June 10, 2014

Analysis of the teacher tenure case

By Joshua P. Thompson Senior Attorney

As reported earlier on the Liberty Blog, the Superior Court for Los Angeles County issued a decision striking down three California statutes that relate to employment of California’s public school teachers.  The lawsuit was brought by Students Matter on behalf of several California public school students and their guardians ad litem. The State of California (and various state officials) were the defendants and the two big California teachers’ unions intervened in defense of the laws. At issue were three California statutes: Permanent Employment (Educ. Code Section 44929.21(b)), Dismissal (Sections 44934 & 44938(b)(1)), and Last-in-First-Out (Section 44955).   

The court began its opinion by noting — at length — that its political opinions did not enter the analysis.  The court was very cognizant of the highly politicized nature of this case, but wanted to make clear that its opinion was strictly legal.  “It is also not this Court’s function to consider the wisdom of the Challenged Statutes.”  Indeed, the court concluded its opinion by reiterating that its opinion was purely legal, and interestingly, quoted Alexander Hamilton’s Federalist 78* to drive the point home.  “For I agree, that there is no liberty, if the power of judging be not separated from the legislative and executive powers.” 

The plaintiffs challenged the tenure statutes under three provisions of the California Constitution. They argued that the statues violated their fundamental right to a quality education.  The court’s legal analysis began by setting out the rights at issue. Starting with Brown v. Board of Education and moving on to various California-specific cases, the court explained that the state bears a heavy burden to establish that the challenged statutes do not violate students’ constitutional rights.

Before proceeding to analyzing the challenges, the court commented on the evidence produced at trial.  The effect of ineffectual teachers on students, the court explained, “shocks the conscience.” Expert witness testimony revealed that ineffective teachers can cost students over nine months of learning per year, and $1.4 million in lifetime earnings.  Further, the court noted that even the State’s witnesses conceded that California public schools retain thousands of teachers they would classify as “grossly ineffective.”  In other words, the effect of ineffective teachers is real, and is occurring in great numbers throughout California’s public school system.

The court first looked at the Permanent Employment statute.  While the statute purports to provide schools with a “two-year” window to evaluate teachers, the reality is that the time frame is much shorter. Decisions on teacher retention must be made by March 15 of the second year.  But even that date is false, because in order to make that deadline, the decision making process has to start much earlier.  Again the court relied on the State’s witnesses to drive this point home.  They explained that this short window created a “real problem,” and conceded that it would “theoretically be great” to have more time to evaluate teacher effectiveness. And not only does this short window result in the permanent hiring of ineffective teachers, but it also places a perverse incentive on school districts to not retain effective teachers.  For if school districts have to make permanent evaluations after barely a year, they often err on the side of caution.  The court also looked to other states for guidance, and noted that California is only one of five states that require schools to make retention decisions in less than two years.  All of this led the court to conclude that the Permanent Employment statute violated California students’ right to a quality education under the California Constitution’s Equal Protection Clause.

The court then looked at the Dismissal statutes.  The court explained that it can cost up to $450,000 and ten years to fire ineffective teachers under the Dismissal statutes.  Relying again on defense witnesses, the court found that dismissals are “extremely rare” because administrators believe it to be “impossible” to dismiss a tenured teacher.  The court rejected the state’s defense that they needed to provide tenured teachers with sufficient due process. While due process is certainly required, the Dismissal statutes provide “über due process,” which is not constitutionally required.  The court found, “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.”  Accordingly, the Dismissal statutes were also stuck down under the Equal Protection Clause of the California Constitution.

The final statute analyzed by the court was the Last-in-First-Out statute.  This statute requires schools to layoff the most recent hire — regardless of effectiveness — when schools are required to undertake layoffs.  Schools have no discretion to let go the grossly ineffective teachers, or, conversely, to retain the highly competent ones.  “The logic of this position is unfathomable and therefore constitutionally unsupportable.”  Looking again to other states, the court noted that most states allow administrators to consider effectiveness of teachers when making layoffs. California, on the other hand, is one of only ten states that make seniority the sole factor in layoffs. For these reasons, the Last-in-First-Out statute also violated the California Constitution’s Equal Protection Clause.

Lastly, the court noted that the statutes also disproportionately affect poor and/or minority students, and that this result would also violate the California Constitution.  The court provides little analysis of this claim, other than to explain that the evidence of the effects of these statutes on poor children was “substantial.”

One final note on the opinion.  This is only the court’s tentative opinion.  The plaintiffs must now prepare a Statement of Decision to which the State and Intervenors may file objections.  While the court may certainly revise its opinion once it hears the objections, such thoughtful and lengthy tentative decisions are rarely changed.  After all, the court has already conducted a trial in this case, and spent a lot of time and effort researching the law and writing its opinion.  Of course, it must also be noted, that the state and/or intervenors are surely to appeal this case to the California Court of Appeal.  We will be monitoring this case closely, and PLF may get involved in the appellate courts.

* Alexander Hamilton was paraphrasing Montesquieu.

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