In a case that has garned national attention, a Los Angeles Superior Court judge has ruled that a group of laws affording various employment protections to teachers violates the equal protection clause of the California Constitution.  A tentative decision handed down on June 10 by Judge Rolf M. Treu (pronounced 'Troy') found that plaintiffs had proven their claims by a preponderance of the evidence amassed over the course of a two-month trial in Vergara v. California.  Those claims asserted that various teacher employment provisions enshrined in the California Education Code produced outcomes that were disproportionately injurious to poor and minority students.

The buildup to the case was previously reported in the E-Mailer, here.  Briefly, in May, 2012, a complaint was filed on behalf of a group of students in which it was alleged that five teacher employment laws deprived plaintiffs of the state constitutional guarantee of "substantially equal opportunities for learning."  A copy of the complaint can be found, here.  Named as defendants were Governor Jerry Brown, State Superintendent of Public Instruction Tom Torlakson, the State Board of Education, the Los Angeles Unified School District, and the Alum Rock (San Jose) Union School District.  Later, the California Teachers Association and the California Federation of Teachers successfully petitioned the court to be included as intervenors, and several defendants (including the Los Angeles Unified School District) were excused.  Following a prolonged series of delaying tactics the case went to trial in January of the current year.
 
The lawsuit was orchestrated by Silicon Valley electrical engineer and entrepreneur David Welch, who created an organization named Students Matter to publicize the legal action and influence public opinion.  Mr. Welch assembled a high powered legal team that featured such powerhouse litigators as Theodore B. Olsen and Theodore J. Boutrous, both partners in the firm of Gibson, Dunn & Crutcher.  Mr. Boutrous' closing argument in the case can be viewed, here.  His rebuttal to defendant/intervenor's closing argument can be watched, here.

The challenged laws consisted of the following sections of the California Education Code:

• Section 44929.21(b) (dealing with teacher tenure);
• Sections 44934, 44938(b)(1) and (2), and 44944 (dismissal procedures); and,  
• Section 44955 (layoff procedures)

In the Court's ruling, the above sections of law are referenced as the "Challenged Statutes."

 

 

THE RULING 

 

The decision neatly summarizes the students' complaint as follows: 

 

"Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominately low-income and minority students."

 

As the ruling spells out, it was the responsibility of the Court to determine:

 

"...whether the Challenged Statutes cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular..."

 

The Court's presentation of findings commences with a declaration that "All sides to this litigation agree that competent teachers are a critical, if not the most important component of success of a child's in-school educational experience."  Similarly, all parties were in agreement "...that grossly ineffective teachers substantially undermine the ability of [children] to succeed in school."

 

The ruling then proceeds to reference the presentation of evidence demonstrating "the specific effect of grossly ineffective teachers on students," adding: "The evidence is compelling.  Indeed, it shocks the conscience."  Judge Treu then notes: "There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms."  An expert witness for defendants estimated the incidence of such teachers to fall within a range of 1-3 percent, which translates into 2,750 to 8,250 "grossly ineffective" teachers.  

 

Noting prior jurisprudence, and declaring that plaintiffs had successfully met the burden of proof attendant to their claims, the Court declared that, "the Challenged Statutes will be examined with 'strict scrutiny'."  What this means is that defendants (i.e., the teachers unions) would be required to meet a higher burden in justifying the maintenance of the challenged laws.

 

The Court then addressed the following three areas:

 

1.  Permanent Employment Statute

 

Existing law permits public school teachers to achieve tenure following two years of employment.  The ruling declares the two-year time period "a misnomer to begin with," noting that rehiring decisions must be communicated on or before March 15 of the second year of employment.  To meet that deadline, Judge Treu pointed out that recommendations must be placed before decision makers in advance of March 15.  An even more significant problem is occasioned by the fact that starting teachers don't complete their professional induction programs prior to the point in time at which actual tenure decisions are made.  As the ruling notes:

 

"...a teacher reelected in March may not be recommended for credentialing after the close of the induction program in May, leaving the applicable district with a non-credentialed teacher with tenure."

 

Judge Treu took pains to observe that the short period of time in which tenure decisions must be determined cuts both ways.  His ruling thus notes that in some districts a decision to deny tenure can arise from "any doubt." Such an overly protective policy may deprive teachers of an adequate opportunity to establish their competence, and may deprive students of potentially competent teachers.

 

Finally, the ruling took note that even witnesses for the defendants agreed that a 3-5 year period for determining the award of tenure would be preferable to the more limited current period, adding that California is one of only five states to grant tenure within two years or less.  For all of the above reasons, the Court enjoined enforcement of the associated statute.

 

2.  Dismissal Statutes

 

Plaintiffs alleged that, "it is too time consuming and too expensive to go through the dismissal process as required by the Dismissal Statutes to rid school districts of grossly ineffective teachers."   The ruling notes that evidence considered by the Court indicated that it could take from two to nearly ten years and cost anywhere between $50,000 to $450,000 to bring teacher dismissal cases to conclusion.  The upshot of such barriers is that grossly ineffective teachers are often left in the classroom, "because school officials do not wish to go through the time and expense to investigate and prosecute these cases."

 

Judge Treu points out that defendants raised the issue of due process.  While he describes due process as an entirely legitimate issue, he asks (rhetorically) whether teachers should have any greater interest in due process than other public school employees.  Noting that no evidence was presented showing that non-teacher employees are deprived of due process, the ruling  asks: "Why, then, the need for the current tortuous process required by the Dismissal Statutes for teacher dismissals, which has been decried by both plaintiff and defense witnesses?"  The Court concluded as follows:

 

"There is no question that teachers should be afforded reasonable due process when their dismissals are sought.  However, based on the evidence before this Court, it finds the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory."

 

The Court, therefore, enjoined enforcement of the associated statutes.

 

3.  "Last-In-First-Out" (LIFO)

 

Under current law, teacher effectiveness plays no role in teacher layoff decisions.  Layoffs are, with few exceptions, almost entirely determined by date of hire, with the last-in being the first-out.   In its decision, the Court commented on the existing process as follows:

 

"No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one, who all parties agree is creating a positive atmosphere for his/her students, is separated from them and a senior grossly ineffective one who all parties agree is harming the students entrusted to her/him is left in place.  The result is classroom disruption on two fronts, a lose-lose situation.  Contrast this to the junior/efficient teacher remaining an a senior/incompetent teacher being removed, a win-win situation, and the point is clear."

 

Judge Treu continues:

 

 

For these reasons, the ruling enjoined the enforcement of the accompanying statute. 

 

 

IMPLICATIONS

 

The Trial Court's decision is certain to be appealed. The case will, in all likelihood, eventually make its way to the California Supreme Court.  Because the Trial Court's ruling was so completely sympathetic to plaintiff's assertions, it is only a matter of time before related legal action is introduced in other states.  David Welch, himself, has already indicated interest in challenging similar laws elsewhere. Vergara v. California is likely to invite a national discussion on union protections and students' interests.  Certainly, the Court's findings in Vergara challenge claims that the interests of teachers unions are synonymous with those of students.

 

Mounting a legal appeal to the Vergara ruling, as well as creating and executing a broad public relations campaign aimed at reversing negative perceptions will hit the unions in the pocket book.  (This at a time when union membership is flagging.)  Such financial pressure will cause the unions to redouble their efforts to press for universal pre-kindergarten legislation, effectively creating a downward expansion of the state's public education system, and producing a whole grade's worth of new teachers (read union members).  

 

Faced with the prospect of no funding for his proposal to make transitional kindergarten available to all four year-olds, California Senate President pro Tempore Darrell Steinberg has prevailed upon fellow legislators to include funding for a modified bill that would make "prekindergarten" available to some four year-olds, in the budget bill that was passed on June 15.  Senator Steinberg's amended version of SB 837, now billed as "Fair Start," would require (by 2019-20) every California public school district and charter school that provides kindergarten to also offer prekindergarten to children whose fourth birthday falls on or before September 1 of an applicable school year, and who meet specified poverty criteria.  The budget bill awaits action by Governor Brown, who has the authority to exercise line-item vetoes, even as SB 837 continues to make its way through the legislative process.
 
The agreement achieved by Senator Steinberg (D. - Sacramento) includes a funding package that will allocate $85 million in the new fiscal year (beginning July 1) to provide 11,500 new full-day, full-year preschool slots for low-income four year-olds.  Another $85 million is earmarked for improving preschool quality, including $35 million for "one-time" professional development funding for teachers.  An additional 31,500 four year-olds are expected to be accommodated during the 2015-16 school year, when most of the bill's provisions will take effect.  By contrast, the universal transitional kindergarten program originally proposed by Mr. Steinberg carried a $1.5 billion price tag, per annum.
 
By July 1, 2021, the amended bill's provisions will require all prekindergarten teachers to have earned a bachelor degree with 24 units in early childhood education and/or child development, and to be in possession of a state-issued teaching permit or credential.  Prior to the same deadline, all prekindergarten paraprofessionals will be required to be in possession of a state-issued teaching permit, and to have earned at least 24 units in early childhood education and/or child development.

Prekindergarten classes consisting of 20 or fewer children will require staffing by one prekindergarten teacher, and one prekindergarten paraprofessional, at a minimum.  An additional paraprofessional is mandated for classes exceeding 20 children, though class size is to be capped at 24 children by 2019-20.  Effective as of the 2015-16 school year, however, all prekindergarten teachers and paraprofessionals are to be considered fulltime employees for purposes of salary and benefits, notwithstanding existing collective bargaining agreements to which such employees may be subject.
 
Another bill, AB 1444, authored by Assemblymember Joan Buchanan (D. - Alamo), would make it mandatory for a student to have completed one year of kindergarten before being admitted to the first grade, commencing in the 2016-17 school year.  The measure does not require students to attend a public kindergarten.  Similar bills were introduced in 2012 and 2008, but failed to gain passage out of the Assembly Appropriations Committee, The current bill has passed that hurdle, but must make its through the Senate Appropriations Committee, where it is scheduled to be heard on June 30.
 
The budget legislation presented to the Governor authorizes $156.4 billion in total spending of which $108 billion will repose in the General Fund - an increase of $7.3 billion from the previous year.  In addition to the funds earmarked for state-provided early education, the budget bill boosts spending on welfare grants and the public funding of healthcare.  Notably, the budget bill sets aside $1.6 billion in reserve as "rainy day"
funds to become available during a future economic downturn.  In November, Californians will vote on a constitutional amendment that would require annual contributions to the reserve.

The San Jose Mercury News reports on the budget legislation, here.  The Los Angeles Times covers the story, here.  The Legislative Analyst's Office provides information on the state budget, here, as does the Department of Finance, here.

A new report from the Friedman Foundation for Educational Choice examines private school regulations before and after the adoption of 23 school choice programs in 12 states.  The report, "Public Rules on Private Schools: Measuring the Regulatory Impact of State Statutes and School Choice Programs," which can be accessed, here (in the form of an 89-page PDF), endeavored to answer the following questions:

• How do the regulatory environments before the enactment of private school choice programs compare to the regulatory environments brought about by those programs?
• To what extent do private school choice programs
  change the existing relationship between state
  governments and private schools?
• What types of regulations burden private schools
  the most? Has the nature of the regulatory burden
  changed over time?

Author Andrew D. Catt went beyond a simple pre- and post-count of regulations by creating an "impact score" for each regulation that ranged from -3 to +3.   While the study found that most (62 percent of) private school regulations enacted in states in which school choice programs were established, "were created prior to the existence of a given program," regulations adopted subsequent to the initiation of choice programs may have been disproportionately restrictive.  Not surprisingly, states in which the most inclusive school choice arrangements have been established tended to produce the most negative impact scores.  Wisconsin, Florida and Ohio, states that are home to various private school voucher programs, were found to possess the most negative regulatory impact scores. 

 

In a related finding, it was reported that, "on average, the analyzed private school voucher programs have regulatory impact scores slightly
more than three times as negative the scores of tax credit
scholarship programs."  Some programs, including Pennsylvania's Educational Improvement Tax Credit Program, and Indiana's School Scholarship Tax Credit were enacted without precipitating negative regulatory consequences (thus far).  

 

 

Point - Counterpoint - What's the Point?

 

For the better part of the past decade, University of Illinois Urbana-Champaign professors Christopher and Sarah Lubienski have attempted to demonstrate that when family background variables are held constant public schools outperform private schools on standardized tests.  The most recent iteration of the claim advanced by the husband-wife team appeared in the form of a book titled, The Public School Advantage: Why Public Schools Outperform Private Schools.  The book has gained new attention with the recent publication of an Education Week article that can be read, here. 

 

The Lubienski's research has been the subject of review and commentary in the E-Mailer on multiple occasions.  The duo have consistently employed methodology that has the effect of making private school students appear to be "less poor," and public school students "more poor" than is actually the case.  When a pair of Harvard University researchers did an essential repeat of an earlier Lubienski study using a set of variables that did a better job of operationalizing family background variables, the Lubienski's findings disappeared.  A critical review of the Lubienski's book, penned by NAIS President John Chubb, was cited in the E-Mailer last fall. 

 

A new piece of commentary provided by Mark Dynarski, a nonresident senior fellow at the Brookings Institution's Brown Center on Education Policy, finds additional fault with the Lubienski's book, here.   Mr. Dynarski makes the important point that "parents see real schools, not hypothetical ones."  Similar to John Chubb, he concludes that "comparing test scores of public and private schools can be a distraction from the bigger picture," which should maintain a focus on "how to improve schools generally."  

 

 

CAPE President Visits CAPSO

 

At its May 28 meeting, CAPSO's board of directors was honored to be joined by The Rev. Daniel R. Heischman, D.D., Executive Director of the National Association of Episcopal Schools, and President of the Council for American Private Education (CAPE).   A renowned leader and thinker, Rev. Heischman's most recent book is What Schools Teach Us about Religious Life. CAPE member organizations represent about 80 percent of private school enrollment nationwide.  CAPSO is CAPE's California State Affiliate.

 

   

CAPSO Officers and their guest (from left to right):  Edward Dolejsi, Vice President; Al Kosters, President; Serena Beeks, Secretary; Rev. Heischman; Kevin Baxter, Treasurer; Ron Reynolds, Executive Director.

 

 

With the close of another school year, the E-Mailer will be on hiatus until September 10, 2014.  Here's wishing our readers a pleasant summer replete with opportunity for rest, relaxation and renewal!