There are no bloody gloves, no celebrity witnesses, no shocking reports on DNA evidence. In fact, a few days ago Judge Rolf Treu was struggling to stay awake, calling an 11:15 am recess to keep from nodding out. Nevertheless, Vergara v. California, being covered by The New York Times, Associated Press, and other major media in a downtown L.A. courtroom, could be the biggest thing to happen to public education in California since Proposition 13.
The trial, finishing its second week, pits Silicon Valley telecom multi-millionaire David Welch (footing the bill, natch) and nine named plaintiffs who are California school children, against the State of California and its two biggest teachers unions, the California Teachers Association and the California Federation of Teachers. The suit aims to overturn the following five California laws that govern when a schoolteacher can be fired: ]
* “Last in, first out,” which, during layoffs, forces school districts to get rid of the newest rather than the least effective teachers – a practice that can nearly empty poor, urban schools of their youthful staffs.
* The “permanent employment statute,” which makes teachers eligible for job tenure after two years (in practice it's closer to 16 months when you factor in teachers' summer breaks and the fact that tenure is granted in March, not at year's end.)
* Three other laws that make firing a tenured teacher for performance (i.e., not being able to teach) onerous and even impossibly kafkaesque, depending on which bureaucrat you talk to.
The five laws have been targeted by so-called school reformers for years, but the California state legislature has resisted undoing or softening them – in part because the CTA union spends more money on campaigns than any other special interest group (and also because California voters generally like teachers).
Which is why some reformers are going to court. First they launched Doe v. Deasy, a successful lawsuit that forced LAUSD and other districts to use student test outcomes to evaluate whether teachers are doing their jobs.
But Doe v. Deasy is a small-claims case compared to Vergara, which has national implications – and which unions see as the nuclear option.
The plaintiffs have an all-star legal team from Gibson Dunn & Crutcher, each member forever clad in crisp, pinstripe suits – including the two famous Teds, Theodore Boutrous Jr. and Theodore B. Olson, the team that helped overturn California Proposition 8 before the Supreme Court.
The two Teds and tech entrepreneur Welch have a rather aggressive PR approach, hiring media consultants Griffin Schein, who pepper local and national reporters covering Vergara with daily (or more frequent) updates of the legal goings-on.
It won't be enough for this team to prove that California's five laws are silly, or expensive (it costs $250,000 to $450,000 to fire a single teacher from LAUSD) or even bad. Boutrous and Olson must prove that the laws are unconstitutional – that is, that they violate California's equal protection clause by giving poor and low-income students less access to education than other kids.
“We have a situation where the positions for more junior teachers tend to be in these low income and minority districts,” said Boutrous in a conference call before the trial.
Olson has yet to grace the court with his presence, but Boutrous has been front and center, appearing at press conferences and giving the opening statement with his perfect tan and helmet-like head of white hair.
His task – proving that the five laws violate the constitution's equal protection clause – may not be as hard as it seems.
“California has had, for 40 years, an extremely strong equal protection constitutional doctrine,” says Professor Michael Moreland of Villanova University School of Law. “There's an at least plausible argument that the plaintiffs are making.”
In 1971, the California Supreme Court ruled in Serrano v. Priest that the state was violating the equal protection clause by giving some school districts more money than others. Now, the plaintiffs say teacher dismissal laws have a similar net effect: that bad teachers, more often than not, land in bad schools, which more often than not are in lower-class communities.
Boutrous cites a study by The Education Trust which found low-income children were two times as likely as better-off children to be taught by an ineffective English teacher, and were 1.66 times as likely to be assigned an ineffective math teacher.
Last week, that argument was made by the closest thing to a star witness in the Vergara trial – LAUSD Superintendent John Deasy. Deasy testified on Day Three, “When you follow the law, an unfortunate byproduct of following the law is, in my opinion, the discrimination of youth having to be placed in front of an ineffective teacher.”
In a funny way, Deasy is being used by both sides.
The plaintiffs are using Deasy's own words – that firing a bad teacher is hard, expensive, and in some cases not worth trying; and that 16 months of classroom experience is “not remotely” enough time for administrators to decide whether a new teacher should get job tenure.
But the defense side – the CTA and CFT – is also using Deasy. The headstrong Superintendent, who took over the nation's second-largest school district in 2011, has, by sheer force of will, pushed the ossified system forward. For decades before Deasy, you could count on one hand how many of LAUSD's 25,000-30,000 teachers got fired each 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.
For example, just three teachers were fired from LAUSD in 2006-07.
In 2011-12 Deasy upped the firings to 99 teachers.
Similarly, pre-Deasy, teacher tenure used to be all but automatic: less than 1 percent of teachers failed to win what amounted to lifelong job tenure after less than two years of experience. The Los Angeles Times has reported that, in a widespread practice, LAUSD barely assessed new teachers before granting them job tenure. Under Deasy, the “no thanks” figure has edged up to between five and 10 percent.
The defense has seized on these crackdowns by Deasy, citing them as proof that state laws themselves aren't keeping bad teachers in the classroom – it's fault of a long parade of LAUSD superintendents, stretching back decades, who weren't as proactive as Deasy (who, it should be said, has nearly gotten forced out for his troubles).
“Well-run school districts are able to fire ineffective teachers,” said the teachers unions' lawyer, Jim Finburg, in his opening statement.
Deputy Attorney General Nimrod Elias, who is representing California – which is also being sued by the nine children – said in his opening statement, “Some students are fortunate to be in a better-run district than others. … No plaintiff was assigned an ineffective teacher because of their race or income level. There will not be evidence that these laws make bad teachers assigned to low-income areas.”
Does the California constitution guarantee a student's right to learn, or to be taught by an effective teacher? These are questions the court must sort through. Each side will present a string of experts, school bureaucrats, teachers and perhaps even students.
The trial is expected to last at least two more weeks, and its outcome will ultimately be decided by the white-haired Judge Rolf M. Treu, who watches over the proceedings with a skeptical, Rip Torn-esque grimace.
The fact that Treu chose to hear the case at all means that he's at least open to the plaintiff's argument that the state, and the big teachers unions, are violating the constitutitonal rights of children.
Whatever Treu decides, the state Supreme Court will almost surely have the final say. And it's that higher court's decision that could echo across the U.S., as other school reformers gear up to take very similar arguments to court.
Correction: Due to an editing error an earlier version of this post incorrectly identified a photo of Christine Olson as Lady Olson.