California state Supreme Court declines to take up Vergara case, which targeted teacher job protections

California Supreme Court justices have declined to take up the long-running Vergara case, closing a turbulent chapter in the debate over job protections the state’s public school teachers have enjoyed for years.

The court’s decision Monday means the state laws enshrining these job protections will remain on the books: teachers will still receive “tenure" rights after two years in the classroom, the most senior teachers will be shielded from layoffs and firing teachers over poor performance will still require a long process.

In 2014, a Los Angles Superior Court judge ordered the job protections struck down, siding with plaintiffs who argued bad teachers are more likely to wind up in schools with large populations of low-income and minority students — and thereby do outsized harm to these groups — because of these laws.

But in April, a higher court reversed that ruling — a win for the teachers unions who’d argued the case. State appeals court judges ruled the plaintiffs couldn't prove the job protections themselves caused any harm to students or preclude the possibility that inattentive school administrators were to blame.

"The Supreme Court’s decision places the responsibility for improving the state’s teacher retention, evaluation and dismissal laws squarely with the California Legislature," read a statement on the website of Students Matter, the advocacy group that filed the case. "And that’s where we intend to take this fight."

Vergara has drawn national attention not only because of the controversial issues at its heart, but because national teachers unions have seen it as a test case for challenges to other states’ teacher job protection laws. Another group has filed similar cases against teacher tenure protections in New York and Minnesota.

But underlying the case is a deeply divisive question: can the state's education system distinguish "good" teachers from "bad" ones?

Four years ago, Students Matter and a group of nine students — including the case’s namesakes, Los Angeles Unified School District students Elizabeth and Beatriz Vergara — filed the case in L.A. Superior Court.

Their lawsuit directly challenged state statutes that say teachers cannot be let go without due process after two years in the classroom. The plaintiffs contended that probationary window is too short and forces principals to grant "tenure" protections to teachers who may not deserve them.

Once teachers have those protections, the plaintiffs contended, state law lays out an overly-complex process for firing them for poor performance. And in times of budget cuts, state law says the teachers with the greatest seniority, not the best classroom results, are to be the last ones laid off — an arrangement the plaintiffs argued was entirely backwards.

Teachers appear to be of mixed minds about tenure and the other job protections Vergara targets.

According to a survey of around 500 California teachers, 72 percent considered getting tenure to be, at least, a "somewhat meaningful" achievement. Around half of the respondents said they had seen tenure protect an effective educator against unfair discipline.

But the survey — conducted by Teach Plus, which has advocated for "middle way" reforms to teacher evaluation systems — showed teachers' frustrations, too: 69 percent reported that they had seen tenure protect a colleague who they felt should have been fired for poor performance. Only 15 percent of teachers said they felt a two-year probationary period was long enough; most thought three to five years was more appropriate.

At trial, the state and teachers unions countered that the challenged statutes offer job security in an otherwise taxing profession. They said a relatively short probationary period prevents districts from delaying tough decisions to cut ineffective teachers loose.

But the Vergara plaintiffs argued these job protections have a clear impact: low-income and minority students are most likely to have “grossly ineffective” teachers — to use a term from the case — in front of their classrooms.

The plaintiffs submitted that, since firing an ineffective teacher is so difficult, principals try to transfer them to other schools. Critics often refer to this shunting of ineffective teachers from one building to another as the “dance of the lemons.”

In this “dance,” plaintiffs presented evidence that schools serving low-income and minority students tend to accumulate a greater share of “lemons.” Harvard economist Thomas Kane testified at trial that a Latino student in L.A. Unified is 43 percent more likely than a white student to be taught by a “grossly ineffective teacher”; a black student is 68 percent more likely.

Teachers union leaders have disputed the methodology behind the numbers, but L.A. Superior Court Judge Rolf True found it “compelling” evidence.

"Indeed, it shocks the conscience,” Treu wrote in his 2014 ruling that the three job protections the plaintiffs targeted were unconstitutional. But he stayed his decision pending appeal.

But in the Second District Court of Appeal, justices felt the plaintiffs had not connected the dots between the laws they challenged and the harms they identified. If there is harm, the justices concluded, it’s more likely that "teacher preference, district policies, and collective bargaining agreements” are at fault. In a unanimous decision, the court reversed the lower court’s ruling.

“It is clear that the challenged statutes here, by only their text, do not inevitably cause poor and minority students to receive an unequal, deficient education,” wrote Presiding Justice Roger Boren.

“It is possible,” the justice added, "that the challenged statutes — in the way they pertain to teacher tenure and seniority — lead to a higher number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection violation.”

After the appellate court’s ruling in April, Ted Boutros, lead counsel for the Vergara plaintiffs, promised to ask the state Supreme Court to reconsider. In a statement, he argued the lower court got it wrong, saying the “abominable laws at issue in this case shackle school districts” and harm students.

But Michael Rubin, the attorney for California’s two largest teachers unions, told KPCC at the time that the lower court’s decision was based on legal precedent so well-established that there's no need for the state Supreme Court to take up the case.

"Under equal protection principles, this is not a case,” Rubin said. "It should not have gone forward, it is now over.”

Within minutes of the Supreme Court’s announcement on Monday, the leaders of Students Matter were already pivoting their efforts to the legislature.

"We certainly hoped the court would take the case because we do and have believed that it was a constitutional violation," said Hillary Moglen, the policy and advocacy director for Students Matter. "But in many ways, this was bigger than a legal question. This was more about a system that was wrong for too many of our kids in our state."

Students Matter itself was formed in 2011 to pursue changes to teacher job protections that had previously fallen short in the legislature and at the ballot box.

But their path through the legislature isn’t likely to be easy — and the most recent champion of overhauling teacher job protection laws says Students Matter may have hampered their own cause.

Assemblywoman Susan Bonilla, D-Concord authored AB 934, which she had pitched as a collection of “middle way” compromise reforms for teacher tenure, dismissal and seniority protection laws.

Bonilla said she needed the support of GOP lawmakers if her bill was to pass. But after her bill was watered down, Bonilla said Students Matter pulled their support — and with that, she lost Republican support. The bill died in committee.

After the decision on Monday, Bonilla expressed frustration with the Vergara plaintiffs. She believes the courts were never the proper venue for a policy debate, and especially now that the legal case has been settled, she believes Students Matter has missed a window for pursuing changes.

“It wasn’t everything [Students Matter] wanted, it wasn’t perfect,” Bonilla said, "but it was positive, a dramatic change — enough that the teachers unions were vehemently opposing it — and yet [Students Matter] withheld their support and actually worked very hard to defeat it.”

“They have now been defeated twice in court,” Bonilla added later. “They defeated my bill. They are now further away than they have ever been from the reforms they’ve wanted to achieve."

Moglen said Students Matter appreciated Bonilla’s attempt to thread the policy needle, but could not support a bill that was “a shell of its former self.”

In pursuing AB 934, Bonilla had not counted on the support of the state’s largest teachers unions. Indeed, California Federation of Teachers president Joshua Pechthalt called Bonilla’s bill “Vergara-light.” 

But “there is a perception,” Pechthalt said, "that we’re the obstacle to reform. I don’t think that’s accurate. I do think we’re adamant about certain types of reform that will hurt the profession.”

For instance, Pechthalt argued adding a third year to the timeline for teachers to get tenure would create "the illusion of making things better.”

“The notion that simply by extending probationary period is somehow going to make it possible to have better teachers,” Pechthalt said, "is just wrong.”

To achieve that end, Pechthalt argued it makes more sense to pursue changes to teacher evaluations to ensure trained administrators are judging teachers’ performance.

"Clearly, the way we evaluate teachers can be improved," he said. "Teachers who don’t get the job done and shouldn’t be in the classroom— we can make that more efficient."

​This post was updated at 7:10 p.m. with quotes from Pechthalt, Bonilla and Moglen. The post was originally published at 11:25 a.m.