A group of California public school students, backed by a Silicon Valley entrepreneur and a lawyer who defended companies such as Wal-Mart Stores Inc. (WMT) and Apple Inc. (AAPL), are asking a judge to void state laws that they say let incompetent teachers keep their jobs.
The students claim in a case that went to trial today that the California law providing public-school teachers with tenure and four other statutes protecting their jobs violate children’s constitutional right to receive a basic education, especially in poor and minority schools.
Ted Boutrous Jr., a lawyer for the students, said the lawsuit pitting the group against teacher unions is the broadest legal challenge to tenure laws ever undertaken and is intended to set a nationwide example.
“The situation in California is one of ultimate political gridlock where you have entrenched interests fighting things out with rhetoric and campaign contributions and commercials without regard to the interests of students,” he said in a phone interview. “It’s kind of unfair for kids to be at the mercy of the political realm. That’s where the Constitution comes in because it protects kids’ fundamental right to an education.”
Students Matter, the nonprofit organization backing the student’s lawsuit, was started by David Welch, the president and co-founder of Sunnyvale, California-based Infinera Corp. (INFN), a maker of optical networking gear. Welch, who said in a newspaper commentary last year that “impact litigation” will be a more effective way than politics to bring about change, has joined other business leaders in a nationwide fight with teacher unions over how to better educate students and prepare them for employment.
Billionaires including Microsoft Corp. Chairman Bill Gates, homebuilding and insurance entrepreneur Eli Broad, and the Walton family that founded Wal-Mart, have been pushing for public schools to be run more like businesses. Charter schools, independent of local school districts and typically free of unionized teachers, have been one of their favorite causes.
The Bill & Melinda Gates Foundation has supported programs based on the premise, shared by U.S. Education Secretary and Gates ally Arne Duncan, that student performance is improved by removing bad teachers, identifying good ones and rewarding them with more money.
The Broad Foundation and the Walton Family Foundation have given money to Students Matter, according to Manny Rivera, a spokesman for the organization. The students are represented by Boutrous and his firm Gibson Dunn & Crutcher LLP. Boutrous helped Wal-Mart win a 2010 U.S. Supreme Court ruling that barred a nationwide sex-discrimination lawsuit on behalf of 1 million female workers.
As a nonjury trial got under way today in state court in Los Angeles, home to the biggest public school district in the U.S. after New York, Boutrous said in his opening statement that the case isn’t about attacking teachers’ due-process rights or scapegoating teachers for other ills in society.
“Every student in California deserves quality teachers,” said Boutrous, whose opening was shown on Courtroom View Network. “It’s hard to argue with that proposition.”
California Deputy Attorney General Nimrod Elias, who represents the state in the case, said tenure helps attract people to low-paid jobs in often difficult work conditions. It also protects teachers from pressure by school boards when they teach controversial subjects such as evolution, Elias said.
“The harms of which these plaintiffs complain are caused by other things than these laws,” Elias said in his opening statement.
The nine students haven’t been able to identify a “grossly ineffective” teacher who taught them and the ones they alleged are “grossly ineffective” are actually good teachers, Elias said.
The Students Matter lawsuit, filed in 2012, was brought by parents on behalf of nine students who were as young as seven years old at the time of the filing and enrolled in public schools in Los Angeles, Oakland and other California districts.
If Judge Rolf Treu agrees that students’ right to an education is harmed by tenure protections, he can order the state to stop enforcing the statutes.
Frank Wells, a spokesman for the California Teachers Association, said that while the lawsuit’s proponents call themselves reformers, their case is part of a broader effort to undermine labor unions. Smaller class sizes and adequate resources have been proven to improve public education and are more relevant than attacking teachers, he said.
“It’s simply not the case that California is rife with ineffective teachers,” Wells said in a phone interview. “Obviously these people have some kind of beef with organized labor.”
The students who sued claim that ineffective teachers are disproportionally assigned to schools mostly attended by minority or economically disadvantaged students. This makes the quality of education at California schools a function of race and wealth in violation of the equal protection provision of the state constitution, according to their complaint.
The lead plaintiff in the case, Beatriz Vergara, a 15-year-old in the Los Angeles Unified School District, described as socio-economically disadvantaged, had one teacher who consistently fell asleep in class and couldn’t control his students, according to a court filing. She said she had another teacher who let students smoke marijuana in class and referred to her and her sister, Elizabeth, 16, and other Latinos using the ethnic slur “cholos,” saying they would “never graduate” and would end up cleaning houses for a living.
“Beatriz and Elizabeth suffered the consequences of their teachers’ inadequacies, as Beatriz fell behind in math and Elizabeth’s writing and analytical abilities deteriorated,” lawyers for the girls wrote in the filing. “They worry deeply that having another grossly ineffective teacher could put college out of reach for them entirely.”
Other students, including those in elementary and middle school, experienced similarly poor instruction and insults such as being called stupid, according to court filings. One student from Encino had a “superstar” teacher in kindergarten and first grade while the principal told parents he could do nothing about her “grossly ineffective” second-grade teacher, according to the filing.
The permanent employment statute guarantees a teacher’s job after an 18-month probationary period. Three other statutes require school administrators to provide written charges, a “correct and cure” procedure, and a dismissal hearing before they can fire a teacher, according to the complaint.
The fifth statute stipulates that, if teachers are laid off because of budget cuts, those with least seniority are the first to lose their jobs.
“The challenged statutes prevent school administrators from prioritizing, or even meaningfully considering, the interests of their students in having effective teachers when making employment and dismissal decisions,” the students said in the complaint.
Teachers’ tenure in California may also be the subject of a ballot initiative in November. Matt David, a former spokesman for Republican Arnold Schwarzenegger when he was governor of the state, filed a proposed initiative last month that would make performance rather than seniority the criterion by which teachers can be laid off.
California’s public schools rank 46th in the U.S. in fourth-grade reading and 47th in eighth-grade math, according to the students’ lawsuit. A “staggering” 98 percent of probationary teachers secured permanent employment in the Los Angeles Unified School District after either a “cursory” performance evaluation or none at all, according to the complaint.
“For our opponents to characterize the affirmation of student’s fundamental constitutional right to equality of education as an attack on unions is simply incorrect,” Rivera, the Student Matters spokesman, said in an e-mailed statement. “When it comes to teachers, school districts are currently handcuffed from doing what’s best for kids, and that simply should not be the case.”
The CTA and the smaller California Federation of Teachers, which together represent about 445,000 teachers, intervened in the lawsuit last year to defend the constitutionality of the five provisions of the education code.
“Far from erecting the insurmountable, multimillion-dollar barriers to termination that plaintiffs allege, these statutes operate in practice to encourage effective personnel management by school districts; prevent terminations for arbitrary, unfair, or unlawful reasons; and avoid the costs to the public school system, students, and teachers of unnecessary teacher turnover,” the unions said in a court filing.
Josh Pechthalt, president of the CFT, said in a phone interview that the due-process and seniority provisions that the students challenge assure that teachers can talk about controversial social issues in the classroom without having to fear for their jobs.
In 2012, unions supported a California ballot initiative that temporarily raises state income taxes for people making more than $250,000 a year. The measure, which helped public schools avoid $6 billion in funding cuts, has done more than anything else to stabilize public education in California, Pechthalt said.
The case is Vergara v. State of California, BC484642, Los Angeles County Superior Court (Los Angeles).
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