The California Supreme Court’s decision on whether to take up Vergara v. California, a landmark ruling that challenged teacher tenure and declared some school employment laws unconstitutional, could come as early as this afternoon. Today is the court’s last scheduled conference before the Monday deadline to say whether it will review an appellate court’s ruling in the case.

The plaintiffs, a group of nine California public school students represented by StudentsMatter, asked the state Supreme Court to review the appellate court ruling in May.

• Hear audio highlights from the Vergara appeals hearing.  

• Read previous Vergara coverage from LA School Report, which covered the 2014 trial.

The lawsuit has captured the attention of the nation and ignited a debate about teacher tenure laws and job protections that make it difficult to fire tenured teachers. It has fiercely divided education reformers and teachers’ unions.

In an April 14 decision, a three-judge appellate panel said it found the plaintiffs in Vergara v. California didn’t present enough evidence to show that minority students were more often subjected to ineffective teachers than other students. It unanimously reversed the lower court ruling.

“Plaintiffs elected not to target local administrative decisions and instead opted to challenge the statutes themselves,” the decision states. “This was a heavy burden and one plaintiffs did not carry. The trial court’s judgment declaring the statutes unconstitutional, therefore, cannot be affirmed.”

California’s teachers unions characterized that ruling as a “win.”

Attorneys for the plaintiffs argued that giving administrators the power to fire bad teachers more quickly would improve student achievement, especially for students of color. They argued the laws that make it difficult to fire teachers and allowed ineffective teachers to remain in classrooms — teaching mainly minority and poor students — and harmed student learning.

The judges acknowledged many problems in the school system, but couldn’t find the laws themselves to be unconstitutional.

“In sum, the evidence presented at trial highlighted likely drawbacks to the current tenure, dismissal and layoff statutes, but it did not demonstrate a facial constitutional violation. The evidence also revealed deplorable staffing decisions being made by some local administrators that have a deleterious impact on poor and minority students in California’s public schools. The evidence did not show that the challenged statutes inevitably cause this impact.”

In the lawsuit, the plaintiffs sued the State of California and several state officials, seeking a court order declaring various parts of state’s Education Code unconstitutional. After an eight-week trial in 2014 with more than 50 witnesses, LA County Superior Court Judge Rolf Treu ruled in favor of the students. The state quickly filed an appeal.

Similar lawsuits have been subsequently filed in Minnesota and New York.

State lawmakers have been unsuccessful in attempting to make changes to teacher tenure laws at the legislative level. The California Teachers Association is one of the most powerful lobbying groups in Sacramento.

Most recently, a bill that would have extended the probationary period for new teachers from two to three years, among other changes, was defeated in June by the Senate Education Committee, even after the bill became so watered down that initial backers revoked their support.

Plaintiffs’ attorneys Ted Boutrous, left, and Josh Lipshutz, right, with Students Matter founder David Welch in the background.

As the California Supreme Court considers whether to take up an appeal of an appellate court ruling in Vergara v. California, which has been extended to Aug. 22, the advocacy group that brought the landmark case will be in a Northern California courtroom Friday for a hearing on a case involving teacher evaluations.

Last year Students Matter filed a lawsuit, Doe v. Antioch, against 13 California school districts, saying collective bargaining agreements in those districts violated the Stull Act by explicitly prohibiting the use of student standardized test scores in assessing teacher performance. LA Unified is not a party of the lawsuit.

The Stull Act, passed by the state Legislature in 1971, requires student progress to be included as part of evaluations of teacher job performance.

A similar lawsuit, Doe v. Deasy, was filed against LA Unified in 2011 by EdVoice. Superior Court Judge James Chalfant agreed with the plaintiffs and ordered LA Unified to renegotiate contracts with its teachers union, United Teachers Los Angeles, to develop new evaluations based in part on student progress.

After former Superintendent John Deasy opted to make student achievement account for 30 percent of teacher evaluations, UTLA filed an unfair labor practices complaint in 2013 against the district with the Public Employment Relations Board, or PERB. The union and the district had agreed to include student test scores as part of evaluations, but did not agree on a specific numeric requirement, union officials said at the time.

Attorney Joshua Lipshutz, of Gibson, Dunn & Crutcher, who is representing Students Matter said he will ask a Contra Costa County Superior Court judge on Friday to grant a writ of mandate, essentially a court order requiring the school districts to comply with the law.

Lipshutz said after the judgment was made in the lawsuit against LA Unified, he hoped other school districts would comply with the ruling on their own even though they weren’t required to. The districts didn’t, he said.

“The same system ruled to be illegal in Doe v. Deasy is the same thing that’s in place in all of these other districts,” he said.

Although different from Vergara, this lawsuit matches Vergara’s overall theme of ensuring teacher quality.

By challenging the state’s employment laws that safeguard ineffective teachers, Vergara is focused on a small number of “grossly ineffective” teachers, Lipshutz said.

Specifically, Vergara challenges the last-in, first-out statute dictating seniority-based lay-offs, teacher tenure and procedures for firing teachers. A state Superior Court judge ruled the laws violated students’ constitutional rights. An appellate court overturned the ruling in April. Students Matter then filed an appeal. The California Supreme Court has yet to decide whether it will take up the appeal. Earlier this month, it extended the time it will take to make its decision from the end of July to Aug. 22.

The Doe v. Antioch lawsuit is focused on enforcing the state law already in place on teacher evaluations.

“We think it’s very important to understand who are your good teachers and who are your less good teachers,” Lipshutz said.

The Stull Act requires that teacher evaluations include: pupil progress, instructional techniques and strategies used by the employee, employee’s “adherence to curricular objectives” and establishment and maintenance of a suitable learning environment.

Lipshutz said after the lawsuit was filed, several of the school districts amended their contracts to remove the language prohibiting the use of standardized test scores in teacher evaluations. He said in doing so, the districts were in effect admitting they were violating the Stull Act, but, he said, the districts are still not in compliance with the law because the evaluations have not changed.

He said both sides have held status conferences with the judge and the school districts have submitted documentation. Both sides agree on the facts of the case, Lipshutz said.

The lawsuit was brought against the largest school districts that had collective bargaining agreements that prohibited student test scores in teacher evaluations, Lipshutz said: Antioch Unified, Chaffey Joint Union High School District, Chino Valley Unified, El Monte City School District, Fairfield-Suisun Unified, Fremont Union High School District, Inglewood Unified, Ontario-Montclair School District, Pittsburg Unified, Saddleback Valley, San Ramon Valley Unified, Upland Unified and Victor Elementary School District. The districts serve 250,000 students.

He said the school districts have argued that they do take student scores into account, that the Stull Act gives districts discretion on using test scores — and they could opt not to use them — and there is no reliable way of using student testing data.

Lipshutz said he hopes to convince the judge otherwise and felt confident, given the writ issued in the Doe v. Deasy case, although that decision is not binding on other parties.

Lipshutz said there is no enforcement mechanism that monitors whether school districts are following the law. The California attorney general could enforce the law but so far hasn’t, Lipshutz said.

He said it is often pressure from unions in negotiating with the districts that compels the districts into putting in the clause prohibiting student scores in teacher evaluations.

“Really, we’re hoping the ruling will help the districts because it will give them another tool in bargaining with the unions,” Lipshutz said.

Theodore Boutrous Jr. and students he is representing in the Vergara case.

Attorneys representing the students in Vergara v. California filed a petition Tuesday to take the case to the California Supreme Court. Last month the Court of Appeal overturned a Los Angeles Supreme Court ruling in the case, which challenges teacher tenure, layoff laws and dismissal policies.

“The Court of Appeal flatly got it wrong,” said Josh Lipshutz, one of the attorneys for the students who claimed they were wrongfully discriminated against by being assigned ineffective teachers because they lived in low-income areas. “This is extremely important to the California education system and the children of the state, and we hope the California Supreme Court will see the merits of our petition.”

The state supreme court has 60 days from the date of filing to make a decision if they will hear the case, plus the option of a 30-day extension, Lipshutz said. Both sides then could state their case before the full court in San Francisco.

Theodore J. Boutrous Jr., the lead counsel for the students, said the state supreme court has a history of reviewing cases involving education so he thinks it is likely the court will hear their appeal. “Time and time again, the court has intervened when the state’s laws and policies deprive our children, particularly our most vulnerable children, of their constitutional rights. The laws at issue in Vergara harm thousands of California students every year and are disastrous for low-income and minority communities,” Boutrous said in an email.

Boutrous said he wants the California Supreme Court to find the teacher tenure laws unconstitutional and restore the decision of the trial court made by Los Angeles County Superior Court Judge Rolf Treu in June 2014.

Joshua Pechthalt, president of the California Federation of Teachers, said about the appeal, “We are disappointed but not surprised that they are continuing to spend large sums of money on the suit and the PR campaign attached to it smearing teachers and public education.”

Pechthalt said in a statement, “No connection was ever made between the challenged laws and any student being harmed or any teacher who should not be in a classroom remaining there. We are confident that the Supreme Court will agree with the Appeal Court ruling. It is past time to focus our attention on the real issues that confront public education in California and then work collaboratively on solutions that we know work. That begins with adequate resources and policies that support smaller class sizes, strengthen peer assistance and review, reinforce positive collaborative district practices, and address the looming teacher shortage.”

Meanwhile, Students Matter, a nonprofit sponsor of the Vergara lawsuit, announced its support of a state bill that they say “takes positive steps forward in addressing the harmful California teacher employment policies” that were identified in the lawsuit.

California Assembly member Susan Bonilla’s AB 934 addresses tenure, dismissal, evaluations and the Last In, First Out method of lay-offs that the bill says discriminates against minority neighborhoods.

“The bill as introduced represents a strong and critical step forward in supporting effective teachers across California and ensuring that every public school student has access to the great teaching and quality education that he or she deserves,” said Ben Austin, policy director of Students Matter, in an emailed statement.

“California students filed Vergara v. California recognizing that there have always been two paths to fix the state’s broken Education Code: the legal route through the courts and the legislative route through Sacramento,” Austin added. “Twice, California courts have examined the overwhelming evidence presented during the Vergara trial, and twice, these courts have found that a broken teacher employment system imposes serious and long-lasting harms on both teachers and their students.”

Austin delineated areas where the bill could be strengthened based on current research, testimony from trial and best practices. He sent a letter to Bonilla’s office explaining how to beef up the specifics of the bill.

Austin added, “Because of the mountains of evidence presented in court and the high-profile discussion sparked by the trial, a chorus of teachers, parents, students, administrators, California’s editorial boards and community leaders have now called for real and meaningful change — and it is time for Sacramento to listen.”

Mike Stryer, senior executive director of Teach Plus California, which also endorsed the bill, said in a statement, “Assembly Bill 934 is unambiguously good for kids in California. The bill establishes a differentiated teacher evaluation rating system, and ensures that there are appropriate programs and mechanisms to support teachers.”

Stryer also noted changes that could be made to the bill. “While the bill still could be strengthened by providing greater transparency around equitable distribution of effective teachers, the legislation makes key advances in helping realize a future where every student has equal access to strong schools. We are grateful to Assemblywoman Bonilla for introducing this bill and encourage all members of the California Legislature to support it,” he said in the statement.

Teach Plus stated that a 2015 poll of more than 500 California teachers, the majority wanted teachers to demonstrate effectiveness for a minimum of five years in order to earn tenure. A Teach Plus poll this year of more than 500 principals found that nearly three out of four principals have had to lay off teachers that they would have preferred to keep because of seniority.

“This bill is a very important step forward for California’s children,” said former Congressman and current Teach Plus Board member George Miller in a statement. “I hope it becomes law because it will bring us closer to the day that every student in California has the great teacher they deserve.”

Press conference after the 2014 Vergara ruling.

Arguments in one of the most important lawsuits involving public education will be heard Thursday morning in the state Court of Appeals in Los Angeles.

The case of Vergara v. California seeks to overturn five laws involving teacher tenure, dismissals and the last-in, first-out layoff policies. The case was brought on behalf of nine students in five California public school districts and argued that the policies disproportionately harmed minority and low-income students.

After a two-month trial in early 2014, Judge Rolf M. Treu ruled in the plaintiffs’ favor. Treu delayed the portion of the ruling banning the imposition of those laws pending appeals.

A three-judge panel will hear arguments from lawyers representing the students and the state and teachers’ union. Lawyers will have arguments prepared, mostly about the validity of the lower court’s ruling, and justices will interrupt to ask questions. While the 2014 trial lasted for months and involved the presentation of scores of witnesses and evidence, the arguments likely won’t last more than an hour and will be more focused on the legal issues at hand and evidence already presented.

California rules require that the judges rule within 90 days, so a decision should be released by the end of May. The decision takes effect 30 days after that, unless one of the parties appeals to the state supreme court.

The National Education Association’s president, Lily Eskelsen Garcia, said in a statement Wednesday, “The Vergara v. State of California lawsuit is an example of using our court system for political goals. Ensuring that every student gets a good education is a critical goal but one that can’t be solved with lawsuits. From the onset, the case has highlighted the wrong problems, proposed the wrong solutions, and followed the wrong process. What’s most troubling of all is that this lawsuit is not about helping students and has become a divisive distraction from the real work needed to improve student success.”

She added, “Striking down the statutes will not help our most at-risk students. High-poverty districts do not suffer from too few teachers being removed; they suffer from too much teacher turnover.”

Manny Rivera of Students Matter, representing the plaintiffs in the lawsuit, issued a statement saying, “In September 2015, renowned constitutional law scholar Laurence H. Tribe, former California Governors Arnold Schwarzenegger and Pete Wilson, and education chiefs from around the country submitted amicus curiae (or “friend of the court”) briefs in support of Plaintiffs. President Obama’s Secretary of Education, Arne Duncan, former Bay Area Democratic Congressman George Miller, and former Los Angeles Mayor Antonio Villaraigosa have also publicly applauded the Superior Court’s ruling in favor of the student plaintiffs.”

He added, “The case has also struck a chord with the general public. An April 2015 USC Dornsife/Los Angeles Times poll of California voters revealed more than half of California voters support eliminating or changing the state’s current teacher tenure laws, while a supermajority of voters (82 percent) believe teacher performance—rather than seniority alone—should be taken into account when making layoff and dismissal decisions.”

Antonin Scalia (Credit: Getty Images)

It seems fitting. In life, Antonin Scalia was perhaps the most influential and controversial jurist of the modern era. While his admirers cherished his powerful mind and his detractors considered him a bully or worse, virtually no one denied his impact over three decades on the United States Supreme Court.

It therefore seems somehow appropriate that his death will have far-reaching implications. Prior to Scalia’s death, education law was on the brink of revolution, as I wrote about in this January essay for The 74 that surveyed a series of cases set to make their way to the top court. Although Scalia was not a central player in that revolution, his death immediately changes some things about these pending decisions — and his successor could change everything.

Friedrichs: From Victory to Defeat

The case of Friedrichs v. California Teachers Association provides an instant case study of the impact of Scalia’s death.

As The 74 explained earlier this year, the Friedrichs case considered whether and when union leaders speak for all teachers:

Today, anti-reform teachers dominate low-turnout union elections; so pro-student teachers have little voice. The leaders chosen from this skewed process, however, collect compulsory dues even from teachers who disagree with their policy views.

During the Friedrichs oral arguments, Justice Scalia signaled clearly that this arrangement violated the First Amendment, and that therefore he would join four other justices in prohibiting teachers’ unions from collecting compulsory dues. This decision would have changed education politics overnight. The unions spend roughly $700 million per year opposing reforms with far more stridency than teachers on average would prefer. This anti-reform advocacy budget is far larger than that of all other education policy advocacy combined, including those of pro-reform teachers, parents, corporations, and philanthropists. Without compulsory dues, the union leaders would be forced to solicit funds from all teachers, balancing the politics of education by giving voice to the pro-student voices in the teaching profession.

Supreme Court video: As Justices debate teachers in January, advocates rally

With Scalia’s death, however, the Friedrichs case goes from near-certain victory for students to near-certain victory for the bureaucracy. Four Justices have signaled that they will vote with the California Teachers Association. With only eight Justices now on the Court, the best Friedrichs could hope for is a 4-4 tie.

By law, a tie vote upholds the lower court’s decision. Rebecca Friedrichs had lost at the lower court level, so for her cause, a 4-4 decision is a loss.

Although the remaining eight Justices might work out some compromise opinion, a clear ruling against compulsory dues is no longer in the cards.  The best students can hope for is that the Court will issue a per curiam decision with no opinion, with an individual dissent from a pro-reform Justice underscoring the problems with the status quo and inviting a future plaintiff to bring a case to a full nine-member Court.

Beyond Friedrichs: 3 Ways the Court Might Move Forward

If a future Friedrichs-style challenge is appealed to the Supreme Court, how will the newest Justice rule on the many education law cases working through the system?

Unions have challenged parent choice in the courts, including a lawsuit against vouchers in Florida, a successful action against charter schools in Washington, and a new civil rights lawsuit against charter schools. Student plaintiffs have challenged the status quo from the other direction; the case of Vergara v. California, which held that a school bureaucracy violated the constitutional rights of students of color, will likely be appealed to the Supreme Court. Students have also asked courts to strike down barriers to choice, such as a lawsuit against the charter school cap in Massachusetts. Scalia’s successor could be a decisive voice on all of these issues.

Political posturing over the next Justice began immediately after Scalia’s death, as Senate Republicans pledged to prevent Obama from naming a successor. With a 54-46 majority in the Senate, and an 11-9 majority on the Senate Judiciary Committee that vets judicial nominees, Republicans could conceivably stonewall a successor for the remaining 11 months of Obama’s term. And as The 74 has documented, the presidential candidates differ markedly on education issues (see their breakdown of K-12 priorities for all eight remaining candidates).

For education law, this creates three possible scenarios:

Scenario One: A New Pro-Student President Nominates Someone Like Clint Bolick: Three of the plausible presidential candidates — Jeb Bush, John Kasich and, if he decides to run, Michael Bloomberg — have made pro-student reforms central to their political personas. As President, one of these men may well nominate someone like current Arizona Supreme Court justice Clint Bolick, whose career prior to the bench focused on suing bureaucrats on behalf of individuals. Bolick would have a likely champion on the Senate Judiciary Committee in Arizona’s Jeff Flake, who has long advocated student choice. With someone like Bolick as the swing Justice on education issues, student empowerment would accelerate.

Scenario Two: A New President Chooses A Pro-Bureaucracy Nominee: Two of the plausible candidates — Donald Trump and Bernie Sanders — have indicated that they will support the existing education bureaucracy. Trump’s candidacy has been marked by attacks on the Common Core accountability movement, and by attacks on Jeb Bush who made pro-student reforms the centerpiece of his governorship of Florida. Bernie Sanders has flatly stated his blanket support for government school bureaucracies in many contexts, including his personal opposition to all forms of parent and student choice. Both of these candidates, and others, would be unlikely to spend the political capital on a jurist with any distinctive pro-reform philosophy. In a plausible worst-case scenario, an anti-reform jurist could stall or reverse pro-student legal trends.

Scenario Three: President Obama Installs a Justice Like Sri Srinivasan: Despite D.C.’s toxic partisanship, President Barack Obama and House Speaker Paul Ryan recently found a budget compromise. A similar feat is possible with a Supreme Court nominee. Although opposing Obama helps Republicans demonstrate their partisan bona fides, stalling for 11 months on a decisive Supreme Court Justice could be politically dangerous — especially in light of the uncertainty about who might be nominated under different electoral scenarios. Indeed, education law might even help make compromise possible, as it is one of the few remaining areas where many Republicans and Democrats can still find common ground.

The Senate Judiciary Committee’s Democrats backed President Obama’s pro-reform Race to the Top law, while the committee’s Republicans have gone on record opposing existing school bureaucracies. In addition to Arizona’s Flake, Orrin Hatch of Utah and John Cornyn of Texas have long been especially vocal advocates for student choice. Obama and the Committee could compromise over a nominee such as appellate judge Sri Srinivasan, whose recent 2013 nomination to the Court of Appeals was approved on a 97-0 vote with strong praise from Republicans. Srinivasan’s views on education issues are not well known, but he is widely touted as a brilliant and pragmatic jurist. (Full disclosure: I practiced law with Srinivasan in 2002-2003, but to my recollection we never discussed education issues.) Although Srinivasan’s rulings on education issues are therefore not a given, his brainpower and open mind would give students a fair shot. Pro-student legal reform trends might slow or accelerate, but would likely at least continue.

Have Education Advocates Missed Their Moment?

Politically powerful school bureaucrats have controlled education policy for over a century, to the detriment of all students and especially students from disadvantaged backgrounds. The Supreme Court seemed only months away from reversing that trend, with a wave of new legal precedents that would empower individual students and parents, and potentially ignite a renaissance in American public education.

Although Scalia was not a key player in those legal changes, his swing vote on First and Fourteenth Amendment issues was vital. It swung the majority in that direction. It will now be up to Senate Republicans to determine, with their votes, whether the pro-student trajectory of the law accelerates, stalls, or reverses.

Dmitri Mehlhorn is a Democratic activist, donor and investor. He currently serves on the Board of Directors of StudentsFirst, a bipartisan organization that advocates on behalf of students as a counterweight to the teachers unions. He spent two years as the founding chief operating officer of StudentsFirst, and also was a co-founder of Hope Street Group, a national nonprofit pushing for equal opportunity in jobs, healthcare and education.

This article was published in partnership with The74Million.org.

The 2015 State Teacher Policy Yearbook report, released today, gives California a “D” grade in teacher policies, down slightly from the “D+” it received in 2013 and 2011. Nationally, the average for all 50 states and Washington D.C. was a “C-.”

The report analyzes every state law, rule and regulation on the books in five key areas. Here is how California fared:

• Delivering Well-Prepared Teachers: D+
• Expanding the Teacher Pool: D+
• Identifying Effective Teachers: F
• Retaining Effective Teachers: C+
• Dismissing Ineffective Teachers: F
• Average Overall Grade: D

“With the exception of the state’s commendable efforts to align its teaching standards with the requirements of K-12 college- and career-readiness standards, California falls behind other states on teacher policy,” the group said in a press release.

While the NCTQ board of directors is made up of Democrats, Republicans and independents, the report was funded by organizations such as The Walton Family Foundation and the Bill and Melinda Gates Foundation that are strong supporters of a number of polarizing reform policies the report directly touches on, including the controversial Vergara ruling.

In giving the state an “F” in dismissing ineffective teachers, the report makes a direct reference to the Vergara case, in which Judge Rolf Treu struck down the current teacher employment laws that govern seniority, dismissal and layoffs, saying they helped keep ineffective teachers in poor performing schools. The ruling is currently under appeal and has not taken effect.

The report notes that California is one of only eight states that do not require any objective measures of student achievement to be included in teacher evaluations, that teachers are granted tenure after only two years, that the state does not articulate that ineffectiveness as grounds for teacher dismissal and makes no effort to require districts to consider teacher performance (rather than only seniority) in making layoff decisions.

“Nationwide the glass is really starting to look half full on states’ efforts to drive teacher effectiveness through smarter policy,” NCTQ Senior Vice President for State and District Policy Sandi Jacobs said in a statement. “California has not kept pace with the progress being made on teacher effectiveness policy across the country.”

Jacobs was a witness for the student plaintiffs who sued the state and its largest teacher unions in the Vergara case.

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