Friday, March 28, 2014


Testimony ends, “final” arguments heard, both sides are to submit written briefs by April 10, with a ruling due within 90 days after that – in July.  Both sides already have said they would appeal if they lose.

Students' interests at center of trial over teacher protection laws

Plaintiffs want to be able to remove ineffective teachers more quickly, but the state says rules governing firings, layoffs and tenure help retain qualified educators.

By Howard Blume | Los Angeles Times |

NOT IN SCHOOL ON A MONDAY: Plaintiff Clara Campbell, 9, adjusts her hair as she listens to attorney Theodore Boutrous speak about a lawsuit to overturn laws that provide seniority protections to California teachers. At the trial's end, both sides asserted that students' interests are at stake. (Bob Chamberlin / Los Angeles Times / January 27, 2014)

March 27, 2014, 8:50 p.m.  ::  A groundbreaking, two-month trial challenging teacher job protections in California concluded Thursday with both sides asserting that the interests of students are at stake.

The case, Vergara vs. California, seeks to overturn a set of laws that affect how teachers are fired, laid off and granted tenure.

The Silicon Valley-based group Students Matter brought the lawsuit on behalf of nine plaintiffs, contending that the regulations hinder the removal of ineffective teachers. The result is a workforce with thousands of "grossly ineffective" teachers, which disproportionately hurts low-income and minority students, attorneys said. This outcome makes the laws unconstitutional, they argued.

"Education is the lifeline of both the individual and society," attorney Theodore Boutrous told a Los Angeles courtroom with more than 130 observers. "These statutes are killing that lifeline."

The rules have been defended by the state of California and the state's two largest teacher unions — the California Teachers Assn. and the California Federation of Teachers. Their attorneys countered that it is not the laws but poor management that is to blame for districts' failing to root out incompetent instructors.

Job protections help districts to recruit and retain teachers — which benefits students, attorneys say.

"The interests of students and teachers are aligned," said attorney James Finberg.

The plaintiffs want to streamline a teacher dismissal process that can be long and expensive — and that affords more rights to teachers than to other state employees. They also want to end a layoff process for teachers that relies mostly on seniority rather than on determining which instructors are most effective.

Seniority may be entirely objective, said plaintiffs' attorney Marcellus McRae, but so would layoffs based on height, the alphabet or the ability to dunk a basketball.

Finberg countered that seniority is fair and that experience typically correlates to better performance.

At one point, Superior Court Judge Rolf M. Treu, who will decide the case without a jury, interrupted the defense to question the assertion that better management was the preferable solution if a change in law could benefit students in poorly managed districts.

Deputy Atty. Gen. Susan Carson, representing the state, said remedies include electing a new school board, placing pressure on the school system to fire a superintendent and converting a campus to an independently run charter school.

"If that's the best that the state of California can do to solve these problems, we are in a world of trouble," countered Boutrous during his rebuttal.

The plaintiffs also are contesting the tenure process, under which administrators must decide whether to grant these job protections after about 18 months.

Treu asked the defense why it was so important to defend the 18-month threshold if more time for evaluation could yield a better decision.

Finberg argued that a district could protect students from potential harm by letting go of a borderline instructor. Extending the review period could mean that a poor teacher would remain on staff longer, he said.

Over the course of the trial, attorneys for each side called more than 30 witnesses, including students who described their experiences with teachers they believed were ineffective.

The defense rebutted this testimony with evidence that some of these teachers are highly regarded.

Both sides are to submit written briefs by April 10, with a ruling due within 90 days after that. The losing side is almost certain to appeal.

Teacher job protections attacked, defended in landmark trial’s closing arguments

Adolfo Guzman-Lopez | Pass / Fail | 89.3 KPCC

Vergara Trial

NOT IN SCHOOL ON A THURSDAY: Plaintiff Elizabeth Vergara speaks during a lunch break news conference during the closing arguments of the trial in Los Angeles. - Adolfo Guzman Lopez

March 27th, 2014, 4:32pm  ::  The closing arguments of the Vergara vs. California trial on Thursday painted two vastly different pictures of whether students are harmed by the job protections enjoyed by public school teachers.

“The statutes have a real and appreciable impact on the exercise of a fundamental right. And here that fundamental right is an equal shot at an education that will prepare one for life,” lawyer Ted Boutrous said to Judge Rolf Treu.

Boutrous is one of the lawyers representing nine California public school students who alleged in the lawsuit that led to the trial that their exposure to ineffective teachers denied them the state’s guarantee of an adequate education.

Boutrous reminded Judge Treu that his side questioned 30 witnesses over two months, including public school superintendents, teachers, parents, researchers and the student plaintiffs. Testimony showed, Boutrous said, that bad teachers aren’t fired early in their careers because the state’s seniority-based layoffs allow them to stay on the job. The granting of tenure and a complicated, costly firing process also keep bad teachers on the job, he said.  Boutrous played a video of witness Raj Chetty, a Harvard economist.

“Having a highly effective teacher significantly improves children’s outcomes and having a highly ineffective teacher conversely does substantial harm,” Chetty said in the video.

Chetty had done a study tracking 2.5 million public school students, during and after their school careers, to find out the impact of teachers on students.

“This is hard data, it proves our case, it proves these students are being harmed throughout their lives and we request that the court put a stop to this by striking down these statutes,” Boutrous said.

The trial is being closely watched by many of the state’s top education and political leaders and is widely viewed as a bellwether case for public education reform efforts nationwide.

The roughly 80 people in the audience included former California Governor Pete Wilson and LA Unified Superintendent John Deasy, who’d testified for the plaintiffs that the teacher firing process is ineffective. The presidents of the state’s top teachers unions held press events before the proceedings, in which they said that this case is an effort to undermine teacher protections which are crucial to academic freedom and effectiveness.

Judge Rolf Treu underlined the high-stakes nature of the trial before the first lawyer spoke. He asked everyone in the courtroom to turn around and look at two paintings on the courtroom’s back wall, portraits of Judges Earl Warren and Donald Wright.

“Justice Warren wrote the decision in Brown vs. Board of Education. Justice Wright concurred and was chief justice when the Serrano versus Priest cases came down. Both decisions have an impact on what we’re doing here today,” he said.

The Serrano ruling, four decades ago, struck down as unconstitutional the state’s school funding method, which used local property taxes to fund local schools.

Plaintiffs’ lawyers argued during the trial that their case would have a far-reaching effect, just as the Serrano case did.

Deputy California Attorney General Susan Carson – defending the state’s laws against the suit - opened her side’s closing arguments by questioning the validity of using student test scores to measure whether a teacher is doing a good job.

“Aside from a handful of anecdotes, plaintiffs have primarily relied on value added methodology, VAM studies, conducted in LAUSD to establish that there are a significant number of grossly ineffective teachers throughout California,” she said.

Carson and her side’s lawyers argued during the trial that well-managed districts are already able to identify and fire bad teachers under the current system with teacher job protections in place.

Plaintiff Brandon DeBose, who had testified that he experienced teachers who insulted his abilities, is now on his way to graduating and going to college, along with other student plaintiffs in the case.  That fact, according to comments by defendants’ lawyer Jim Finberg in his portion of closing arguments, underscores that the student plaintiffs did receive an adequate education, without any changes to teacher job protections.

“None of these plaintiffs suffered a real and appreciable harm and none of them faces imminent harm due to the challenged statutes,” Finberg said.

The Vergara trial is a bench trial, which means that Judge Treu - not a jury - will weigh the evidence and come up with a verdict. With the case adjourned on Thursday afternoon, the judge has up to 90 days after April  10 to make a ruling.

Attorneys give final arguments in Vergara suit challenging laws for teacher hiring, firing

By John Fensterwald  | EdSource Today |

Judge Rolf Treu must issue a ruling on the case by early July.

The March 27th, 2014 ::  The  future of tenure and other laws governing how teachers are hired and fired in California is now in the hands of Judge Rolf Treu.

Attorneys in Vergara v. California made their final pitches Thursday in Los Angeles County Superior Court. The four hours of closing arguments paralleled opening statements two months to the day and 52 witnesses ago, with diametrically different views on whether teachers’ workplace protections harm  many – or any –  of the state’s most vulnerable schoolchildren.

<<Judge Rolf Treu must issue a ruling on the case by early July. Source: Courtroom View Network

The lawsuit was filed on behalf of Beatriz Vergara of Los Angeles and eight other students in five California school districts by Silicon Valley businessman David Welch. He started the nonprofit Students Matter to file and promote the case and hired a high-profile team of lawyers, led by Theodore Olson and Theodore Boutrous. They challenged three statutes laying out the teacher dismissal process, two laws establishing tenure – the due process guarantees given teachers after two years on the job – and layoffs by seniority, known as LIFO for the “last in, first out” process.

The state’s two teachers unions have characterized Vergara as part of a larger, ideological effort by wealthy individuals like Welch to undermine unions, scapegoat teachers and divert attention from systemic issues like  inadequate school funding and poverty.

But in his closing argument, live streamed by the Courtroom View Network, Boutrous said the lawsuit has the right focus. “Teachers have the most important impact” in a school – that is not disputed, he said. “We would love to solve all of the problems and difficulties in our school system, but we focused on something that can be changed” – laws he asserts are damaging to children.

“We know grossly ineffective teachers harm students; they haunt them for the rest of their lives,” he said.

Lead plaintiffs attorney Theodore Boutrous makes a statement during closing arguments.

Lead plaintiffs attorney Theodore Boutrous makes a statement during closing arguments. Source: Courtroom View Network>>

Boutrous recapped the evidence of two expert witnesses in the case. Thomas Kane, an education and economics professor at the Harvard Graduate School of Education, presented data showing that a student taught by a teacher in the bottom 5 percent of effectiveness – what plaintiffs categorize as “grossly ineffective teachers” – would fall nine months behind in English and nearly a year in math, compared with students taught by an average teacher. Raj Chetty, another Harvard economics professor, crunched test score data on 2 million students over two decades and concluded that replacing the worst-performing 5 percent of teachers would increase college admissions, lower pregnancy rates and raise average lifetime income per student by $50,000. Boutrous cited the findings as proof of the ongoing human costs of keeping the worst-performing teachers.

But defense attorney Susan Carson, a supervising deputy state attorney general, said the data is “not effective or credible.” Both Kane and Chetty used a “value added methodology,” called VAM, which defense experts said is unreliable, to identify worst-performing teachers. And defense witnesses argued that multiple measures – observations, portfolios of student work and local assessments, not test scores alone – should be used to evaluate teachers. “None of our administrators testified that they used or needed to use VAM,” Carson said.

While agreeing that there may be a small percentage of grossly ineffective teachers in California, the two sides disagreed on the central issue of the case – whether the challenged laws were at fault and whether striking them down would be wise.

Boutrous and co-plaintiffs attorney Marcellus McRae, who also spoke during closing arguments, argued yes. The state’s teacher protection laws perpetuate a cycle of saddling classrooms with the worst teachers. They are concentrated in low-income schools, they said, disproportionately denying those students their constitutional right of an equal opportunity to an education.

“Have we not had enough of short-shafting poor people and minorities?” McRae asked. “This abomination must stop; there is no debate. They (ineffective teachers) are unequally distributed.” Because there’s clear harm and a violation of the constitutional rights of low-income children, plaintiffs argued, the burden falls on the state to prove the laws serve a valid purpose and there are no better alternatives. “Instead, the defense has been doing gymnastics to justify an irrational system,” Boutrous said.

But Carson and James Finberg, an attorney for the California Teachers Association and California Federation of Teachers, which joined the defense, said that teacher protections such as tenure provide job security. Striking down the laws  would “remove a factor creating a stable job force,” Finberg said.  And they said there was no evidence that the nine students had suffered appreciable harm and that the laws had anything to do with how teachers are assigned to schools or why more experienced teachers transfer to more affluent areas. They cited defense witness Linda Darling-Hammond, a Stanford University education professor, who testified that poor schools with adequate resources and effective principals will draw and keep effective teachers.

Laws together compound harm

Boutrous and McRae said the five laws act in tandem, causing “symbiotic harm” for students.

They said the current tenure law, which grants permanent status to teachers after two years on the job, doesn’t provide enough time – closer to 16 months in reality, according to witnesses  – for administrators to make informed decisions. Because teachers improve over several years, less time involves a “crap shoot” that is not good enough for children, McRae said, especially when there are alternatives, like a probation period of three to five years, which most states have adopted.

But as with most aspects of the case, dueling superintendents disagreed. Principals and administrators for the defense said they were able to judge who would be effective within 18 months or less. It wouldn’t make a difference to give mismanaged districts – Finberg repeatedly cited Oakland Unified as one – more time.

Boutrous said that once hired, the state’s 17-step “arduous, Byzantine dismissal statutes make it costly and time-consuming beyond belief” to fire teachers that “all would agree are grossly ineffective.” McRae said the independent Commission on Teacher Competence, which hears appeals of dismissed teachers, fires an average of 2 out of 277,000 teachers each year. That percentage is “so small you would need a subatomic microscope to see it,” McRae said.

James Finberg, attorney for the California Teachers Association and California Federation of Teachers, said the laws under challenge were not at fault.

<< James Finberg, attorney for the California Teachers Association and California Federation of Teachers, speaks during  closing arguments. Source: Courtroom View Network

Persuading teachers to agree to a financial settlement or to resign or transfer to another school are not adequate solutions, McRae said, adding, “A workaround is an admission of an ineffective statute.”  Superintendents testifying for the plaintiffs, who included Los Angeles Unified Superintendent John Deasy, and former superintendents Tony Smith of Oakland Unified and Jonathan Raymond of Sacramento City Unified, said costs, time and energy were factors in deciding whether to move ahead with dismissals, and they’d have pursued more if the laws were less onerous.

Superintendents for the defense testified that they have avoided costly dismissal proceedings. Finberg pointed out that numerous witnesses testified that when evaluations are done by well-trained administrators, teachers resign, retire or settle for small amounts, such health care coverage for a few months. That’s why McRae’s statistic is deceiving, he said.

Anticipating the defense’s argument, McRae said the claim that dismissal laws don’t pose a problem in well-managed districts is “callous.”

“Children can’t control whether they live in a well-managed district,” and the state Supreme Court has ruled that the state cannot leave it to districts to enforce a constitutional obligation to equal opportunity, he  said. The court said to the state, “Stop it, just stop it. Do not abrogate your responsibility,” McRae said, calling it “an embarrassment for any state, let alone this state, to take this position” and ignore bad laws.

There was no common ground on layoff laws. Finberg said basing layoffs on seniority is objective and fair. The alternative, UC Berkeley economics and public policy professor Jesse Rothstein testified, is an expensive, subjective and a divisive process of rating the effectiveness of every teacher each year. Boutrous said LIFO discourages teachers from entering teaching by preserving the worst teachers at the expense of some of the best. California is one of 10 states that require layoffs by seniority, he said; in 20 states, seniority cannot be the sole factor, while in two states, it cannot be considered at all. Local districts set their own rules in 19 states, according to the plaintiffs’ closing presentation.

Judge Treu can choose to strike down none, all, or some of the laws. He will have 90 days after final briefs are filed April 10 to sort through the conflicting testimony and constitutional issues before issuing a ruling. Both sides already have said they would appeal if they lose.

Going deeper

Plaintiffs’ presentation at closing arguments, March 27, 2014

Teachers unions’ press conference before closing arguments, March 27, 2014

Previous EdSource Today coverage of Vergara vs State of California

Vergara, as documented and  explained by plaintiffs Students Matter

Vergara, as documented and explained by the CTA and CFT

More Coverage

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Teacher job protections attacked, defended in landmark trial's closing arguments

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