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Vergara Time Bomb: Will a Judge Tear Down California Teacher Protection Laws?

The scene comprised a who's who of education reformers in Los Angeles. LA Unified Superintendent John Deasy was there; so was Democratic former state Senate Majority Leader Gloria Romero, Parent Revolution founder Ben Austin, Teach Plus Executive Director John Lee, former President of the LA Fund Dan Chang, and even Republican former California Governor Pete Wilson.

They and about 100 others filed into Los Angeles Superior Courthouse's extra large Room 222, where the Michael Jackson trial was held, to hear closing arguments in Vergara v. California, a civil suit that could completely upend public education in California - and possibly the U.S. - by making it easier to fire ineffective teachers.

Red-faced, Rip Torn-esque Judge Rolf Treu, who rides a motorcycle to court (and is an appointee of Governor Wilson) asked the audience to turn toward the two large oil paintings on the wall: one of Chief Justice of the Supreme Court Earl Warren, the other of Chief Justice of the Supreme Court of California Donald Wright. "We're honored to be in the presence of giants," said Treu, in his gentle baritone. That's when the teachers unions, who oppose the dramatic reforms sought by nine California children named in the suit, got worried:

Attorneys Ted  Boutrous and Marcellus McRae flanked by the children who sued.EXPAND
Attorneys Ted Boutrous and Marcellus McRae flanked by the children who sued.
Hillel Aron

Justice Warren, Treu pointed out, had written the famous decision in Brown v. Board of Education, which ruled that segregating public schools by race was unconstitutional.

And Wright was chief justice of the California Supreme Court when that body, in the 1971 landmark education trial, Serrano v. Priest, ruled that it was unconstitutional for some school districts to receive more money than others.

"Both decisions have an impact on what we're doing here today," said Treu, who will himself decide the case.

It was a startling pronouncement, a measure of just how seriously the judge is taking the plaintiffs' argument that a set of laws are ensuring that the California public education system remains saddled with thousands of "grossly ineffective" teachers - and is therefore unconstitutional because the system deprives students of a quality education.

And although the judge later cautioned the court (including dozens of reporters) against reading too much into anything he said last Friday, one couldn't help but notice how Treu repeatedly interrupted the defense attorneys representing the state and teachers' unions who intervened in the case. He probed their reasoning, after having listened silently to the plaintiffs.

"Unfortunately, I think that may be quite telling about where he's going," says Joshua Pechthalt, President of the California Federation of Teachers, one of two state teachers unions to enter into the trial as interveners.

The suit was brought about on behalf of nine public school students including Beatriz and Elizabeth Vergara, giving this case its name. Their two Gibson, Dunn & Crutcher attorneys, cool-headed, silver-haired Ted Boutrous and dapper Marcellus McRae, are being paid by well-to-do Silicon Valley-based telecom magnate David Welch. (Boutrous gained fame in California for successfully fighting Proposition 8 in court, overturning the ban on gay marriage.)

Multi-millionaire David Welch funded the lawsuit against California.EXPAND
Multi-millionaire David Welch funded the lawsuit against California.
Hillel Aron

This nationally watched case aims to strike down five California laws governing public schools:

- one which says that all teachers much be considered for tenure within two years;
- one which says that when school districts lay off teachers due to budget cuts, they must do so in order of seniority (often called the "last in, first out" law);
- and three different laws that make firing a bad teacher in California a long and costly endeavor.

The net result of California's group of laws, Boutrous and McRae argued, is that "grossly ineffective" teachers -  that is, the worst of the bunch, who cannot be improved -  end up sloshing around in the schools. Some are quietly transferred from school to unsuspecting school, a practice the press has dubbed "the dance of the lemons."

"Students taught by grossly ineffective teachers fall behind for years," argued Boutrous.

All too often, the plaintiffs argued, bad teachers end up in the classrooms of poor and minority students, not middle-class suburban or wealthy Westside students.

"This is the big one," says Gloria Romero. "This trial encapsulates all of the levers that get pulled to create this very dysfunctional and unequal system of education."

On all three issues - layoffs, tenure, and dismissals -  California is something of an outlier in the U.S. California is one of only nine states to mandate that seniority must be considered when a school district lays off teachers to balance budgets.

A majority of states use a three-year probationary period to decide whether or not to grant a teacher lifelong tenure. Nine states require four or five years of classroom teaching before they decide whether to grant tenure.

Plaintiff's map shows California nearly alone in granting tenure after just two years.
Plaintiff's map shows California nearly alone in granting tenure after just two years.
Courtesy Students Matter

But California is among only five states that use a two-year term -  which, in effect, is more like 16 months of classroom experience, when you factor out summer vacations and consider that tenure decisions have to made in March, long before the school year is over.

Once teachers are given life tenure, if a school district later realizes they want to fire the teacher, and the teacher fights back, the schools must go through an arduous, 17-step process that includes a discovery phase, a trial-like hearing and appeals. Taxpayers pay the bills.

LAUSD officials estimate that it costs, on average, between $250,000 and $450,000 to dismiss a single teacher for poor performance and sometimes much more. The money goes to lawyers, substitute teachers to cover for the teacher fighting his or her firing, and the accused teacher, who continues to draw a full salary.

In Los Angeles, the dismissal process takes, at a bare minimum, two years. Some firing cases, according to Superintendent Deasy and records obtained by LA Weekly, have taken nearly a decade.

Deasy himself was a key witness - for both sides. Testifying on behalf of the plaintiffs, he stated his opinion that two years wasn't nearly enough time to evaluate a teacher for permanent employment, and that the laws governing the dismissal process do not "provide for the timely dismissal of teachers who are incompetent, who are unable to teach.

"And that is fundamentally what protects the quality of public schools, is having highly competent, and highly effective teachers in front of students every single day."

The defense, led by California Deputy Attorney General Susan Carson (for the state) and Jim Finberg (for the unions), also used Deasy. They cited not his words, but his actions.

Since his appointment by the LAUSD Board of Education in 2011, Deasy has overhauled the tenure process. Before Deasy, more than 99 percent of teachers were granted tenure once they had 16 months of classroom time under their belts.

Under Deasy, between 90 percent and 95 percent win lifelong tenure after their short classroom stints - considered a major change from previous eras.

The feisty superintendent has showed little patience for bad teachers. Before Deasy, LAUSD fired from among its vast system of 26,000 educators only 3 to 10 teachers per year. While most U.S. professions and industries fire 3 to 6 percent of their people each year, LAUSD fired a small fraction of 1 percent. 

The handfuls of firings from LAUSD jumped dramatically in 2010-11, when the district fired an unheard-of 56 teachers. The next year, LAUSD canned 99 teachers.

Lawyers for the state of California and the two state teachers unions argued that this escalation in dismissals by Deasy proves their point: don't blame the laws for bad teachers, blame poorly-managed school districts who don't fire their worst teachers.

That argument might be more compelling - were it not being made by the teachers unions, who have castigated Deasy for, yes, firing teachers.

And when, in her closing argument, Deputy A.G. Carson cited Deasy's reforms as evidence that the state laws were working and need not be overturned, Judge Treu interrupted and asked skeptically:

"Are we to make determinations of constitutionality based on good management practices of some school districts?"

But defense attorneys pointed out that teachers targeted with firing often leave voluntarily. According to California Teachers Association spokesman Frank Wells, more than 90 percent of tenured teachers faced with dismissal charges end up resigning or retiring. "They see the writing on the wall," says Wells. "And often that is with the union's help."

Teachers union lawyer Jim Finberg insists failing teachers are fired if a district has competent leaders.EXPAND
Teachers union lawyer Jim Finberg insists failing teachers are fired if a district has competent leaders.
Hillel Aron

But those bad teachers who do stick around until the bitter end cost the school districts millions of dollars. And then sometimes end up right back in the classrooms.

The fundamental disagreement, and the core issue that Judge Treu will have to rule on is, Just how far does the California constitution go?

In guaranteeing every child the equal right to an education, does it guarantee him or her the right to quality teacher?

"I would like students to have a constitutional right to a good teacher," says the unions' attorney, Jim Finberg, "but that's not currently in the constitution."

The plaintiff's lawyers scoff at this argument.

"You basically have the lawyer for the teachers union making the argument that teachers aren't important to a quality education," says plaintiff attorney Josh Lipshutz.

After both sides submit final briefs on April 10, Judge Treu has 90 days to reach a decision, by early July -  but even that will only be the end of the beginning.

"Whoever loses is going to appeal," says Finberg. "This case is going to go on for a long time." From there, the case will go to the Court of Appeals, and then, possibly, the State Supreme Court.

Most states have clauses in their constitutions guaranteeing students the right to an equal education, and they could very well take a cue from Vergara. Up until now, courts have mostly interpreted that to mean time and money - within each state, school districts provide the same funding, and must have the same length of school year.

"This represents a new generation of lawsuits that are taking education and equal protection rights in a new direction," says James Ryan, dean of Harvard's Graduate School of Education. "My guess is everyone will wait until the California Supreme Court rules. But you never know. Sometimes with litigation, an idea just surfaces, and then spreads."

Firing a California teacher requires the above 17 steps, according to the plaintiffs
Firing a California teacher requires the above 17 steps, according to the plaintiffs
Courtesy of Students Matter

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