Metropolitan News-Enterprise


Friday, February 26, 2016


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State, Union Lawyers Urge Panel to Overturn Schools Ruling




Education Code provisions entitling teachers to tenure after two years of employment, and enacting procedural hurdles to the discharge of ineffective teachers are constitutional, lawyers for the state and the California Teachers Association argued yesterday.

 “There was no legal basis for invalidating these statutes,” Deputy Attorney General Nimrod Elias told Div. Two of this district’s Court of Appeal. “…They are applied in a perfectly constitutional manner in all school districts throughout the state.”

Elias and CTA attorney Michael Rubin urged the panel to overturn Los Angeles Superior Court Judge Rolf Treu’s 2014 ruling that five provisions of the code hamper the education of poor and minority students and reward “grossly ineffective teachers.”

Elias said the desire to improve public schools is universal, but that attorneys for the students who brought the lawsuit failed to show that the statutes are the cause of educational deficiencies. The students based their action on the landmark case of Serrano v. Priest (1971) 5 Cal.3d 584, which held that the state’s then-existing system for funding public schools discriminated against poorer districts.

Causal Link

The cases differ, however, because the Serrano court found a causal link between underfunding and poor student accomplishment, but no such link was shown to exist between the challenged statutes and the problems faced by poor and minority students according to the plaintiffs, Elias argued.

The deputy attorney general told the justices they are duty-bound to defer to the Legislature’s judgment that teacher tenure is a valuable tool in attracting and retaining the best teachers. “There was undisputed evidence [the statutes] work well in the overwhelming majority of cases,” Elias said.

A question arose as to just how many teachers are “grossly ineffective.” Justice Brian Hoffstadt referred to a study showing the number was one to three percent, but Elias said the study was based on New York City schools and that there was no evidence relating that figure to California.

Presiding Justice Roger Boren interjected:

“There’s probably nobody in this room who didn’t have a bad teacher at some time.”

Standard of Review

Justice Judith Ashmann-Gerst asked Elias what the appropriate standard of review would be. The deputy attorney general argued that what Treu characterized as findings of fact were actually legal conclusions that the appeals court must review de novo, while the few true factual findings that he made were not supported by substantial evidence.

Rubin emphasized that there are more than 1,000 individual school districts in California, and that the statutes do not dictate where teachers are to be assigned. If the worst teachers are being assigned to districts with high concentrations of poor and minority students, he said, the individual districts, not the laws, are responsible.

Theodore Boutrous of Gibson, Dunn & Crutcher, representing the plaintiffs, urged the court to affirm.

“The evidence of what these statutes do shocks the conscience,” he told the panel. He called the five statutes “pernicious” and “harmful” and argued that their “practical effect” is to deny poor and minority students equal protection, even if they are neutral on their face.

Ashmann-Gerst, however, questioned the extent to which Serrano can be applied to these particular sections.

“These statutes don’t pertain to students,” she noted. “They don’t pertain to resources.”

Weeks of Testimony

But Boutrous noted that Treu heard eight weeks of testimony on what the actual effects of the statutes are. He cited testimony that the Los Angeles Unified School District has hundreds of teachers that it “would fire if it could.”

Only about two teachers each year statewide, he said, are fired for “underperfomance.” He said it costs between $200,000 and $400,000 to dismiss a teacher.

He also took issue with the defense argument that students in poor and minority districts can be protected from “lemon” teachers through reassignment. So many undeserving applicants can apply to a particular district, he said, that it becomes a “lemon accumulation machine.”

Hoffstadt, however, questioned whether the evidence can actually be applied to all districts.

“The evidence is strong of accumulation,” Boutrous responded. “But if it doesn’t happen in some districts, then certainly the rights of kids in other districts are being violated over and over again.”

He cited testimony by teachers and principals of colleagues with considerable deficiencies, whose seniority protects their jobs even in times of economic distress.

“Teachers of the Year are being laid off, while grossly ineffective teachers remain in the classroom,” he said.

The case is Vergara v. State of California, Superior Court No. BC484642.


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