In 'Vergara' arguments, unions say courts should stay away from teacher tenure debate

Three state appellate justices heard oral arguments Thursday morning about whether a lower court overstepped in moving to strike down three job protections California teachers have enjoyed for decades.

It’s the latest chapter in the Vergara v. California case, in which plaintiffs charge these job protections — including teacher tenure, a lengthy process for firing teachers and protections for senior teachers against layoffs — leave too many poor and minority students in the care of “grossly ineffective" teachers.

The case, which many see as ultimately headed for the California Supreme Court, has become a flashpoint in the national debate that's engaged powerful political players from national teachers unions, civil rights groups, advocacy organizations — and statehouses. (Gov. Jerry Brown sided with the unions in this case.)

In their Los Angeles County Superior Court trial two years ago, Vergara plaintiffs presented evidence that poor or minority students were more likely to be taught by "ineffective" teachers. The plaintiffs — nine public school students represented by the advocacy group Students Matter —  said the state's teacher tenure rules and seniority protections caused the disparity.

"Together, they’re putting unqualified teachers who are not [effectively] teaching children into the classroom. The administrators are saying, 'We want change this, we want to have great teachers, but we can’t,'" Boutros told KPCC afterward. "That means students are having their rights violated, they’re being harmed."

In June 2014, Judge Rolf Treu agreed with the plaintiffs, writing that the evidence "shocks the conscience." He struck down the state's teacher job protections as infringing upon students' rights to an equal education, but stayed the effect of his ruling pending appeal.

Much of Thursday morning's oral arguments in the California Court of Appeals was spent wrangling over whether it was appropriate for a court to weigh in — or whether teacher job protection laws were a matter of policy best left to the state legislature.

Michael Rubin, an attorney representing California's two largest teachers unions, fields media questions after oral arguments in the California Court of Appeals in the Vergara v. California case.

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Kyle Stokes/KPCC

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Attorney Michael Rubin — representing the state's two largest teachers unions — argued the lower court ruling doesn't establish that teacher job protections are to blame for disparities in the quality of students' education. Without establishing this causal link, Rubin argued, it would be inappropriate for the court to step in.

"These are legislative decisions," Rubin told reporters outside the court afterward. "One superior court judge should not be striking down five of the most important provisions in the California education code unless there’s a true violation of the constitution."

When Students Matter attorney Theodore Boutrous stepped to the lectern to make his case, Justice Brian Hoffstadt challenged Boutrous on this point.

In his initial ruling, Hoffstadt said Judge Treu "didn't really address the points we've been talking about — 'Do these statutes inevitably cause these harms?'"

"I believe he did, your honor," Boutrous replied. "He didn't use the word 'inevitable' … The entire thrust of [the decision] is these statutes are having the inevitable effect of causing this injury" to students.

Rubin argued the plaintiffs' contentions did not consider districts that were able to distribute higher-quality teachers to schools with large concentrations of vulnerable students, citing Riverside Unified as one example. Playing off the term in Judge Treu's ruling — "grossly ineffective teacher" — Rubin said the plaintiffs' arguments precluded the possibility of a "grossly ineffective administrator."

Unions say teacher tenure rules and seniority protections are principal means for attracting high-quality educators to the classroom, and that teachers with lots of experience are assets worth protecting for the benefit of students and for the benefit of less-experienced teachers.

"What they've tried to do is say, 'This is a firing issue.' This is not a firing issue," said Randi Weingarten, president of the nation's second-largest teachers union, the American Federation of Teachers. "It is a personnel issue: how do we make this a great profession? How do we have people flocking towards it?" 

Boutrous categorically rejected this argument.

"The notion that the union says there are benefits to these statutes and we need to take those into account — there are no benefits to these statutes," Boutrous told the three-judge panel.

The appellate justices have 90 days to issue their ruling.