California, Education / Schools, State Judges

Tenure Itch: What’s Bad (And What Isn’t) About The Case Striking Down California Teacher Retention Laws

This week, a Los Angeles County Superior Court found that five of California’s laws governing teacher retention violated the rights of schoolchildren under the equal protection clause of the California Constitution. Judge Rolf Treu issued a tentative decision in Vergara v. California, agreeing with plaintiffs that the provisions on firing public-school educators resulted “in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.”


The United States Constitution, of course, provides no fundamental right to education. (Franklin Roosevelt’s “Second Bill of Rights” doesn’t count.) For example, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court refused to apply strict scrutiny to a claim that the Texas funding scheme for public schools violated the equal protection rights of poor and minority students. The Court did so in part because it found no federal fundamental right to education.


The California Constitution, though, does provide for a fundamental right to education in its Article 9, Sections 1 and 5. In light of that, Judge Treu applied a strict scrutiny standard to the laws in Vergara. He concluded that the laws caused a violation of California children’s right to equality of education…


The non-profit advocacy group Students Matter, led and funded by Silicon Valley entrepreneur David Welch, organized the challenge to current law. Gibson Dunn’s litigation luminary Ted Boutrous represented Beatriz Vergara, a high school student in the Los Angeles Unified School District, and the other eight student plaintiffs. Meanwhile, the state’s two largest teachers’ unions, the California Teachers Association and the California Federation of Teachers, strenuously oppose this week’s ruling. The unions pledge to join the state Attorney General’s Office in appealing the verdict.


The ruling in Vergara strikes down five provisions in the California Education Code. Here’s the gist of each:


44929.21(b) Permanent Employment Statute — Schools must grant or deny tenure to teachers after a probationary period of two school years. The provisions require the decision well in advance of the end of the second year, however, meaning that most new teachers will have served only 16 to 18 months by the time they are awarded permanent employment. Teachers have not completed the Beginning Teacher Support and Assessment induction program by the time they are granted tenure.


44934, 44938(b)(1) and (2) and 44944 Dismissal Statutes — The mandatory process for dismissing an under-performing tenured teacher is tortuous and expensive. It can last for years and cost hundreds of thousands of dollars for a single teacher.


44955 Last-In-First-Out Statute — Abbreviated “LIFO,” this policy requires school districts facing lay-offs to base decisions solely on seniority, strictly banning consideration of job performance or teacher quality.


Basically, the laws make it very hard to California to get rid of bad teachers and retain some good ones.


While the decision is worrisome in several important ways (discussed below), one should note that many of the criticisms bandied about by the public simply do not apply. For example, even if this week’s ruling stands, this case does not eliminate the possibility of tenure for California’s public school teachers. This ruling doesn’t suggest that some sort of tenure system wouldn’t work — just that less than two years does not.


This case does not mean that California teachers can be fired for any reason at all. If the ruling stands, they will still enjoy other employment protections. California and federal laws, including the U.S. Civil Rights Act of 1964 and the U.S. Fair Employment Act, still apply.


This case, by striking down the state’s LIFO policy, does not buck a common private-industry practice. True, the practice of rewarding seniority in tough times is relatively common among businesses. Why shouldn’t an organization want to hold onto its most experienced members? However, note that LIFO only makes good sense in environments where other performance checks along the way up the ladder ensure that those with seniority are there based on merit. In business, accountability for one’s job performance does not typically stop after 18 months. So, in private industry, 20 years of service reflect 20 years of satisfactory performance reviews with the meaningful possibility of termination along the way. In California, teachers were largely unaccountable after receiving tenure. So, under LIFO, a teacher’s 20 years of service only reflected 18 months of accountability and 222 months of not quitting. LIFO does not mean the same thing here as it does in other settings.


Now, why should this week’s decision striking down these laws trouble even those who think the policies themselves are foolish? First, deciding equal-protection cases based on disparate impact theory, as Judge Treu does here, is a fraught business. To paraphrase Chief Justice Roberts, the way to stop deciding cases based on disparate impact theory is to stop deciding cases based on disparate impact theory . . . even when you like the result. Many conservatives and libertarians, myself included, like this result. That result shouldn’t blind anyone to the unfortunate method for reaching it, though.


Also, as others have noted, Judge Treu’s tentative decision itself appears a weak presentation of the case. For such an evidence-intensive issue, his analysis is pretty skimpy on facts. He offers a preliminary caveat, writing:


“The parties may rest assured that this Court carefully considered each and every point of contention proffered and the evidence supportive thereof. The fact that not every party’s argument is discussed in detail below should not be taken to mean such argument was not considered.”


Though that may be true, the Judge’s introduction seems a little . . . unsatisfying. It would be awfully nice if Judge Treu, like California schoolchildren in math class, would show his work.


The written opinion’s shortcoming in this area is especially frustrating because of how much evidence there is that California’s laws made it nearly impossible to fire bad teachers, that bad teachers harm students, and that bad teachers show up in schools with minority student populations more frequently than in majority-population schools. During the 33-day trial, the plaintiffs offered the testimony of thirty witnesses and deponents, representing 28 school districts. You can read summaries of some of the trial evidence here and here.


Students at all levels benefit from teachers who are skilled, engaged, personally invested, intellectually active, and incentivized to imagine, create, and innovate in their instructional methods. California’s current system does not support those goals as it should. Ideally, though, reform would come from the legislature, not the bench. With an initial adverse ruling in Vergara, legislators who were previously beholden to the influence of powerful teachers’ unions may have the justification they need to act in defiance of those interests. For the sake of California schoolchildren and for the sake of California equal-protection precedent, let’s hope the legislature does so soon.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at

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