California Kids Go to Court to Demand a Good Education

January 29, 2014

The trial began this week in a lawsuit in Los Angeles Superior Court aimed at bringing meaningful and badly needed change to California's public schools. The suit could have far-reaching effects in American education—in particular on teacher-tenure policies that too often work to the detriment of students.

I am among the lawyers representing nine brave schoolchildren, ages 7 to 17, in Vergara v. California. Our arguments are premised on what the California Supreme Court said more than 40 years ago: that education is "the lifeline of both the individual and society," serving the "distinctive and priceless function" as "the bright hope for entry of poor and oppressed into the mainstream of American society." Every child, the court held inSerrano v. Priest, has a fundamental right under the California Constitution to equal educational opportunities.

We will introduce evidence and testimony that the California school system is violating the rights of students across the state. While most teachers are working hard and doing a good job, California law compels officials to leave some teachers in the classroom who are known to be grossly ineffective.

Because of existing laws, some of the state's best teachers—including "teachers of the year"—are routinely laid off because they lack seniority. In other cases, teachers convicted of heinous crimes receive generous payoffs to go away because school districts know that there is slim hope of dismissing them. California law makes such firings virtually impossible. The system is so irrational that it compels administrators to bestow "permanent employment"—lifetime tenure—on individuals before they even finish their new-teacher training program or receive teaching credentials.

As a result of this nonsensical regime, certain students get stuck with utterly incompetent or indifferent teachers, resulting in serious harm from which the students may never recover. Such arbitrary, counterproductive rules would never be tolerated in any other business. They should especially not be tolerated where children's futures are at stake.

But in California, as in other states, outdated laws, entrenched political interests, and policy gridlock have thwarted legislative solutions meant to protect public-school students, who are not old enough to vote and are in essence locked out of the political process. That is why our plaintiffs decided to take a stand and bring this lawsuit asserting their state constitutional rights.

Through this lawsuit, we are seeking to strike down five state laws:

  • The "last-in, first-out" or LIFO law, which demoralizes teachers by reducing them to numbers based on their start date, and forces schools to lay off the most junior teachers no matter how passionate and successful they are at teaching students.
  • The "permanent employment" law, which forces school districts to make an irreversible commitment to keep teachers until retirement a mere 18 months after the teachers' first day on the job—long before the districts can possibly make such an informed decision.
  • Three "dismissal" laws that together erect unnecessary and costly barriers to terminating a teacher based on poor performance or misconduct. Out of 275,000 teachers statewide, only two teachers are dismissed each year on average for poor performance. In Los Angeles, it costs an average of between $250,000 and $450,000 in legal and other costs, and takes more than four years to dismiss a single teacher. Even without these laws, ample protections exist for protecting public employees—including teachers—from improper dismissal.

By forcing some students into classrooms with teachers unable or unwilling to teach, these laws are imposing substantial harm. One of our experts, Harvard economist Raj Chetty, recently analyzed the school district data and anonymous tax records of more than 2.5 million students in a large urban school district in the Northeast over a 20-year period.

He found that students taught by a single highly ineffective teacher experience a nearly 3% reduction in expected lifetime earnings. They also have a lower likelihood of attending college and an increased risk of teenage pregnancy compared with students taught by average teachers. He also conducted a study showing that laying off the least effective instead of the least experienced teachers would increase the total lifetime earnings of a single classroom of Los Angeles students by approximately $2.1 million.

Even worse, the data show that many of the least effective teachers tend to end up in schools serving predominantly low-income and minority communities. Thus these laws are exacerbating the very achievement gap that education is supposed to ameliorate. For example, a recent study of the Los Angeles Unified School District found that African-American and Hispanic students are 43% and 68% more likely, respectively, than white students to be taught by a highly ineffective teacher. This disparity is the equivalent of losing a month or more of school every year.

The California teachers unions are opposed to the goals of our lawsuit and have intervened to help the state of California defend these harmful laws. But the unions do not speak for all teachers. We have heard from hundreds of teachers since we filed the case in May 2012. These are teachers who don't want to be treated like a faceless seniority number, and who don't want to be laid off just because they started teaching three days after the ineffective, tenured teacher next door. Some of them will testify during the trial.

There are many problems facing our education system, and there is no silver bullet that can fix them all at once. But there is no better place to begin than by removing senseless laws that devalue effective, inspiring teachers and hurt students.

The courts can strike down these laws based on evidence and legal principles, insulated from politics. This will allow Californians to start fresh, work together and make common-sense changes to public schools. If we prevail in Vergara v. California, the suit will provide a template for similar challenges in other states, like New York, that have equally damaging laws, and for improving public education nationwide.

Mr. Boutrous is a partner at Gibson, Dunn & Crutcher LLP.