Background

On June 10, 2014, Liebert Cassidy Whitmore reported on the Superior Court decision in Vergara v. State of California. The plaintiffs had alleged that teacher tenure, dismissal and layoff statutes found in the California Education Code unconstitutionally harmed students in two groups: (1) a general group of students who were taught by “grossly ineffective” teachers; and (2) minority and low-income students who are more likely to be taught by “grossly ineffective” teachers because schools serving these students have more than their proportionate share of such teachers. The plaintiffs’ claims were that: (1) the probationary period for tenure is too short, thus preventing an accurate determination of whether teachers were effective before granting tenure; (2) the process for removing grossly ineffective teachers is so burdensome and complicated that it is functionally impossible to dismiss them; and (3) reductions in force (or layoffs) require the least senior teachers to be released first, thus removing effective junior teachers and retaining grossly ineffective senior teachers. The plaintiffs sought to have the statutes declared unconstitutional as violating the equal protection clause of the California constitution.

After an eight-week bench trial, the judge held that the Education Code statutes at issue were unconstitutional. On April 14, 2016, the California Court of Appeal for the Second Appellate District overturned the trial judge’s decision.

Evidence Submitted by the Parties

The Court of Appeal first described the evidence adduced at the original trial. The plaintiffs’ expert witnesses testified to the negative impact grossly ineffective teachers have on student success. The plaintiffs’ witnesses also included school district administrators, who testified to the difficulty of making a tenure decision by March 15 of a teacher’s second year, and to the difficulty and expense of terminating a teacher for unsatisfactory performance. The plaintiffs’ witnesses also testified that the seniority-based layoff system resulted in highly effective junior teachers being laid off while grossly ineffective senior teachers were retained.

Finally, plaintiffs’ witnesses testified that ineffective teachers are often transferred into and concentrated in schools that predominately serve minority and low-income children. Administrators testified that they often transfer poorly performing teachers to other schools as a mechanism for teacher removal. Often, poorly performing teachers are removed from higher-performing schools and moved to lower-performing schools.

Defendants’ witnesses rebutted some of the testimony of plaintiffs’ witnesses. For example, one expert witness testified that in-school effects on children’s achievement were generally overstated when compared to out-of-school effects. Defendants’ witnesses also testified that teacher tenure statutes support academic freedom. Other witnesses, including school district administrators, testified that the tenure statute gave them sufficient time to determine whether a teacher was ineffective before making a decision to non-reelect. Administrators further testified that they were able to remove underperforming teachers through settlements and other methods, other than utilizing the teacher termination process. Defendants’ witnesses also testified that the seniority-based layoff process was fair, and that ranking for effectiveness, rather than seniority, was difficult and contentious.

Defendants also presented rebuttal evidence regarding plaintiffs’ testimony on the concentration of ineffective teachers at low income schools. They presented evidence that other factors cause a failure of retention and recruitment of effective teachers, such as difficult working conditions at the school.

Analysis

The Appeals Court noted that “statutes relating to education are provided a presumption of constitutionality” and “policy judgments are left to the Legislature.” The Court then went on to discuss the standard of review. Key to its ruling, as described below, the court noted that the plaintiffs had made a “facial” challenge to the statute – seeking a holding that any application of the challenged statutes to any person in any circumstance was unconstitutional – rather than an “as applied” challenge, which would have sought a holding that the defendants applied the statute in an unconstitutional manner.

Group 1 – Students Assigned to Grossly Ineffective Teachers

The Court began its analysis of the constitutionality of the statutes by stating that a prerequisite to an equal protection challenge is showing that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner” and describes an identifiable group impacted by the statute. If that is the case, the Court will then determine whether the Legislature had a constitutionally sufficient reason for treating the groups differently.

The Court held that the first group identified by the plaintiffs – a general group of students who were taught by “grossly ineffective” teachers – was not an identifiable class for the purposes of equal protection analysis. To qualify as a protected classification, a group “must be identified by a shared trait other than the violation of a fundamental right.” Here, the Court found that the only distinction between the group identified by the plaintiffs and other students was the alleged violation of their fundamental right to an education. As such, the Court found an equal protection challenge could not be asserted on behalf of this group.

Group 2 – Low-Income and Minority Students Who are More Likely to Be Taught by Grossly Ineffective Teachers

The Court found that the second group (minority and low-income students) did meet the definition of a “identifiable class” for the purposes of an equal protection challenge. However, the Court held that the statutes were not unconstitutional because they did not cause the alleged constitutional violation. A statute is facially unconstitutional when a constitutional violation “inevitably flows” from the statute itself, rather than from the discretionary actions of those who implement the statute. Such facial invalidity arises where a statute requires an unconstitutional result by its plain language, or where an unconstitutional application of the statute will flow inevitably from the text regardless of the actions of those who administer the statute.

Here, the Court found that the challenged statutes do not, by their text, impact minority and low-income students, as their text does not address them. The Court noted that the plaintiffs could have demonstrated that the statutes violated equal protection because a negative impact on poor and minority students inevitably flows from the statutes and occurs regardless of how they are implemented, but that the plaintiffs failed to make this showing.

The Court held that, to the extent any students’ constitutional rights are violated, it is due to the actions of those implementing the statutes—not the statutes themselves. According to the Court, the evidence presented at trial demonstrated that teacher assignment decisions are made by administrators and based on teacher preference, district policies, and collective bargaining agreements, and are not dictated by the statutes at issue. The Court held that none of the findings at trial supported a conclusion that “the challenged statutes determine where grossly ineffective teachers work.” Rather, the process of assigning grossly ineffective teachers to low-income schools was “driven by local administrators.” While the Court found this troubling, it held that this assignment of grossly ineffective teachers “does not inevitably flow from the challenged statues and therefore cannot provide the basis for facial challenge to the statutes.” While the evidence at trial highlighted drawbacks to the challenged statutes, it did not demonstrate a constitutional violation.

In reaching its holding, the Court only minimally addressed the seniority-based layoff statutes, stating that problems created by layoffs at lower performing schools were also the result of assignments based on administrator decisions, teacher preference, and provisions in collective bargaining agreements. This conclusion does not appear to have taken into consideration that the layoff statutes provide significantly less discretion to administrators than rules about assignment and transfer. The Court also did not directly address the allegation that the tenure period is too short, or consider the lack of administrative discretion in this regard. Rather, it treated layoff and tenure under the broad umbrella of “assignment.”

The Court appeared to hint that it may have found a violation if the plaintiffs had alleged that the statute was violated as it was applied by various districts. Indeed, the Court stated, “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 lead attorney for the plaintiffs issued a statement today which seems to indicate that the plaintiffs intend to appeal this decision to the Supreme Court of California. Liebert Cassidy Whitmore will provide updates as they become available.

Note: The original superior court decision was stayed pending this appeal. As a result, districts continued to be bound by the statutes at issue in the case. Therefore this case does not change how districts should operate with regard to tenure, layoff and teacher discipline. (The Court, in a footnote, stated that the 2015 changes to the teacher discipline statutes did not impact the analysis.) Districts may, however, expect a challenge to their application of the statutes, especially with respect to assignment of teachers to under-performing schools.