Gibson Dunn Throws California Teacher Tenure in Doubt

, The Litigation Daily

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Plaintiffs in a sweeping lawsuit taking aim at teacher tenure in California scored their first major victory on Friday, when a judge ruled that the case could go forward virtually intact. The lawsuit, Vergara v. State of California, filed by nine public school students in the state, is grounded in California's unusual constitution, which enshrines a child's right to "equality of education."

At a hearing Friday, Los Angeles Superior Court Judge Rolf Treu ruled on a summary judgment motion that the case, known colloquially as the "Bad Teacher" lawsuit, will go to trial Jan. 27.

The suit harkens back to a case filed by a group of California public school children and their parents 40 years ago, Serrano v. Priest. In that case, plaintiffs sought, ultimately successfully, to strike down statutes related to school financing that they argued created harmful inequities in California's public schools. After a 60-day trial, the judge in Serrano ruled that the statutes were unconstitutional. That decision was ultimately upheld on appeal.

The current lawsuit, filed in May 2012 with the backing of David Welch, a Silicon Valley entrepreneur and founder of the education reform litigation group Students Matter, targets five teacher employment protections that plaintiffs allege have resulted in unequal education. The disputed statutes include a tenure rule that guarantees teachers permanent status after only 18 months on the job; dismissal rules that create almost insurmountable barriers to schools attempting to fire abysmal teachers; and a "last-in, first-out" rule that compels districts to assign teacher layoffs on a pure seniority basis.

The plaintiffs, represented by Gibson, Dunn & Crutcher heavyweights Theodore Boutrous Jr. and Theodore Olson, argue that the five laws have led to gross disparities in public school education. Under the current system, they claim, the state's poorest-performing teachers are concentrated in schools serving the most vulnerable children. "When you take the statutes together, what it all adds up to is a extraordinarily damaging system that is hurting students," Boutrous said before Friday's hearing. Gibson Dunn lawyers, partnering with Students Matter on a reduced fee basis, provided a taste of the evidence they will be presenting in January in a 69-page opposition brief filed in November.

The defendants include the state, the governor, the state's two largest teachers unions, the California Department of Education, the State Superintendent of Public Instruction, and the State Board of Education. Representing the state is supervising deputy attorney general Susan Carson and deputy attorney general Nimrod Elias. Carson could not be reached for comment at press time.

The teachers unions have tapped Altshuler Berzon’s James Finberg and Jeffrey Demain for legal counsel. Finberg said California's tenure system is necessary to get smart, educated people to serve in the state's schools. “We think that, when the evidence is all in, that the facts will show that tenure and a seniority-based system serves the best interests of students in the state," he said.

A dismissal-at-will system, he added, would “pose academic freedom and First Amendment freedom issues," because firing decisions could be based on something a teacher said or on personal animosity.

The state asked Friday for a delay in the trial in order to give it time to file an interlocutory appeal, but the judge denied the request.

In their summary judgment motion, the California defendants argued that the plaintiffs didn't have an equal protection claim because even if there were disparate effects on children, the outcome was never motivated by any intent to harm a protected group. But Treu dismissed the state's challenges, concluding that the students have standing and had met the evidentiary and legal requirements for a trial.

"Plaintiffs’ evidence can support the finding that the Challenged Statutes permits the employment of grossly ineffective teachers, which results in an equal protection violation in every instance that a student is assigned such a teacher," the judge wrote.

National discussion of teacher efficacy has been mostly focused on issues like the Common Core state standards. By taking aim direcly at teacher tenure laws, the California lawsuit may be felt beyond the state's six million public school students. According to Boutrous, other groups across the country are examining the case as a potential template for similar court challenges in other states.

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