Vergara reversed: What's next for education reform?

Last week in Vergara v. California, a unanimous California Court of Appeal concluded that state laws governing teacher tenure, dismissal and layoffs do not violate the equal protection clause of California's Constitution. 2016 DJDAR 3641 (April 14, 2016). In doing so, the appellate court reversed a widely publicized 2014 trial court decision that found state laws granting tenure to teachers after only two years of service, mandating a lengthy and complex teacher dismissal process, and requiring layoffs by seniority violated the equal protection clause of California's constitution. The lawsuit was originally filed in 2012 on behalf of nine public school students and alleged that those statutes, on their face, caused an oversupply of grossly ineffective teachers and, as a result, denied equal protection to an "unlucky subset" of the general student population and poor and minority students who were disproportionately assigned to grossly ineffective teachers.

In reversing the 2014 trial court decision that had stated the evidence at trial was compelling and "shocks the conscience," the Court of Appeal focused on two errors it found in the trial court's equal protection analysis that could trigger strict scrutiny. First, the court found the trial court failed to analyze whether the "unlucky subset" of students constituted a sufficiently identifiable group for equal protection purposes, explaining that those students' only defining characteristic was their assignment to grossly ineffective teachers and that "[s]uch a circular premise is an insufficient basis for a proper equal protection claim."

Second, court concluded that while poor and minority students comprise a suspect classifications for equal protection purposes, the trial court failed to analyze whether the challenged statutes themselves caused those students to be disproportionately assigned to grossly ineffective teachers. Underscoring that the constitutional challenge before it was a facial challenge, the Court of Appeal concluded the text of the statutes, and the evidence at trial, did not support such a conclusion. Rather, the court concluded the evidence demonstrated that poor and minority students were disproportionately assigned to grossly ineffective teachers because of poor staffing decisions by school administrators, who had the ultimate authority to assign and transfer teachers within their school districts, and not because of the language of the statutes.

The immediate impact of the court's decision for California's over 1,000 school districts? Nothing changes. The challenged statutes will continue in effect just as they did after the trial court's 2014 decision. However, the Court of Appeal's analysis and its emphasis on the limitation of the court's role in policymaking may signal a broader reluctance to establish educational policy through litigation, at least without substantial evidence to support such an outcome. This is despite concerns the courts may have, including those expressed by the Court of Appeal, about the impact of the challenged statutes.

Indeed, while the court did not find an equal protection violation based on the language of the statutes, it did observe that the evidence "presented ... highlighted likely drawbacks to the current tenure, dismissal, and layoff statutes." It further opined it was "possible" the challenged statutes could "lead to a higher number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme would." The court added, however, that "[t]his possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection violation." Yet, the court emphasized its "job is merely to determine whether the statutes are constitutional, not if they are 'a good idea.'"

The California Teachers Association, which had intervened as a defendant in the lawsuit, hailed the decision as an indication "the laws have been working." (Los Angeles Times, "In a win for unions, appeals court reverses ruling that threw out teacher tenure in California," April 14) However, last Friday, plaintiffs announced they would appeal the ruling to the California Supreme Court, with their attorney Theodore J. Boutrous Jr. stating, "[w]e feel very good about our path going forward." (LA School Report, "Vergara reactions pour in as appeal to state Supreme Court is planned," April 15.)

The court's decision also raises questions about current and past legislative efforts to address the challenged statutes. It noted, for instance, that 2015 amendments to the challenged dismissal laws, passed after the Vergara lawsuit was filed, "do not impact either the tenure statute or reduction-in-force statute and do not significantly differ from the dismissal statutes in effect at the time of trial, at least with respect to the claims at issue here."

Some have felt that other legislative efforts were initiated in anticipation of a decision affirming the trial court's decision. Among those efforts is Assemblymember Susan Bonilla's (D-Concord) proposed Assembly Bill 934. If passed, AB 934 would make important changes to the challenged statutes, including requiring teachers with unsatisfactory performance evaluations to enter a support program. If a teacher failed to demonstrate sufficient improvement in the support program, termination via an expedited process could occur. Teachers with unsatisfactory ratings could also be laid off before less-experienced teachers with better performance, and poor performing teachers could remain in probationary status beyond their second year of service. It is not yet clear what, if any, effect the court's decision will have on AB 934 or similar efforts, but some believe it is now less likely such legislative efforts will gain traction. (Los Angeles Times, "New Vergara ruling makes clear it's Legislature's job to fix laws protecting bad teachers," April 14.)

In the meantime, the status quo for teachers, school administrators and students under these laws continues.

Roy Combs and Peter Fagen are partners and Jordan Bilbeisi is a senior associate with Fagen Friedman & Fulfrost LLP. The firm filed an amicus curiae on behalf of the Association of California School Administrators in the appeal. It also represented the Oakland Unified School District in the case until the district's dismissal shortly before trial.