California Supreme Court Won't Hear Appeal on Challenge to Teacher Job Protection Rules that Harm Students

Three judges dissent from 4-3 decision to let teacher's appeal victory stand; "Vergara and her fellow plaintiffs raise profound questions with implications for millions of students across California. They deserve an answer from this court," says Judge Cuellar.


Back in 2012, nine California students with the help of activist group Students Matter sued the state of California and several of its education agencies, claiming that various state statutes defending teachers' perquisites made education so bad for students that it amounted to a violation of their state-constitution granted right to a public education.

The challenged policies regarded how hard it is to fire bad teachers, and seniority rules that dictate that when teachers are let go, performance isn't considered in the decision.

Students Matter website

The end result, as the aggrieved students argued in an early court filing in Vergara v. California, is that "school districts are forced to place failing teachers—those who are often well known to be either unable or unwilling to perform their jobs in even a minimally satisfactory manner—in classrooms where they perform miserably year after year in teaching California's students. Students taught by these grossly ineffective teachers are missing out on half or more of the learning that students taught by average teachers receive in a school year, leaving them far behind their peers and placing the quality of the rest of their lives in jeopardy."

The student plaintiffs won in state Superior Court in June 2014. As I reported at the time:

Judge Rolf M. Treu reasoned that the challenged teacher rules—regarding permanent employment status, dismissal procedures, and a "last in first out" rule for layoffs—do indeed damage California children's constitutional right (on the state level) to an education. He wrote that the challenged statutes "cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students" and "to minority and/or low income students in particular, in violation of the equal protection clause of the California constitution."

"Evidence has been elicited in this trial," the Judge writes, "of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience." He was convinced by expert testimony that bad teachers can cause over a million in lifetime earning losses for students, and cost them 9 months of learning per year compared to students with even average teachers. He estimate 2,750 to 8,250 inferior teachers active in California now.

That opinion of Judge Treu's was overturned on appeal in April of this year, basically on the grounds that, although the policies certainly harmed California students, the statutes in and of themselves (the specific things being legally challenged), as opposed to their implementation, did not have a disparate impact on any specific legally recognizable group such that an "equal protection" challenge can stand.

This week the California Supreme Court declined to hear Vergara on further appeal, leaving that victory for the teachers from California's 2nd Circuit Court of Appeals to stand.

The decision to decline the case was 4-3, and two justices wrote dissents about the Court's decision to not consider Vergara. Those dissents sum up why the majority was irresponsible.

Justice Goodwin Liu, for example, believes that by existing precedent, the aggrieved groups can qualify as a distinct group to whom an equal protection argument can apply.

He does agree that the class of poor and minority students, though they are in fact harmed by the policies, don't rise to a legally protected class when it comes to the statutes' very existence, as opposed to the way they are implemented, since " the record does not appear to include substantial evidence that the concentration of grossly ineffective teachers in poor and minority schools is caused by the challenged statutes as opposed to teacher preferences, administrative decisions, or collective bargaining agreements."

But there is still a legitimate protected class argument to be made, Liu believes.

In a 1992 state case, Butt v. California, involving a school district closing six weeks earlier than the rest of the state because of lack of funds, the Court decided "The students in Butt suffered a denial of equal protection not because they belonged to any identifiable class but because they were enrolled in a distressed school district. Here, as in Butt, students have asserted an equal protection claim on the ground that they are being denied significant educational opportunities that are afforded to others. The inequality in Butt arose from the fortuity of attending a school district that, unlike other districts, ran out of money. The inequality in this case arises from the fortuity of being assigned to grossly ineffective teachers who, in comparison to competent teachers, substantially impede their students' educational progress."

Liu thinks Butt proves that the Vergara students have a legitimate equal protection argument. Liu goes on to detail many of the absurd rules and practices making firing bad teachers so hard in California, and overall believes that "Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review" despite four of his colleagues disagreeing.

Justice Mariano-Forentino Cuellar also dissented from the decision to not take up Vergara. He notes that:

According to the trial court, plaintiffs had "proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact" to the detriment of these students' fundamental right to equality of education. At no time did the Court of Appeal dispute this conclusion. What was instead fatal to the claim advanced on behalf of the arbitrarily burdened children, according to the appellate court, was plaintiffs' failure to prove the existence of an identifiable group treated differently by the challenged laws, a group separate and apart from the individuals allegedly harmed by those laws.

Cuellar, like Liu, thinks that the "no identifiable group" argument really needs rethinking, and concludes that "Beatriz Vergara and her fellow plaintiffs raise profound questions with implications for millions of students across California. They deserve an answer from this court. Difficult as it is to embrace the logic of the appellate court on this issue, it is even more difficult to allow that court's decision to stay on the books without review in a case of enormous statewide importance."

In a press conference call yesterday, David Welch, founder of Students Matter, after expressing his disappointment at the Supreme Court's decision to decline Vergara, said he's pleased the case managed to "shine a spotlight on California's broken system" of public education, and says his group will continue to be part of a multi-front attempt to get "California to reorient education so it's about students instead of adults" and teacher's professional prerogatives.

"We remain committed to working for responsible policies supported by the vast majority to respect, reward, and retain effective teachers," Welch says, "and ensure all students have access to the quality teachers they deserve."

One of the student plaintiffs, Julie Macias, lamented in that press conference that "toxic and ineffective teachers" harmed her education, and is proud of her role in "this honorable cause, which I believe we will win if we keep fighting."

Such effort may included future legal action, though none were specifically named yet. Lawyer Ted Boutros said in the press conference that the dissents from Liu and Cuellar quoted above "provide a roadmap for future challenges."

In American history, he says, we've seen important dissents in early cases, such as Plessy v. Ferguson, win the argumentative day in later cases, such as Brown v. Board of Education. Boutros predicts victory against teacher rules that harm students as something to be won not just in court but in public opinion and policy across the nation. (Welch also said that legislative pressure will continue to be part of their arsenal in fighting the teachers' unions.)

Boutros spoke of potential future federal as well as state challenges to California's student-harming rules. "If you talk to any rational person on the street about these issues," Boutros says, "they agree with us, and that will eventually win the day" even though we "couldn't get [a permanent win] in this first case."

"We are right on the facts and on the law," Boutros says. "These dissenting justices provided a platform to us and others to go back in fighting and ultimately win the day."

A ReasonTV interview from happier times, after the students' initial victory in trial court: