
won't cut it. And they disputed the assumption
that standardized test scores - under any current
methodology - can accurately determine which
teachers are ineffective.

The five laws include a permanent employment
statute, informally known as tenure, giving
teachers due-process rights after two years of
probation; three statutes that outline complex
procedures to dismiss teachers; and the layoff
statute, known as LIFO for Last In, First Out,
mandating layoffs by seniority with some
exceptions for teachers with hard-to-find

The compounded impact of those laws
disproportionately "affects the stability of the
learning process to the detriment of high-poverty
and minority students," Treu concluded.

Here are some of the key issues in the lawsuit:

Tenure: California is one of a handful of states
that grant probationary teachers tenure or
permanent status, with due process protections,
after two years on the job. Forty-one states
require three or more years before granting
tenure. Students Matter argued that decisions
actually have to be made after only 16 months on
job - not enough time to make a credible
assessment of a teacher's potential and prevent
weak teachers from slipping through. Treu found
that a longer probationary period would serve the
interests of not only students but also teachers,
since some districts are tenure-shy and dismiss
probationary teachers, who, with more time, could
prove to be fine teachers. There's no rational
reason for the current law, he wrote.

Dismissal: Students Matter said that the
prohibitive cost of firing the worst teachers -
between $50,000 and $450,000 because of the time
and expense of litigation - discourages districts
from pursuing dismissals. The defense witnesses
countered that most poorly performing teachers
are counseled out of the profession without the
need for litigation; effective districts do this
regularly. But the plaintiffs countered that too
often, bad teachers are moved around (what Treu
referred to as the "Dance of the Lemons") to
unsuspecting schools with minority students,
perpetuating the problem. Treu questioned whether
extra layers of legal protections are needed,
since non-teacher employees of school systems
aren't entitled to them. "The Court finds that
the current system Š to be so complex, time
consuming and expensive as to make an effective,
efficient yet fair dismissal of a grossly
ineffective teacher illusory," Treu wrote.

LIFO: Treu called layoffs strictly based on
length of service "a lose-lose situation," in
which ineffective veteran teachers stay on the
job while effective, newer teachers are let go
regardless of their performance. Defense
attorneys said that LIFO prevents districts from
laying off better-paid veteran teachers in order
to cut costs. Treu didn't buy it. Noting that 20
states consider seniority as just one factor in
layoffs, and 19 let local districts set the
criteria, Treu wrote that the defense of the
status quo "is unfathomable and therefore
constitutionally unsupportable."

In a statement, Joshua Pechthalt, president of
the California Federation of Teachers, responded,
"Rather than provide resources or working to
create positive environments for students and
teachers, this suit asserts that taking away
rights from teachers will somehow help students."

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