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The Answer Sheet: A Silver Lining in the Vergara Decision?

A decision by a California judge on Tuesday to strike down — pending appeal — five state statutes that provide job protections to teachers has deeply troubled many teachers and teacher activists concerned about the effect on the profession should the ruling stand. Here is a detailed look on what might be a silver lining in the ruling for those concerned about equity in public education. It was written by Kevin Welner, the director of the National Education Policy Center, an attorney and a professor education policy at the University of Colorado Boulder.


By Kevin Welner

The Vergara decision  issued  Tuesday was issued by a Los Angeles Superior Court judge who agreed with the plaintiffs’ constitutional challenge to several state statutes that provide job protections to teachers, particularly to teachers with greater seniority. The judge enjoined (prohibited) the enforcement of the statutes and then placed a stay on his ruling pending the expected appeal, meaning that the injunction is not currently in force.

Although I can’t help but feel troubled by the attack on teachers and their hard-won rights, and although I think the court’s opinion is quite weak, legally as well as logically, my intent here is not to disagree with that decision. In fact, as I explain below, the decision gives real teeth to the state’s Constitution, and that could be a very good thing. It’s those teeth that I find fascinating, since an approach like that used by the Vergara judge could put California courts in a very different role —as a guarantor of educational equality—than we have thus far seen in the United States.

Before explaining the decision and its import, I should stress up front that a lower (trial) court decision cannot establish a meaningful precedent. Only if the decision is appealed and upheld, with the appellate courts using similar reasoning, are we likely to see a powerful sea change in terms of education rights litigation. While it is not immediately clear if the state will appeal, the teacher union Intervenors, part of the losing side in this case, promptly announced that they would.

The Vergara decision struck down five state statutes within the Education Code: 44929.21(b) (setting forth a two-year review process before teachers are—or are not—given permanent employment status, commonly known as tenure); 44934, 44938 (b)(1) and (2) and 44944 (setting forth due process procedures prior to dismissal); and 44955 (use of Last-In-First-Out, or “LIFO,” for layoffs). The court concluded that each of these statutes causes students to be exposed to “grossly ineffective teachers” in violation of the California Constitution’s equal protection clause.

The court’s opinion is surprisingly terse, only about 15 double-spaced pages long. But the essence of the argument is very clear:

  1. “Plaintiffs have proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact on students’ fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students. Therefore the Challenged Statutes will be examined with ‘strict scrutiny,’ and State Defendants/Intervenors must ‘bear [] the burden of establishing not only that [the State] has a compelling interest which justifies [the Challenge Statutes] but that the distinctions drawn by the law[s] are necessary to further [their] purpose.’” (citing the 1971 Serrano v. Priest decision). (Emphasis added.)
  2. The State failed to meet this rigorous strict-scrutiny burden.

Judge Treu briefly cites some of the trial testimony and concludes that the three policies (LIFO, a two-year review period before a tenure decision, and strong due process protections) were each not shown by the state to be good policy. More technically, what the court found is that the state failed to meet its burden to show a compelling interest to justify policies that the court found were causing the employment of several thousand “grossly ineffective” teachers scattered throughout California.

My impression as someone who has read more opinions in education rights cases than I care to remember is that, while this presentation of the supposed harmful impact and resulting unconstitutionality of the statutes checks all the appropriate boxes, the analysis is neither deep nor convincing. I encourage readers to download the opinion (officially called a “tentative decision”), which is available on the plaintiff’s website, and reach their own judgments as to the strength of the evidence presented.

The weakness of the evidence is part of what makes yesterday’s decision so intriguing. (The other part, concerning the legal standard applied by the judge, is discussed below.) Even with such a poor evidentiary record, the court was willing to strike down a set of laws passed by the legislature and signed by the governor. Note in particular the court’s willingness to find a causal link between the five statutes and the employment of several thousand “grossly ineffective” teachers.

To help explain this, let me step back 60 years. There has, since Brown v. Board of Education (1954), been an ongoing tension over how strenuously courts should intervene to ensure that children in disadvantaged communities receive equal educational opportunities. The general trend has been for courts to defer to executive and legislative discretion. As early as the “all deliberate speed” edict of Brown II in 1955, the courts signaled that their rhetoric about equality would only take plaintiffs so far. True equality would have to be achieved not through court mandates but through the normal political process—a process in which majority rule is likely to overlook, impede or even outright trample on the rights of political minorities.

Enter the Vergara plaintiffs. California’s tenure (due process) protections for teachers, which are a set of procedural rules that school districts must comply with before dismissing a tenured teacher, are among the strongest in the nation. Those behind the Vergara lawsuit want to change that, and the courts seemed the most available way to attack that system given the voters’ decisive rejection of former Gov. Schwarzenegger’s attempt to weaken tenure via the ballot box (2005’s Proposition 74), and given a current governor and legislature not inclined to see these protections as a problem.

Consider now the other intriguing part of yesterday’s ruling: the legal standard applied by the judge. The main precedent relied upon in the Vergara decision is a 1992 decision of the California Supreme Court called Thomas K. Butt v. State of California. In that case, the Court found that students’ equal protection rights were violated when Richmond Public Schools ran out of money and ended the spring semester six weeks early. The Court held that the State of California had a constitutional duty to step in to ensure that these students receive “basic equality of educational opportunity.”

Note that the “real and appreciable impact” language quoted above from the Vergara opinion is from the Butt case (although the court’s opinion inexplicably includes no reference to Butt for that language).

The California Supreme Court in the Richmond case stressed that the early closure of the schools would result in the loss of “almost one-fifth of the standard school term” and would therefore “cause an extreme and unprecedented disparity [as compared to other students in other districts] in educational service and progress,” thus resulting in an “extensive educational disruption.” The generally understood holding from the California Supreme Court was: “Unless the actual quality of the district’s program, viewed as a whole, falls fundamentally below prevailing statewide standards, no constitutional violation occurs.”

Oddly, the Vergara judge’s opinion does not quote the key “fundamentally below” language from Butt, choosing instead to use only the “real and appreciable impact” language. Education rights analysts will keep an eye on this shift. Will the appellate courts be willing to join Judge Treu in moving away from the standard requiring plaintiffs to show that a law results in schooling that, when viewed as a whole, falls “fundamentally below prevailing statewide standards” to one where plaintiffs need only show that the law results in a “real and appreciable impact” on students’ fundamental right to equality of education?

At the end of the day, the Vergara court’s logic was as follows: (a) each of these statutes causes some children to be taught by “grossly ineffective” teachers; (b) each of these statutes therefore caused a “real and appreciable impact” on students’ fundamental right to equality of education; (c) strict scrutiny review is thus in order; and (d) the state failed to show that its statutes advanced a compelling interest.

So how far did Judge Treu reach in order to find for the plaintiffs? As noted above, I see some reach in terms of the evidentiary determinations. Other judges would have certainly resisted, for example, reaching a finding that a specific statute can or should be identified as having caused “grossly ineffective” teachers to be in the classroom. While it is easy to see how any one of these rules could result in an inferior teacher in a given instance being employed, it’s much harder to see causal proof that the effect of the statute, “viewed as a whole,” would result in more such teachers.

This more holistic view is important because the statutes are central to the larger system of teacher employment. That is, one would expect that a LIFO statue or a due process statute or tenure statute would shape who decides to become a teacher and to stay in the profession. These laws, in short, influence the nature of teaching as a profession. The judge here omits any discussion of the value of stability and experience in teaching that tenure laws, however imperfectly, were designed to promote in order to attract and retain good teachers. By declining to consider the complexity of the system, the judge has started to pave a path that looks more narrowly at defined, selected, and immediate impact—which could potentially be of great benefit to future education rights plaintiffs.

To see why this is important, consider an area of education policy that I have researched a great deal over the years: tracking (aka “ability grouping”). There are likely hundreds of thousands of children in California who are enrolled in low-track classes, where the expectations, curricula and instruction are all watered down. These children are denied equal educational opportunities; the research regarding the harms of these low-track classes is much stronger and deeper than the research about teachers Judge Treu found persuasive in the Vergara case. That is, plaintiffs’ attorneys would easily be able to show a “real and appreciable impact” on students’ fundamental right to equality of education. Further, the harm from enrollment in low-track classes falls disproportionately on lower-income students and students of color. (I’ll include some citations to tracking research from myself and others at the end of this post.)

This means that the burden would fall upon those who engage in tracking practices (e.g., school districts). They would have to show a compelling state interest in maintaining low-track classes, and they would have to show that their particular practices are necessary in order to further that compelling state interest. Since the plaintiffs will be able to point to highly successful schools that do not track, the defendants would not be able to meet that burden.

This type of analysis could be repeated for a wide array of other policies and practices, such as transportation, school choice, buildings, funding formulas, access to computer technology, enriched curriculum, testing and accountability policies, and segregated and stratified schools. If the relatively anemic facts and evidentiary record in Vergara support the striking down of five state statutes, it’s almost mind-boggling what the future may hold for education rights litigation in California (again, if the appellate courts use similar reasoning).

Would this be a bad thing? In my view, not necessarily. Courts play an extremely important role: protecting political minorities from the tyranny of the political majority. When they relinquish that role, stepping aside and granting discretion to the executive and legislative branches, the easily foreseeable consequence is that laws and rules will disadvantage that minority. The Vergara plaintiffs and Judge Trea, whether intentionally or unintentionally, are pointing us to a different model—what is sometimes denounced as “judicial activism.” But active engagement of courts to demand that the educational opportunities of minorities are protected could be a crucial step forward toward meaningfully closing opportunity gaps and thus achievement gaps. These days, we need all the silver linings we can find.


Tracking Resources:

Burris, C. C., Wiley, E. W., Welner, K. G. & Murphy, J. (March 2008). Accountability, Rigor, and Detracking: Achievement Effects of Embracing a Challenging Curriculum as a Universal Good for All Students.Teachers College Record. 110(3), pp. 571-608.

Burris, C.C., Welner, K.G., & Bezoza, J.W. (2009). Universal Access to a Quality  Education: Research and Recommendations for the Elimination of Curricular  Stratification. Boulder, CO: National Education Policy Center. Retrieved from

Oakes, J. (2005). Keeping track: How schools structure inequality (2nd Ed.). Yale University Press.

Welner, K. G. (2001). Legal rights, local wrongs: When community control collides with educational equity. New York: SUNY Press.

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Kevin G. Welner

Professor Kevin Welner teaches educational policy and law at the CU Boulder School of Education. He’s also the director of the National Education Policy Center, w...

Valerie Strauss

Valerie Strauss is the Washington Post education writer.