Vergara v. California: Part Two: Is Tenure in Connecticut At Risk?

by Pullman & Comley - School Law

As discussed in a prior post,  the recent decision in the case of Vergara v. State of California, et al., will, if upheld on appeal, eviscerate California’s public school teacher tenure law. Given that 46 states have some form of teacher tenure, Vergara has unleashed a sonic clash between keening prophesies of pedagogical collapse and exultant predictions of American educational primacy. A paradigm once seen as unassailable now appears vulnerable, and according to The New York Times, similar suits are being contemplated in a number of states, including Connecticut.

How, then, would such a lawsuit fare in Connecticut?

There are certainly similarities between the California and Connecticut tenure statutes. Both provide public school teachers with what is essentially automatic tenure. Furthermore, both states provide teachers with a heightened form of due process that to date has proven so Sisyphean that districts avoid initiating termination proceedings against all but the most egregious examples of what the Vergara court called “grossly ineffective teachers.” Finally, both states contemplate the supplantation of less experienced teachers by senior teachers whose positions have been eliminated.

Connecticut’s Constitution and case law also comport with the legal bases upon which Vergara is predicated. For example, both the California and Connecticut Constitutions expressly invest individuals with the right to equal protection of the laws, and both require the provision of free public schools. In fact, the Connecticut Supreme Court has recognized a confluence of those constitutional obligations, writing: “It is now well established that, under the constitution of Connecticut, the state must ‘provide a substantially equal opportunity to its youth in its free public elementary and secondary schools.’” [Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 242 (Conn. 2010)]. Additionally, the court has recognized a “qualitative component” to the state’s constitutional obligation to provide equal educational opportunities, a finding that is consistent with the core of the Vergara decision.

The congruence between California’s and Connecticut’s tenure provisions, however, is not complete, and while the dissimilarities are primarily a matter of degree, they are nonetheless noteworthy. For example, California requires teachers to work only two complete years before attaining tenure, an unusually short period in which to assess a teacher’s competency, particularly since districts have only until March 15 of a teacher’s second year of employment to provide written notice that it is denying tenure. The Vergara court deemed this rather perfunctory timeframe unconstitutional because it often forced school districts to make improvident decisions regarding teacher competence, thereby arbitrarily dooming students to a “grossly ineffective teacher” or, in the alternative, depriving them of a gifted one.

In contrast, Connecticut teachers must work in the same district for forty continuous months, or the equivalent of four school years, in order to attain tenure, and districts have until May 1 of the teacher’s fourth year to notify the teacher of nonrenewal. This difference in the states’ pre-tenure periods could prove significant, for in the course of criticizing California’s two-year timeframe, the Vergara court noted with approval that 32 other states have a three-year pre-tenure period, and nine states require four or five years, perhaps implicitly suggesting a pre-tenure period such as Connecticut’s would have passed constitutional muster.

Another potential distinction between the two states, at least going forward, lies in their respective termination processes. In deeming California’s “Dismissal Statutes” unconstitutional, the court cited a “tortuous” and “illusory” hearing process that many districts believed so “impossible” to win that it effectively precluded the removal of incompetent teachers. Like California, Connecticut tenured teachers who are facing termination enjoy a form of due process that exceeds that which is afforded many other public employees. Connecticut, however, has legislated changes to the termination process that are scheduled to take effect on July 1, 2014 and that, at least theoretically, are designed to significantly reduce costs and dramatically streamline the hearing process, thereby making the prospect of a hearing less daunting for districts. For example, the current tripartite panel that has typically presided over these hearings will be replaced by a sole hearing officer, and, in cases in which the proposed termination is based upon incompetence or ineffectiveness, evidence will be limited to a total of twelve hours, with each side having no more than six hours to make its case.

The final aspect of California’s tenure process that Vergara found unconstitutional was the “LIFO” — or last in, first out — statute, which required in any layoff the discharge of junior teachers prior to senior teachers, regardless of their respective abilities and regardless of whether the junior teacher also has tenure. Connecticut law tracks this provision somewhat closely, except that it limits the teachers who can be displaced only to those who have not yet attained tenure. Whether this sufficiently distinguishes Connecticut’s dismissal statute from California’s is arguable, but it is also important to recognize that in the absence of a statutory mandate, it is not uncommon for districts and teacher unions to negotiate collective bargaining agreements in which seniority is not the dispositive factor when there are no non-tenured teachers that can be displaced and a district has to choose between tenured teachers to lay off.

The viability of a Vergara lawsuit in Connecticut, then, is not clear cut. The constitutional, statutory and case-law foundations for such a claim are present, but so too are variables that could be enough to distinguish Connecticut’s statutory framework from California’s. The unknown factor is whether potential plaintiffs could establish that low-income or minority students in Connecticut, like their peers in California, disproportionality shouldered the burden of incompetent or inefficient teachers, or whether such a showing would be deemed necessary.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley - School Law | Attorney Advertising

Written by:

Pullman & Comley - School Law

Pullman & Comley - School Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.