SAN FRANCISCO – A three-judge panel from the California Court of Appeal overturned a lower court ruling in Vergara v. California last month in a decision that further fans the flames around the national discourse over teacher tenure.

Vergara v. California alleged that laws regarding teacher tenure have protected incompetent teachers, and thus denied equal protection under the law to students who must be educated by those teachers. While a lower court found in 2014 that these statutes violated the California constitution, the appellate court disagreed.

Vergara is the first case nationwide to address the disconnect between teacher tenure laws and quality teaching,” Joshua Lipshutz, a partner at Gibson Dunn and one of the principal trial attorneys on the case, told the Northern California Record.

At the heart of the case are a small collection of tenure policies that plaintiffs argued valued seniority over performance and made the firing of under-performing teachers prohibitively difficult for districts. The LIFO (Last In, First Out) policy employed by California promised that layoffs would cull the newest teachers on the basis of their seniority alone, while a series of procedural requirements for firing tenured teachers made the process of removing a teacher a costly one.

Testimony, including that of the superintendent of the Los Angeles Unified School District, argued that the totality of these policies unfairly hurt students.

“Judge (Rolf Michael) Treu, sitting as the finder of fact, heard the extensive evidence at trial on the specific harm caused by grossly ineffective teachers, particularly for low-income and minority students, and found that the ‘compelling evidence’ of the harm to students in California ‘shocked the conscience’,” Lipshutz said. 

The appellate court unanimously disagreed with Treu, who presides over the Los Angeles County Superior Court. 

The appellate court found that there was not sufficient evidence to argue that the policies regarding tenure could be said to adversely affect one group of students more than any other, and that the job of the court was not to determine if the laws were a good idea, only if the statutes violated the California constitution – which in the court’s opinion they did not.

The plaintiffs believe the appellate court’s decision is based on misstatements of both the law and the facts of the case, and are seeking to bring their case to the California Supreme Court.

“We are currently preparing a petition for review to the California Supreme Court to take up the important issues raised in this case,” Lipshutz said. “This case raises significant legal issues that the California Supreme Court should address.”

Plaintiffs are expected to file a petition for review before the California Supreme Court by May 24, and the court will decide if it will hear the case likely sometime this summer.

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