A bit more than a year ago a California Superior Court, ruling in Vergara v. California, overturned California statutes guaranteeing due process protections for K-12 teachers with more than two years experience (so-called “teacher tenure”) and layoff by seniority.  At the time I posted several items on the case, first here, then here, here, and here.  And an excellent piece by Los Angeles Times columnist Michael Hiltzik convincingly eviscerated the decision.  Now the AAUP has joined in an amicus brief in the California Court of Appeal  contesting the ruling.

The case arose from a challenge, funded by anti-union organizations, to five California statutes that provide K-12 teachers a two-year probationary period, stipulate procedural protections for non-probationary teachers facing termination, and emphasize teacher seniority in reductions of force. The trial court judge held that the statutes unconstitutionally impact students’ constitutional right to equality of education and disproportionately burden poor and minority students. The amicus brief contesting this decision argues that the challenged statutes help protect teachers from retaliation, help keep good teachers in the classroom by promoting teacher longevity and discouraging teacher turnover, and allow teachers to act in students’ interests in presenting curricular material and advocating for students within the school system.

After an eight-week bench trial, Los Angeles Superior Court Judge Rolf Michael Treu, in a short sixteen-page opinion containing only superficial analysis, adopted the plaintiffs’ theories in full, striking down each challenged statute as unconstitutional.  In doing so, Judge Treu improperly used the “strict scrutiny” standard and failed to adequately consider the substantial state interest in providing statutory rights of tenure and due process for K–12 teachers in the public schools.

Instead, Judge Treu accepted wholesale testimony given by the plaintiffs’ expert witnesses.  Based on this testimony, the court concluded that “the specific effect of grossly ineffective teachers on students . . . shocks the conscience” and that “there are a significant number of grossly ineffective teachers currently active in California classrooms” who have “a direct, real, appreciable, and negative impact on a significant number of California students . . . .”  Although he did not cite evidence showing a causal link between the statutes and students’ constitutional rights, Judge Treu held that the statutes unconstitutionally impact students’ fundamental right to equality of education and disproportionately burden poor and minority students. Judge Treu stayed his ruling pending appeal. The State Defendants and Intervenors California Teachers Association and California Federation of Teachers appealed to the Court of Appeal of the State of California for the Second Appellate District.

The AAUP has a particular interest in defending the due process protections of tenure in K–12 education.  As the recent and ongoing attempts in the Wisconsin legislature to eliminate tenure in public universities confirm, the AAUP’s efforts are crucial to retaining and protecting tenure and due process rights. The AAUP’s interests extend to preventing the erosion of these rights at all levels of education.

The brief makes two substantive arguments. First, it explains that by helping to insulate teachers from backlash or retaliation, the challenged statutes allow teachers to act in students’ interests in deciding when and how to present curricular material and to advocate for students within their schools and districts. In so doing, the brief recognizes the distinction between the academic freedom rights of primary and secondary school teachers and those of professors in colleges and universities.  Second, the brief argues that students are better off when good teachers remain in their classrooms, and the challenged statutes promote teacher longevity and discourage teacher turnover.

In filing the brief, the AAUP joined with a number of award-winning California teachers, the American-Arab Anti-Discrimination Committee, and the Fred Korematsu Center for Law and Equality at Seattle University.  Professor Charlotte Garden, an expert in labor law and constitutional law and litigation director of the Korematsu Center, served as the brief’s primary author.

To read the entire 51-page brief go to http://www.aaup.org/sites/default/files/files/Vergara-appeal.pdf