California Supreme Court

Howard Blume and Joy Resmovits
August 23, 2016

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.

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 case, Vergara vs. California, was closely watched across the country as a test of whether courts would invalidate employment rights of 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. They decided against it. But their 4-3 split may well reflect the level of contention over how best to improve education.

“This has been such a polarized issue,” said Democratic Assemblywoman Susan Bonilla.

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.”

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

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