On June 10, 2014, a Los Angeles Superior Court judge issued a decision holding California’s teacher tenure protections unconstitutional in the case of Vergara v. California, Case No. BC484642.  Students Matter, an education non-profit organization, filed the lawsuit on behalf of nine public and public charter school students. The students sued the state of California, Governor Brown, State Superintendent of Public Instruction Tom Torlakson, the California Department of Education, the State Board of Education, and several school districts, including the Los Angeles Unified School District. The California Teachers Association and California Federation of Teachers intervened on behalf of the defendants.

The students alleged five Education Code provisions violate the Equal Protection clause in the California Constitution. The Court referred to these statutes as the Permanent Employment Statute, the Dismissal Statutes, and Last-In-First-Out (“Challenged Statutes”).The Permanent Employment Statute gives teachers permanent employee status (tenure) if they are rehired after being employed with a school district for two complete consecutive school years. Districts must notify the teacher of a decision not to reelect prior to March 15 of the second year of employment. The Dismissal Statutes require an employee be given a detailed written notice of unsatisfactory performance at least 90 days’ prior to the date of filing charges of unsatisfactory performance and limits the time period in which districts can act.  The Dismissal Statutes also provide teachers with the right to request a hearing before a three-member panel before dismissal, which includes discovery rights similar to those available in civil litigation. Finally, the Last-In-First-Out statute provides that more recently hired teachers must be laid off before more senior teachers, without any consideration of the teachers’ effectiveness. The students claimed the Challenged Statutes resulted in “grossly ineffective” teachers remaining employed and that said schools with low-income and minority students have a disproportionate amount of ineffective teachers.

Since the right to an education is a fundamental interest, the Court applied strict scrutiny analysis to the Challenged Statutes.  The Court determined the defendants and intervenors did not satisfy their burden of proving the laws are narrowly tailored and necessary to achieve compelling governmental interests.  Therefore, the Court held the Challenged Statutes did not pass constitutional muster.

The judge determined the Permanent Employment Statute did not provide enough time for a district to make an informed decision regarding tenure.  The Court also found that these statutes also disadvantaged teachers, as districts in some cases released teachers if there was any doubt about the decision to grant tenure.  The Court held the Permanent Employment Statute as unconstitutional under the Equal Protection clause because the current tenure scheme under the statute disadvantages students and teachers “for no legally cognizable reason.”

The Court held the Dismissal Statutes unconstitutional because the time consuming, costly, and complicated process involved under the Dismissal Statutes makes it difficult to efficiently dismiss a grossly ineffective teacher. Evidence presented showed the process required by the Dismissal Statutes makes districts reluctant to commence dismissal procedures with grossly ineffective teachers. The Court stated the evidence of the effect of grossly ineffective teachers on students “shocks the conscience.” The judge described the amount of time and expense required to dismiss a teacher under the Dismissal Statutes as a “tortuous process.” The Court agreed that teachers, as public employees, are entitled to due process rights, but the Court failed to see a legitimate reason behind affording teachers a more complex and costly process compared to the processes afforded to other public employees.

The Court found it problematic that the Last-In-First-Out process requires a junior teacher to be laid off before a senior teacher even if the junior teacher is the more effective and competent instructor. The Court pointed out that only ten states have a Last-In-First-Out scheme similar to California’s, while other states allow for consideration of seniority or district discretion.  Two states outright prohibit considering seniority during layoffs. The Court determined the defendants did not meet their burden of showing a compelling interest, in part because it determined the defendants could not show a compelling interest in “the de facto separation of students from competent teachers, and . . . retention of incompetent ones.”

The Court was persuaded by the evidence showing the Challenged Statutes disproportionately affect schools with low-income and minority students, which showed those schools typically have a disproportionate number of underqualified, inexperienced, or ineffective teachers.

The Court enjoined enforcement of the Challenged Statutes, but stayed the injunctions pending appellate review. The state defendants stated they are considering their options moving forward and the union intervenors announced they intend to appeal the decision. Once the appeals conclude, if the lower court’s decision is upheld, the California Legislature may pass legislation to replace the Challenged Statutes.  Legislative efforts to reform teacher tenure laws in California have failed in the past, so it remains to be seen what legislation will result.