Vergara v. California: California Tenure Law Gets An “F”
By: Ross Benson
Most cases of bullying involve one student bullying another classmate. In California, however, it is the teacher’s union that does the bullying. Despite the California Constitution’s affirmation that access to an education is essential to the preservation of rights and liberties, the California Supreme Court’s decision not to review Vergara v. California pokes holes in the state’s commitment to its students. The same group who once fought to open the school house doors have now locked minorities into situations where they derive no meaningful benefit from the right to an education.
Vergara v. California
Nine Los Angeles students filed suit against the State of California, alleging that students received a “grossly ineffective” education as a result of California statutes. Specifically, the students cited the state’s tenure, dismissal, and reduction in force statutes as the basis for the grossly ineffective claim. After reviewing several weeks of evidence and testimony, the trial court found that the statutes related to teacher tenure were unconstitutional because they resulted in such inequality in education that it “shocks the conscious.” Despite evidence to the contrary, the California Court of Appeals held that the same statutes and results that shocked the trial court’s conscious were not facially unconstitutional and that the education provided to low income and minority students was “basically equivalent” to white or affluent students. The California Supreme Court denied certiorari.
The California tenure statutes maintain that a teacher may be given tenure status after just two years on the job—hardly enough time to determine the quality of the teacher. The low threshold for gaining tenure is of central importance because once the teacher obtains tenure, the teacher is near impossible to fire. Of the 275,000 tenured teachers in California, only 2.2 (.0008%) are dismissed on average for unsatisfactory performance. For each dismissal case, a documentation process spanning several years must be completed and then the school district must spend between $250,000 and $450,000 to complete the dismissal action. When teachers are dismissed, the statute requires that superintendents use a “LIFO” (last in, first out) decision making pattern. Hiring and firing is based on seniority, meaning that a poor performing teacher with 20 years of experience will outlast a new hire with better classroom results.
Impact on Poor Minority Students
Even the most ardent critics of teacher tenure statutes must admit that teaching is a difficult job. However, these teachers must be held to the same standards as the students they teach. Whether by the ACT, SAT, semester grades, or another standardized test, students are judged on results. Conversely, these results are also an evaluation of how effective teachers are and enable school districts to understand which teachers are doing the best job.
Faced with the cost and difficulty of removing ineffective teachers, school boards often transfer the least effective teachers from higher income zones to the lowest income areas. As a result, these teachers are assigned to majority black and Latino school districts. According to expert testimony, Latino students are 68% more likely to be taught by a teacher in the bottom 5% of effectiveness, while African-Americans are 48% more likely to be a taught by a similarly ineffective teacher. On the other hand, students in the most wealthy school districts were 65% more likely to experience a teacher lay off, a trend that illustrates the reassignments to the low income areas. With the difficulty of firing teachers and the statutory requirements that protect incumbent teachers, administrators simply move them out of sight and shift the burden to the students who need help the most.
Empirical evidence shows that California does not provide an equal level of education to all students. In determining that California statutes created a discriminatory affect against poor and minority students, the trial court relied on two major studies. First, the court cited a four year study by Harvard economist and education professor Thomas Kane. Kane argues that students in Los Angeles who are taught by a teacher in the bottom 5% of effectiveness lose more than nine months of learning within a single school year compared to students taught by an average level teacher. Additionally, the trial court noted that Stanford economist Raj Chetty’s study posits that a classroom with an ineffective teacher could cost the students $1.4 million in lifetime earnings. If classrooms have several teachers that are ineffective, the loss of earnings will multiply.
When the California Appellate Court held that California tenure laws are constitutional, the court doomed poor and minority students to a future with less opportunity and less earning power. Though the laws may be constitutional, tenure statutes produce an outcome that disproportionately affects poor minority students. Here, the situation is analogous to voter registration laws. Though states may decide when and how voting occurs within each individual state, no state may pass a law that discriminates based on race, sex, income, or age. A law that is constitutional on its face may be struck down if the law impacts the rights or abilities of any group of voters. Recently, for example, North Carolina voter registration laws were rejected by the Fourth Circuit. Though the state was free to determine its voting procedures, the state’s elimination of same-day registration and imposition of voter-ID requirements created a substantial burden on predominately African-American voters and was held unconstitutional. In California, teacher tenure law should be viewed in the same way as voter registration laws; if the law creates a disproportionate outcome against minorities or other groups, the law must be struck down.
With students in the bottom 10% of both math and reading, California simply cannot afford to ignore the generational impact of these tenure laws. If California was graded on student’s performance and access to education, the state would get an “F”.
 Cal. Const. art. IX, § 1 (“A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people…”).
 Vergara v. California, 2014 Cal. Super. LEXIS 1255, at *4 (Cal. Super. Ct. Aug. 6, 2014).
 Id. at *10.
 Vergara v. California, 246 Cal. App. 4th 619, 649 (Cal. Ct. App. 2016).
 Vergara v. Cal. Teachers Ass’n, cert. denied, No. S234741, 2016 Cal. LEXIS 8387, *8 (Cal. Aug. 22, 2016).
 Cal Educ. Code § 44929.21 (Deering 2016).
 Dismissal, Students matter, http://studentsmatter.org/case/vergara/dismissal-statutes/ (last visited Oct. 12, 2016).
 Cal Educ. Code § 44955 (Deering 2016).
 Vergara, 246 Cal. App. 4th at 636.
 Id. at 652.
 15 U.S.C. § 10101.
 15 U.S.C. § 20510.
 League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, (4th Cir. 2014).
 Robert Barnes & Ann Marimow, Appeals Court Strikes Down North Carolina’s Voter-ID Law, The Wash. Post (June 29, 2014), https://www.washingtonpost.com/local/public-safety/appeals-court-strikes-down-north-carolinas-voter-id-law/2016/07/29/810b5844-4f72-11e6-aa14-e0c1087f7583_story.html.