Vergara v. California, the Lawsuit That Put Teacher Tenure on Trial

The plaintiffs in this case were children, and the defendant was a set of statutes. That alone makes it unusual. Most fights over teachers and their contracts are between adults, and the children are discussed as though they were absent. In Vergara v. California, nine of them walked into a Los Angeles courtroom and asked a judge whether the state's rules were costing them their education.

This post tells that story in order: the filing, the trial, the ruling, the reversal, and what remains. My conclusion will be a distinction conservatives should insist on. The plaintiffs lost the legal case, but the policy argument they built survived, and it belongs in legislatures, where the people can answer for it.

The facts that brought the case

In May 2012, nine California public school students filed suit in Los Angeles Superior Court. The lead plaintiff was Beatriz Vergara, and the defendants were the State of California and state officials. Intervening on the state's side was the California Teachers Association, and the California Federation of Teachers also defended the laws. The students were backed by a nonprofit called Students Matter, founded by a Silicon Valley entrepreneur, David Welch, and they were represented by a team of experienced litigators.

Their complaint targeted five provisions of the California Education Code. I describe them in words, not by section number, because the sections have been amended over time. Together they governed:

1. The permanent employment statute. Under it, a teacher in California had to be granted or denied permanent status, which is to say tenure, in March of her second year of teaching, so the decision came after less than two years in the classroom.
2. The dismissal statutes. A series of procedures a district must follow to dismiss a permanent teacher, which the plaintiffs argued were so lengthy and costly that districts rarely used them. The process involved a panel and a long timeline.
3. The layoff statute. The "last in, first out" rule that required layoffs to proceed by seniority, with the newest teachers going first.

The plaintiffs' theory was a legal one, and it was clever. They did not argue that the Legislature was unwise. They argued that the combination of these statutes violated the equal protection guarantee of the California Constitution, because it caused a disproportionate share of grossly ineffective teachers to be assigned to schools serving low-income and minority students, and that this deprived those students of the fundamental right to an equal education.

The trial

The case went to trial in early 2014, and it lasted about two months. The plaintiffs called teachers, administrators and experts. Their most consequential evidence was statistical.

An economist, Raj Chetty of Harvard, testified about a study he had done with colleagues John Friedman and Jonah Rockoff, which used large datasets from a major urban district to trace the effects of teachers on their students' later lives. The study found that students assigned to teachers with higher "value-added" scores, a measure of how much their students' test scores grew beyond what was predicted, went on to higher earnings, higher college attendance and lower rates of teen pregnancy. The study also found that replacing the lowest-performing teachers with average ones would raise the lifetime earnings of a classroom of students by a substantial amount. I want to be careful here: I am describing the study's thrust, not quoting its figures, which you should read for yourself.

The state and the unions responded that the statutes served legitimate purposes. Tenure, they said, protected teachers against arbitrary dismissal and retaliation. Seniority-based layoffs were an objective rule that kept administrators from firing teachers for being expensive or unpopular. And they argued that if there was a problem with the distribution of effective teachers, the cause lay in the decisions of local districts and principals, in funding, in working conditions and in the difficulty of attracting teachers to hard schools, and not in the statutes themselves.

Some testimony at trial was striking. Administrators described the dismissal process as so burdensome that they did not attempt it even for teachers they considered clearly ineffective, and described the practice of reassigning such teachers between schools, sometimes called "passing the trash," as a way to avoid the process. I will not attribute particular statements to individual witnesses, because I am working from the structure of the record, and you should consult the trial court's decision for the details.

The ruling, June 2014

On June 10, 2014, Los Angeles Superior Court Judge Rolf Treu issued a ruling in favor of the students. He held that the challenged statutes violated the equal protection clause of the California Constitution. The reasoning was this: the statutes, by their operation, imposed a disproportionate burden on poor and minority students by assigning them a disproportionate share of grossly ineffective teachers, and that burden affected the fundamental right to education.

Judge Treu did something rare in the judicial literature: he used strong language. He wrote that the evidence of the harm was compelling and that it "shocks the conscience." He also compared the situation to the one in Brown v. Board of Education (1954), the landmark case holding that segregated public schools deny equal protection, reasoning that students should have the same opportunity to learn regardless of which school they attend.

The ruling also stayed its own effect pending appeal. That meant nothing changed immediately, and it put the case into the appellate system, which is where it met its end.

For a moment, it looked like a transformation. If the ruling had held, California's laws on teacher tenure and layoffs would have been struck down, and the Legislature would have had to write new ones. Education reformers across the country watched. Similar suits followed in other states, notably in New York.

The reversal, April 2016

The California Court of Appeal, Second District, reversed the decision on April 14, 2016. The appellate opinion did not dispute that some students were taught by ineffective teachers. What it held was that the plaintiffs had failed to prove the legal point their theory depended on: that the statutes themselves caused the unequal distribution of those teachers.

This is the heart of the legal reasoning and it is worth stating exactly. An equal protection challenge to a statute requires showing that the statute, not something else, causes the injury. The Court of Appeal found that the harm to students flowed from decisions made by school districts and administrators, such as where to assign teachers and how to use the powers they had, rather than from the statutes. Any student's unlucky assignment to a poor teacher was a product of those decisions. The statutes did not tell a district to place its weakest teachers in its poorest schools. So the plaintiffs' proof did not fit their legal claim.

On August 22, 2016, the California Supreme Court declined to review the case. That denial left the Court of Appeal's decision in place and ended the litigation. A denial of review is not a ruling on the merits, and the court did not say the plaintiffs were wrong about the facts.

What to make of the loss

Let me do what I do in every case post: state the other side's best argument, fairly, and answer it.

The best case for the result goes like this. Courts should not run school systems. Equal protection analysis requires a showing of cause, and the plaintiffs could not show that the Legislature's statutes, as opposed to the choices of thousands of local administrators, produced the unequal distribution. Teacher tenure and seniority are policy choices that the democratic process made, and the remedy for a bad policy is the legislative process. A trial judge with the best intentions should not strike down a statutory scheme because he finds the evidence of harm persuasive. Judicial restraint cuts against the activist use of a state constitution to restructure education.

I will say, as a conservative, that a large part of that argument is right. I do not want judges rewriting education policy, whichever party is on the winning side. A theory that lets a court strike down any statute whose effects it dislikes, so long as the effects fall on a disadvantaged group, would hand enormous power to whichever lawyers file the best brief. The Founders' design is that the legislature makes policy and the courts decide cases. Montesquieu, whom Madison cited with approval in Federalist 47, warned that there is no liberty if the power of judging is not separated from the legislative.

So the legal reversal is, in my view, defensible. What is not defensible is the conclusion some have drawn from it: that because the plaintiffs lost, the problem they described must not exist.

What survived

Here are four points that the legal loss did not touch.

1. The research survived. Value-added studies, whatever their limits, consistently find large differences among teachers in how much their students learn. A teacher at the top of the distribution adds far more in a year than one at the bottom. That is not a controversial claim among education researchers, and the court of appeal did not contradict it.
2. The mechanics of the statutes survived. Tenure decisions are still made early in a teacher's career, when the information about her effectiveness is thin. Dismissal still takes a long time. Layoffs still go by seniority in many California districts. The facts that disturbed Judge Treu remain facts.
3. The question of who bears the cost survived. When a district cannot easily remove a failing teacher, the cost lands on the children in that classroom, and it lands hardest on those whose families cannot move or enroll elsewhere. A wealthy family that finds a weak teacher can switch schools. A poor family often cannot.
4. The argument for legislation survived. If the courts will not fix the rules, the legislature must. And that is where a fight about teacher employment rules belongs, with elected representatives who answer to voters and can be removed by them.

I find that fourth point the most important. Litigation was a shortcut, and shortcuts around democratic accountability tend to cost more than they save. The nine students had good reason to try it, since legislatures tend to be responsive to the organized interests that surround them, and teachers unions are among the most organized. But a policy that cannot win a majority in the legislature has not been shown to be wrong, and a policy imposed by a judge has no legitimacy beyond the judge's own.

What a legislature could do

If the problem described in Vergara is real, here are options a state could consider, none of them requiring a court order. I list them as policy choices, and each has a case for and against.

• Lengthen the tenure clock. Instead of granting permanent status after less than two years, require a longer probationary period, such as four or five years, so that decisions are based on more evidence. Several states have done this, though you should check your own state's current law.
• Link tenure to effectiveness. Require that a teacher show demonstrated effectiveness, as measured by multiple indicators, to be granted permanent status.
• Streamline dismissal. Keep due process, since a teacher should not be fired arbitrarily, but shorten the timeline and cap the cost, so that a district can actually use the procedure.
• Change the layoff rule. Allow districts to consider effectiveness alongside seniority when cutting positions, so that the best newer teachers are not automatically first out.
• Reward effective teachers in hard schools. Pay differentials for teachers who take on the toughest assignments, so that the distribution of talent improves because the incentives do.

These are matters to be settled by bargaining and legislation. We explain what is in the typical contract in What a Teachers Union Contract Says and Why Every Parent Should Read One, and how teacher unions got the right to bargain in the first place in How Teacher Unions Won the Right to Bargain, and What FDR Warned About.

The larger lesson

There is a pattern in American politics that conservatives should learn to recognize. When an institution is insulated from competition and from voters, its defenders will fight reform in every forum, and the reformers will be tempted to win in the forum where the institution is weakest, which is often the court. Sometimes that works. When it does not, the reformers are left with a loss that looks like a verdict on the idea.

The better path is the slower one: persuade the public, change the incentives, and give families an exit when the system fails them. That is the point of school choice, which we take up in Arizona Made Every Child Eligible for an ESA, How the Idea Spread So Fast and in the case for Your ZIP Code Picks Your Child's School, the Case for Open Enrollment. A family with the power to leave does not need a court to protect it from a bad assignment.

There is also a lesson in how a government should treat its employees. A teacher has a right to fair treatment, and a child has a right to a competent teacher. These two rights are not enemies. A system that cannot honor both has failed at something basic, and the failure is one the Legislature has the power to fix. You can follow how states change such laws, and how your own representatives vote, on the page for your representatives.

The case in brief

1. Vergara v. California was filed in 2012 by nine students who challenged California's tenure, dismissal and seniority-layoff statutes under the state constitution's equal protection clause.
2. On June 10, 2014, Judge Rolf Treu ruled for the students, relying on evidence about the effects of teacher quality on students' later lives.
3. The Court of Appeal reversed on April 14, 2016, holding that the plaintiffs had not shown that the statutes, rather than local decisions, caused the unequal distribution of effective teachers, and the California Supreme Court declined review in August 2016.
4. The legal reversal is defensible as a matter of judicial restraint, but the policy problem the case described did not go away.
5. The remedy belongs in legislatures, where tenure clocks, dismissal procedures and layoff rules can be changed by officials who answer to voters.

What you can do: look up your own state's teacher tenure statute on your legislature's website, find out how many years of probation it requires, and ask your state representative whether it should change.