Tuesday, August 23, 2016

The Constitutional Challenge to Teacher Tenure Has Failed in California, But Justice Liu Highlights One Problem

The constitutional challenge to tenure in California has ended with a whimper rather than a bang.  Vergara v. State captured the national attention when a trial court held two years ago that teacher tenure and seniority statutes violated students constitutional right to education.  As detailed here, the opinion was riddle with serious flaws.  Thus, it was little surprise that the Court of Appeals overturned the trial court earlier this year.  By then, however, the theory had already spread to New York and Minnesota courts and plans were afoot to bring similar claims elsewhere.  Given the gravity of the trial court decision and the issues it decided, I was sure the California Supreme Court would have the final word no matter what.  Yesterday, proved that theory wrong, as the California Supreme Court denied certiorari and left the Court of Appeals decision in place.  Three Justices did dissent, arguing that the Court should have taken the case.  To no surprise, Justice Liu--the former law professor and leading education scholar--offered this introductory explanation for why the Court should have taken the case:

This case concerns the constitutionality of California's statutes on teacher tenure, retention, and dismissal. . . . . One of our criteria for review is whether we are being asked "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted in this case. As the trial court observed: "All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child's in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school." The controversy here is whether the challenged statutes are to blame for the hiring, retention, and placement of grossly ineffective teachers. 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. The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state's highest court.

Justice Liu goes on to distinguish the two different groups of students on whose behalf Vergara was brought:

[T]this case involves equal protection claims by two groups of students. "Group 1" is "a 'subset' of the general student population, whose 'fundamental right to education' was adversely impacted due to being assigned to grossly ineffective teachers. According to plaintiffs, the students comprising this subset [are] located throughout the state, in all sorts of schools, and [are] of substantially the same age and aptitude as students of the general population. The Group 1 members [are] disadvantaged, however, because they received a lesser education than students not assigned to grossly ineffective teachers." (Vergara, supra, 246 Cal.App.4th at p. 629; see Cal. Const., art. IX, §§ 1, 5; Serrano v. Priest (1971) 5 Cal.3d 584, 607-609 [recognizing fundamental right to education under the Cal. Const.]; Butt v. California (1992) 4 Cal.4th 668, 685-686 (Butt) [same].) "Group 2" is "made up of minority and economically disadvantaged students. Plaintiffs alleged that schools predominantly serving these students have more than their proportionate share of grossly ineffective teachers, making assignment to a grossly ineffective teacher more likely for a poor and/or minority student." (Vergara, at p. 629.) For reasons discussed by the Court of Appeal, there appear to be significant problems in plaintiffs' case with respect to Group 2. Quoting a report by the California Department of Education that was entered into the record, the trial court found that " '[u]nfortunately, the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators. Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequalities.' " Further, the trial court found that "the churning . . . of teachers" - that is, the recurring transfer of ineffective teachers from school to school - "caused by the lack of effective dismissal statutes and [the seniority-based reduction in force statute] affect high-poverty and minority students disproportionately." However, 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. The Court of Appeal, finding insufficient evidence of that causal link, held that plaintiffs failed to establish that the challenged statutes on their face violate equal protection by disadvantaging poor or minority students. (Vergara, supra, 246 Cal.App.4th at pp. 649-651.)

The Court of Appeal's treatment of Group 1 is more problematic. In overturning the trial court's judgment with respect to this group, the Court of Appeal said the group is not "an identifiable class of persons sufficient to maintain an equal protection challenge" because "to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute." (Vergara, supra, 246 Cal.App.4th at p. 646.) On this point, the Court of Appeal likely erred. In Butt, supra, 4 Cal.4th 668, this court made clear that an equal protection challenge may be brought and will trigger strict scrutiny "whenever the disfavored class is suspect or the disparate treatment has a real and appreciable impact on a fundamental right or interest." (Id. at pp. 685-686.) There, the Richmond Unified School District decided to shorten its school year by six weeks because it had run out of money, and a group of parents claimed that this would violate their children's fundamental right to education. We said it is "well settled that the California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts. The State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity." (Id. at p. 685.) Observing that the district's "students faced the sudden loss of the final six weeks, or almost one-fifth, of the standard school term originally intended by the District and provided everywhere else in California, " we held that this "extreme and unprecedented disparity in educational service and progress" violated the state equal protection guarantee. (Id. at p. 687; see id. at p. 685 ["Whatever the requirements of the free school guaranty [(Cal. Const., art. IX, § 5)], the equal protection clause precludes the State from maintaining its common school system in a manner that denies the students of one district an education basically equivalent to that provided elsewhere throughout the State."].)

One could read Justice Liu's opinion as suggesting sympathy for the plaintiffs claim about tenure.  A close read, however, suggest that his sympathy lies not with the substance of their claim, but the theory of their claim.  He later writes that the case, regardless of the student group suing, "involve[s] different yet complementary claims concerning the importance of resources and reform to improving the education system. Both cases ultimately present the same basic issue: whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall. This issue is surely one of the most consequential to the future of California."

While the Court of Appeals vanquished the second claim after a full review of the evidence, it cut the first claim short, based on the notion that they were not an identifiable class simply because they suffered the same general harm.  This notion, extended to other education cases, could foreclose otherwise valid claims.  This, I believe, is why Justice Liu would have granted cert, not to vindicate a constitutional challenge to tenure but to vindicate plaintiffs right to have their case fully heard and analyzed.  It was this very point that I struggled with in my article, The Constitutional Challenge to Tenure.  I concluded that the plaintiffs had most likely stated a prima facie case and should be allowed a chance to prove their case.  As Justice Liu wrote, they have claimed that a state statute is depriving them of the constitutional right to education by saddling them with ineffective teachers.  If this does not state a constitutional claim, I am not sure what does.  But I also conclude that after getting a shot at proving their case, the plaintiffs failed miserably.  To be clear, it was not that plaintiffs had great teachers.  Rather they failed to show that tenure was the cause of ineffective teaching.  They ignored several other factors that social science suggests play far more heavily on unequal access to teachers: segregation; school funding inequalities, market forces; teaching conditions; and the shortage of teachers in general.

Regardless, the denial of certiorari in Vergara produces the correct practical result: rejecting the constitutional challenge to tenure in California.  Given the unique claim, one would hope that the potential doctrinal flaw in the Court of Appeals decision will be cabined to tenure claims.

Get the full denial of certiorari opinion here.

https://lawprofessors.typepad.com/education_law/2016/08/the-constitutional-challenge-to-teacher-tenure-has-failed-in-california-but-justice-liu-highlights-o.html

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