Metropolitan News-Enterprise


Monday, August 13, 2012


Page 1


CA Voids Consent Decree on Teacher Lay-Offs


By a MetNews Staff Writer


The Court of Appeal for this district on Friday voided a consent degree under which layoffs for budgetary reasons at certain schools in the Los Angeles Unified School District would not be based on seniority.

Students from three low-performing schools sued on equal protection grounds in 2009 when layoff began, targeting teachers with the least seniority—which included most of the faculty at the schools. Under the consent decree, the seniority system would not be utilized at the three schools, or at as many as 45 others.

The reversal—over the dissent of Acting Presiding Justice Kathryn Doi Todd—is a victory for the teachers’ union, United Teachers of Los Angeles, which opposed a bypassing of the seniority system.

The decree was approved by Los Angeles Superior Court Judge William F. Highberger after he conducted a “fairness hearing.” That wasn’t good enough, Justice Judith Ashmann-Gerst said in an opinion joined in by Justice Victoria Chavez.

Decision on Merits

There had to be a decision on the merits, Ashmann-Gerst wrote, explaining that rights of teachers with seniority were potentially implicated. She wrote:

 “The United States Supreme Court has instructed that the contract, statutory or constitutional rights of a party who intervenes or is joined in a lawsuit are entitled to no less respect than the rights asserted by the persons who originated a lawsuit.”

The jurist said that “cases ineluctably establish that neither a consent decree nor a trial court’s approval of a consent decree can abrogate a third party’s rights,” which means that “a third party is entitled to a decision on the merits.”

‘Meaningful Opportunity’

Todd said in her dissent:

“I am satisfied that UTLA had a meaningful opportunity to be heard and received an appropriate judicial determination that adjudicated the merits of its objections to the consent decree.”

She noted that Highberger considered and rejected UTLA’s contention that the consent decree improperly was violative of a statute and the collective bargaining agreement.

Highberger was quoted as ruling that “the Education Code expressly allows a school district to ‘deviate from terminating a certificated employee in order of seniority for...purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws.’ ”

The judge also found that “the evidence adequately supports the conclusion that additional turnover, caused by a Reduction in Force, at the targeted schools would cause material harm to faculty stability and the ability to deliver basic educational opportunity to the students in the schools.”

Todd said that Highberger relied on expert and lay testimony and statistics.

She argued that UTLA participated fully in the negotiations leading to formulation of the consent decree, and asserted “the context in which the trial court made its determinations demonstrated that the fairness hearing adjudication sufficiently protected UTLA’s due process rights.”

Alternative Holding

Ashmann-Gerst presented a second basis for reversal, declaring:

“Even if federal due process allowed the trial court to abrogate the rights of teachers with no more than a fairness hearing, state law does not.”

She cited Code of Civil Procedure Sec. 664.6 which provides:

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Ashmann-Gerst observed that “[a]n agreement cannot be enforced pursuant to section 664.6 against a litigant who did not sign it or stipulate orally before the court,” and UTLA did neither.

Affirmative Relief

Todd responded that UTLA was merely an intervenor which did not seek affirmative relief, and that its assent was not needed.

The case is Reed v. United Teachers of Los Angeles, B230817.

The students were represented by former Court of Appeal Justice Miriam A. Vogel, Jack Londen, Sean Gates, and Hailly T.N. Korman of Morrison & Foerster; Mark D. Rosenbaum, David Sapp, Brooks M. Allen of the ACLU Foundation of Southern California; and Catherine E. Lhamon, Maureen Carroll, Laura Faer and Hernan Vera of Public Counsel Law Center.

Arguing for the Los Angeles Unified School District          were David R. Holmquist, Alexander A. Molina, Marcos F. Hernandez, and Aram Kouyoumdjian, along with Mary L. Dowell and Meredith G. Karasch of Liebert Cassidy Whitmore, for Defendant and Respondent.

UTLA’s lawyers were Jesús E. Quiñonez of Holguin, Garfield, Martinez & Quiñonez and Stephen P. Berzon, Jeffrey B. Demain, Eileen B. Goldsmith, Danielle E. Leonard, and P. Casey Pitts of Altshuler Berzon, for Defendant and Appellant.

Diana M. Torres and Elisa L. Miller of Kirkland & Ellis acted for Partnership for Los Angeles Schools, a signatory to the consent decree.

Lawyers for amici curiae also appeared.


Copyright 2012, Metropolitan News Company