Friday, April 15, 2016
C.A. Upholds Statutes on Teacher Tenure and Dismissal
By KENNETH OFGANG, Staff Writer
Education Code provisions entitling teachers to tenure after two years of employment, and enacting procedural hurdles to the discharge of ineffective teachers, are constitutional, the Court of Appeal for this district ruled yesterday.
“We reverse the trial court’s decision,” Presiding Justice Roger Boren wrote for Div. Two. “Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. “
“Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.”
Los Angeles Superior Court Judge Rolf Treu ruled two years ago, following an eight-week trial, that five Education Code provisions hamper the education of poor and minority students and reward “grossly ineffective teachers.”
Nine individual plaintiffs and the group Students Matter argued that by forcing school districts to decide on whether to grant tenure before a teacher could be effectively evaluated, by making it virtually impossible to dismiss bad teachers, and by using seniority as the sole determining factor in layoffs, lawmakers had deprived two groups of students of their right to an equal education.
One such group, the plaintiffs argued, consisted of all students who are assigned to ineffective teachers, the other of poor and minority students in particular. The plaintiffs 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.
Boren, however, said the plaintiffs were guilty of circular reasoning in arguing that a group was “allegedly harmed by being assigned to grossly ineffective teachers,” and that what defines the group “is that they are assigned to grossly ineffective teachers.”
As for the defined class of poor and minority students, the presiding justice continued, the trial judge erred in subjecting the statutes to strict scrutiny, based on a finding that they were disproportionately harming the asserted class. In doing so, Boren said, “the trial court bypassed an initial question of the required analysis: Did the challenged statutes cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers?”
The record would not support any such conclusion, he said.
“It is clear that the challenged statutes here, by only their text, do not inevitably cause poor and minority students to receive an unequal, deficient education,” the presiding justice wrote. “With respect to students, the challenged statutes do not differentiate by any distinguishing characteristic, including race or wealth.”
Districts operating under the laws, he said, assign teachers to schools based not on any statutory command, but on a combination of teacher preferences, district policies, and collective bargaining agreements. “Further, the evidence at trial showed what the text of the challenged statutes makes clear—that the challenged statutes do not in any way instruct administrators regarding which teachers to assign to which schools,” Boren wrote.
‘Dance of the Lemons’
The presiding justice also addressed the phenomenon referred to by a plaintiffs’ expert as the “dance of the lemons,” whereby “certain principals, seeking to improve the quality of their own schools’ teacher pool, attempt to transfer poorly performing teachers to other schools within the district,” with a disproportionate number of those winding up in schools with large numbers of poor and minority students.
Boren accepted Treu’s conclusion that the “dance” is caused by the ineffectiveness of the dismissal statutes and by the layoff statute. But it remains the school districts, not the statutes, that “determine where grossly ineffective teachers work.” the appellate jurist said.
Boren emphasized that the court was dealing with a facial challenge to the constitutionality of the statutes, and not determining whether they were “a good idea” or whether the implementation of the laws in individual districts might violate constitutional rights.
“In sum, the evidence presented at trial highlighted likely drawbacks to the current tenure, dismissal, and layoff statutes, but it did not demonstrate a facial constitutional violation. The evidence also revealed deplorable staffing decisions being made by some local administrators that have a deleterious impact on poor and minority students in California’s public schools. The evidence did not show that the challenged statutes inevitably cause this impact. Plaintiffs elected not to target local administrative decisions and instead opted to challenge the statutes themselves. This was a heavy burden and one plaintiffs did not carry. The trial court’s judgment declaring the statutes unconstitutional, therefore, cannot be affirmed.”
Gibson, Dunn & Crutcher’s Theodore Boutrous Jr., who argued the case for the plaintiffs, vowed to seek review in the state Supreme Court.
“We came to court to defend the rights of California’s public school students and will continue to do so, despite today’s temporary setback,” he said in a statement. “The Court of Appeal’s decision mistakenly blames local school districts for the egregious constitutional violations students are suffering each and every day, but the mountain of evidence we put on at trial proved—beyond any reasonable dispute—that the irrational, arbitrary, and abominable laws at issue in this case shackle school districts and impose severe and irreparable harm on students. We are disappointed by the Court of Appeal’s decision today, but expect that the California Supreme Court will have the final say.”
The case is Vergara v. State of California, B258589.
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