The California Supreme Court's 4-3 vote declining to review a lower court’s ruling that the state’s public school K-12 teacher tenure law does not void the constitutional rights of students to the guarantee of equal education may have stifled education reformers, but only for a day.
Plaintiffs in Vergara v. State of California, who suffered defeat by the Supreme Court's decision on Aug. 22, filed suit the following day in federal court in Connecticut hoping to demonstrate a more forceful causation between tenure law and under performing public schools.
“It is time for the federal courts to step in and stop states, like Connecticut, from forcing inner-city children to attend failing schools,” said Joshua Lipshutz, partner at Gibson, Dunn & Crutcher LLP, and co-lead counsel for Students Matter, a group that backed the Vergera litigation.
Lead counsel for Students Matter, Theodore J. Boutrous Jr., also a partner at Gibson, Dunn & Crutcher, last week expressed frustration over the high court's refusal to hear Vergera, saying that children in neglected communities for too long have been treated as "second class citizens, not worthy of educational opportunities."
“The U.S. Constitution requires all children to be treated with dignity and respect,” Boutros said in a statement to the Northern California Record.
American Federation of Teachers Connecticut President Jan Hochadel, however, said the litigation does nothing to address Connecticut students' needs.
"The founder of the special interest group behind the Vergara lawsuit in California and fueling this latest case today claimed that ‘we know what works’ in public education,” Hochadel said in a statement.
Hochadel said the lawsuit calls for expanding schools operated by "outside charter management companies.”
AFT’s Connecticut membership is 30,000. Nationally, there are 1.6 million AFT members.
In Vergera, a lower appeals court had ruled 3-0 to overturn the 2014 Vergara v. California action in which Los Angeles Superior Court Judge Rolf M. Treu agreed with the nine plaintiffs, public school students, including Beatrix Vergara, that teacher tenure law such as due process deprived pupils, mainly low-income, minority youth among the six-million students statewide, of the California constitution-guaranteed right of education by allowing low-quality teachers to stay employed, often in under-performing schools.
Treu had found that the "effect of grossly ineffective teachers on students...shocks the conscience.”
But in April, chief Justice Roger Bowen of the 2nd District Court of Appeals, wrote a 3-0 opinion reversing the trial court, citing insufficient evidence to show that the teacher tenure law caused poor quality education in California.
The Vergara lawsuit had claimed in part that as a result of that law, school principals transferred ineffective teachers to schools with high poverty and minority students.
Students Matter, an education reform group based in Milpitas, Calif., founded by David Welch, a Silicon Valley businessman, had financially backed the Vergara lawsuit. The plaintiffs claimed the appeals court was wrong, and urged the state's high court to review the lower court ruling.
The California Supreme Court declined to explain its 4-3 denial.
“Typically the high court does not give any reasons why it does not review a case,” University of California Hastings law professor emeritus and former Supreme Court Justice Joseph Grodin told the Northern California Record.
“The practical consequences are that there is no change to the state tenure law,” Grodin said. “The existing tenure law stays in effect, and whatever problems they did or did not cause remain in effect.”
Dissenting justices Ming Chin, Mariano-Florentino Cuéllar and Goodwin Liu strayed from the majority.
"The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state’s highest court," Liu wrote.
Cuéllar, a Gov. Brown appointee, like Liu, wrote: “There is a difference between the usual blemishes in governance left as institutions implement statutes or engage in routine trade-offs and those staggering failures that threaten to turn the right to education for California schoolchildren into an empty promise. Knowing the difference is as fundamental as education itself.”
Boutros said the Supreme Court should have taken the case.
“To have two lengthy, powerful dissenting opinions from the denial of review is extraordinary in California history.
Even though the Court denied review, the words of Justices Liu and Cuellar will resonate across California and the nation, and hopefully help bring about the change we so desperately need,” Boutrous said.
Another backer of Vergera, California School Boards Association (CSBA), reacted by stating that it believes most teachers do an "outstanding" job, but was disappointed that the state Supreme Court chose not to review it.
The CSBA represents 500 school boards and has nearly 1,000 school board members in California.
A law professor in the San Francisco Bay area said that Vergera-type litigation is viewed by some as a threat to teachers unions.
“Many people look at Vergara v. State of California as a disingenuous lawsuit concerned not about improving education for poor and minority students but rather as an attempt to eliminate protections for public school teachers and to increase the number of public charter schools and private schools,” Maria Ontiveros, a professor of law at the University of San Francisco Law School, told the Northern California Record.