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.
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
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
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
“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.