BY HANK REICHMAN

In a unanimous decision issued today (April 14), a three-judge panel of the California Court of Appeal for the Second District overturned the infamous lower court decision in Vergara v. State of California, which had declared tenure and seniority protections for K-12 teachers enshrined in California’s Education Code unconstitutional.

Los Angeles County Superior Court Judge Rolf Treu had held that several key job protections for teachers are so harmful to students that they deprive children of their constitutional right to an education.  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. He concluded the state’s tenure and seniority systems harmed all students, but especially poor and minority students, leading to outcomes that “shocked the conscience.” The state of California and the state’s main teacher unions appealed.  [For previous posts to this blog on the case, Treu’s decision, and the appeal go here.]

The AAUP joined others in filing an amicus curiae brief in the case on behalf of the appellants.

“We reverse the trial court’s decision,” Presiding Justice Roger Boren wrote.

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.”

After discussing the evidence presented at trial, Judge Treu’s decision, and applicable case law, the 36-page ruling examines “whether plaintiffs demonstrated that the challenged statutes cause a certain class of students to suffer an equal protection violation.”  In their suit the plaintiffs, a group of Los Angeles high school students supported by the advocacy group Students Matter, which is, funded by Silicon Valley multi-millionaire David Welch, argued that the law effectively divided students into two affected groups, with Group 1 “an ‘unlucky subset’ of the general student population that is denied the fundamental right to basic educational equality because students within this subset are assigned to grossly ineffective teachers.”  Judge Treu concluded that “the challenged statutes are unconstitutional because they lead students within Group 1 to be assigned to grossly ineffective teachers and thereby have a real and appreciable impact on these students’ fundamental right of education.”

However, the appellate decision concludes, the trial court’s decision “omits analysis of a key preliminary question: Is the unlucky subset of students comprising Group 1 a sufficiently identifiable group for purposes of an equal protection action?”  Justice Boren answers in the negative:

Here, the unlucky subset is not an identifiable class of persons sufficient to maintain an equal protection challenge. Although a group need not be specifically identified in a statute to claim an equal protection violation, group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute. The defining characteristic of the Group 1 students, who are allegedly harmed by being assigned to grossly ineffective teachers, is that they are assigned to grossly ineffective teachers. Such a circular premise is an insufficient basis for a proper equal protection claim. . . .

Indeed, every equal protection case based on the infringement of a fundamental right has involved a class identified by some characteristic other than asserted harm. . . .

In contrast, the unlucky subset constituting Group 1 is definable only by the characteristic that group members have assertedly suffered constitutional harm. What is more, the statutes do not assist plaintiffs with their definitional deficiency because they do not specify which students will be the “unlucky ones.” . . .  Under plaintiffs’ Group 1 theory, an unlucky subset of students will inevitably be assigned to grossly ineffective teachers. The chance that this will happen to any individual student, however, is random, as the challenged statutes do not make any one student more likely to be assigned to a grossly ineffective teacher than any other student. Thus, the unlucky subset is nothing more than a random assortment of students. Moreover, because (according to the trial court’s findings) approximately 1 to 3 percent of California teachers are grossly ineffective, a student in the unlucky subset one year will likely not be the next year, meaning that the group is subject to constant flux.

The decision also took on the plaintiffs’ contention, also endorsed by Judge Treu at the trial court level, that “poor and minority students (Group 2) suffered disproportionate harm from being assigned to grossly ineffective teachers. . . .  Based on its finding of disproportionate harm, the trial court determined that strict scrutiny of the challenged statutes was appropriate. In making this determination, however, the trial court bypassed an initial question of the required analysis: Did the challenged statutes cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers?”

Again, Boren’s opinion answers the question in the negative:

A statute is facially unconstitutional when the constitutional violation flows “inevitably” from the statute, not the actions of the people implementing it.  . . .

It is clear that the challenged statutes here, by only their text, do not inevitably cause poor and minority students to receive an unequal, deficient education. With respect to students, the challenged statutes do not differentiate by any distinguishing characteristic, including race or wealth.

Plaintiffs still could have demonstrated a facial equal protection violation, however, by showing that the challenged statutes, regardless of how they are implemented, inevitably cause poor and minority students to be provided with an education that is not “basically equivalent to” their more affluent and/or white peers. It is possible, though not certain, that plaintiffs could have made such a showing by proving that any implementation of the statutes inevitably resulted in the consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students.

No such showing was made. Instead, the evidence at trial firmly demonstrated that staffing decisions, including teacher assignments, are made by administrators, and that the process is guided by teacher preference, district policies, and collective bargaining agreements. This evidence is consistent with the process set forth in the Education Code, which grants school district superintendents the power to assign teachers to specific schools or to transfer teachers between schools within a district, subject to conditions imposed by collective bargaining agreements, district policies, and by statute. Further, the evidence at trial showed what the text of the challenged statutes makes clear—that the challenged statutes do not in any way instruct administrators regarding which teachers to assign to which schools. Thus, it is administrative decisions (in conjunction with other factors), and not the challenged statutes, that determine where teachers are assigned throughout a district.

. . .  According to trial testimony, some principals rid their schools of highly ineffective teachers by transferring them to other schools, often to low-income schools. This phenomenon is extremely troubling and should not be allowed to occur, but it does not inevitably flow from the challenged statutes, and therefore cannot provide the basis for a facial challenge to the statutes. . .

. . . [W]hile plaintiffs have identified a troubling problem, they have not properly targeted the cause. The challenged statutes do not inevitably lead to the assignment of more inexperienced teachers to schools serving poor and minority children. Rather, assignments are made by administrators and are heavily influenced by teacher preference and collective bargaining agreements. . . .

. . . Even if the statutes were struck down, the harm at issue—the disproportionate assignment of inferior teachers to poor and minority students—could still occur as before. (Any system will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect, do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators from assigning the worst teachers to schools serving poor and minority students.

In sum, the evidence presented at trial highlighted likely drawbacks to the current tenure, dismissal, and layoff statutes, but it did not demonstrate a facial constitutional violation. The evidence also revealed deplorable staffing decisions being made by some local administrators that have a deleterious impact on poor and minority students in California’s public schools. The evidence did not show that the challenged statutes inevitably cause this impact. 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 trial court’s judgment declaring the statutes unconstitutional, therefore, cannot be affirmed.

Justices Judith Ashmann-Gerst and Brian Hoffstadt concurred with Justice Boren’s ruling.

“Today’s decision vindicates decades of experience that show many local districts across the state are working collaboratively with teachers to help public education thrive. We need to take those best practices and expand them, not wipe out education codes that protect students and teachers,” said Joshua Pechthalt, president of the California Federation of Teachers. “We have a looming teacher shortage that is made worse by lawsuits like this one and the constant attacks on teachers and public education. We need to work together to raise up teacher performance and create a climate that keeps veteran teachers in the classroom and attracts young people to the profession.”

“This is a great day for educators and, more importantly, for students,” said California Teachers Association President Eric C. Heins. “Today’s ruling reversing Treu’s decision overwhelmingly underscores that the laws under attack have been good for public education and for kids, and that the plaintiffs failed to establish any violation of a student’s constitutional rights. Stripping teachers of their ability to stand up for their students and robbing school districts of the tools they need to make sound employment decisions was a wrong-headed scheme developed by people with no education expertise and the appellate court justices saw that.”