In a major win for teachers unions, California Supreme Court lets teacher tenure ruling stand

By Howard Blume and Joy Resmovits

Aug. 23, 2016 11:25 AM PT

Monday was the end of the line for a landmark California case challenging tenure and other traditional job protections for teachers — and the teachers won.

A state Supreme Court majority declined to hear the case, Vergara vs. California, and let stand an appeals court ruling that preserved an array of employment rights.

For the record:

7:51 p.m. Nov. 27, 2024An earlier version of this article misidentified Michael Petrilli as the executive vice president of the Thomas B. Fordham Institute. He is the president of the organization.

The outcome left some union opponents looking for a different battlefield in the ongoing wars over public education, while others said they should try the courts again.

The Vergara litigation was closely watched across the country as a test of whether courts would invalidate rules that protect teachers on the argument that they violate the rights of students.

The assault on these protections is part of a broader approach to reforming education that would make schools more like the private sector, which relies on competition, measurable results and performance incentives.

In such a scenario, employee protections get in the way, said Joshua Pechthalt, president of the California Federation of Teachers.

“It’s fundamentally about providing a marketplace agenda within public education — doing away with the kinds of protections teachers have won over many years, such as seniority and due process, and creating the dog-eat-dog narrative that exists in the private sector,” he said.

Attorneys pursuing the case on behalf of nine students presented a different narrative. They argued that these job protections caused such harm to students that the rules violated their constitutional rights. Making it easier to fire bad teachers, the attorneys said, would not only improve academic performance, but would narrow the achievement gap that separates white, Asian and wealthier students from their lower-income, black and Latino peers.

At trial, students testified about teachers who belittled or ignored them, while plaintiff experts asserted that such instruction left students behind, unable to catch up.

This testimony bowled over the trial court judge, who in 2014 threw out the job protections, saying that the damage to students “shocks the conscience.”

But in April, a three-judge court of appeal panel shrugged off the claims of harm and said it was up to the Legislature to set education policy, including the regulations in question.

Monday’s high court decision was about whether justices would hear arguments and weigh in. Their 4-3 split against doing so may well reflect the level of contention over how best to improve education.

“This has been such a polarized issue,” said Assemblywoman Susan Bonilla (D-Concord.).

Bonilla tried to craft compromise legislation that eventually was abandoned by teachers unions and their critics.

“Unfortunately, on one side, we had the California Teachers Assn. that is satisfied with the status quo,” Bonilla said. “On the other side, you had many people interested in making changes to education but … if they couldn’t have everything in a bill, they weren’t going to support my bill. That’s not a realistic perspective in terms of how policy is crafted.”

Although Vergara backers could not get around union clout in the Legislature, they had access to money and a crack team of attorneys.

The lawsuit challenged five statutes that in combination, it argued, violated the constitutional rights of students. These laws grant the protections of tenure to teachers after two years on the job. They stipulate that teacher layoffs, when they occur, must be based primarily on seniority. And they set up a dismissal process for instructors that is more lengthy and difficult than for many other state employees.

The effort was a “Hail Mary pass,” said Michael Petrilli, president at the Thomas B. Fordham Institute, a right-leaning think tank. “You throw a Hail Mary pass when you’re out of other options. The reformers in California turned to it because the Legislature was locked up by unions.”

You throw a Hail Mary pass when you’re out of other options. The reformers in California turned to it because the Legislature was locked up by unions.”

— Michael Petrilli, president at the Thomas B. Fordham Institute

The Legislature remains the most logical place to determine such employment rules, some advocates on both sides said.

“This was an appropriate move by the Supreme Court and really a victory for the idea of a separation of powers as it relates to education-policy matters,” said Mark Paige, an assistant professor in public policy at the University of Massachusetts, Dartmouth. “The trial court decision was an example of an activist court. The opinion lodged the trial court in the middle of a policy matter.”

“I don’t think it means the end of the tenure war,” Paige said. “My hunch is that it won’t be in California, given the state’s more liberal leanings.”

The state Supreme Court’s four-member majority did not issue an opinion, which isn’t required for a case that won’t get review. Three justices wanted to hear the case, and two of them issued dissenting statements saying important issues of law were at stake.

The court majority, however, accepted the logic of Division Two Presiding Justice Roger W. Boren, who wrote in April for the court of appeal: “The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea.’”

The appeals panel did not challenge evidence that many students are ill served in California public schools. But the judges said the laws being questioned were not necessarily responsible.

That logic bodes poorly for future court challenges in California or elsewhere, said Eric A. Hanushek, a senior fellow at the conservative Hoover Institution of Stanford University, who testified on behalf of the Vergara plaintiffs.

“Courts don’t make policy decisions except in extreme cases and California is an extreme case,” he said. And “even in the worst case, the courts aren’t stepping up.”

But plaintiff’s attorney Theodore J. Boutrous Jr. insisted that the disagreement of three Supreme Court justices on Monday suggests a path forward.

The two justices who posted statements said the findings of the trial judge should have received more deference. Both concluded that the appeals panel set too high a barrier for considering the merits of the claims.

“Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review,” wrote Justice Goodwin H. Liu. “There is considerable evidence in the record to support the trial court’s conclusion that the hiring and retention of a substantial number of grossly ineffective teachers in California public schools have an appreciable impact on students’ fundamental right to education.”

Boutros said that reasoning provides “a launching pad.”

“The door is open to bring other suits in state court and federal court,” he said.

The group Students Matter, which funded the lawsuit and recruited the students and their families, said it will continue to push for legislative change in Sacramento. It also is pressing its reform agenda on other fronts. In another lawsuit, the group is trying to force several school systems to use standardized test scores in teacher evaluations.

Student Matters has access to a network of philanthropists and foundations willing to bankroll its business-inspired vision of education reform.

Nationally, Vergara-like legal challenges are being pursued in New York and Minnesota. Neither appears close to resolution.

What will carry the day, Boutros said, is public opinion.

“If you talk to any rational person on the street about the issues, they’re going to agree with us,” he said.

Some in his camp are talking about a ballot initiative as a next logical step to limit job protections, although unions defeated such an attempt in the past.

Randi Weingarten, president of the American Federation of Teachers, said the Vergara case distracted from real problems and potential fixes. Schools, she said, need smaller classes, an influx of new teachers and more generous, secure funding.

The backers of Vergara, she said, make it harder to promote effective change “because they pretend there are simple silver-bullet solutions — that you can fire, threaten or sanction your way to helping children succeed.”

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Twitter: @howardblume and @Joy_Resmovits

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UPDATES:

Aug. 23, 11:25 a.m.: This article was updated to bring higher up the first reference to the court’s decision.

Aug. 22, 8:30 p.m.: This article was updated throughout with additional background and comments.

5:17 p.m.: This article was updated throughout with additional reaction and background.

12:20 p.m.: This article was updated with reaction to the court decision and background information.

This article originally was published Aug. 22 at 11:40 a.m.