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Tenures After (Vergara) Part 2: the opinion

Uploaded: Jul 12, 2014
When a state trial court judge opens his Opinion by quoting from the momentous Brown v. Board of Education case, you know he must have big things on his mind. The rest of the Vergara v. California opinion confirms it, as Judge Rolf Treu of LA County sweepingly declared the state's teacher tenure laws unconstitutional under the Equal Protection clause of the CA State Constitution. For better or worse, the remarkably brief opinion is also short on analysis and support. Its effect was stayed, pending appeal, which is sure to follow.

The impetus for the Vergara case came from a nascent non-profit organization: Students Matter. It is the brainchild of Silicon Valley gazillionaire David Welch, and has two other prominent venture capitalists on its Advisory Board. Its website indicates that it is "dedicated to sponsoring impact litigation to promote access to quality public education."

The Vergara trial team was led by Ted Olson of Bush v. Gore and Prop 8 case fame, together with several other partners from the top-tier law firm of Gibson Dunn & Crutcher. Students Matter is one of several recently-founded organizations across the country that are pursuing similar ends. Whether their baseline intent relates more to education quality, per se, or to weakening public sector union influence is, I think, an open question. The Vergara case has certainly intensified the national conversation on both subjects.

The plaintiffs, via nine named school kids, challenged the constitutionality of three provisions in the CA Education Code, which the Judge called the Permanent Employment, Dismissal and LIFO (last-in/first-out) laws, respectively. They claimed that these three enactments violated the State Constitution's guarantee of equal protection. That clause is akin to its federal counterpart, but may be more hospitable to challenges based on theeffects of a law, vs. its intention.

After assuring all concerned that he had no intention to substitute his view of the public policy merits of these three sections, Judge Treu proceeded to attack each on precisely those merits:

-o- The Permanent Employment law's provision of a less-than-two-year probation period before 'tenure' is bestowed is too brief, he writes, leading to poor decisions in both directions about who graduates to 'permanent' employee status. Other states require longer period of probation, and a few have no K-12 tenure, at all;

-o- The Dismissals Law is unduly cumbersome and ungodly expensive. It also provides more protection of teachers' interests than is required by the Constitution (per Due Process, under the so-called 'Skelly' case); and,

-o- The LIFO provisions that make seniority the sole layoff criterion (vs. other factors, like measured competence) puts established teachers' job security ahead of students' interests in highest quality teaching. Again, other states do it differently and arguably better.

Now, any or all three propositions might be true. Therein lies a huge social debate. The problem with Judge Treu's opinion is that Equal Protection is not an 'absolute' guarantee, but a 'comparative' one. In order to constitute a violation, plaintiffs need to show that government has taken actions that make some citizens worse-off than others. (Put another way, the 'Brown' case did not guarantee black kids a high-quality education, but rather an equivalent one to white kids in segregated schools.) As to the first two provisions above, he simply never bothered to show how those laws work to the comparative disadvantage of any one group of students, versus any other group.

Judge Treu did take a stab at comparison in the LIFO lay-offs context, arguing that the current system puts students in poorer school districts at a further disadvantage, because, quoting the CA Department of Education itself: "? the most vulnerable students are far more likely than their wealthier peers to attend schools having a disproportionate number of under-qualified, inexperienced, out-of-field and ineffective teachers and administrators." Even then, though, he failed to establish a causal link -- anything in the statute that renders that sorry state of affairs inevitable.

He then concludes the Opinion with another reminder that he doesn't write, critique or repair the laws; his only role and mission are to assess them opposite settled constitutional requirements. Frankly, however, I'm with Queen Gertrude on this one: "The (gentleman) doth protest too much, methinks."

Again (and at the risk of protesting too much, myself), my purpose here is not to defend the status quo, but rather to suggest that all the celebration, in some quarters, provoked by this decision may have been premature. I'm guessing that this will be one ultimately for the state Supremes, probably two years hence. And it's just my 'take' -- for anyone keeping score at home, the US Supremes managed to fool me on Hobby Lobby (dammit).

What is absolutely clear is that Vergara has touched-off a renewed debate about education quality, teacher job security and the presumed linkage between those two topics. My thoughts on that policy matter next time, in Part 3.

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