Top Appellate Reversal: Vergara v. California

Job protections enjoyed by California public school teachers — including tenure and tough firing practices — were saved by the golden statistics rule: correlation does not imply causation.

On April 14, 2016, the 2nd Court District of Appeal reversed a trial court's 2014 decision in Vergara v. California to strike down the protections based on the plaintiffs' claims that "grossly ineffective" teachers were depriving children of their constitutional right to an education.

Because bad teachers cannot be easily fired, they are shuffled to cash-strapped and low-performing schools, disproportionately affecting minorities, the plaintiffs said.

"The chain of causation didn't exist," said Michael Rubin, a partner at Altshuler Berzon LLP who was lead counsel for two teacher unions, the California Teachers Association and the California Federation of Teachers.

Instead, he successfully argued, it wasn't the statutes that determined where teachers were placed, but school administrators. Other variables convolute the notion of direct causation: school funding remains low and many argue that the metrics to gauge teacher performance are flawed.

"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," wrote Division Two Presiding Justice Roger W. Boren in the ruling.

Boren also wrote, "The court's job is merely to determine whether the statutes are constitutional, not if they are 'a good idea,'" nodding to the controversy spurred by the highly politicized and publicized case.

In August, a divided state Supreme Court denied review of the case by a 4-3 vote. Two justices in the minority, Mariano-Florentino Cuellar and Goodwin H. Liu, took the unusual step of penning strong dissents.

The plaintiffs, nine Los Angeles Unified School District students represented by lead counsel Theodore Boutrous Jr. of Gibson, Dunn & Crutcher LLP, teamed up with the billionaire-funded advocacy group Students Matter to sue the state in 2012.

The plaintiffs' lawyers criticized several teacher union-backed statutes, including an arduous teacher dismissal process, granting teachers tenure in 18 months or less, and "last in, first out," which mandates that newer teachers be laid off first, regardless of their effectiveness.

To illustrate the statutes' deleterious impact, the plaintiffs' legal team presented data from statistical formulas known as "value-added models," which proponents say measure individual teachers' effectiveness in part by looking at a students' test score performance over several years.

When ruling in favor of the plaintiffs, Los Angeles County Superior Court Judge Rolf M. Treu said the evidence of educational malpractice "shocked the conscience."

Rubin conceded that "it's not that the problem doesn't exist" — some students receive a less-than-excellent public education — but said the trial court judge took an "enormous leap" from justifiable concern to creating a causal link to the statutes in question.

Two copycat cases filed in New York and Minnesota stalled after the appeals court decision, so "what would have been a harbinger of challenges [to tenure statutes] has now effectively ended that quest," Rubin said.

— Lila Seidman