In California, education is a fundamental right that belongs to all — not some — of our children. This right derives from the state constitution as well as binding case law.

• Education is “essential to the preservation of the rights and liberties of the people.” – California Constitution, Article IX, Section 1
• “A person may not be…denied equal protection of the laws.” – California Constitution, Article I, Section 7
  California schoolchildren have a constitutional right to “substantially equal opportunities for learning.” – Serrano v. Priest (Cal. 1976)
• “The State itself has broad responsibility to ensure basic educational equality.” – Butt v. California (Cal. 1992)

California is failing to provide its students, particularly its low-income, Latino, and African American students, with an equal opportunity to obtain a quality education.

• On the National Assessment of Educational Progress, California ranks 45th in math achievement and 46th in reading.
• On California’s 2013 Academic Performance Index, Latino students, who make up 52 percent of California’s public school students, scored 150 points less than their white counterparts.
• If current trends continue, only 1 in 20 of the African American kindergarteners in the Los Angeles Unified School District today will go on the complete a degree at a four-year California university.

California student achievement data clearly shows that students, particularly low-income, African American and Latino students, are failing to get the high-quality education they deserve. But how does focusing on access to great teachers help solve this problem?

Of all in-school factors, including class size and per pupil funding, teachers have the greatest impact on students’ academic achievement and long-term success.

Expert testimony at trial revealed that a student assigned to a grossly ineffective teacher loses $50,000 in potential lifetime earnings, compared to a student assigned to a teacher of average effectiveness. For a classroom of 28 students, that’s $1.4 million in lost earnings each year.

And whereas the very best teachers are able to achieve a year and a half of student academic growth in a single school year, grossly ineffective teachers—those in the bottom five to ten percent of their profession—achieve student growth of no more than half of a year. A student assigned to the classroom of a grossly ineffective teacher loses 2.5-3.5 months of learning compared to a student assigned to a teacher of even average effectiveness. A student assigned to two or more grossly ineffective teachers in a row is unlikely to ever catch up with his or her peers.

The quality of a student’s teacher is also directly correlated to their chances of going to college, their chances of becoming pregnant as a teenager, the amount they save for retirement, and the quality of the neighborhood they’ll grow up to live in.

As in any profession, it is important to fairly and accurately assess the quality of a teacher’s job performance. Performance assessments help teachers strengthen their teaching practice and help administrators identify both the struggling and the stand-out educators in their schools.

While there’s no one-size-fits-all model for performance assessments, studies show that objective measures of student learning, such as students’ growth on state tests, combined with classroom observations and other factors, such as student and parent feedback, reliably determine a teacher’s effectiveness.

Low-income, Latino, and African-American students, who depend the most on a quality public education system, are disproportionately assigned to the worst teachers.

In Los Angeles Unified School District, for example, African American students are 43 percent more likely than white students to be taught by a teacher in the bottom 5 percent of effectiveness. Latino students are 68 percent more likely to have a teacher in the bottom 5 percent of effectiveness.

In 2014, the Obama Administration made ensuring all students have equal access to high-quality teachers a national priority, directing states to create and submit plans to address the large disparities in access to quality teaching that still persist.

California is an outlier when it comes to its teacher employment laws.

No other state in the country has the combination of such an incredibly short period of time before receiving tenure – which amounts to less than 16 months in the classroom – a dismissal process that’s so expensive, time consuming, and ineffective that it’s virtually impossible to discharge even the worst teachers, and a layoff process that requires districts to let go of their junior teachers first, regardless of their ability to teach.

California is:

• One of just ten states that mandate the consideration of seniority in layoff decisions.
• One of only five states that require two or fewer years of experience before teachers become eligible for tenure.
• Among the minority of states that do not list ineffectiveness as an explicit basis for dismissal.
• One of only ten states that do not include any objective measures of student learning in teacher evaluations.

The system we have now is routinely failing far too many children, despite the fact that the equal opportunity to learn and succeed in school is a fundamental right that belongs to all — not some — of our children.

Gridlock in the legislature has prevented lawmakers and district leaders from making common sense, reasonable changes to ensure California puts our children’s education first.

A lawsuit targets specific broken laws lowering the quality of our public schools. A trial allows experts, teachers, principals, superintendents, and actual students to highlight the facts. Their voices demonstrate the negative effect of the laws on students’ right to a quality education. A judicial decision creates an urgent mandate for policymakers to improve laws based on facts and expert recommendations exhibited at trial.

It’s common sense: our laws shouldn’t get in the way of providing every child with an effective education. They should encourage it. And as Californians, we should demand it. We owe it to the next generation to make sure an excellent teacher is in every classroom. If our laws undermine that mission, then we need to change them.

The courts can ensure the voices of parents and students are heard and that decisions affecting the future of our children are made based on facts, not politics.

Impact litigation combines legal action with communications to drive lasting policy change.

Using data and research, impact litigation targets specific, seemingly intractable policies that contribute to the unconstitutional inequality in our public schools. Communications brings the courtroom to the public and generates widespread demand for better policies. The momentum generated by the powerful combination of litigation and communications drives policymakers to pass meaningful improvements based on what’s best for kids.

Advocates employed a similar theory of change when working to overturn California’s Proposition 8 and restore marriage equality to gay and lesbian couples across the state. The American Foundation for Equal Rights (AFER) brought together high-profile attorneys Theodore B. Olson and David Boies to challenge the marriage ban in court, while waging a public relations campaign outside the courtroom. As AFER won its legal battles, first in the District Court, then in the Court of Appeal, then in the U.S. Supreme Court, the organization also used the testimony of its expert witnesses and its plaintifs’ personal stories to win the hearts and minds of people across the country. The successful litigation and communications campaign against Proposition 8 sparked a flood of similarly successful lawsuits in other states and coincided with one of the fastest public opinion shifts on a controversial civil rights issue in our country’s history.

The legal theory driving Vergara v. California is based on three main landmark education cases, among other binding case law: Brown v. Board of Education, Serrano v. Priest, and Butt v. State of California.

In its decision in the historic school desegregation case Brown v. Board of Education, the U.S. Supreme Court afrmed the vital importance of access to education for a child to succeed in life and held that the state, if it provides access to education, must provide it on equal terms.

In the school funding case, Serrano v. Priest, the California Supreme Court held education to be a “fundamental interest” of the state. Further, the Serrano Court held that any law that impinges upon this interest is subject to strict scrutiny review, whereby the State bears the burden of establishing not only that it has a compelling interest which justifies the harmful law, but also that the law is necessary to further its purpose.

In Butt v. State of California, the California Supreme Court held the State itself ultimately responsible “to ensure that its district-based system of common schools provides basic equality of educational opportunity,” meaning, the State cannot place the blame of constitutional violations at the feet of its school districts.

Judge Rolf M. Treu wrote in his decision in Vergara: “While these cases [(Brown, Serrano I, Serrano II, and Butt)] addressed the issue of a lack of equality of education…, here this Court is directly faced with issues that compel it to apply these constitutional principles to the quality of the educational experience.”

By grossly ineffective teachers obtaining and retaining employment in California public schools, California’s tenure, dismissal and layoff laws, as currently written, cause an unconstitutional and unjustifiable inequality in students’ access to quality education.

1) Permanent Employment Statute:
The permanent employment law forces administrators to either grant or deny permanent employment to teachers after an evaluation period of less than 16 months—before new teachers even complete their beginner teacher induction programs and before administrators are able to assess whether a teacher will be effective long-term.

2) Dismissal Statutes:
The process for dismissing a single ineffective teacher involves a borderline infinite number of steps, requires years of documentation, costs hundreds of thousands of dollars and still rarely ever works. Out of 275,000 teachers statewide, 2.2 teachers are dismissed for unsatisfactory performance per year on average, which amounts to 0.0008 percent.

3) “Last In, First Out” (“LIFO”) Layoff Statute:
The “LIFO” law forces school districts to base district-wide layoffs on seniority alone, with no consideration of teachers’ performance in the classroom.

Plaintifs’ witnesses and deponents testified about their personal experiences in twenty-eight school districts in California, which comprise 22 percent of students statewide. Plaintiffs also called six expert witnesses to the stand to testify about a variety of topics, including the long-term importance of teachers, the byzantine complexities of California’s teacher dismissal system, and the laws that are in place elsewhere across the country. In addition, Plaintiffs relied on thousands of documents produced by the State of California and the teachers unions and even on the testimony of the State’s and teachers unions’ own witnesses.

Experts’ undisputed data and research, combined with the compelling personal stories of superintendents, principals, students, teachers and parents, demonstrated beyond a shadow of a doubt that California’s tenure, dismissal and layoff laws violate students’ fundamental educational rights.

“The evidence is compelling. Indeed, it shocks the
conscience.” – Judge Rolf M. Treu

The Court’s historic decision in Vergara v. California affirmed the fundamental, constitutional right of every student not just to go to school but also to get a quality education while in school. The Court found unconstitutional the state’s teacher tenure, dismissal and seniority-based layoff laws because the laws trap students in classrooms with ineffective teachers.

Trial Court Final Ruling:

• Plaintiffs have met their burden of proof on all issues presented.” (p. 4:8-9)
• “All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school education experience.
• All sides also agree that grossly inefective teachers substantially undermine the ability of that child to succeed in school.” (p. 7:22-26)
• “Evidence has been elicited in this trial of the specific efect of grossly inefective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.” (p. 8:1-3)
• “There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms.” (p. 8:10-11)
• “Substantial evidence presented makes it clear to this Court that the Challenged Statutes disproportionately afect poor and/or minority students.”(p. 15:3-4)
• “All Challenged Statues are found unconstitutional…” (p. 15:20)

The Court’s historic decision in Vergara v. California reaffirmed all students’ fundamental right to a quality educational experience.

The Vergara ruling ignited a national conversation about the impact of teacher tenure, dismissal and layoff laws on the quality of students’ education.

Since June, thirty-four major newspapers across the country have editorialized in support of the Court’s decision, including The New York Times, The Wall Street Journal, The Washington Post, Los Angeles Times, and USA Today. In addition to supporting the Court’s decision in Vergara, these editorials put pressure on policymakers across the country to start addressing the issues of the case in a bold and comprehensive way.

The robust communications campaign surrounding Vergara amplifies the lawsuit’s impact beyond just the challenged statutes, re-framing the entire national debate about all education policy to focus on students.

A poll released just after the decision found that likely California voters strongly support the Court’s ruling striking down the tenure, LIFO and dismissal laws.

According to the poll, 62 percent of likely California voters who had knowledge of the Vergara case (40 percent of those surveyed had heard or read about the case) agreed with the Court that teacher tenure rules violate the constitution. Sixty-eight percent of all those surveyed agreed that California should do away with “last in, first out” layoffs.

Polling has also found that 72 percent of California teachers believed that effectiveness should be a factor when it comes to decisions around tenure.

Students, teachers, principals, parents: everyone benefits when effective teachers are valued and retained and when ineffective teachers are held accountable.

Both the State and the teachers unions have appealed the trial court’s decision, so we will defend our win in the California appellate courts. We will also continue to raise public support for bold policy changes through communications. The goal is to use public opinion and media to hold policymakers accountable and keep them from passing laws that just tinker around the edges and don’t solve the problem.

Ultimately, it will be up to the Legislature to decide how to fix the broken laws at issue in this case. California needs common sense teacher employment laws, similar to those passed in Colorado with both union and management support.

Tenure
1) Change: Base the tenure decision on efectiveness on a series of performance evaluations, not time spent in the classroom.
2) Process: Allow administrators a reasonable time to evaluate efectiveness before tenure decisions are made.

Dismissal
1) Change: Explicitly include inefectiveness as grounds for dismissal.
2) Process: Award teachers the same dismissal protections as classified employees (the right to be notified of charges, the right to respond, the right to a hearing, and the right to an impartial decision-maker).

Layoff Criteria
1) Explicitly prohibit the consideration of seniority as the preponderant criterion in layoff decisions.
2) Explicitly require that teachers’ performance in the classroom, as indicated by student learning, be the preponderant criterion.

Evaluations
1) The current law, the Stull Act, requires student learning to be part of the evaluation, but this is not how the law is being implemented.
2) Hold schools and districts accountable for enforcing the Stull Act as written.