BEATRIZ VERGARA, а Minor, etc., et al., Plaintiffs and Respondents, v. STATE OF CALIFORNIA et al., Defendants and Appellants; CALIFORNIA TEACHERS ASSOCIATION et al., Interveners and Appellants.
No. B258589
Second Dist., Div. Two
Apr. 14, 2016
BEATRIZ VERGARA, a Minor, etc., et al., Plaintiffs and Respondents, v.
STATE OF CALIFORNIA et al., Defendants and Appellants;
CALIFORNIA TEACHERS ASSOCIATION et al., Interveners and
Appellants.
Kamala D. Harris, Attorney General, Edward C. DuMont, Solicitor General, Julie Weng-Gutierrez, Assistant Attorney General, Janill L. Richards, Gregory D. Brown and Aimee Feinberg, Deputy Solicitors General, Susan M. Carson and Nimrod P. Elias, Deputy Attorneys General, for Defendants and Appellants.
Rothner Segall & Greenstone, Glenn Rothner; Altshuler Berzon, Michael Rubin, Stacey M. Leyton, Eileen B. Goldsmith and P. Casey Pitts for Interveners and Appellants.
Reed Smith, Paul D. Fogel, Raymond A. Cardozo, Thomas A. Evans, Kevin M. Hara; Jennifer W. Bezoza, Travis Silva and Dana M. Isaac for Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Education Law Center, Equal Justice Society, Southern Poverty Law Center and Asian Americans Advancing Justice—Los Angeles as Amici Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Catherine L. Fisk and Erwin Chemerinsky, University of California, Irvine Law for Constitutional Law Professors as Amicus Curiae on behalf of Defendant and Appellants and Interveners and Appellants.
Stroock & Stroock & Lavan, Steven D. Atlee, Christine E. Ellice, Charles G. Moerdler, Alan M. Klinger, Beth A. Norton, Dina Kolker, David J. Kahne,
Judith A. Scott, James & Hoffman, Claire P. Prestel for Service Employees International Union as Amicus Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Matthew S. Blumin and Michael Artz for American Federation of State, County and Municipal Employees as Amicus Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Michael R. Clancy for California School Employees Association as Amicus Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Kathryn Sheffield for California Faculty Association as Amicus Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Persyn Law & Policy, Mary Kelly Persyn; Ronald A. Peterson Law Clinic, Charlotte Garden, Lorraine Bannai and Robert Chang for California Teachers, American-Arab Anti-Discrimination Committee, Fred T. Korematsu Center for Law & Equality and American Association of University Professors as Amici Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Donahue & Goldberg, Sean H. Donahue; Schwartz, Steinsapir, Dohrmann & Sommers and Henry M. Willis for Kevin Beiser, Joan Buchanan, Ciro C. Calderon, Rob Collins, Tom Conry, Jennifer Freemon, Matt Haney, Michael Harrelson, Richard Hoy, Sarah Kirby-Gonzalez, Rob Nunez, Erik Ortega, Cecilia Perez, Annemarie Randle-Trejo, Claudia Rossi, Ryan Anthony Ruelas, Noelani Sailings, Shamann Walton, Steve Waterman and Steve Zimmer as Amici Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Alice O’Brien, Eric A. Harrington, Kristen Hollar and Derrick Ward for National Education Association as Amicus Curiae on behalf of Defendants and Appellants and Interveners and Appellants.
Keker & Van Nest, Steven A. Hirsch and Katherine M. Lloyd-Lovett for Education Deans, Professors and Scholars as Amicus Curiae on behalf of Defendant and Appellants and Interveners and Apрellants.
Gibson, Dunn & Crutcher, Theodore B. Olson, Joshua S. Lipshutz, Kevin J. Ring-Dowell, Theodore J. Boutrous, Jr., Marcellus A. McRae, Theane D. Evangelis and Enrique A. Monagas for Plaintiffs and Respondents.
Kaufhold Gaskin, Steven S. Kaufhold, Janathan B. Gaskin and Quynh K. Vu for Students Transforming Education, Jan Bauer, Priscilla Davis, Dan Tick, Paula Tillotson, Neva Sullaway and Ann Wellman as Amici Curiae on behalf of Plaintiffs and Respondents.
Sidley Austin, Michelle B. Goodman, James D. Arden and Peter D. Kauffman for National Council on Teacher Quality and The New Teacher Project as Amici Curiae on behalf of Plaintiffs and Respondents.
Shook, Hardy & Bacon, Tristan L. Duncan, Laurence H. Tribe, Tammy B. Webb for Constitutional Scholars; Rachel F. Moran, Michael J. Connell and Dawinder S. Sidhu as Amici Curiae on behalf of Plaintiffs and Respondents.
Lubin Olson & Niewiadomski, Jonathan E. Sommer and Kyle A. Withers for Betheny Gross, Jane Hannaway, Cory Koedel and Jonah Rockoff as Amici Curiae on behalf of Plaintiffs and Respondents.
Arnold & Porter, Douglas A. Winthrop and Christopher T. Scanlan for Students First as Amicus Curiae on behalf of Plaintiffs and Respondents.
Horvitz & Levy, Jeremy B. Rosen, Robert H. Wright and Emily V. Cuatto for Silicon Valley Leadership Group, California Business Roundtable, Foundation for Excellence in Education, Orange County Business Council, California Chamber of Commerce and Valley Industry & Commerce Association as Amici Curiae on behalf of Plaintiffs and Respondents.
Jenner & Block, Kenneth K. Lee, L. David Russell and Andrew G. Sullivan for Education Trust—West, Oakland Alliance of Black Educators, Los Angеles Urban League, Black Alliance for Education Options as Amici Curiae on behalf of Plaintiffs and Respondents.
Dannis Woliver Kelley, Sue Ann Salmon Evans; Lozano Smith, Michael Smith, Dulcinea Grantham, Keith J. Bray and Joshua R. Daniels for Education Legal Alliance of the California School Boards Association as Amicus Curiae on behalf of Plaintiffs and Respondents.
White & Case, Bryan A. Merryman, Elliott E. Dionisio and J. Taylor Akerblom for Governors Arnold Schwarzenegger and Pete Wilson as Amici Curiae on behalf of Plaintiffs and Respondents.
Chandler & Shechet, Aaron Nathan Shechet and Leigh Anne Chandler for Adam Kuppersmith, Karen Sykes-Orpe and Katherine Czujko as Amici Curiae on behalf of Plaintiffs and Respondents.
Fagen Friedman & Fulfrost, Roy A. Combs, David Mishook and Alejandra Leon for Association of California School Administrators as Amicus Curiae on behalf of Plaintiffs and Respondents.
OPINION
BOREN, P. J.—In this lawsuit, nine students who were attending California public schools sued the State of California and several state officials, seeking a court order declaring various provisions of the Education Code unconstitutional. According to plaintiffs, these provisions, which govern how kindergarten through grade 12 public school teachers obtain tenure, how they are dismissed, and how they are laid off on the basis of seniority, violate the California Constitution’s guarantee that all citizens enjoy the “equal protection of the laws.” (Cal. Const., аrt. I, § 7, subd. (a).) The matter went to trial. After hearing eight weeks of evidence, the trial court issued a ruling declaring five sections of the Education Code—sections 44929.21, subdivision (b), 44934, 44938, subdivision (b)(1) and (2), 44944, and 449551—unconstitutional and void. Defendants have appealed this judgment.
We reverse the trial court’s decision. Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388 [261 Cal.Rptr. 318, 777 P.2d 91].) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
I. California’s education system
The California Constitution requires “[t]he Legislature [to] provide for a system of common schools.” (Cal. Const., art. IX, § 5.) Pursuant to this command, the state is obligated to provide a free public education. (Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th 175, 182 [165 Cal.Rptr.3d 460, 314 P.3d 767].) “[M]anagement and control of the public schools [is] a matter of state[, not local,] care and supervision. . . .” (Butt v. State of California (1992) 4 Cal.4th 668, 681 [15 Cal.Rptr.2d 480, 842 P.2d 1240] (Butt).)
The California Constitution also provides for the incorporation and organization of school districts by the Legislature. (Cal. Const., art. IX, § 14.) Local school districts, as agents of the state, are responsible for implementation of educational programs and activities. (Ibid.; Butt, supra, 4 Cal.4th 668, 681.) “[T]he Legislature has assigned much of the governance of the public schools to the local districts . . . .” (Butt, at p. 681.)
School districts are expected to operate as “strong, vigorous, and properly organized local school administrative units.” (
The power to assign teachers to specific schools or to transfer teachers between schools within a district belongs to the district’s superintendent (
In their operative first amended complaint against defendants,2 plaintiffs claimed that the challenged statutes negatively impacted their right to an education by causing “grossly ineffective” teachers to become employed and retain their employment in the school system. Specifically, plaintiffs contended that (1) the “tenure statute” (
The first amended complaint identified two groups of students who allegedly were denied equal protection because of the challenged statutes. The first group (Group 1) was a “subset” of the general student population, whose “fundamental right to education” was adversely impacted due to being assigned to grossly ineffective teachers. According to plaintiffs, the students comprising this subset were located throughout the state, in all sorts of schools, and were of substantially the same age and aptitude as students of the general population. The Group 1 members were disadvantaged, however, because they received a lesser education than students not assigned to grossly ineffective teachers.
The second group (Group 2) allegedly impacted by the challenged statutes was made up of minority and economically disadvantaged students. Plaintiffs alleged that schools predominantly serving these students have more than their proportionate share of grossly ineffective teachers, making assignment to a grossly ineffective teacher more likely for a poor and/or minority student.
III. The challenged statutes
A. Tenure statute
Under the tenure statute, in districts with more than 250 students, a probationary teacher becomes a “permanent employee of the district” after finishing “two complete consecutive school years in a position or positions requiring certification.” (
B. Dismissal statutes
1. Statutes at time of trial
At the time of trial,3 the dismissal statutes operated as follows:
Under
Then, after the 90-day period has lapsed, the district must file a written statement of charges and “give notice to the permanent employee of its intention to dismiss.” (Former
Following the conclusion of the CPC hearing, the CPC must issue “a written decision containing findings of fact, determination of issues, and a disposition” to either dismiss the subject teacher, suspend the teacher for a specific period of time, or not suspend or dismiss the teacher. (Former
2. 2015 changes
Aside from altering the order and notation of subdivisions, the 2015 revisions to the dismissal statutes made several other changes.
Among other changes,
C. Reduction-in-force statute
When a school district must “decrease the number of permanent employees in the district” pursuant to
Two exceptions allow a district to deviate from the seniority system in certain circumstances: (1) if “[t]he district demonstrates a specific need for personnel to teach a specific course or course of study” and the junior certificated teacher has special training and experience that teachers with more seniority do not possess (
IV. Trial
Plaintiffs initially sued three school districts (Los Angeles Unified School District, Oakland Unified School District, and Alum Rock Union) in addition to the State defendants. Prior to trial, plaintiffs dismissed these districts as defendants, opting to pursue a facial challenge to the statutes instead of one focusing on implementation.
The trial court conducted a bench trial. Over 50 lay and expert witnesses testified, including teachers, principals, superintendents, and CDE employees.
A. Plaintiffs’ evidence
1. The importance of effective teachers
At trial, plaintiffs elicited testimony from numerous witnesses who agreed that effective teachers are vital to a child’s education. Along these lines, plaintiffs introduced into evidence a CDE publication stating, “The academic success of California’s diverse students is inextricably tied to the quality and commitment of our educator workforce.”
Thomas Kane, a professor of education and economics at the Harvard Graduate School of Education, conducted a study concluding that effective and ineffective teachers could be identified by measures including student achievement gains, as well as classroom observations and student surveys. Based on a study of Los Angeles Unified School District (LAUSD), which included data on 58,000 teachers and 3.9 million student test scores (but did not include classroom observations or student surveys), Kane determined that students assigned to teachers in the lowest 50th percentile of effectiveness lost an estimated nine and one-half to 11½ months of learning when compared to students assigned to an average teacher.
Numerous other witnesses testified that highly ineffective teachers impede a child’s access to a reasonable education. Furthermore, although a host of factors, including child poverty and safety, affect student achievement, teachers nevertheless have a highly important and significant impact on student learning.
2. Difficulties with the challenged statutes
Various witnesses testified that the period provided for in the tenure statute is too short for administrators to make a reasoned determination of a probationary teacher’s effectiveness when deciding whether to reelect the teacher as a permanent employee. The statute requires that a probationary teacher be notified of any reelection decision by March 15 of the teacher’s second year (
Witnesses familiar with the process estimated that, including summer months, principals have approximately 16 months to make a reelection decision. One witness, John Deasy, then-superintendent of LAUSD, testified that there is “no way” the time provided by the statute is “a sufficient amount of time to make . . . that incredibly important judgment” of reelection. Another witness, Mark Douglas, assistant superintendent in the Fullerton School District, stated that most teachers do not “hit full stride” until three to five years of teaching, and that it could be a “crapshoot” determining whether a beginning teacher would develop into an effective one. Two expert witnesses called by defendants was consistent, both agreeing that a probationary period of three to five years would be superior to the current timeline for identifying teachers worthy of reelection. According to several witnesses called by plaintiffs, the tenure statute’s short probationary period prevented administrators from making adequately informed reelection decisions, resulting in highly ineffective teachers being retained as permanent employees.
Plaintiffs also presented evidence relevant to their assertion that the process of dismissing a teacher for unsatisfactory performаnce is time consuming and expensive. Performance-based teacher dismissal proceedings lasted anywhere from one to 10 years before completion, and costs ranged from $50,000 to $450,000. In addition to the proceeding itself, the process of documenting a teacher’s deficiencies could take years. Witnesses familiar with the dismissal process testified that the time and cost of the proceedings was a significant disincentive to initiating dismissal proceedings. Because of these issues, districts rarely proceeded with formal dismissal proceedings against highly ineffective teachers. Plaintiffs presented evidence showing that, from 2003 to 2013, approximately two teachers statewide were dismissed on average per year for unsatisfactory performance by completion of the full formal dismissal process, out of an approximate total kindergarten through grade 12 public school teacher population of 277,000. Meanwhile, the chief labor negotiator and former chief human resources officer of LAUSD, Vivian Ekchian, testified that during the 2012-2013 school year alone, LAUSD would have sought to dismiss approximately 350 teachers for unsatisfactory performance if the dismissal process were streamlined.
3. Low-income and minority students
Plaintiffs presented evidence that ineffective teachers are often transferred into and concentrated in schools that predominantly serve minority6 and low-income children. Douglas testified about a phenomenon, referred to colloquially as the “dance of the lemons,” in which certain principals, seeking to improve the quality of their own schools’ teacher pool, attempt to transfer poorly performing teachers to other schools within the district. According to Douglas, the poorly performing teachers often end up at schools serving poor and minority students because, unlike schools serving more affluent students, students at schools impacted by the transfers generally have “families who aren’t used to the education system . . . [and] don’t know what to look for in a great teacher . . . . And so sometimes they won’t complain about a teacher that [is] at low-end schools because they аre not familiar and [do not] know how to navigate through the system. And so a teacher can exist without parent pressure at a lower-end school.”7 Bill Kappenhagen, a principal in the San Francisco Unified School District, also spoke of the “dance of the lemons” and how grossly ineffective teachers are “shuffled around from school to school,” often landing in schools serving poor and minority students. A 2007 CDE publication corroborated this testimony, stating: “[T]ransfers often functioned as a mechanism for teacher removal. . . . Not
Plaintiffs’ expert witness Kane testified that ineffective teachers in LAUSD are disproportionately assigned to African-American and Latino students. According to Kane, Latino and African-American students in LAUSD are, respectively, 68 percent and 43 percent more likely than White students to be taught by a teacher in the lowest 5 percent for effectiveness. Kane testified that this disproportionate distribution “could” be a result of the requirement of determining teacher effectiveness quickly due to the short probationary period, and the difficulties of dismissing ineffective teachers under the dismissal process. Kane further stated that, in a system where tenure decisions are made prematurely and dismissals are difficult to obtain, ineffective teachers will “tend to” accumulate in schools with the most teacher vaсancies, which often are those serving Latino and African-American students.
Plaintiffs also presented evidence that schools in some districts serving low-income and minority students have higher proportions of inexperienced teachers and experience more layoffs. Arun Ramanathan, an expert witness retained by plaintiffs and executive director of an organization called Education Trust-West, testified that his organization conducted a study of three large California school districts and found that students attending schools in the highest poverty quartile were 65 percent more likely to experience a teacher layoff than those in the lowest poverty quartile. And Jonathan Raymond, former Superintendent of the Sacramento City Unified School District, observed “a constant churn of the faculty and staff” at high-poverty, high-minority schools due to the seniority-based reduction-in-force statute.
4. Teacher assignment decisions
Witnesses called by plaintiffs acknowledged that decisions on how and where to assign and transfer teachers are made by local administrators, and that such decisions are often influenced by collective bargaining agreements between the districts and the teachers. Some collective bargaining agreements allow certain teachers to choose where they want to teach within a district. Teachers with such an option often choose not to teach at schools predominantly serving low-income and minority children because the schools can have challenging working conditions.
1. Teacher effectiveness
David Berliner, an eduсational psychologist and professor emeritus from Arizona State University, testified that in-school effects on children’s achievement were generally overstated when compared to out-of-school effects. Berliner opined that student test scores were rarely under a teacher’s control, and were more often determined by peer-group composition of the group tested, including students’ social class and their parents’ education level. Berliner estimated that teachers account for approximately 10 percent of variation in aggregate scores, with the remaining 90 percent attributable to other factors. Berliner further stated that VAM was “notoriously unreliable and therefore invalid” in assessing educational outcomes. Under cross-examination, however, Berliner acknowledged that a VAM analysis utilizing four years of data should be able to identify “very bad” teachers. He agreed that a small percentage of approximately 1 to 3 percent—teachers—consistently have strong negative effects on student outcomes, regardless of the classroom and school composition.
Linda Darling-Hammond, a professor of education at Stanford University, testified that there were several problems with using test scores as a definitive indicator of a teacher’s effectiveness, including that tests often do not measure the material taught by a teacher, and that test score improvements or declines may be attributable to factors other than the teachеr.
2. Purpose and implementation of the statutes
Several witnesses called by defendants testified that, in theory and practice, the challenged statutes protect teachers from arbitrary discipline and dismissal, and that they promote academic freedom. Jesse Rothstein, a professor of economics and public policy at the University of California, Berkeley, conducted a study regarding effects of the tenure and dismissal statutes, and found that the statutes help districts attract and retain teachers, because the statutes provide job security. Lynda Nichols, an education program consultant with the CDE and a former teacher, testified that during her teaching career, parents complained when she taught about subjects including Islam and Catholicism. Nichols believed that her status as a permanent employee, because it provided job protections, insulated her from potential retribution by parents and the local school board.
With regard to the probationary period provided by the tenure statute, Susan Mills, assistant superintendent of personnel of the Riverside Unified School District, testified that the period provided sufficient time to make a
Multiple school administrators called by defendants testified that, under the dismissal statutory scheme, they are able to remove poorly performing teachers. Robert Fraisse, former Superintendent of Laguna Beach Unified School District, Conejo Valley Unified School District, and Hueneme Elementary School District, testified that he was able to use various strategies for resolving dismissals short of the formal dismissal process. These included letting poorly performing teachers know that there were serious concerns, which often led to resignation; paying a small amount of compensation in return for a resignation; and working with teachers’ associations that could counsel suspect teachers to resign. Other administrators testified that the majority of potential teacher dismissals are resolved through resignation, settlement, retirement, or remediation rather than a CPC hearing.
Records from LAUSD showed that a larger number of teachers resigned to avoid the formal dismissal process than those who elected to go through the process. These records also showed that the number of teachers dismissed or resigning to avoid dismissal increased from a total of 16 in 2005-2006 to a total of 212 in 2012-2013. This change was due in part to an LAUSD policy of initiating the dismissal process whenever a teacher received two below-standard evaluations. From May 2007 through April 2013, LAUSD negotiated 191 settlements to informally resolve dismissal cases, with a total payout of slightly more than $5 million, approximately $26,000 per teacher.
As for the reduction-in-force statute, Fraisse testified that “it is a fair method that is perceived as fair,” and that he was not aware of “a better, more objective system than seniority.”8 Defendants’ expert Rothstein agreed, and believed that there were a number of advantages to a seniority-based system when compared to a performance-based one: it was easier and less costly to administer, it allowed teachers to focus on teaching rather than test scores,
The judgment is reversed. The matter is remanded to the trial court with directions to enter judgment in favor of defendants on all causes of action. Each party shall bear its own costs on appeal.
Ashmann-Gerst, J., and Hoffstadt, J., concurred.
A petition for a rehearing was denied May 3, 2016 and the opinion was modified to read as printed above. Respondents’ petition for review by the Supreme Court was denied August 22, 2016, S234741. Chin, J., Liu, J., and Cuéllar, J., were of the opinion that the petition should be granted. The following statements were filed.
Vergara v. State of California
Supreme Court of California
2016-08-22
Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ., concur.
LIU, J.—This case concerns the constitutionality of California’s statutes on teacher tenure, retention, and dismissal. The plaintiffs are nine schoolchildren—Beatriz Vergara, Elizabeth Vergara, Clara Grace Campbell, Brandon Debose, Jr., Kate Elliott, Herschel Liss, Julia Macias, Daniella Martinez, and Raylene Monterroza—who attend California public schools. They allege that these statutes lead to the hiring and retention of what they call “grossly ineffective teachers” (i.e., teachers in the bottom 5 percent of competence) and that being assigned to a grossly ineffective teacher causes significant educational harm. Plaintiffs further allege that they have suffered or are at risk of suffering these harms and that the harms fall disproportionately on minority and low-income students. After hearing eight weeks of evidence, the trial court ruled that the challenged statutes violate the equal protection clause of the California Constitution (
Plaintiffs now seek this court’s review. One of our criteria for review is whether we are being asked “to settle an important question of law.” (
I.
As the Court of Appeal explained, this case involves equal protection claims by two groups of students. “Group 1” is “a ‘subset’ of the general student population, whose ‘fundamental right to education’ was adversely impacted due to being assigned to grossly ineffective teachers. According to plaintiffs, the students comprising this subset [are] located throughout the state, in all sorts of schools, and [are] of substantially the same age and aptitude as students of the general population. The Group 1 members [are] disadvantaged, however, because they received a lesser education than students not assigned to grossly ineffective teachers.” (Vergara, 246 Cal.App.4th at p. 629; see
For reasons discussed by the Court of Appeal, there appear to be significant problems in plaintiffs’ case with respect to Group 2. Quoting a report by the Department of Education that was entered into the record, the trial court found that “ ‘[u]nfortunately, the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers and administrators. Because minority children disproportionately attend such schools, minority
The Court of Appeal’s treatment of Group 1 is more problematic. In overturning the trial court’s judgment with respect to this group, the Court of Appeal said the group is not “an identifiable class of persons sufficient to maintain an equal protection challenge” because “to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute.” (Vergara, 246 Cal.App.4th at p. 646.) On this point, the Court of Appeal likely erred.
In Butt, 4 Cal.4th 668, this court made clear that an equal protection challenge may be brought and will trigger strict scrutiny “whenever the disfavored class is suspect or the disparate treatment has a real and appreciable impact on a fundamental right or interest.” (Id. at pp. 685-686.) There, the Richmond Unified School District decided to shorten its school year by six weeks because it had run out of money, and a group of parents claimed that this would violate their children’s fundamental right to education. We said it is “well settled that the California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts. The State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.” (Id. at p. 685.) Observing that the district’s “students faced the sudden loss of the final six weeks, or almost one-fifth, of the standard school term originally intended by the District and provided everywhere else in California,” we held that this “extreme and unprecedented disparity in educational service and progress” violated the state equal protection guarantee. (Id. at p. 687; see id. at p. 685 [“Whatever the requirements of the free school guaranty [(
The students in Butt suffered a denial of equal protection not because they belonged to any identifiable class but because they were enrolled in a distressed school district. Here, as in Butt, students have asserted an equal protection claim on the ground that they are being denied significant educational opportunities that are afforded to others. The inequality in Butt arose from the fortuity of attending a school district that, unlike other districts, ran out of money. The inequality in this case arises from the fortuity of being assigned to grossly ineffective teachers who, in comparison to competent teachers, substantially impede their students’ educational progress. The Court of Appeal’s insistence that “to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute” (Vergara, 246 Cal.App.4th at p. 646) appears inconsistent with Butt. The claim asserted by students in Group 1 is simply an instance of a cognizable equal protection claim alleging arbitrary deprivation of fundamental rights. (See, e.g., People v. McKee (2010) 47 Cal.4th 1172, 1197-1198 [104 Cal.Rptr.3d 427, 223 P.3d 566] [classifications in civil commitment laws are subject to strict scrutiny because the fundamental interest in liberty is at stake].)
The Court of Appeal cited Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220 [45 Cal.Rptr.2d 207, 902 P.2d 225] and Altadena Library Dist. v. Bloodgood (1987) 192 Cal.App.3d 585 [237 Cal.Rptr. 649] in support of its view. Both of those cases relied on Gordon v. Lance (1971) 403 U.S. 1 [29 L.Ed.2d 273, 91 S.Ct. 1889]. All three cases involved constitutional challenges to supermajority voting schemes on the ground that voters who were members of a majority but not a supermajority would have their votes diluted. The plaintiffs in Gordon challenged a state requirement that any measure to raise taxes or incur bonded indebtedness be approved in a referendum by 60 percent of voters. The high court observed that it is permissible for the federal or state governments to constrain “majoritarian supremacy” in any number of ways. (Gordon, at p. 6.) What is constitutionally objectionable, as past cases had held, was “the denial or dilution of voting power because of group characteristics—geographic location and property ownership—that bore no valid relation to the interest of those groups in the subject matter of the election; moreover, the dilution or denial was imposed irrespective of how members of those groups actually voted.” (Id. at p. 4.) Guardino and Altadena, both of which involved supermajority voting requirements on local tax measures, relied on Gordon in concluding that such requirements do not give rise to an equal protection claim unless the burdened voters comprise an identifiable class. (Guardino, at pp. 255-258; Altadena, at pp. 590-591.)
II.
There is considerable evidence in the record to support the trial court’s conclusion that the hiring and retention of a substantial number of grossly ineffective teachers in California public schools have an appreciable impact on students’ fundamental right to education. The trial court credited “a massive study” by Stanford economist Raj Chetty finding that “a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroоm.” The trial court also cited a four-year study by Harvard economist and education professor Thomas Kane finding that “students in [the Los Angeles Unified School District] who are taught by a teacher in the bottom 5% of competence lose 9.54 months of learning in a single year compared to students with average teachers.” Moreover, the trial court found “no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms” and cited testimony of the state’s own expert estimating that 1 to 3 percent of California teachers are grossly ineffective, which translates to 2,750 to 8,250 teachers statewide.
The trial court also found that the challenged statutes substantially contribute to the hiring and retention of grossly ineffective teachers. The evidence is particularly suggestive with respect to the dismissal statutes. These statutes provide extensive procedural protections to teachers subject to dismissal for poor performance. (
The trial court found that “it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion under the Dismissal Statutes, and that given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases.” The trial court did not dispute that providing teachers with due process before dismissal was a legitimate and even compelling interest. But it concluded that this interest could be pursued without what it called the “über due process” that leads to retention of grossly ineffective teachers. The trial court observed that classified (i.e., nonteacher) school employees, who are afforded due process rights to notice and a hearing under Skelly v. State Personnel Board (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14, 539 P.2d 774], “had their discipline cases resolved with much less time and expense than those of teachers.”
The trial court also concluded that other features of the challenged statutes contribute to the hiring and retention of grossly ineffective teachers. California is one of only five states with a two-year probation period before tenure, in contrast to three or more yeаrs in other states. The trial court cited “extensive evidence presented, including some from the defense,” that two years “does not provide nearly enough time for an informed decision to be made regarding the decision of tenure (critical for both students and teachers).” Further, California is one of only 10 states that use seniority as the sole factor or as a factor that must be considered in laying off teachers. (
Plaintiffs have styled this claim as an equal protection challenge, perhaps because this approach is supported by Butt and other cases that have applied strict scrutiny to equal protection claims alleging harms to fundamental rights. With respect to Group 1, however, this lawsuit at bottom states a claim that the teacher tenure and dismissal statutes, to the extent they lead to the hiring and retention of grossly ineffective teachers, violate students’ fundamental right to education. Plaintiffs locate the source of that right in sections 1 and 5 of article IX of the California Constitution. These are the same provisions at issue in Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896 [201 Cal.Rptr.3d 484], an education adequacy case in which this court also denies review today. The two cases involve different yet сomplementary claims concerning the importance of resources and reform to improving the education system. Both cases ultimately present the same basic issue: whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall. This issue is surely one of the most consequential to the future of California.
Despite the gravity of the trial court’s findings, despite the apparent error in the Court of Appeal’s equal protection analysis, and despite the undeniable statewide importance of the issues presented, the court decides that the serious claims raised by Beatriz Vergara and her eight student peers do not warrant our review. I disagree. As the state’s highest court, we owe the plaintiffs in this case, as well as schoolchildren throughout California, our transparent and reasoned judgment on whether the challenged statutes deprive a significant subset of students of their fundamental right to education and violate the constitutional guarantee of equal protection of the laws.
I respectfully dissent from the denial of review.
CUÉLLAR, J.—What Beatriz Vergara and eight of her fellow public school students allege in this case is that they, and vast numbers of children in our state’s public schools, are burdened by certain statutes governing teacher dismissal, retention, and tenure that create a surplus of grossly ineffective teachers. After a 10-week bench trial, the trial court found that these statutes result in the denial of equal protection not only because they assign grossly ineffective teachers to classrooms where the children are disproportionately minority and poor, but also because the enduring effects of these statutes disproportionately burden an arbitrary subset of children. The evidence supporting this conclusion, according to the trial court, “shocks the conscience.” In a public school system responsible for educating millions of children, “a single year in a classroom with a grossly ineffective teacher costs
Beatriz Vergara and her fellow plaintiffs were part of that arbitrary group of thousands of children attending California public schools that the trial court found to be deprived of equal protection. According to the trial court, plaintiffs had “proven, by a preponderance of the evidence, that the Challenged Statutes impose a real and appreciable impact” to the detriment of these students’ fundamental right to equality of education. At no time did the Court of Appeal dispute this conclusion. What was instead fatal to the claim advanсed on behalf of the arbitrarily burdened children, according to the appellate court, was plaintiffs’ failure to prove the existence of an identifiable group treated differently by the challenged laws, a group separate and apart from the individuals allegedly harmed by those laws.
Nothing in California’s Constitution or any other law supports the Court of Appeal’s reasoning. When a fundamental right has been appreciably burdened, we apply strict scrutiny. (See Butt v. State of California (1992) 4 Cal.4th 668, 685-686 (Butt); Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 (Fair Political Practices); Serrano v. Priest (1971) 5 Cal.3d 584, 597 (Serrano I).) The appellate court did not. Instead it erected a novel barrier—not only for Beatriz Vergara and her fellow student plaintiffs, but for all California litigants seeking to raise equal protection claims based on a fundamental right. Such a right could be unquestionably burdened, the decision implies, but if that burden is imposed at random rather than on a discrete and identifiable group, then no relief is available under the equal protection provisions of our state Constitution. (See Vergara v. State of California (2016) 246 Cal.App.4th 619, 646 (Vergara) [“Here, the unlucky subset is not an identifiable class of persons sufficient to maintain an equal protection challenge. Although a group need not be specifically identified in a statute to claim an equal protection violation [citations], group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute” (fn. omitted)].)
Even if one ignores the appellate court’s inconsistency with settled law, the question its approach begs is as simple as it is important: Why? Certainly not because we have ever held that arbitrarily denying the fundamental rights of
Beatriz Vergara and her fellow plaintiffs raise profound questions with implications for millions of students across California. They deserve an answer from this court. Difficult as it is to embrace the logic of the appellate court on this issue, it is even more difficult to allow that court’s decision to stay on the books without review in a case of enormous statewide importance. We grant review where necessary to forestall infringement of a fundamental right. (See, e.g., In re Marriage Cases (2008) 43 Cal.4th 757, 809 [right to marry]; Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 865 [right to free speech]; Gould v. Grubb (1975) 14 Cal.3d 661, 670 [right to vote].) This, too, is a case that merits review so we can address the problems with the Court of Appeal’s approach in a matter of considerable statewide importance, and clarify that an equal protection claim under the California Constitution calls for searching scrutiny where it arises from the imposition of an impermissible burden on a fundamental right. And if the appellate court had addressed the fundamental rights issue perfectly against a legal backdrop that was crystal clear, there still would be compelling reasons to grant review.
I.
We treat certain rights as fundamental under the California Constitution—the right to vote, for example, or to marry, to access our courts, to an expectation of privacy, and to an education—because they are foundational to how we choose to define our personal and civic lives. But it would border on madness to think that because these rights are fundamental, we can routinely expect perfection when the state protects—or through its activities, vindicates—these rights. The nature of any person’s actual relationship to his or her fundamental rights is as much affected by ordinary governance—polling place and school locations, routine agency practices, long-past histories, and unexpected emergencies—as it is by a shared aspiration articulated in constitutional text or a judicial opinion that government honor such rights. Yet these realities make it even more important to distinguish routine shortcomings of implementation, or instances where government legitimately chooses to harmonize competing goals in a given way, from the infringement of a fundamental right by the imposition of an appreciable burden thereon.
These findings instead failed to justify a remedy, according to the Court of Appeal, because there was no identifiable group explicitly targeted or uniquely burdened by the statutes. This conclusion is, at best, in stark tension with settled law. We have long recognized that equal protection challenges may be brought “whenever the disfavored class is suspect or the disparate treatment has a real and appreciable impаct on a fundamental right or interest.” (Butt, 4 Cal.4th at pp. 685-686.) Strict scrutiny applies to both types of equal protection claims. (See ibid.; see also Fair Political Practices, 25 Cal.3d at p. 47 [“It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied”].)
We can understand plaintiffs’ claims here as involving equal protection grounded in a fundamental interest, or as ultimately predicated more directly on the argument that a fundamental interest has been unduly burdened. Under either conception, the Court of Appeal failed to appreciate the distinction we have drawn between claims involving a fundamental interest and those centered on a suspect class. To state a fundamental interest claim sounding in equal protection, the alleged disparate treatment need not be focused on a suspect class. (See Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 914 [13 Cal.Rptr.2d 245, 838 P.2d 1198]; accord, Bullock v. Carter (1972) 405 U.S. 134, 144 [31 L.Ed.2d 92, 92 S.Ct. 849] [finding a denial of equal protection even though the affected group “cannot be described by reference to discrete and precisely defined segments of the community”].) When a fundamental interest is at stake, the sole preliminary inquiry is whether the challenged law has a real and appreciable impact on the exercise of that interest. (Butt, 4 Cal.4th at p. 686; accord, Bullock,
And even if the law were more opaque, my doubts are grave about whether one could articulate a reasonable understanding of fundamental rights under the California Constitution that would countenance the imposition of material burdens on those rights without strict scrutiny or even the opportunity for judicial review under any standard, so long as those burdens were imposed largely at random. Invidious classifications deserve strict scrutiny even where fundamental rights are not at issue, while ordinary instances of treatment that could arguably be described as unequal do not merit particularly searching scrutiny where they do not involve fundamental rights. Where fundamental rights are at issue, however, we have never held that an equal protection challenge may proceed without the searching scrutiny that fundamental rights merit. We shouldn’t start now simply because those rights may have been burdened arbitrarily. True: Arbitrary selection has at times been considered a means of rendering a governmental decision legitimate. (See Samaha, Randomization in Adjudication (2009) 51 Wm. & Mary L.Rev. 1, 24-27.) But where an appreciable burden results—thereby infringing a fundamental right—arbitrariness seems a poor foundation on which to buttress the argument that the resulting situation is one that should not substantially concern us.
Just as the arbitrariness of the alleged injury is no cause to deny review, neither is the nature of the fundamental right so injured. That education is the right at issue has posed no insurmountable bar in the past. (See Butt, 4 Cal.4th at p. 686 [“education is ... a fundamental interest fоr purposes of equal protection analysis under the California Constitution”]; Serrano I, 5 Cal.3d at pp. 608-609 [“We are convinced that the distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a ‘fundamental interest’ ”].) Why should we treat differently the material interference with a fundamental right arising from the challenged statutes—interference the trial court found to exist, and the Court of Appeal did not dispute—from the disruption occasioned by a shorter school year (see Butt, at p. 686), or the drastic inequities in funding that undermine equal access to an education (see Serrano I, at pp. 590-591)? The harmful consequences to a child’s education caused by grossly ineffective teachers—the evidence for which the trial court found compelling—are no less grave than those resulting from a shortened period of instruction or financial shortfalls.
Had we accepted our charge to ensure uniformity of decision on legal issues of statewide importance (see
II.
The Court of Appeal also failed to apply the standard for facial constitutional challenges that ordinarily governs cases involving fundamental rights. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 343 [66 Cal.Rptr.2d 210, 940 P.2d 797] (American Academy) [requiring proof of a constitutional conflict in only “the vast majority of [the law’s] applications”].) What the appellate court did instead is apply the more stringent “must be unconstitutional in all its applications” standard, without any apparent justification. (See Vergara, 246 Cal.App.4th at pp. 643, 648.) At a minimum, the court did not wrestle with the “uncertainty” in our case law surrounding the governing standard for facial constitutional challenges. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013)
The court below concluded that a successful facial challenge depends on showing that the challenged law “ ‘ “inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions” ’ ” in all the law’s applications. (Vergara, 246 Cal.App.4th at p. 643; accord, Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 181 [172 Cal.Rptr. 487, 624 P.2d 1215].) Only rarely have we applied the more stringent standard alone (see East Bay Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 693, 709 [102 Cal.Rptr.2d 280, 13 P.3d 1122]), and not when a fundamental right is involved (see American Academy, 16 Cal.4th at p. 343 [“a facial challenge to a statutory provision that broadly impinges upon fundamental constitutional rights may not be defeated simply by showing that there may be some circumstances in which the statute constitutionally could be applied”]). In fundamental rights cases, we require a showing of unconstitutionality in only “the vast majority of [the law’s] applications.” (Ibid.) Had the Court of Appeal applied this standard, and properly deferred to the trial court’s factual findings оn causation, it is difficult to see how it could have rejected the trial court’s conclusions.
The Court of Appeal also appears to have confused the question of whether a facially discriminatory statute exists with the question of what showing is required to prove that statute is invalid on its face. “Because plaintiffs did not demonstrate any facial constitutional defect,” the appellate court stated in a footnote, “they certainly did not show that such a defect existed in the generality or vast majority of cases.” (Vergara, 246 Cal.App.4th at p. 649, fn. 14.) Not so. Just because a statute does not discriminate on its face—i.e., does not “demonstrate any facial constitutional defect”—does not necessarily mean a facial challenge to that statute does not lie. If this were the case, facial challenges in this day and age would be dead on arrival. Moreover, it cannot be that because plaintiffs failed to satisfy the more stringent standard for bringing a facial challenge they, by necessity, failed to satisfy the less stringent one. What determines instead whether plaintiffs have succeeded in making such a challenge is whether they must prove a constitutional conflict in all of the statute’s applications, or in just the great majority of them. This is precisely the uncertainty we could have clarified by granting review.
III.
There is no right without an adequate remedy. And no such remedy exists without review by a court of last resort when the decision of the appellate
No one should doubt that plaintiffs’ lawsuit raises difficult questions and implicates a variety of concerns, including the importance of protecting public employees from arbitrary dismissal. (See California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 335-336 [84 Cal.Rptr.2d 425, 975 P.2d 622] [explaining that because “the state not only has monopolized the process of determining whether permanent public school teachers should be dismissed or suspended, but it also is the entity seeking to deprive teachers of their constitutionally protected liberty and property interests,” it is therefore “required by the due process guarantee to provide the teacher a meaningful hearing”].) Public institutions must often reconcile their protection of a fundamental right with the realities of governing, the resolution of competing priorities, and the imperfections of any system forged and adapted by human hands. But here, the trial court concluded that a fundamental right was infringed when it was appreciably burdened by statutes protecting grossly ineffective teachers—and the evidence “shock[ed] the conscience.” 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. Which is why I would grant review.