California Appeals Court Overturns Anti-Union Lawsuit Vergara v California

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Betsy Combier
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In a win for unions, appeals court reverses ruling that threw out teacher tenure in California

Beatriz Vergara

In a win for unions, appeals court reverses ruling that threw out teacher tenure in California

Howard Blume , Joy Resmovits and Sonali Kohli Contact Reporters

In a major victory for unions, a California appeals court reversed a lower court ruling that threw out tenure and other job protections for the state's public school teachers.

The case was being closely watched across the country because advocates argued allowing administrators to more easily fire bad teachers would improve schools and student performance. Right now, there are a series of job protections that are evoked before school districts can remove a teacher.

“I think it’s a win certainly for educators, but also a win for students,” California Teachers Assn. President Eric C. Heins said of Thursday's ruling. “The trial never made the connection between the harms they were alleging and the statutes they were challenging. I think the laws have been working.”

A judge’s 2014 ruling in the case, Vergara vs. California, held that several key job protections for teachers are so harmful to students that they deprive children of their constitutional right to an education.

Lawyers representing the state of California and its powerful teachers unions argued earlier this year before the three-judge panel that the decision should be reversed and that the laws in question do not violate students’ rights. 

At issue was the ruling by L.A. County Superior Court Judge Rolf Treu, which nullified the state’s system of awarding strong protections for teachers — including tenure, which takes effect at the end of their second year on the job.

Treu’s decision would have ended tenure as well as the practice of “last-in, first-out,” which typically results in districts laying off less-experienced teachers during budget cuts — regardless of how well they do in their job.

And Treu also threw out rules that provide teachers a longer and more complex system to challenge dismissals.

Backers of the lawsuit argued that making it easier for schools to get rid of bad teachers would help schools.

Treu concluded the state's tenure and seniority systems harmed all students, but especially poor and minority students, leading to outcomes that "shocked the conscience."

Had the ruling been upheld, teachers at unionized schools would no longer be entitled to a level of job security that's rare, even in the public sector.

Opponents, including Gov. Jerry Brown and the state's teachers unions, characterize this solution as simplistic and even dangerous.

They say that killing tenure and seniority would result in a lower-quality teaching corps, and that the profession would attract and retain fewer of the sort of talented people who have other career options.

The plaintiffs said they plan to appeal the ruling. Lead counsel Theodore Boutrous called the ruling a “temporary setback” in a statement, adding that the Court of Appeals “mistakenly” blames school districts. “The mountain of evidence we put on at trial proved … that the irrational, arbitrary, and abominable laws at issue in this case shackle school districts and impose severe and irreparable harm on students,” Boutrous said.

But the ruling’s strong and direct language would make it difficult for the plaintiffs to win an appeal with the California Supreme Court, an expert said. The ruling repeats that the plaintiffs did not offer enough evidence to show that teacher tenure statutes are themselves unconstitutional, said Stuart Biegel, a UCLA education and law professor.

For the Record

5:02 p.m.: An earlier version of this post incorrectly said the court ruled that the plaintiffs did not have enough evidence to show teacher tenure statutes are not in themselves unconstitutional. It has been corrected.

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“This shows that it’s not going to be so easy to win such a case in a court of law” in other states, Biegel said. "But it doesn’t necessarily show that teacher tenure is alive and well and shouldn’t be reformed.”

“The court found that it was administrative decisions that caused the harm that plaintiffs had been discussing,” rather than the statutes themselves, Biegel said.

The reasoning of the ruling is sound, according to Kevin Welner, a professor at the University of Colorado-Boulder, and the director of that school’s National Education Policy Center.

“The case is built by two different houses of cards, one stacked on the other: the factual record and how they were presenting the law,” he said. “The appellate court knocked down both houses here.”

The ruling should send a message to Treu because it was unanimous and went through the lower ruling point by point, said Randi Weingarten, president of the American Federation of Teachers union. “The lower court judge basically ruled on his ideology, not on the evidence,” she said.

Weingarten acknowledges that the current tenure laws are problematic, and said that the state of California should “work together” to improve them. But, she added, “you can’t fire your way to a teaching force.”

Vergara has caused small ripple effects across the country. A similar suit supported by the Partnership for Educational Justice, an organization founded by former CNN news anchor Campbell Brown, is ongoing in New York.

On Wednesday, the organization announced another lawsuit against tenure, this time in Minnesota. There, four mothers filed suit, alleging that the state’s tenure and teacher dismissal laws are unconstitutional because they impede their children’s ability to access a constitutionally promised "general and uniform" and “thorough and efficient” public school system.

The statutes, the parents allege, “perpetuate Minnesota’s opportunity gaps."

In California, blaming administrators rather than the system as it is set up wouldn’t have as much of a national reach, said Mark Paige, a public policy professor at University of Massachusetts-Dartmouth.

“They wanted the knockout punch, and had they gotten that through sort of a systemwide strike-down, then the dominoes could have fallen in Minnesota and in New York,” Paige said. “But had they gone with a … focus it probably wouldn’t have served the objective of striking down tenure entirely.”

This case has brought much-needed attention to the way that state teacher tenure and layoff policies, paired with local agreements between teachers unions and school districts, cause high-need students to get stuck with inexperienced teachers and high turnover of those teachers, Strunk said.

Even if a higher court maintains this decision, Strunk said, “we’re seeing a lot of pressure on state legislatures to do something.”

California Assembly Republican Leader Chad Mayes, who represents Yucca Valley, said in a statement that he disagreed with the ruling, though he added that the Legislature can and should act on tenure without a court mandate.

“Legislators in Sacramento have the tools available right now to end bad policies such as ‘Last In, First Out’ and our currently flawed teacher tenure system,” Mayes said. “It is time to stop defending laws that are clearly indefensible and deprive low-income and minority students of a good education.”

BREAKING NEWS: California Appeals Court Unanimously Reverses Vergara Decision!

By dianeravitch

Michael Rebell: The Anti-Tenure Lawsuit In NYC Will Fail, and Why

Why the anti-tenure lawsuit will fail 

For one, New York laws are much different than California's

BY MICHAEL REBELL 

 

NEW YORK DAILY NEWS

 

Monday, July 7, 2014, 4:30 AM

LINK

Campbell Brown

A few weeks ago, a judge in California struck down the state’s teacher tenure and seniority-order layoff laws. Even though the ruling has not yet been reviewed by the California Supreme Court — which may well reverse it — there already is a strong copycat effect, as groups in a number of states, including New York, have announced plans to file similar lawsuits in the near future.

 

I doubt that a New York version of the California suit will succeed. And though some liken it to an earlier lawsuit I filed, which secured the promise of more equitable funding for city schools, the parallel is misguided.

 

I was the attorney for the plaintiffs in Campaign for Fiscal Equity vs. New York, the landmark case in which, in 2006, the state’s highest court ordered the governor and the state Legislature to increase funding for the public schools by billions of dollars to ensure all students their right to a decent education.

 

Since that decision was issued, I have been repeatedly tagged as an advocate of “judicial activism” by conservatives, who have expressed outrage at the courts’ ordering the state to spend more money on the schools. They argue that such judicial orders usurp executive and legislative authority and violate the constitutional separation of powers.

 

Now, these very same conservatives are rushing to ask the courts to wade into the weeds of legislative policy decisions to an extent that would dwarf anything that the courts have done in the school-funding arena.

Move past the hypocrisy to the merits, and those filing this New York case stand on even shakier ground.

 

First of all, the tenure laws in California are markedly different from those in New York and most other states. The tenure statute at issue in California essentially require the school authorities to make a decision on a candidate’s permanent right to employment after a novice teacher has been on the job for only 18 months - and before a mandatory evaluation process has been completed.

 

The law in New York, as well as in the vast majority of other states, requires at least a three-year probationary period. The New York Legislature also recently enacted a major new personnel evaluation system for the purpose of improving the quality of the teaching corps and identifying poorly performing teachers more effectively than the procedures that were used in the past. The long-term results of that reform are as yet unknown.

 

Second, the New York Court of Appeals has repeatedly emphasized its respect for the separation of powers and the importance of courts avoiding “intrusion on the primary domain of another branch of government.” It made an exception to this pattern of deference in regard to education funding because of language in the Constitution that guarantees all students the opportunity for a sound basic education.

 

In a companion case involving claims of racial segregation in the schools that the court decided on the same day as CFE, judges made clear that they were not willing to extend the protections of the concept of “sound basic education” to other types of alleged discrimination.

 

Third, there is no clear evidence that eliminating tenure and seniority layoffs will result in a more effective teaching corps or more equal access to quality teaching. Certainly, there are ineffective teachers in our schools, and they tend to work in the schools attended by low-income and minority students.

 

But tenure arguably promotes stability in the teaching force, values experience and may well be an incentive for recruiting capable individuals for what is still a relatively low-paid profession. Tenure may also shield skilled teachers from politically or ideologically motivated retribution in an education system that has become increasingly politicized.

 

The California judge did not consider all these factors in making his decision. I believe the New York courts will.

 

Rebell is a professor of law and educational practice at Teachers College, Columbia University.