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Public School Teachers Dodge Another Bullet (after Friedrichs) as the Court of Appeal Refuses to Void the Education Code in Vergara v. State of California

April 18, 2016 by

First, as a direct result of Judge Scalia’s unexpected demise, a four-four split on the U.S. Supreme Court granted a reprieve to public sector unions whose agency fees and opt-out provisions were on the chopping block in Friedrichsv. California Teachers Association.

Then, two weeks later, on April 14, 2016, the Court of Appeal in Los Angeles dealt  another blow to opponents of pubic education, who sought to have declared unconstitutional all teacher tenure, dismissal, and layoff statutes in the California Education Code. In a unanimous decision, the three-justice panel reversed the decision by Superior Court judge Rolf Treu, a Pete Wilson appointee, who had ruled the statutes unconstitutional. Instead of blaming the statutes or teachers, the Court of Appeal perceptively blamed administrators for not adequately performing their administrative functions.

The Vergara case, named for one of nine students who sued the State of California, Governor Brown, and a myriad other State officials, contended that the statutes, themselves, deprived students of equal protection by forcing them to endure “grossly ineffective” teachers. The California Teachers Association and California Federation of Teachers moved to intervene in the case as additional defendants.

In their complaint, Plaintiffs identified two groups of students who allegedly were denied equal protection because of the statutes. “Group 1 was a ‘subset’ of the general student population whose ‘fundamental right to education’ was adversely impacted due to being assigned to grossly ineffective teachers.” Group 2 were “minority and economically disadvantaged students” who “have more than their proportionate share of grossly ineffective teachers.”

The Court noted that the plaintiffs did not challenge how the statutes were applied; instead, they sought to void the statutes in their entirety so that they would not apply “to any person in any circumstance.” When a statute affects similarly situated groups in an unequal manner, the Court examines whether the Legislature had a constitutionally sufficient reason to treat the groups differently, and then whether it must conduct a “rational basis review” or “strict scrutiny” review if the differential treatment in the law rests on a “suspect classification” or impinges on a fundamental right. If the latter, the burden is on the State to prove a compelling interest and that the distinctions drawn by the law are necessary to further its purpose.

Here, the evidence did not demonstrate the Education Code statutes are unconstitutional on their face.  With regard to Group 1, the Court referred to the group as the “unlucky subset” which did not constitute an “identifiable group” sufficient to maintain an equal protection claim. With regard to Group 2, the Court wisely concluded that the evidence did not prove the challenged statutes cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers. “A statute is facially unconstitutional when the constitutional violation flows ‘inevitably’ from the statute, not the actions of the people implementing it,” and the court concluded that “[t]he challenged statutes do not inevitably lead to the assignment of more inexperienced teachers to schools serving poor and minority children.”

The Vergara case cost plaintiffs millions of dollars to litigate and market it in the court of public opinion. Of course, the students did not pay; instead, the chief benefactor is David Welch, a Silicon Valley entrepreneur. At least one luminary appears in both Friedrichs and Vergara: that would be Theodore Olson, who represented the plaintiffs in Vergara and filed an amicus brief in Friedrichs on behalf of former Governors Wilson and Arnold Schwarzenegger. That the  two cases should have cross-overs is not surprising, since both are transparent in their goal of disempowering public employees.

One of the ironies of this misbegotten case is that plaintiffs’ own evidence demonstrates the flaw in their argument that a “grossly ineffective teacher” is a commodity that can be quantified and turned into a statistic.  At trial, one of the students from Pasadena testified that her seventh grade English teacher was “grossly ineffective,” and how that teacher had negatively impacted her life forever.  That teacher, it turns out, was selected as the “Pasadena Teacher of the Year “just the year before. A video that had been made of the teacher was shown at the trial, and her competence as a teacher, strength of character, creativity, and commitment to students, could not have been more “facially” obvious.

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