Author: Eric Stevens, Attorney at Law
On Tuesday, June 10, 2014, a Los Angeles Superior Court Judge ruled that the Education Code’s schemes for certificated employee tenure, dismissals, and seniority-based layoffs are unconstitutional. However, there are no immediate changes for school employers as the ruling is pending appeals.
The case is Vergara et al. v. State of California, L.A. Superior Court Case No. BC484642. Ms. Vergara is a California public school student, and through parents and guardians, she and eight other students sued the state and three school districts in May 2012. While the school districts were voluntarily dismissed from the lawsuit, the California Teachers Association and California Federation of Teachers were allowed to intervene in the lawsuit in support of the challenged laws because of their “legitimate and immediate interests” in the case.
The students claimed that the state’s laws granting tenure to certificated employees after only two years, establishing detailed rules for certificated employee terminations, and establishing seniority-based “last in, first out (LIFO)” layoffs violated students’ right to the same quality public education offered to other public school students throughout the state. They argued, and the court agreed, that these laws shelter “grossly ineffective” teachers who have a strongly negative impact on their students’ education and future earnings potential. These teachers are not evenly distributed around schools and school districts. Instead, through the “dance of the lemons,” they wind up in the lowest-income, worst performing schools which disproportionately serve minority students. Therefore, the students and court say, while every student with an ineffective teacher suffers, minority students suffer more because they are more likely to have ineffective teachers:
“Plaintiffs have proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.” P. 8.
When judging whether a law is constitutional, courts apply different degrees of scrutiny depending upon the category of people who are harmed (intentionally or not) and the right which is impacted. Finding that these laws impacted a “fundamental right to equality of education” and disproportionately harmed minority students, the court applied “strict scrutiny,” which is virtually always fatal to the challenged law. Unsurprisingly, under “strict scrutiny,” the court found that the state’s interest in protecting experienced teachers was not compelling enough, and the state’s means of advancing that interest were not narrowly tailored enough, to justify the disproportionately harmful impact of “grossly ineffective” teachers on minority students. The court went out of his way to point out that the process for disciplining and terminating classified employees fully respects those employees’ constitutional rights. However, compared to the certificated employee dismissal laws, it is much easier and cheaper to terminate ineffective classified employees.
The state and CTA/CFT have vigorously opposed the students’ arguments, and the students also have passionate supporters backing their legal challenge, so these issues are unlikely to be resolved before both sides have exhausted the lengthy appeals process.
In anticipation of the appeals which are certain to come, the court suspended the implementation of this order, which would exempt public school employers from having to comply with these laws until a California Court of Appeal rules on the case. Whether a Court of Appeal reverses this judge’s ruling, or upholds the ruling in part or in its entirety, it is very likely that another round of appeals to the California Supreme Court will occur. In all, it will likely be several years before these issues are settled. Given the intense interest in this case and the potential for dramatic changes to how schools dismiss teachers, it is also likely that any judicial orders striking down these laws will be suspended until the entire appeals process is exhausted. That means change might be coming, but it would probably be several years off.
It is important for public school employers to remember that even if any of these laws are ultimately struck down, they must still adhere to their board policies and collective bargaining agreements. Most likely the substance of these laws is already enshrined in those policies and CBAs, in which case any changes to the law would likely only open the door to bargaining.