The five statutes affected by the Vergara decision probably should be amended to make it harder to get tenure and easier and cheaper to fire and lay off bad teachers. But laws that are unwise or inefficient are not necessarily unconstitutional...

If upheld on appeal, the trial court decision in Vergara v. State of California will make it easier for California school districts to keep new teachers in "at will" probationary status longer, to fire tenured teachers, and to lay off bad teachers with a lot of seniority. As a lawyer for school districts, that sounds pretty good. But the reasoning and the factual underpinnings in the Vergara decision are seriously flawed.

First, the court says it is relying on equal protection cases where education is declared a fundamental right under the California constitution. But where is the unequal opportunity?  In Brown v. Board of Education (1954) 347 U.S. 483, there were separate segregated schools. In Serrano v. Priest (1971) 5 Cal.3d 584, there were huge disparities among school districts in how much funding they generated from property taxes. In Butt v. State of California  (1992) 4 Cal.4th 668, only the students in Richmond were getting six weeks less school than the rest of the students in the state. In Vergara, all school districts and all students in California are subject to the same statutes that create teacher tenure and seniority rights.

In fact, the court's reasoning is not based on an unsupportable disparity or prohibited category; it is based on the conclusion that a "grossly incompetent" teacher is unconstitutional because the adequacy of an education is guaranteed by the constitution. The decision states:

While these cases addressed the lack of equality of education based on the discrete facts raised therein, here this Court is directly faced with issues that compel it to apply these constitutional principles to the quality of the educational experience. (Slip Opinion at p. 4, lns. 5-9.)(Emphasis in original.)

No California court has ever said that before and, in fact, the same theory was rejected by another trial judge a few years ago when a coalition of education groups argued that the whole system of school funding was constitutionally inadequate to meet the academic performance standards established by state law and state board policy. (Robles-Wong v. California, Alameda County Superior Court No. RG10515768.)  If adequacy is the test, how many of the factors affecting student achievement are going rise to constitutionally guaranteed status?  And if every child has a constitutional right to a competent teacher, are parents going to be able to sue to enjoin individual teachers from teaching their children?

And, even assuming there is a constitutional right to an adequate education, does that invoke the "strict scrutiny test" that was adopted in Serrano; or, would the "rational basis test" be more appropriate?  The second test gives the traditional deference to the legislative process in choosing the means to achieve reasonable public policy objectives, even when there is some collateral infringement on a constitutional right. Teacher tenure laws may not work perfectly all the time, but can you say those laws are not rationally related to recruiting and retaining people to work in a difficult and underpaid profession?  And what about the mitigating effects of teacher training, counseling services, progressive discipline, and reassignment provided by school employers to improve teacher performance and behavior?

Next, the court relies on some pretty flimsy data to find that 1 to 3 percent of all teachers in California are "grossly ineffective."  Where did that number come from?  And how does anyone know that a teacher is so "grossly ineffective" that they should be terminated, unless that question has been fairly determined by a school district employer and adjudicated under fair administrative or collectively bargained procedures?  As the California Supreme Court recent held in a class action certification case:

Trial courts have broad discretion in many areas. But they cannot exercise that discretion in ways contrary to the internal rules of a scientific specialty, such as statistics, and then rely on that specialty's established reliability as if the rules had been followed. (Duran v. U.S. Bank National Assoc. (May 29, 2014) Cal.Sup.Ct (Slip Opinion in The Recorder, dated 5/30/14, at p. 24.)

And where did the quantification of the monetary damage caused by a "grossly ineffective" teacher come from?  Assuming there are thousands of teachers who are ineffective in different ways affecting hundreds of thousands of students in different ways, how does anyone build a credible damage model?  It only sounds like a fact if one is predisposed to conclude that the system is broken. The trial courts have an obligation to act as "gatekeepers" and exclude purported expert opinions that are so speculative and unsupported that they cannot reasonably be considered evidence. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 [projected lost profits based on estimated loss of future market share not based on facts].)

Firing teachers is still going to take time and money and school administrators with the backbone to stand up to the unions.

The court acknowledges that, even with the dismissal statute invalidated, public school teachers will still have constitutional rights to due process before they are terminated. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194.)  Although the court finds that it's much easier to fire a classified employee who only has Skelly rights, it does not necessarily mean that districts will suddenly decide it's so easy and inexpensive to fire a teacher that they will begin to do what they could have done all along. Firing teachers is still going to take time and money and school administrators with the backbone to stand up to the unions.

The court does make reference to some 10-year-old observations by the California Department of Education regarding the disparate number of "underqualified, inexperienced, out-of-field, and ineffective teachers" in high-poverty, low-performing schools. However, that problem has been and continues to be addressed in programs like the Quality Education Investment Act of 2006 (Educ. Code sec. 52005.650) and other statutes that provide extra funding and assistance to high poverty, low performing schools. (Educ. Code sec. 52060, et seq.)  The disparities may be real and persistent; however, the statutory scheme for teacher tenure and seniority should be balanced against  the rest of the laws that seek to improve the quality of teaching in all districts. In O'Connell v. Superior Court (Valenzuela) (2006) 141 Cal.App.4th 1452, 1468-1469, a trial court injunction was reversed, despite the disparate failure rates of minority students on the California High School Exit Exam, where the test was part of an overall legislative scheme to improve instruction, target needed student remediation, and enhance the value of a high school diploma. The court in Vergara considered none of the other state programs and laws designed to improve teacher quality and provide remediation.

Finally, it seems reasonable to assume that, if these statutes are invalidated, the unions will try to win the same protections back at the bargaining table. That begs the question whether a school district can constitutionally agree to a contractual teacher tenure or discipline procedure that has the same flaws that invalidated the former statutes. Even assuming it is within a district's authority to agree to such procedures, it adds another level of intense conflict to a bargaining relationship that has already been made difficult by years of budget cuts and sea changes resulting from the Local Control Funding Formula and the Common Core State Standards.

The five statutes affected by the Vergara decision probably should be amended to make it harder to get tenure and easier and cheaper to fire and lay off bad teachers. But laws that are unwise or inefficient are not necessarily unconstitutional. Fixing those problems is a job for the Legislature after an open public debate and not for the courts.

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[Michael E. Hersher is Of Counsel to the firm of Kronick, Moskovitz, Tiedeman & Girard in Sacramento, California which represents numerous school districts. He is the former General Counsel of the California Department of Education where he worked on education issues in the Legal Division for 25 years and was counsel of record in   Butt v. State of California  . The foregoing opinions reflect his personal and professional views and not those of Kronick Moskovitz.]