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Vergara Trial Bombshell: Judge Declares California Teacher Protection Laws Unconstitutional

The Vergara plaintiffs stand behind their attorney, Ted Boutrous, at a February press conference
The Vergara plaintiffs stand behind their attorney, Ted Boutrous, at a February press conference

Updated at the bottom: U.S. Secretary of Education Arne Duncan praises the decision.

In a landmark decision handed down today, Superior Court Judge M. Rolf Treu has declared five statutes in the California education code to be unconstitutional. The Vergara v. California ruling is sure to be appealed, and may make its way to the California Supreme Court. But for now, the reverberations will be felt across the country. 

At issue in the case? Whether the five laws allowing "grossly ineffective" teachers to remain in the school system, sloshing around from school to school and holding back students for years, were constitutional. Addressing this point in his tentative decision, Judge Treu (pronounced Troy, as per the helpful press release), wrote, "The evidence is compelling. Indeed, it shocks the conscience." Protecting teachers at the expense of students, he suggested, was not permissible.

The suit had been brought about by nine public school students, including Beatriz and Elizabeth Vergara. Their all-star legal team, paid for by Silicon Valley telecom magnate David Welch, included Ted Boutrous (of Perry v. Schwarzenegger fame - the case that struck down Proposition 8 and legalized gay marriage in California) and Marcellus McRae.

See also: Why the Vergara Trial in DTLA Could Upend Public Education

They took aim at five laws governing how teachers are fired - or, rather, not fired - in California public schools: the teacher protection statute, which says that all teachers must be considered for tenure within two years of being first hired; the "last in, first out law," which says that layoffs ordered as a cost-saving measure must be done in reverse order of seniority; and three "dismissal statutes," which make firing a tenured teacher a long and arduous process. 

When the decision was handed down at 10 a.m., the attorneys representing the students could be seen running down the halls. When asked the verdict, one said, "It's a win. All five." Close behind was LAUSD Superintendent John Deasy, who said, "I can't comment. But it's pretty unbelievable."

Deasy has, controversially, worked hard to weed out L.A. Unified's bad teachers. He was a key witness for the student plaintiffs - and, in a way, for the defense as well, who argued that the superintendent's success showed that the local school districts were to blame for the existence of incompetent teachers, not the education code.

See also: LAUSD Superintendent Fires Lemon Teachers

Deasy's statements on the witness stand were measured. But in a press release sent out shortly after the decision, he said, "Today's decision is a call to action to begin implementing, without delay, the solutions that help address the problems highlighted by the Vergara trial. Every day that these laws remain in effect is an opportunity denied. It's unacceptable, and a violation of our education system's sacred pact with the public."

California Teachers Association president Dean Vogel, at a press conference in February
California Teachers Association president Dean Vogel, at a press conference in February

Predictably, teachers unions had the opposite reaction. Incoming UTLA president Alex Caputo-Pearl called the ruling "a bait-and-switch" and an "attack on teachers."

California Federation of Teachers president Joshua Peschthalt had expected the decision would go against the teachers unions, who joined the trial as intervening defendants. "We're disappointed, but we're not surprised," Peschthalt said. "We thought this judge was predisposed not to be with us. What we've seen is the politicization of the courts, [and] unions are not exactly well-received. Frankly, the judge fell victim to the specious arguments made by one of America's top-priced law firms."

Judge Treu didn't exactly hold back in his decision. With regards to the tenure law, aka the "permanent employment statute," he wrote: "This court finds that both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statute." With regards to the three dismissal statutes, he found "the current system required by the Dismissal Statutes to be so complex, time-consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory."

As to the unions' defense of "last in, first out," he wrote: "The logic of this position is unfathomable and therefore constitutionally unsupportable."

Finally, the judge found that not only do the five laws keep bad teachers in classrooms but also that the bad teachers disproportionately affect poor and minority students.

The five laws will remain in place pending an appeal, which Peschthalt said the unions would file immediately. Even so, the decision will send shockwaves across the country. As Politico reported this morning, Welch, Boutrous and company are "considering similar litigation in other states, including Connecticut, New York, New Jersey, Maryland, Minnesota, New Mexico or Oregon."

[Update at 2:10 p.m.]: The court is expected to finalize its ruling sometime in the next few weeks. Then the state and the unions have two months file an appeal - which the unions say they are certainly going to do. And it could be anywhere from six months to two years before the appellate court hears the case.

"We think we're likely to prevail on appeal," said California Teacher Association lawyer Glenn Rothner, who said the decision surprised him - not so much the verdict itself but the "skimpiness" of it. 

"It was extraordinarily short for a case of this gravity," he said. "And in lacking of analysis of the facts."

Meanwhile, the laws will stand -  despite Superintendent John Deasy saying, in a conference call today, "There's no reason why our legislative and elected leaders shouldn't be sitting down this afternoon to begin correcting the law immediately."

Other reactions have been flooding reporters' inboxes all day. 

United States Secretary of Education Arne Duncan issued a statement praising the decision: "This decision presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students' rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve."

And here's arch-school reformer Michelle Rhee: "I applaud the parents and the nine courageous students who stood up for their future and their right to a quality education. It is my hope that this movement continues on the national stage for all of our students."

Closer to home, Parent Revolution President Ben Austin said this in an e-mail to supporters: "The implications of this are absolutely huge and will not be well understood for years. But one thing we do know is that the door for wide scale school reform is open."

Plaintiffs held a short press conference outside the courthouse this afternoon. When asked by this reporter if they could say how much the suit cost David Welch, a spokesman replied: "No."


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