State Appeals panel in L.A. hears arguments in landmark teacher tenure case

LOS ANGELES, Calif. (FOX 11 / CNS) - An appellate court panel in Los Angeles heard arguments but made no decision Thursday in a long-running legal battle over state employment laws governing tenure and the firing of teachers.

In June 2014, Superior Court Judge Rolf M. Treu struck down the tenure laws, saying students and educators alike are "disadvantaged" by the statutes. Treu issued an injunction blocking tenure laws for public school
teachers but also placed a stay on the ruling pending an appeal.

During an hour-long hearing in the 2nd District Court of Appeal, a three-judge panel heard arguments for and against California's tenure system, which protects experienced teachers from layoffs and firings based on seniority.

Ted Boutrous, lead attorney for the plaintiffs, argued that current teacher job protections result in a "dance of the lemons," in which "grossly ineffective teachers" are simply transferred from school to school.

"It's impossible to dismiss these teachers," the attorney said, adding that poor teachers invariably end up in low-income and minority outposts. "The students' fundamental right to a quality education is being violated," Boutrous said, urging the panel to affirm Treu's ruling.

Justice Brian M. Hoffstadt, though, questioned whether the plaintiffs could prove that school administrators don't have enough power to keep that from happening.

Certain school districts have managed to apply the laws "in a way that doesn't result in this unlawful concentration" of poor instructors, Hoffstadt pointed out.

In his turn at the podium, Deputy Attorney General Nimrod Elias argued that there is no evidence that students at some poor and minority schools are being harmed by the protections. "These laws help reduce teacher attrition," he said. "There are benefits."

Elias also argued that school districts statewide attract educators who might otherwise be dissuaded by what they may consider low pay and difficult working conditions. In California, administrators must in effect decide whether to grant teachers tenure -- permanent employment -- after just 18 months.

The lawsuit, known as Vergara v. California, was filed in May 2012 by a privately funded advocacy group called Students Matter on behalf of nine young plaintiffs, alleging the laws violate students' constitutional rights to an
equal education. The suit named the state and two teacher unions that later intervened as defendants, the California Teachers Association and the California Federationof Teachers.

Boutrous argued during the Superior Court trial that five laws should be deemed unconstitutional, saying tenure and other laws made it too time-consuming and expensive to dismiss ineffective educators. "Teaching is the one profession in the world where you cannot tell a person they are not doing a good job," he said during a previous hearing.

The court has 90 days to issue an opinion.

In striking down the laws, Treu found that "both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason -- let alone a compelling one -- disadvantaged by the current permanent employment
statute."

The judge noted that teachers have a right to due process when they are being targeted for dismissal, but the current system is "so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory."

The ruling was a blow to teachers unions, which contend the ruling will actually harm students and educators. They argue that the laws governing tenure ensure that quality teachers are in classrooms. "There will always be some teachers that perform less well then others," Michael Rubin, representing the teachers unions, said today.

Two years ago, Treu also lambasted rules relating to seniority and teacher layoffs, known as "last-in, first-out,"

"The last-hired teacher is the statutorily mandated first-fired one when layoffs occur," the judge wrote. "No matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one, who all parties agree is creating a positive atmosphere for his/her students, is separated from them and a senior grossly ineffective one who all parties agree is harming the students entrusted to her/him is left in place.

"The result is a classroom disruption on two fronts, a lose-lose situation. Contrast this to the junior/efficient teacher remaining and a senior/incompetent teacher being removed, a win-win situation, and the point is
clear."

At the appellate hearing, Boutrous said that a reversal of the Superior Court ruling and a reactivation of the teacher employment laws would cause harm to the state's students.

Before the laws were struck down, "teachers of the year (were) being laid off, while grossly ineffective teachers (remained) in the classroom -- it shocks the conscience," Boutrous said.