Vergara Case Wrong on Every Count

Originally posted at my EdWeek Teacher blog, Capturing the Spark (4/15/16).



The Court of Appeal for the State of California delivered a unanimous verdict overturning the controversial Vergara v. California trial verdict, delivering a clear rebuke of both the plaintiffs and the trial judge who handed them a temporary victory. At issue were statutes in California’s education code relating to teacher job protections, which supposedly caused a violation of students’ rights under the state constitution. The plaintiffs, technically, were nine students, represented by the non-profit organization Students Matter. The defendants included the state and the teachers unions. In the original trial ruling from 2014, Judge Rolf Treu offered plenty of dramatic proclamations about the problems, but a rather thin review of the trial evidence that he relied on to support his ruling.

In a number blog posts on the topic, going back before the trial and leading up the appellate hearing, I was among many who critiqued the plaintiffs’ claims and the ruling for failure to show cause and effect, and failure to show that the defects in statute rise to the level of a constitutional issue. (I also signed on to one of the amicus briefs filed by the defense). The appellate judges agreed, citing flaws in the plaintiffs’ identification of affected students, and their failure to prove that the challenged statutes cause the identified harm. The judges also faulted Judge Treu’s interpretation of both evidence and relevant legal precedents.

So often in these situations, we find advocates on both sides offering opinions based on what they wanted to see, what they believe to be true, what they feel about the issues – without sufficient attention to the details of the case. In my posts, I’ve tried to stay more grounded in the trial evidence and ruling, and I’ve tried to draw fair distinctions between the identification of legitimate concerns and mistaken claims of causation or exaggerated harm. I conceded in one prior blog post that the plaintiffs made valid arguments about one weakness in the hiring-to-tenure timeline, though I argued (and the appeals court agreed) that “The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea.'”

Students Matter has of course responded to the ruling with a promise to appeal to the next level. As they have from the start, they engage in an overwrought rhetoric: their lead attorney Theodore Boutrous claims that “the mountain of evidence we put on at trial proved – beyond any reasonable dispute – that the irrational, arbitrary, and abominable laws at issue in this case shackle school districts and impose severe and irreparable harm on students.” No measured response here; Boutrous favors figurative language and employs more adjectives than verbs. The teachers, parents, administrators, school board trustees, researchers, civil rights advocates, and other critics of the Vergara case are not “reasonable” – nor, I suppose, are the three appeals court judges who examined the trial evidence and relevant case law to reach a unanimous verdict against Students Matter.

Let’s look at the substance of the ruling (complete text here).

Here’s an excerpt from the opening, in which the judges summarize multiple failures by the plaintiffs:

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.” … 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. 

In other words, neither the language of the laws nor the effects of the laws were found to be unconstitutional. While some schools or districts do an inadequate job implementing the laws, and while the laws could be improved, the laws as written are not violating the principle of equal protection.

One detail that I first heard used to undercut the plaintiffs’ position even before trial, and either ignored or discounted by Judge Treu, didn’t escape the notice of the court this time:

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.

John Deasy, then superintendent of LAUSD, testified for the plaintiffs about education code hampering his ability to dismiss teachers, although his actions showed the district had gradually changed practices and generated a more than thirteen-fold increase in teachers dismissed or pushed out for proven or alleged ineffectiveness. Judge Treu’s original ruling ignored the testimony of administrators with different perspectives on the law; the appeals court had no trouble finding it: “Multiple school administrators called by defendants testified that, under the dismissal statutory scheme, they are able to remove poorly performing teachers.” 

The appeals court also faulted the plaintiffs’ attempt to take up the plight of any “unlucky” students (“Group 1” for purposes of this case) assigned to an ineffective teacher, noting problems with identifying those students for purposes of a constitutional case.

The defining characteristic of the Group 1 students, who are allegedly harmed by being assigned to grossly ineffective teachers, is that they are assigned to grossly ineffective teachers. Such a circular premise is an insufficient basis for a proper equal protection claim. …To avoid this circularity, a group must be identifiable by a shared trait other than the violation of a fundamental right.

…Under plaintiffs’ Group 1 theory, an unlucky subset of students will inevitably be assigned to grossly ineffective teachers. The chance that this will happen to any individual student, however, is random, as the challenged statutes do not make any one student more likely to be assigned to a grossly ineffective teacher than any other student. Thus, the unlucky subset is nothing more than a random assortment of students. Moreover, because (according to the trial court’s findings) approximately 1 to 3 percent of California teachers are grossly ineffective, a student in the unlucky subset one year will likely not be the next year, meaning that the group is subject to constant flux. [italics added for emphasis]

On this point, I think the appeals court opens itself to a slight correction: the concentration of underqualified teachers is not in dispute, and so the 1 to 3 percent of ineffective teachers are not randomly distributed. However, the issue of disproportionate effects on “protected classes” of students is taken up explicitly later, as the appellate ruling continues to find weaknesses in the plaintiffs’ case and the judge’s ruling.

Based on its finding of disproportionate harm, the trial court determined that strict scrutiny of the challenged statutes was appropriate. In making this determination, however, the trial court bypassed an initial question of the required analysis: Did the challenged statutes cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers? [italics in original]

To elaborate, the “strict scrutiny” of the trial court means that the judge defined his role as determining if California has a valid reason to enact laws that have a negative impact on students’ rights. This ruling says that Judge Treu neglected an essential prior question: whether or not the challenged laws create the negative impact in the first place. Absent any proof that the statutes caused the problem, it was inappropriate to move on to “strict scrutiny” of those laws.

In a plain, clear statement that undercuts the Students Matter position as much as any in this ruling, the court states:

Further, the evidence at trial showed what the text of the challenged statutes makes clear–that the challenged statutes do not in any way instruct administrators regarding which teachers to assign to which schools. Thus, it is administrative decisions (in conjunction with other factors), and not the challenged statutes, that determine where teachers are assigned throughout a district.

Not only do the judges look at the testimony that contradicts the ruling, they fault Judge Treu’s reading of evidence that he found favorable to the plaintiffs:

The [California Department of Education] report relied on by the court does not suggest that the challenged statutes cause disparities in the assignment of poor or minority students to grossly ineffective teachers. Instead, it repeatedly documents the reason for higher concentrations of ineffective teachers in schools serving such students–the “counterproductive hiring and placement practices” of local administrators. Nor did the trial evidence show the “dance of the lemons” is inevitably caused by the statutes. Instead, as described at trial, the dance of the lemons is a process driven by local administrators. According to trial testimony, some principals rid their schools of highly ineffective teachers by transferring them to other schools, often to low-income schools. This phenomenon is extremely troubling and should not be allowed to occur, but it does not inevitably flow from the challenged statutes, and therefore cannot provide the basis for a facial challenge to the statutes. [italics added for emphasis]

Judge Treu’s ruling also relied heavily on plaintiffs’ expert witnesses, (with barely any apparent consideration of defense experts, I’d add). The appeals court was not inclined to follow suit:

These [plaintiffs’] witnesses opined that grossly ineffective teachers “tend to” accumulate in schools serving minority students, and that the challenged statutes “could” be a cause. We are not required to defer to expert opinion regarding the ultimate issue in a case, particularly when the issue is a predominantly legal mixed question of law and fact. (See Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 [“There are limits to expert testimony, not the least of which is the prohibition against admission of an expert’s opinion on a question of law”].)  In any event, these opinions do not sustain plaintiffs’ burden. The first opinion does not explain why grossly ineffective teachers “tend to” accumulate at certain schools, and the second opinion only indicates the statutes “could be” a cause, not that they are or, more importantly, inevitably are. [italics in original]

Near the end of the appellate ruling, the tone in the writing shifts slightly, as if calling out Students Matter for a pattern of mistakes:  

Nor have plaintiffs demonstrated that the challenged statutes inevitably lead to greater disruption at schools serving poor and minority students during reductions-in-force. Plaintiffs presented evidence that certain schools serving these students have higher numbers of inexperienced teachers and go through more layoffs than other schools. Witnesses for plaintiffs testified that this “constant churn” of staff is destabilizing. Again, while plaintiffs have identified a troubling problem, they have not properly targeted the cause. [italics added for emphasis]

Ultimately, the three-judge panel agreed that Students Matter and Judge Treu failed in virtually every key legal respect, and did not prove that any of the challenged statutes were unconstitutional, let alone all of them. The case didn’t meet appropriate standards for a constitutional case, as it improperly identified the affected students, and lacked appropriate justification for “strict scrutiny” of the challenged statutes. As for the evidence and the ruling, the plaintiffs failed to prove that the challenged laws were constitutionally invalid in their design, intent, or effect, while the judged failed to properly weigh the evidence from both sides, and relied on evidence that he should not have.

While I’m relieved by this turn of events, I’m not in a celebratory mood. “Winning” this trial (if the appellate ruling is sustained) helps California avoid a troubling precedent, and allows us to continue the process of negotiating improved policies through the proper channels. However, this case was never going to do anything either way to address the most pressing problems California’s students are facing: massive poverty, lack of affordable housing, inadequate health care and early childhood education, underfunded and underserved schools, decaying infrastructure, a looming teacher shortage, and a general public that may be sympathetic (at best), but dangerously passive at a time when we must confront and solve these larger issues.

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