A recently filed lawsuit against California public officials and the LAUSD would radically change the way the district hires and fires public school teachers.
The lawsuit is known as Vergara v. California and it pits major education players against each other. The suit claims that teacher protections in the law violate students’ constitutional rights to an equal education.
The plaintiffs are 13-year-old L.A. Unified student Beatriz Vergara and seven other public school students. Lawyers from a 120-year-old L.A.-based law firm (Gibson, Dunn & Crutcher) represent them.
Firm partner Theodore Boutrous, a specialist in appellate and constitutional law, is co-counsel. He convinced U.S. Supreme Court justices to deny class action status to a Walmart discrimination lawsuit and argued in a federal district court why California’s ban on same-sex marriage is unconstitutional.
Ted Olson, his co-counsel in the Vergara suit, is a former U.S. solicitor general who argued the Bush v. Gore presidential election case, on George W. Bush’s side. Boutrous said that Vergara v. California tackles one of the most important constitutional rights issues of our time.
"Our California constitution says every child has a fundamental right to education that will prepare them for society, prepare them to be effective participants in democracy and the economy," Olson said.
The lawsuit argues that access to such an education depends on a student’s race and wealth. It blames an unspecified number of grossly ineffective teachers who disproportionately teach in predominately poor Latino and African-American neighborhoods. The suit targets laws that it claims protect these teachers.
One gives teachers permanent employment after a year and a half on the job. Three others grant teachers greater protections against dismissal than other public employees. Another state law orders that school districts lay off teachers starting with the least senior ones, not the least effective.
LAUSD board member Steve Zimmer said the courtroom’s not the place to make these changes. "For LAUSD, I feel very comfortable that we can show any court, anywhere in the land, that LAUSD is taking real and meaningful steps to address the primary areas of the lawsuit," Zimmer said.
The district, he said, is making significant changes to the way it assigns teachers at a small portion of district schools. He’ll urge the district to fight the lawsuit even though a written statement by Superintendent John Deasy supports its claims, he said.
Zimmer and others said they dismissed the suit because the group behind it is pushing a pro-charter school agenda. Students Matter, a nonprofit founded by wealthy Silicon Valley entrepreneur David Welch, is paying the big legal tab and gathered the students listed as plaintiffs. Welch was an investor in New Schools Venture Fund, a financial backer of charter schools.
Steve Barr, founder of Green Dot Charter Schools, is an advisor to a group that belongs to Students Matter. He didn’t take part in the filing of the suit, he said, but he endorses its head-on challenge of teacher tenure and seniority-based layoff laws.
“We love teachers, we believe in teachers, but the job for life thing, we want to have protections and they’ve got to be reasonable protections," said Bar.. "There’s going to be disagreements, but tenure and seniority are things that have had their day, and I think most people feel that way."
The defendants in this lawsuit are the State of California, Gov. Jerry Brown, California’s superintendent of public instruction, the state’s Department of Education, the small Alum Rock Union School District, and L.A. Unified.
An unnamed but very interested player in this case is one of the state’s most powerful unions: the 300,000-member California Teachers Association.
“I can understand the concern that people have with just the system for laying off teachers or terminating ineffective teachers," said CTA president Dean Vogel, but "the fact of the matter is that very few teachers are ineffective."
The Vergara v. California lawsuit doesn’t say what percentage of teachers is doing a bad job. Instead, lawyers compare teacher dismissals with those of all other state employees for unprofessional conduct or poor performance. Teachers: .002 percent. Other public workers: 1 percent.
Regardless of who’s for or against this lawsuit, USC education researcher Katherine Strunk said, the recession’s revealed that student success doesn’t drive teacher hiring and firing.
“The more senior you are as a teacher, the more expensive you are to the district," Strunk said. "So in effect when you have a 'Last In, First Out' policy like you have in California, what you’re doing is requiring more teachers to be let go, because you’re letting go of the cheapest teachers."
Strunk said the Vergara lawsuit is a big deal as many other states face similar litigation that seeks to make significant changes to what’s often a state’s largest line item: public education.