Vergara v. California, 246 Cal. App. 4th 619, 209 Cal. Rptr. 3d 532 (Cal. App. 2d Dist., May 3, 2016)

In this case, the Court of Appeal of California issued a decision overturning a ruling by a California state court judge that found that California statutes providing tenure protections to K–12 teachers violated the equal protection provisions of the California constitution. The case arose from a challenge, funded by anti-union organizations, to five California statutes that provide primary and secondary school teachers a two-year probationary period, stipulate procedural protections for non-probationary teachers facing termination, and emphasize teacher seniority in reductions of force. The AAUP submitted an amicus brief which argued 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. The Court of Appeal reversed the trial court’s decision, holding that the statutes themselves did not create equal protection violations, so they are not unconstitutional.

The challenged statutes in the California Education Code establish: a two-year probationary period during which new teachers may be terminated without cause, due process protections for non-probationary teachers facing termination for cause, and procedures for implementing budget-based reductions-in-force. 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 defendants appealed to the Court of Appeal of the State of California for the Second Appellate District.

The AAUP filed an amicus brief in support of tenure. The AAUP has a particular interest in defending the due process protections of tenure at all levels of education. The brief, primarily authored by Professor Charlotte Garden, an expert in labor law and constitutional law and litigation director of the Korematsu Center for Law & Equality at Seattle University, advanced two substantive arguments. First, the brief explained 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 recognized the distinction between the academic freedom rights of primary and secondary school teachers and those of professors in colleges and universities. Second, the brief argued that students are better off when good teachers remain in their classrooms, and the challenged statutes promote teacher longevity and discourage teacher turnover.

A three judge panel in the Court of Appeal reversed the earlier judgment, finding that the tenure, dismissal, and layoff statutes themselves did not cause equal protection violations, so they are not unconstitutional. The court reasoned that the negative evidence related to inexperienced teachers and poor and minority students was the result of external factors such as administrative decisions, and were not directly caused by the text of the statutes. In other words, the problems were caused by how people are implementing the statutes, not by the system the statutes create. Additionally, the court decided the evidence showing that ineffective teachers can adversely affect students did not demonstrate that the tenure, dismissal, and layoff system itself creates this problem or leads to an unfair distribution of ineffective teachers.

Plaintiffs have said they intend to appeal, so it is likely that the case will move on to the California Supreme Court.