Towards Moderate Teacher Tenure Reform in California: An Efficiency-Effectiveness Framework and the Legacy of Vergara
Towards Moderate Teacher Tenure Reform in California: An Efficiency-Effectiveness Framework and the Legacy of Vergara
Stephen Chang 0
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Follow this and additional works at: http://scholarship.law.berkele y.edu/californialawreview Part of the Law Commons Recommended Citation Stephen Chang, Towards Moderate Teacher Tenure Reform in California: An Efficiency-Effectiveness Framework and the Legacy of Vergara, 104 Cal. L. Rev. 1503 (2016). Available at: http://scholarship.law.berkele y.edu/californialawreview/vol104/iss6/4
Towards Moderate Teacher Tenure
Reform in California:
An Efficiency-Effectiveness Framework
and the Legacy of Vergara
This Note offers an efficiency-effectiveness framework for
evaluating the success of school finance and teacher tenure court-ordered
legislative reforms. In June 2014, Los Angeles Superior Court Judge Rolf
Treu struck down California’s teacher tenure laws as unconstitutional in
the landmark case Vergara v. State. While the California Court of Appeal
reversed the trial court’s order and the California Supreme Court
declined to review the decision, I argue that lessons from the Vergara case
remain relevant to explain the complex relationship between the
legislature and courts in teacher tenure and school finance reform.
Political factors such as disunited political leadership and interest groups,
lack of political priming, and inability to use a court-created policy
window suggested that any hypothetical Vergara legislative remedy was
likely to be a low-efficiency/no-effectiveness paradigm similar to the New
York Campaign for Fiscal Equity, with such a remedy languishing in
years of endless litigation. In contrast, a better path forward would have
relied on a Williams model of high-efficiency/moderate-effectiveness to
seek moderate reform and resolve the Vergara litigation through
settlement. Consequently, even though the Vergara case has been
resolved, the efficiency-effectiveness framework remains relevant as a
method of analyzing the success of future California teacher tenure
lawsuits as well as teacher tenure lawsuits in other states.
Copyright © 2016 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of their
* J.D. 2016, University of California, Berkeley, School of Law. Advised by Professor
Stephen D. Sugarman. Special thanks to Professors Kathryn Abrams, Derek Black, Saira Mohamed,
and Stephen Sugarman for their feedback and encouragement. Thanks to Katie Dahlinghaus,
Nicholaus Johnson, Laura Lim, Daniel Martin, and Daniel Rios for their excellent edits and
suggestions. The author also wishes to thank Lora Krsulich and Zachary Nguyen, Editors-in-Chief of
the California Law Review and Maya Khan, Senior Notes Editor for their support and encouragement.
The history of school finance litigation demonstrates that the political
process formulating court-ordered legislative remedies is a critical factor
influencing the ultimate impact of a given case. Sometimes these remedies are
tremendously effective and accepted by all stakeholders without a fight. More
likely, the remedy is so ineffective that another lawsuit is brought. The new
lawsuit is appealed, another legislative remedy ordered, another lawsuit filed.
A vicious cycle begins. Before you know it, a dozen years have passed with
next to nothing (or little or nothing) in results to speak for your case other than
an exceptionally long ping-pong match between the legislature, the courts, the
executive, and other interest groups. This convoluted remedies process could
have been one potential fate for the plaintiffs in the Vergara teacher tenure
lawsuit where plaintiffs—even if successful on the merits—would have had to
navigate a political minefield in the legislative remedies process that would
likely lead to inefficient and ineffective reform.
This Note is the first to offer to the literature on school finance litigation
an efficiency-effectiveness framework for evaluating the success of
courtordered legislative remedies. Further, this is the first work to apply such a
framework to the ongoing new wave of Vergara-style teacher tenure litigation.
, California State Court Trial Judge Rolf Treu issued his
long-awaited decision in Vergara v. State, effectively striking down five
teacher tenure statutes that had long provided protections for grossly ineffective
teachers as unconstitutional under the California Equal Protection Clause.1 On
April 4, 2016, the California Court of Appeal for the Second Appellate District
reversed Judge Treu’s decision.2 In a close 4-3 vote, the California Supreme
Court declined to hear the plaintiffs’ petition for review, allowing the Court of
Appeal’s decision to stand.3
Plaintiffs, nine students from across California, brought suit alleging that
the teacher tenure statutes in California denied them access to an equal
opportunity for quality education because of their constant exposure to grossly
ineffective teachers. The initial success of the Vergara suit spawned similar
challenges to teacher tenure laws across the country.4
This Note seeks to address three primary issues. First, I establish an
efficiency-effectiveness framework drawn from case law and remedies
processes in school finance. I argue that five distinct possibilities exist based on
this framework. These are (1) high-efficiency/high-effectiveness (Kentucky’s
Rose litigation), (2) low-efficiency/moderate-effectiveness (New Jersey’s
Robinson and Abbott), (3) low-efficiency/no-effectiveness (New York’s
Campaign for Fiscal Equity), (4) high-efficiency/low-effectiveness (California’s
Reed settlement), and (5) high-efficiency/moderate-effectiveness (California’s
Williams settlement). Second, I apply this framework to a hypothetical Vergara
victory and ultimately predict that political factors such as ineffective political
priming, political leadership, and interest group influence suggested that even if
plaintiffs had won on appeal, a Vergara remedy would likely have been a
lowefficiency/no-effectiveness situation. Finally, I argue that in future teacher
tenure cases in both California and nationwide that both plaintiffs and
defendants must take notice of the inefficient and ineffective remedies likely to
result and seek a settlement to promote a high-efficiency/moderate-effectiveness
case similar to California’s Williams settlement. I further argue that this can
take place through either legislative reforms or initiative-based change.
In Part I, I provide a brief explanation of why teacher tenure law is so
contentious and offer some critiques of the controversial Vergara trial court
order. In Part II, I establish the efficiency-effectiveness framework by analyzing
the long history of school finance remedies that preceded Vergara.5 I question
why some cases such as Rose v. Council for Better Education in Kentucky
resulted in highly efficient and highly effective legislature-driven changes in
school funding, while other cases such as New York’s Campaign for Fiscal
Equity languished with few substantive results despite numerous litigation
victories. I argue that political leadership and interest group politics are critical
factors that can both positively and adversely influence the efficiency and
effectiveness of a judicially compelled legislative remedy. In Part III, I apply
these factors to a hypothetical Vergara victory arguing that they suggested that
any Vergara court-ordered remedy would have languished as a
lowefficiency/no-effectiveness example stuck in a cycle of endless litigation. Here,
the modern phenomenon of the splintering Democratic Party is vital. In one
wing, traditional pro-labor Democrats favor the status quo of quick tenure,
strong dismissal rights for tenured teachers, and a Last-In-First-Out (LIFO)
statute governing firing during an economic crisis. In contrast, what I will refer
to in this Note as Reformer Democrats stand as strange bedfellows with the
the Vergara-like suit. Campbell Brown, COLBERT REP. (July 3
/videos/2mpwlv/campbell-brown [https://perma.cc/XV4Y-W2FV]; see also Emmanuel Felton,
Minnesota Faces a Vergara-Style Lawsuit on Teacher Job Protections, EDUC. WEEK (Apr. 14, 2016),
5. I chose a very limited scope of cases out of the dozens of school finance cases filed across
the country as specific examples of different legislative remedy outcomes.
conservatives who led the Vergara case in their desire to strike down quick
tenure, weaken dismissal rights, and remove the LIFO statute.
In Part IV, I argue that the best solution in future teacher tenure and
school finance lawsuits would be to seek a Williams-style
highefficiency/moderate-effectiveness solution since Vergara has opened a policy
window ripe for a legislative response and that settlement of future cases
through legislation is in the interests of all parties involved to avoid a cycle of
costly litigation as in Campaign for Fiscal Equity. I offer potential moderate
settlement remedies that can serve as a blueprint for future teacher tenure
lawsuit settlements that fit within the Williams
high-efficiency/moderateeffectiveness paradigm. Further, I argue that one additional avenue to pursue
this goal is through the initiative system, by reviving a Schwarzenegger-era
proposal to increase the teacher tenure evaluation period.
THE VERGARA LITIGATION
Teacher tenure reform frequently promotes emotional and wildly divisive
rhetoric.6 The plaintiffs in Vergara heavily emphasized the “vital role” that
teachers play in public school education, taking for granted that “[t]he key
determinant of educational effectiveness is teacher quality.”7 In contrast, the
state and teacher unions consistently emphasized that the firing of “grossly
ineffective” teachers was a narrow focus in comparison to the problems faced
in the public education system at large.8 Simply put, the Vergara plaintiffs
viewed teacher quality through tenure reform as an utmost priority in reform,
while their opponents viewed larger systemic issues, such as school finance9 or
teacher preparation, among others, as a better direction for the reform
Vergara was a challenge to five statutes in the California Education Code
that govern teacher tenure in the state. The first, section 44929.21(b), which the
court termed the “Permanent Employment Statute,”10 mandates that all certified
employees (teachers) in California be “reelected for the next succeeding school
year” after employment for “two complete consecutive school years.”11
Teachers must be notified “on or before March 15” of the second consecutive
school year of employment of the district’s decision to “reelect or not reelect”
the teacher for the next school year.12 Second, sections 44934, 44938(b)(1)(2),
and 44944 (the Dismissal Statutes)13 involve procedural protections such as the
Notice of Intention to Dismiss,14 Notice of Unprofessional Conduct or
Unsatisfactory Performance,15 and Dismissal Hearing Procedures.16 Finally,
plaintiffs also challenged the “Last-In-First-Out (LIFO) Statute,” which
requires seniority-based layoffs such that the newest teachers are fired before
older teachers.17 Together, these statutes are referred to as the “Challenged
A. School Finance Litigation: A Brief History
It is prudent to briefly discuss the history of impact litigation influencing
education reform in California to understand the context of Judge Treu’s trial
court decision. In a sense, Vergara can be seen as a next-generation impact
litigation suit following the guidance of cases such as Brown v. Board of
Education, Serrano v. Priest, and Butt v. California.18 Further, Vergara follows
in the footsteps of school finance case law, discussed in Part II.
In Brown v. Board of Education, Chief Justice Earl Warren held for a
unanimous court that segregated education was a “denial of the equal
protection of the laws.”19 The Court emphasized that education was “perhaps
the most important function of state and local governments,” noting that “it is
doubtful that any child may reasonably be expected to succeed in life if he is
denied the opportunity of an education. Such an opportunity . . . is a right
which must be made available on equal terms.”20
Nonetheless, the Court did not expressly find a fundamental right to a
public education in Brown. Indeed, in San Antonio Independent School District
v. Rodriguez, the Court denied that education was a fundamental right
triggering strict scrutiny analysis, requiring only that state action involving
education “bear some rational relationship to legitimate state purposes.”21
Thus, Rodriguez likely closed off federal equal protection as an avenue for
effective education reform challenges based on a fundamental right to
In the landmark case Serrano v. Priest (Serrano I), the California
Supreme Court held that education was a “fundamental interest,” basing its
decision largely on the Fourteenth Amendment’s Equal Protection Clause.22
However, even after the United States Supreme Court’s decision in Rodriguez,
the California Supreme Court in the subsequent Serrano II maintained the
status of education as a fundamental interest based on the Equal Protection
Clause of the California State Constitution.23 Thus, under Serrano II, in
California a challenge that a state statute violates the fundamental right of
education triggers a “strict scrutiny” test requiring the state to prove that the
“classification in question is necessary to achieve a compelling state interest.”24
In 1992, the California Supreme Court held in Butt v. State that the
premature closing of a school by six weeks was a violation of the “fundamental
right to an effective public education” under the California Constitution’s
Equal Protection Clause.25 Thus, the case expanded the fundamental right to
basic equality from the realm of school finance to the realm of school quality
via instructional time.
Overall, Brown, Serrano, and Butt represent the potential of the California
Constitution’s Equal Protection Clause to provide an equal opportunity for
education for all students in the state. Next in line to these landmark cases
should have been Vergara—the application of a long-standing strict scrutiny
fundamental interest framework to teacher quality issues in the form of teacher
B. The Litigation History of Vergara
The plaintiffs in Vergara were nine children located throughout California
who alleged that the Challenged Statutes negatively impacted their education.
The lead plaintiff, Beatriz Vergara, was then a thirteen-year-old public school
student in the Los Angeles Unified School District (LAUSD).27 She argued that
21. 411 U.S. 1, 40 (1973). But see MARK G. YUDOF ET AL., EDUCATIONAL POLICY AND THE
LAW 830 (2012) (questioning whether the Rodriguez Court left open the possibility that some
minimally adequate level of education might constitute a “constitutionally protected interest”).
22. 487 P.2d 1241, 1258–59 (Cal. 1971). Note that Serrano II was decided before Rodriguez.
23. Serrano v. Priest, 557 P.2d 929, 958 (Cal. 1976) (“We therefore confirm that our decision
in Serrano I was based not only on the equal protection provisions of the federal Constitution but also
on such provisions of our state Constitution. . . .”).
24. See id.
25. 842 P.2d 1240, 1244 (Cal. 1992).
26. However, a more cynical view may be that Vergara and the high-powered legal team
coopt the liberal legacy of these cases to pursue a right-wing agenda.
27. First Amended Complaint, supra note 7, at 5.
the Challenged Statutes had a “real and appreciably negative impact” on her
right to education because she was “assigned to, and/or [was] at substantial risk
of being assigned to, a grossly ineffective teacher who impede[d] her equal
access to the opportunity to receive a meaningful education.”28 The other
plaintiffs were from districts throughout California, varied in age range from
the elementary to high school grades, and were mostly from diverse
The Vergara litigation effort was led by the nonprofit organization
Students Matter. David F. Welch, a Silicon Valley entrepreneur, founded
Students Matter in 2011 to create “positive structural change in the California
K-12 public education system.”30 Welch is an electrical engineer and product
of public schools that has invested millions into Students Matter. Large and
often controversial institutions such as the Broad Foundation and the Walton
Family Foundation have also funded Students Matter.31
The involvement of the high-priced law firm Gibson, Dunn & Crutcher
(Gibson Dunn) and the highly respected litigators Ted Boutrous and former
Solicitor General Ted Olsen epitomize the high-profile, high-stakes nature of
Vergara.32 In 2012, Gibson Dunn billed $1.1 million to Students Matter.33
29. Id. at 5–8 (noting that Beatriz’s sister Elizabeth was a fourteen-year-old from LAUSD;
Brandon Debose was a sixteen-year-old from Oakland Unified School District; Clara Campbell was a
seven-year-old from LAUSD; Kate Elliot was a fifteen-year-old in the Sequoia Union High School
District; Herschel Liss was an eight-year-old from LAUSD; Julia Macias was a eleven-year-old from
LAUSD; Daniella Martinez was a ten-year-old attending a public charter school in LAUSD who was
“deterred from continuing to attend traditional public schools because of the substantial risk that she
would be assigned to a grossly ineffective teacher”; and Raylene Monterozza was a fourteen-year-old
in the Pasadena Unified School District). The plaintiffs featured prominently in the Students Matter
outreach efforts and served as witnesses at trial. See Meet the Plaintiffs, STUDENTS MATTER,
http://studentsmatter.org/meet-the-plaintiffs [https://perma.cc/C3RX-4TX4] (last visited July 24,
2016); Fundamental Right to Education, STUDENTS MATTER,
http://studentsmatter.org/wpcontent/uploads/2013/02/Plaintiffs-composite.png [https://perma.cc/MXB7-M7G2] (last visited July
30. Our Team, Founder, STUDENTS MATTER, http://studentsmatter.org/our-team/founder
[https://perma.cc/2N7K-KDSX] (last visited July 24, 2016); see also Heather Somerville, Dave Welch,
Silicon Valley Entrepreneur, Leads Court Fight Against Teacher Tenure Laws, SAN JOSE MERCURY
NEWS (June 1
31. See Somerville, supra note 30; Mark Palko, Vergara vs. California: Are the Top 0.1%
Buying Their Version of Education Reform?, WASH. POST (June 23, 2014), http://www.washington
post.com/blogs/monkey-cage/wp/2014/06/23/vergara-vs-california-are-the-top-0-1-buying-theirversion-of-education-reform [https://perma.cc/E4TV-CBGK] (comparing the financing of the Vergara
litigation to the Gates Foundation–led adoption of Common Core).
32. Ted Olson famously argued both the successful challenge to Proposition 8 in
Hollingsworth v. Perry and for President Bush in Bush v. Gore. See Theodore B. Olson, GIBSON
DUNN, http://www.gibsondunn.com/lawyers/tolson [https://perma.cc/7HHQ-ZXNM] (last visited July
33. See Somerville, supra note 30. Interestingly, due to the tremendous funding from Welch
and Students Matter, this impact litigation case was a for-profit paid case for Gibson Dunn, not a pro
Thus, the Vergara plaintiffs were chosen by a high-profile law firm, funded by
a wealthy Silicon Valley entrepreneur. Such a strategy likely allowed for strong
Plaintiffs named several defendants in the suit. The State of California
was the first named defendant, followed by Governor Edmund G. Brown, State
Superintendent of Public Instruction Tom Torlakson,34 California Department
of Education, State Board of Education, LAUSD, Oakland Unified School
District, and Alum Rock Unified School District in San Jose.35 On May 2,
2013, Judge Treu granted a Motion to Intervene for the California Teachers
Association (CTA) and California Federation of Teachers (CFT), two of the
largest teachers unions in the state.36
The court found the Challenged Statutes violated the Equal Protection
Clause of the California State Constitution.37 This clause guaranteed that “[a]
person may not be deprived of life, liberty, or property without due process of
law or denied equal protection of the laws.”38 Relying on Serrano I, Serrano II,
and Butt, Judge Treu found that the California Constitution is the “ultimate
guarantor of a meaningful, basically equal educational opportunity” afforded to
the students of the state.39 Given that the Challenged Statutes posed a “real and
appreciable impact”40 on students’ fundamental right to equality of education,
the court examined the statutes with “strict scrutiny.”41 Thus, the state and
union intervenors had to “bear the burden of establishing not only that the State
has a compelling interest which justifies the Challenged Statutes but that the
distinctions drawn by the laws are necessary to further their purpose.”42 The
court found that the Permanent Employment Statute, Dismissal Statutes, and
LIFO Statute did not meet the high standard of strict scrutiny.
The court held the Permanent Employment Statute unconstitutional and
enjoined its enforcement because defendants did not meet the burden of strict
scrutiny.43 Judge Treu found that the March 15 deadline in the “two year”
Permanent Employment Statute effectively eliminated two to three months
from the two-year evaluation period.44 He took particular issue with how the
Permanent Employment Statute did not provide enough time to make an
informed decision about tenure; decisions about tenure became “high stakes”
evaluations that could deprive teachers of an opportunity to establish
competency and students of an opportunity to be taught by competent
teachers.45 He found there was “no legally cognizable reason (let alone a
compelling [sic] one)” to justify the disadvantages faced by students and
teachers under the statute.46
Similarly, Judge Treu found the Dismissal Statutes to be unconstitutional.
Plaintiffs argued that the current Dismissal Statutes were too costly and
timeconsuming to get rid of “grossly ineffective teachers.”47 The court relied on
evidence that dismissal could take anywhere from two to ten years, at a cost of
anywhere from $50,000 to $450,000 to close a single case.48 Further, Judge
Treu pointed out that classified staff (e.g., secretaries) had due process rights
under Skelly v. State Personnel Board49 that did not involve such costs. As a
result, Judge Treu reaffirmed that teachers must be “afforded reasonable due
process when their dismissals are sought,” but that the current system was “so
complex, time consuming and expensive as to make an effective, efficient yet
fair dismissal of a grossly ineffective teacher illusory.”50
Finally, the court found the LIFO Statute to be unconstitutional under the
California Equal Protection Clause. It pointed out that when layoffs based on
seniority occurred, gifted junior teachers could be removed even while grossly
ineffective teachers remained in the classroom, resulting in harm to the
students.51 To Judge Treu, the state could only succeed in defending the LIFO
statute if it could defend the de facto separation of students from competent
teachers as a compelling interest.52
Thus, Judge Treu found all of the Challenged Statutes to be
unconstitutional. Most powerfully, he found that the effect of grossly
ineffective teachers on students was tremendous, stating that “[t]he evidence is
compelling. Indeed, it shocks the conscience.”53 Judge Treu issued injunctions
43. Id. at *10; see also CAL. EDUC. CODE § 44929.21(b).
4. Vergara, 2014
WL 6478415, at *4.
45. Id. at *5.
49. 539 P.2d 774 (Cal. 1975).
50. Vergara, 2014 WL 6478415, at *6.
52. See also infra Part II.E (contrasting the result in Vergara declaring LIFO unconstitutional
with the weak settlement obtained in the Reed settlement on similar grounds).
53. Vergara, 2014 WL 6478415, at *4.
enjoining enforcement of all five statutes.54 However, the injunctions were
stayed pending appellate review.55
On April 4, 2016, the California Court of Appeal for the Second Appellate
District reversed the trial court’s decision.56 Justice P.J. Boren’s opinion
concluded that plaintiffs had failed to show that the Challenged Statutes
violated the Equal Protection Clause of the California Constitution because
they did not show that the statutes “inevitably cause[d] a certain group of
students to receive an education inferior to the education received by other
students.”57 The court stressed that its job was “to determine whether the
statutes are constitutional, not if they are ‘a good idea.’”58 Importantly, the
court held that review was limited because plaintiffs brought a facial equal
protection challenge to the statutes themselves, rather than the implementation
of the statutes.59
The California Court of Appeal analyzed the equal protection claim by
looking at the supposed denial of equal protection against two classes of
students: Group 1 (an “unlucky subset of students” within the population of
students at large) and Group 2 (“poor and minority students”).60 The court
found that Judge Treu erred because Group 1’s “unlucky subset” was not an
identifiable class of persons sufficient to maintain an equal protection claim
because the group was not “identifiable by a shared trait other than the
violation of a fundamental right.”61 With regard to Group 2, the court declined
to find that poor and minority students suffered disproportionate harm from
being assigned to grossly ineffective teachers.62 The court emphasized that the
Challenged Statutes did not instruct administrators on the assignment of
teachers to specific schools.63 The court left open the possibility that the
Challenged Statutes could lead to a high number of grossly ineffective teachers
in the educational system, but it emphasized that this possibility did not give
rise to an equal protection violation because any constitutional infringement
was the product of staffing decisions, not the Challenged Statutes.64
The court reversed the judgment of the trial court and remanded with
directions to enter judgment in favor of defendants on all causes of action.65
Plaintiffs’ lead counsel Ted Boutrous appealed the ruling to the California
On August 22, 2016, the California Supreme Court denied a petition to
review the Vergara case.67 In the close 4-3 vote, Justices Chin, Liu, and Cuéllar
voted to grant the plaintiffs’ petition to review.68 In particular, Justices Liu and
Cuéllar both prepared “lengthy, powerful dissenting opinions from the denial
of review,” a practice that the plaintiff’s lawyer Boutrous described as
“extraordinary in California history.”69 Boutrous further added that he hoped
the “words of Justices Liu and Cuéllar will resonate across California and the
nation, and hopefully help bring about the change we so desperately need.”70
Justice Liu argued that review of Vergara was warranted as an important
question of law.71 In his view, the “nine schoolchildren who brought this
action, along with the millions of children whose educational opportunities are
affected everyday by the challenged statutes deserve[d] to have their claims
heard by [California’s] highest court.”72
Justice Liu agreed that there appeared to be significant problems with
respect to plaintiffs’ Group 2 (poor and minority students), as the record did not
“include substantial evidence that the concentration of grossly ineffective
teachers in poor and minority schools is caused by the challenged statutes as
opposed to teacher preferences, administrative decisions, or collective
bargaining agreements.”73 Nonetheless, Justice Liu felt that the Court of
Appeal likely erred with respect to Group 1
(a subset of students who are
disadvantaged because they receive a lesser education than students not
assigned to grossly ineffective teachers)
.74 While the Court of Appeal found
that Group 1 was not an identifiable class of persons sufficient to bring an
equal protection challenge, Justice Liu argued that the claim asserted by
students in Group 1 was an instance of a cognizable equal protection claim
alleging a deprivation of fundamental rights. Justice Liu credited that there was
“considerable evidence in the record to support the trial court’s conclusion that
the hiring and retention of a substantial number of grossly ineffective teachers”
have an appreciable impact on the fundamental right to education enjoyed by
California’s public school students.75 Most powerfully, Justice Liu stated that
“[a]s the state’s highest court, we owe the plaintiffs in this case, as well as
schoolchildren throughout California, our transparent and reasoned judgment
on whether the challenged statutes deprive a significant subset of students of
their fundamental right to education” and thus violated Equal Protection.76
Justice Cuéllar also dissented from the denial of review of plaintiffs’
petition. Like Justice Liu, Justice Cuéllar found the Court of Appeal’s
reasoning faulty because the court did not apply strict scrutiny when a
fundamental right was burdened.77 Under his view, the decision of the Court of
Appeal erected a “novel barrier” for all California litigants seeking to raise
equal protection claims based on a fundamental right because the imposition of
the burden of that right “at random” rather than on a discrete and identifiable
group provided no relief under the California State Constitution.78 Justice
Cuéllar’s dissent expressed a clear discontent with the California Supreme
Court’s unwillingness to take on the Vergara case. Justice Cuéllar argued not
only that Beatriz Vergara and her fellow plaintiffs “deserved an answer from
this court” but also that “it is even more difficult to allow the court’s decision
to stay on the books without review in a case of enormous statewide
Further, Justice Cuéllar addressed the critical question of judicial
activism, dedicating an entire paragraph to the separation of powers between
the courts, executive, and legislature. He argued that while the court must
“respect the role of the representative branches” in shaping education policy,
the California Supreme Court was “best suited” to address the state
constitutional jurisprudence issues present in the case.80 He noted:
[E]ven in a world where we clarify our fundamental rights
jurisprudence as this case requires—and address concerns associated
within the Court of Appeal’s decision—considerable room would
remain for the legislative and executive branches to decide how best to
75. Id. at 19.
76. Id. at 21.
77. Id. (Cuéllar, J., dissenting).
79. Id. at 22.
80. Id. at 23.
address the important balance between honoring the fundamental right
to education and addressing other goals, such as retaining protections
for public employees from arbitrary dismissal.81
This hypothetical world where the Supreme Court granted review and ruled
favorably for the Vergara plaintiffs and the remedies formation process
between the legislature, executive, and the courts that would have resulted from
it is the focus of this Note.
In Part IV, I explore the hypothetical judicially ordered legislative
remedies formation process that Justice Cuéllar discussed in his dissent. But
first, I turn to initial reactions and discussions of judicial activism to better
explain the American public’s initial reaction to the successful Vergara trial
C. Reactions to and Criticism of the Vergara Trial Court Decision
Judge Treu’s decision at the trial court level became front-page national
news on June
.82 The national media reaction to a lowly state trial
court judge’s opinion was particularly striking given that the “Tentative
Decision” was not binding and would see nearly two years of appeals before
the California Supreme Court denied review. The responses to the decision,
both those praising and those sharply critical of the decision, reflected a deep
Those who praised the decision viewed it as a unique opportunity to
coalesce around the difficult challenges in fighting the achievement gap.83
Secretary of Education Arne Duncan issued an official statement viewing
Vergara as a “mandate” to allow all students the opportunity to be taught by
great teachers.84 Former Chancellor of the District of Columbia Public Schools
Michelle Rhee characterized the decision as a landmark in “civil rights,” which
stood as a “tribute to teachers,” arguing that because “a great teacher is the
most powerful factor inside a classroom in determining educational quality,
equal access has got to mean access to great teachers.”85
Others vehemently opposed the ruling in Vergara. Critiques against the
Vergara trial decision tended to focus on (1) teacher tenure as a scapegoat issue
in the larger education reform movement, (2) the brevity of Judge Treu’s
opinion, and (3) the questionable reliance and lack of evidentiary social science
data in the opinion.
Critics of the Vergara trial decision often pointed to teacher tenure reform
as a scapegoat problem in a myriad of more important issues in education
reform. Berkeley Goldman School of Public Policy Professor Jesse Rothstein
served as an expert witness in the Vergara trial for the plaintiffs. He argued
that “eliminating tenure [would] do little to address the real barriers to effective
teaching in impoverished schools, and may even make them worse.”86
Rothstein stated that firing teachers makes it harder to recruit new ones, that it
may actually be better to grant tenure soon after the first year, and that freedom
to fire teachers is only valuable when dismissal rates are higher than 40
percent; he thus concluded that attacking tenure in Vergara made for “good
headlines,” but “does little to close the achievement gap.”87 Similarly, the
California Teachers Association in its post-Vergara press release vowed to
appeal the “deeply flawed” decision because the suit focused on the wrong
issue. CTA President Joshua Pechthalt stated that “[r]ather than provide
resources or working to create positive environments for students and teachers,
this suit asserts that taking away rights from teachers will somehow help
students,” and he continued to characterize the suit as “anti-public education,
scapegoating teachers for problems originating in underfunding, poverty, and
Some critics focused on the brevity of Judge Treu’s decision. This is a
legitimate argument, especially given the wealth of social science data
provided to make findings of fact. All told, the decision is a mere sixteen pages
(with the sixteenth page stretching all of three sentences).89 The pertinent
analysis functionally striking down teacher tenure protection in California
consisted only eight pages of analysis.90 At a University of California Berkeley,
Graduate School of Education event, the first critique presented by the panel
emphasized Judge Treu’s conciseness. Professor Katharine Strunk from
University of Southern California’s Rossier School of Education was
“surprised by the brevity” of the “strongly-worded” decision that she stated
“whole-heartedly” adopted the plaintiffs’ argument.91 Professor William Koski
from Stanford Law School was similarly “surprised that the decision was so
The length of the decision matters because it reflects a third critique of the
decision: the weak evidentiary basis of the opinion. Professor Koski was very
surprised that there were not “extensive findings of fact,” arguing that a
landmark decision usually has far more extensive evidence to show that kids
are “actually being deprived.”93 In particular, Judge Treu’s use of questionable
statistics has been the subject of attack. In the opinion, he cited that nearly
2,750 to 8,250 grossly ineffective teachers existed in California. It turns out
that this statistic was a made-up “guesstimate” by expert witness David
Berliner who “pulled that [number] out of the air.”94
Further, Diane Ravitch, an educational commentator, argued that Judge
Treu adopted the “judicial version of No Child Left Behind” using fuzzy
evidence to equate “low test scores” as being “caused by bad teachers.”95 In
particular, she questioned Judge Treu’s reliance on studies performed by Dr.
Raj Chetty and Dr. Tom Kane that emphasize that “a single year in a classroom
with a grossly ineffective teacher costs students $1.4 million in lifetime
earnings per classroom” and that students in LAUSD taught by the bottom 5
percent of teachers “lose 9.54 months of learning in a single year compared to
students with average teachers.”96 She argues that a fundamental critique of
Chetty and Kane’s study is that they “blithely assume that those who are fired
will be replaced by better teachers. How do they know that?”97 Scholarly works
similarly criticize the opinion, such as Derek Black’s The Constitutional
Challenge to Teacher Tenure, which argues that while Vergara has presented a
facially valid claim based on the school finance lawsuits, the plaintiffs did not
do enough to properly show causation or reliance, and the claim should have
failed under the facts presented.
These critiques of Vergara are very legitimate.99 While the argument that
Vergara focuses the education reform debate on a narrow low-impact issue is
more a question of policy, the impact of the brief decision and the validity of
the social science evidence likely impacted the appeals process. Moreover, it is
concerning that Judge Treu’s opinion does not include a more elaborate
description of the studies used, especially given the vast swath of material the
While the Court of Appeal ultimately rejected the plaintiffs’ novel
constitutional theory, this Note assumes that other courts in the future could
agree with the plaintiffs’ novel theory that teacher tenure can be
unconstitutional. Thus, this Note assumes arguendo that constitutional remedies
could result from future California cases attempting to retry the Vergara
teacher tenure case before the Supreme Court to analyze the critical question of
judicially ordered legislative remedies formation in education law. Further,
judicially ordered legislative remedies could result from teacher tenure lawsuits
that are still ongoing nationally in states such as Minnesota.101
D. Vergara as Judicial Activism
An underlying concern is whether or not Judge Treu should even have
been making a decision on the validity of statutes properly passed by the
legislature.102 His opinion evinces a familiar concern seen in Brown and
countless other cases: judges can run away with the law, using the guise of
“constitutionality” to achieve the implementation of a desired public policy.103
I argue that while teacher reform is an issue best implemented by the
99. This is particularly true in light of the reversal on appellate review. See generally Vergara
v. State, 202 Cal. Rptr. 3d 262 (Ct. App. 2016).
100. See, e.g., Plaintiffs’ Closing Argument Presentation PowerPoint (Mar. 2
101. See, e.g., Minnesota’s Teacher Tenure Under Fire in Lawsuit, FOX 9 (Apr. 14, 2016),
http://www.fox9.com/news/122540566-story [https://perma.cc/2NX7-Q7HX] (alleging that the state’s
three-year tenure law and LIFO provisions violated the fundamental right to a uniform and thorough
102. The appellate decision does not explicitly address judicial overreach but does emphasize
that “[p]olicy judgments underlying a statute are left to the Legislature; the judiciary does not pass on
the wisdom of legislation.” Vergara, 202 Cal. Rptr. 3d at 280–81 (citing Estate of Horman, 5 Cal. 3d
62, 77 (1971)).
103. Justice Cuéllar’s dissent from petition for review similarly discusses the correct balance
between the courts, legislature, and executive branches in courting education policy. See Vergara v.
State, No. B258589, 2016 WL 4443590, at *24
(Cal. Ct. App. Aug. 22, 2016)
(Cuéllar, J., dissenting)
(“In considering this case, we must respect the role of the representative branches of government and
the public itself in shaping education policy. But our responsibility to honor the court’s proper
constitutional role makes it important for us to review a case that merits our attention as it is for us to
avoid a dispute beyond the court’s purview.”). Justice Cuéllar argued that even if the court had decided
Vergara favorably, “considerable room” remained for the legislative and executive branches to decide
the balance between the fundamental right to education and other concerns. Id.
legislature, Judge Treu’s decision will likely have the legacy of sparking the
necessary legislative change around tenure reform.
Judge Treu is evidently conscious of judicial overreach accusations in
Vergara. He spends an extensive paragraph in the opinion to shield himself
from such accusations:
This Court stresses legal positions intentionally. It is not unmindful of
the current intense political debate over issues of education. However,
its duty and function as dictated by the Constitution of the United
States, the Constitution of the State of California and the Common
Law, is to avoid considering the political aspects of the case and focus
only on the legal ones. That this Court’s decision will and should
result in political discourse is beyond question but such consequence
cannot and does not detract from its obligation to consider only the
evidence and law in making its decision.
It is also not this Court’s function to consider the wisdom of the
Despite his conscious awareness of activism, his opinion is almost certainly in
some sense “political.”
Frameworks developed to analyze the role of the courts in the context of
school finance impact litigation provide guidance in analyzing the teacher
tenure judicial activism in Vergara.105 Professor William Koski’s earlier work,
The Politics of Judicial Decision-Making in Education Policy Reform
Litigation, identifies the importance of a critical factor—institutional
cooperation—as a focus of courts in breaking judicial logjams.
Institutional cooperation is the most important political explanation for
the judicial activism in Vergara. Here, Koski argued that state supreme courts
provide “political cover” for willing elites to engage in educational finance
reform in the face of political opposition. Courts may seek to “step in and break
up the legislative log jam” and provide the “political cover” needed to permit
willing policymakers to act. I argue that this is exactly what is going on in
Vergara. Regardless of actual legal reasoning, Judge Treu’s injunction on the
Challenged Statutes and the catapulting of the issue into the national media
result in opportunity for legislative reform.
First, it is vital to understand why a legislative logjam exists around
teacher tenure reform. One powerful explanation is that union money simply
will not permit legislative change.106 The California Teachers Association has
every interest in protecting the lax tenure standards in the state and invests
massively in lobbying efforts to protect against reform efforts in the
legislature.107 The California Teachers Association has spent more than $290
million in total on candidates and causes since 2000.108
Here, Judge Treu’s role in Vergara “facilitates”109 the solving of this
legislative logjam. By issuing this decision, he serves a facilitating role, serving
to induce institutional cooperation in the realm of teacher tenure reform. In the
opinion’s final paragraph, he provides a telling warning and suggestion to the
legislature to get its act together and start making changes:
Alexander Hamilton wrote in Federalist Paper 78: “For I agree there is
no liberty, if the power of judging be not separated from the legislative
and executive powers.” Under California’s separation of powers
framework, it is not the function of this Court to dictate or even to
advise the legislature as to how to replace the Challenged Statutes. All
this Court may do is apply constitutional principles of law to the
Challenged Statutes as it has done here, and trust the legislature to
fulfill its mandated duty to enact legislation on the issues herein
discussed that passes constitutional muster, thus providing each child
in this state with a basically equal opportunity to achieve a quality
Interestingly enough, while Judge Treu purports to not “even advise” on
how to replace the Challenged Statutes, he sprinkles not-so-subtle suggestions
throughout the opinion, which I will analyze in Part IV.
Thus, Judge Treu’s opinion is inevitably a work of exquisite judicial
activism, which has the potential to promote institutional cooperation by
furthering reforms previously impossible in the log-jammed legislature. In
effect, his activism could have motivated the legislature to begin considering
tangible and realistic changes to the teacher-tenure system, opening a policy
window in which an effective legislative remedy for teacher tenure could still
being vigorously litigated.”162 Despite the early successes, the recent Great
Recession may have been the final nail-in-the-coffin for Campaign as any hope
for implementation of the $5.6 billion stalled out in the economic downturn.163
While a settlement was reached between Campaign and the Albany legislature
in 2007 for $5.5 billion, little has been distributed in the years since, with many
dubbing Campaign an explicit failure.164
The history of the Campaign is illustrative of political factors that impact
the overall efficiency and effectiveness of legislative and executive response to
a judicial order. During the 1992 school year Robert Jackson, a member of the
Community School Board 6 in Manhattan, became frustrated that the political
process could not alleviate conditions in the city’s failing public schools.165 He
sought to sue for more resources and asked for the help of lawyer Michael
Rebell who had litigated Jose P., a major special education case.166 At first, the
Campaign was probably a long shot as Levittown Union Free School District v.
Nyquist was thought to have struck down the possibility of judicial intervention
in school finance in New York.167 The Court of Appeals in Levittown had held
that school finance was properly the realm of the legislature and not the
Rebell filed the Campaign suit against the state in June 1993, arguing that
Levittown had left open the possibility of a judicial remedy if there had been a
“gross and glaring inadequacy” in the school finance system.169 Judge
DeGrasse allowed the heart of the complaint—that the state violated the New
York Constitution’s education article by not providing adequate funds—to
stand.170 The appellate court reversed,171 but the Court of Appeals172 reversed
and brought the case back to Judge DeGrasse for trial after the two-year
Sol Stern argues that politics played a critical role at this stage in the
litigation when George Pataki, a moderate and sometimes conservative
Republican, defeated Democratic Governor Mario Cuomo. He argues that the
broad coalition behind the Campaign was the natural ally of Governor
Cuomo’s liberal base and might have settled the case, but Pataki, who was
supported by upstate Republicans, expected the governor to fight what was
perceived as an “end run around the political process” that would force tax
hikes for a “hopelessly dysfunctional” big city education system.173 Sol also
points to the presence of Attorney General Dennis Vacco, another upstate
Republican who was charged with defending against Campaign.174 During
pretrial discovery, which took four years, Democrat Eliot Spitzer defeated Vacco
in an upset victory.
Another important factor in the case’s history was that Rebell secured the
services of Simpson, Thacher, and Bartlett (Simpson Thacher), a major white
shoe law firm. The firm’s managing partner Richard Beattie was a past
president of the New York City Board of Education and offered the firm’s
tremendous resources to aide in Campaign over the next eight years, Simpson
Thacher’s partners and associates put in 33,000 hours on the case, with
lowerlevel summer associates and paralegals adding 23,000 hours.175
Campaign in many ways became its own powerful interest group.
Campaign had an annual budget of $3 million and was underwritten by major
national organizations.176 Between 199
9 and 2003
, Campaign took in $7.4
million from organizations such as the Ford Foundation, the Bill and Melinda
Gates Foundation, and the Rockefeller Foundation.177 Importantly, major
political organizations, including the United Federation for Teachers,
collaborated with Campaign.178
The amount of the remedy quickly became a subject of political debate
after Judge DeGrasse found a violation of the New York education clause.
Consultants played out a process of “equal parts science and voodoo”179 to
perform a “costing out” analysis. This analysis would determine the additional
funding needed by the New York City Schools to provide the requisite “sound
basic education.”180 Governor Pataki submitted a Standard & Poor’s analysis
using a “successful schools” model to conclude that a “sound basic education”
could be met for about $3 billion.181 During this debate in 2004, Mayor
Michael Bloomberg and Chancellor Joel Klein testified that they needed an
additional $5.4 billion in funding.182 A panel of special referees in the case
ultimately found that it would take $5.6 billion in state aid per year to lead to
an “adequate” education.183 In what Sol Stern terms the “March of Folly,” the
legislature was paralyzed and unable to deal with the court’s order to provide
$5.6 billion in extra funding.184 In 2015, the plaintiffs had continued to bring
lawsuits alleging the lack of enforcement of Campaign’s promise for further
funding, with at least two lawsuits and millions spent by the state and plaintiffs
for these continued litigation battles.185
The most important political lesson from New York’s “March of Folly”
may simply be that the remedies process in education reform litigation is a
tremendous waste of legal, judicial, and legislative resources if the political
process is not successfully navigated. Nonetheless, the case highlights that
remedies are the most important aspects of a school finance reform case as
even a case successful on the merits can fail in the implementation by the
legislative and executive branches. Twenty years after the case was first
conceived and despite the thousands of hours logged by lawyers and millions
of dollars spent on studies, litigation, etc., the Campaign’s promise for
financial success has simply not been met. One can safely characterize the
experience of the Campaign as a hard-fought litigation strategy that was
ultimately a low efficiency method to obtain basically no effectiveness as a
In a sense, one may take away from the New York and New Jersey stories
that the best resolution to school finance may be a settlement in the early stages
of a successful litigation, which may save millions of dollars in litigation costs
and ultimately push forward reforms that have a legitimate chance of
benefitting the children these reforms are intended to reach. Instead of reaching
a settlement in 2007 that evaporated during the recession, an earlier settlement
is likely an effective solution that increases litigation efficiency while
maximizing the potential for a beneficial effect on the state.
E. High-Efficiency/Low-Effectiveness: California’s Reed Settlement
In May 2010, the American Civil Liberties Union (ACLU) filed Reed v.
California.186 Plaintiffs alleged violations of the California Constitution’s
guarantee of equal access to the public education system as a result of the
Reduction-in-Force (RIF) provision’s requirement of a Last-In-First-Out
(LIFO) system of teacher removal during budget crises.187 During the recent
economic crisis, the plaintiff schools “lost half to two-thirds” of their teachers,
which again occurred during the 2010–2011 school year.188 Plaintiff schools,
which serve high concentrations of low-income students, have the highest
concentration of new teachers and faced a disproportionate burden under
RIF.189 The ACLU sought injunctive relief to stop further RIF layoffs and a
declaration of a violation under the California Constitution.
On October 6, 2010, the ACLU reached a proposed settlement with the
Los Angeles Unified School District (LAUSD) Board of Education allowing
for “target schools” in the bottom twenty-fifth percentile of the Academic
Performance Index (API) score to be protected from LIFO style layoffs, which
would protect up to forty-five schools each year from layoffs.190 The district
court approved the settlement. But the teacher’s union, United Teachers Los
Angeles (UTLA), filed an appeal challenging the court’s approval of the
settlement.191 UTLA was successful in its appeal, with the appellate court
holding that the settlement was illegal to impose on teachers.192 In the end, the
ACLU settled with UTLA and LAUSD reaching what the ACLU termed a
“historic” settlement guaranteeing thirty-seven schools additional funding to
hire assistant principals, expand professional development, and grant bonuses
to principals. The settlement also required the LAUSD to invest more than $25
million. However, the settlement has been criticized as ineffective, because it
omits any resolution regarding the Reduction-in-Force or LIFO provisions.19
Arguably, Reed should be seen as a high efficiency/low effectiveness case
that the plaintiffs in future teacher tenure Vergara-style lawsuits must seek to
avoid. Here, Reed shows the potential of what happens when leverage is lost by
ineffectively utilizing the policy window created by a favorable judicial
decision. The first Reed settlement accomplished the desired protections for
some forty-five schools, while the second and actual Reed settlement neglected
to even comment on the issues of seniority, RIF, and LIFO, which the case was
about. Therefore, while Reed was very efficient in that the settlement
consistently resolved the issues between the parties, the result here shows low
effectiveness in the original desired impact to massively change the way LIFO
statutes are raised. It is telling that Judge Treu ruled LIFO as unconstitutional
as a primary issue in Vergara. This ruling may have been a judicial response to
the ineffectiveness of this case. Moreover, Reed shows the power of interest
groups to nullify the effectiveness of a decision. Here, the ACLU had already
resolved its conflict with a willing LAUSD to limit the RIF for certain schools
(mostly in Antonio Villaraigosa’s Partnership Schools). Nonetheless, UTLA
continued to fight the lawsuit, resulting in a far less effective outcome.
F. High-Efficiency/Moderate-Effectiveness: California’s Williams
In August 2000, Mark Rosenbaum—on behalf of the ACLU, Public
Advocates, and other public interest organizations—brought suit against
California alleging a deprivation of “basic educational opportunities” in
Williams v. California.194 There, the plaintiffs alleged that the poorest schools
lacked “bare essentials,” including “trained teachers, necessary educational
supplies, classrooms, even seats in classrooms, and facilities that meet basic
health and safety standards,” along with a lack of books, functioning toilets,
rodent-less campuses, air conditioning, and other facilities-related issues.195
Political leadership played a defining role in the Williams Settlement.
Initially, Democrat Governor Gray Davis vowed to defend the state against the
suit, spending $13 million in legal fees as of April 2003, which included the
hiring of outside legal counsel O’Melveny & Myers.196 Davis filed a
countersuit against several districts, arguing that the state had already increased
funding for textbooks, teacher training, and school construction and that the
Vergara was the only hope to lead to meaningful reform for the LIFO system, an acute prediction
given Judge Treu’s ruling of LIFO as unconstitutional in the case. Id.
194. First Amended Complaint for Injunctive and Declaratory Relief at 6, Williams v. State,
No. 312236 (Cal. Super. Ct. Aug. 14, 2000).
196. Jonathan D. Glater, Fight over California Schools Raises New Issue of Priorities, N.Y.
TIMES (Apr. 18, 2003),
onus was on local districts to implement adequate school conditions.197 Here, a
change in political leadership was critical to the outcome of the case.
California voters removed Davis on October 7, 2003, replacing the Democrat
with Republican movie star Arnold Schwarzenegger.198 Governor
Schwarzenegger pledged to settle the Williams case, saying it was a “shame
that we as a state have neglected the inner-city schools. . . . It’s terrible. It never
should have happened.”199 The Williams Settlement established new standards
and accountability mechanisms and took steps to ensure that all California
public school students have textbooks and safe, clean, and functional schools.
To achieve these goals, California provided approximately $1 billion in
funding. For the lowest performing schools, California allocated $800 million
for emergency repairs, with those districts receiving $25 million in the first
year of implementation.200 Unlike the Campaign Settlement in New York,
which surreptitiously went unimplemented during the 2008 recession, studies
have found that California has remained at least somewhat committed to the
Williams Settlement to ensure that schools, at the very least, have sufficient
textbooks and functional buildings.201 However, the Williams Settlement, like
any political action, has been criticized for not fully implementing its lofty
Consequently, Williams is best characterized as a
highefficiency/moderate-effectiveness legislative remedy. It is highly efficient
because unlike the other cases, Williams was settled on the eve of trial, such
that the court did not even have a chance to gauge the merits of the Williams
constitutional deprivation argument. Settlements arguably are highly efficient if
they resolve the conflict without future litigation efforts. Here, the settlement
occurred as a direct result of a change in political leadership, with
Schwarzenegger making a political calculation to end the case to focus more on
his own agenda. Further, interest group support has not exceptionally frustrated
the implementation process, with the Williams Settlement remaining a guiding
principle, even in the recent Local Control Funding Formula.203 While some
cases have continued to challenge California’s school finance system in recent
years,204 it seems that the substantial monetary gains and continued
implementation of Williams indicates at least moderate effectiveness. Thus,
Williams is a paramount example of what is possible when political leadership
is willing to compromise to create a legislative remedy settlement that takes
into account mutual interests from opposing sides of the political spectrum.
G. Conclusion: What Matters in the School Finance Remedies Process
The history of school finance offers several political factors that are
determinative of the level of the efficiency-effectiveness of a judicially ordered
Rose in Kentucky and its corresponding KERA was a
highefficiency/high-effectiveness case where Kentucky’s school finance spending
increased vastly from its prior bottom-rung status. Next, New Jersey’s
Robinson litigation presented a small semblance of arguable success as
lowefficiency/moderate-effectiveness cases, despite having stretched over the
course of thirty years. New York’s Campaign represents a
low-efficiency/noeffectiveness case that can only be described as a failure of the remedies
process. Despite the successful judicial action, the hard-earned $5.6 billion
increase per year has languished in the legislature in the ten years since the
victory. In contrast, after losing leverage under appeal, Reed represents a
highefficiency/low-effectiveness settlement. California’s Williams case offers a clear
example of a high-efficiency/moderate-effectiveness settlement. Thus, the
critical question is what factors determine the efficiency and effectiveness of
the remedy in these cases.
Kentucky was successful because of the confluence of the aforementioned
political factors. First, as exists in all of these cases, a policy window opened up
when the court, in an exercise of judicial activism, ruled unconstitutional the
state’s school finance systems. Next, Kentucky was different because its
leaders were politically primed for reform for years. Its politicians had a strong
consensus that education as a primary issue, particularly because of Kentucky’s
bottom-ranked performance relative to other states. Further, Kentucky shows
that when political leadership is consistently unified and interest groups such as
the Pritchard Committee are consistently on board, then successful legislative
responses to judicially ordered remedies seem more likely. These factors led to
both high-efficiency and high-effectiveness.
See, e.g., CHUNG, supra note 201, at 6.
See, e.g., Robles-Wong v. State, No. RG10515768, 2011 WL 5902812 (Cal. Super. Ct.
In contrast, New Jersey and New York show the failure to take advantage
of an activist court’s policy window. New Jersey shows how ineffective
political leadership and union opposition can shut down the process. New York
shows the tremendous extent to which resources can be wasted for little
substantive gains, along with the complicated nature of politics and interest
groups. Reed similarly shows how interest groups can decrease the
effectiveness of a remedy, especially in light of losing an appeal.
PREDICTING THE LEGACY OF VERGARA
The school finance cases demonstrate that even if a Vergara-style teacher
tenure case were to be successful in the California Supreme Court, its true test
would be in the implementation of the court-ordered legislative remedy.205
Below, I analyze the legacy of Vergara through the lens of three
possibilities. First, my analysis discusses what could have been if the California
Supreme Court had granted plaintiffs’ petition for review, voted to reverse the
Court of Appeal, and restored the trial court’s order. In his dissent from denial
of the petition for review, Justice Cuéllar discusses the hypothetical where
“even in a world where we clarify our fundamental rights jurisprudence as this
requires—and address concerns associated with the Court of Appeal’s
decision—considerable room would remain for the legislative and executive
branches” to decide the education policy issues inherent with teacher tenure.206
Thus, this Note continues this analysis by looking at what the court-ordered
legislative remedies process might have looked like under a hypothetical
This analysis remains relevant for two primary reasons. First, there is
always the possibility that another case styled after the Vergara lawsuit could
be brought seeking to retry the claims in front of the California Supreme Court.
Indeed, when Justice Cuéllar says that it is “even more difficult to allow the
[Court of Appeal’s] decision to stay on the books without review in a case of
enormous statewide importance” he is arguably inviting plaintiffs to bring
teacher tenure and teacher quality cases back to the California Supreme
Court.207 Indeed, Vergara plaintiffs’ counsel Theodore Boutrous viewed the
205. I recognize that significant differences exist in the remedies process between the remedy in
a school finance case (more money) and the remedy in a teacher tenure case (substantive changes to
the law). Nonetheless, it seems likely that a cycle of endless litigation could equally result from a
dance between the legislature, executive, courts, and interest groups about what the proper remedy to
correct the constitutional violation in a teacher tenure case might be. Similar political factors are at
play that could lead to a similar remedy.
206. Vergara v. State, No. B258589, 2016 WL 4443590, at *24
(Cal. Ct. App. Aug 22, 2016)
(Cuéllar, J., dissenting).
207. Id. at 22. In the related Robles-Wong school finance case, where the California Supreme
Court denied review on the same day as Vergara, commentators felt that Justice Liu was hoping that
there would be “another lawsuit asserting students’ right to adequate school funding, and that next
time, one more justice will switch sides and agree to hear the case.” John Fensterwald, Dissenting
Justices Liu and Cuéllar dissents as a “launching pad” for future lawsuits in
both federal and state courts.208
Second, Vergara teacher tenure lawsuits based on the Vergara theory are
ongoing in both New York and Minnesota.209 The Partnership for Educational
Justice, a separate education advocacy group from Students Matter, is planning
to launch a third teacher tenure lawsuit later in 2016 in a state “yet to be
named.”210 Marc Porter Magee, founder of education advocacy group 50CAN,
has stated that more legal actions to end tenure were likely in the wake of
Vergara.211 Therefore, the efficiency-effectiveness framework is relevant for
both future teacher tenure cases that might arise in California as well as the
national teacher tenure cases.
I argue that the political factors identified in past school finance cases
indicate that any remedy would most likely have been a
low-efficiency/noeffectiveness case similar to New York’s Campaign. In the alternative, Vergara
could have been most similar to a New Jersey-esque case of
lowefficiency/moderate-effectiveness. Applying the political factors to Vergara, it
seems likely that a judicial order to the California legislature to reform teacher
tenure would have resulted in an endless ping-pong battle of litigation and
legislative formulation between the courts and legislature, thereby creating low
efficiency. Further, it seems likely that such a remedy would have resulted in
little to no effectiveness if the solutions are crafted after too much compromise
or do too little to make a meaningful impact.
The seemingly simple factors of political leadership, priming, utilization
of policy windows created by the courts, and interest groups greatly affect
Vergara’s potential for efficiency and effectiveness. Applying the factors to the
novel situation of Vergara, it seems at least likely that significant political
divides would have fostered further wasteful litigation, even if the case were to
have been successful on the merits.
Finally, the best solution for all parties in Vergara should have been to
seek a Williams high-efficiency/moderate-effectiveness solution through
settlement to save on the tremendous costs of inefficient litigation, while
reaping the substantive benefits that can result from even moderate attempts at
tenure reform. Thus, the ideal solution for future teacher tenure lawsuits is to
settle these cases by seeking out preemptive a legislative or initiative-based
reform to take advantage of the policy window opened by beneficial decisions
like Judge Treu’s opinion in Vergara. By doing so, the court’s decision will
hopefully empower the breaking of the current legislative logjam, while
avoiding the pitfalls of the endless litigation in the Campaign.
A. Political Factors Applied to the Vergara Case
First, Judge Treu’s Vergara decision opened a momentary policy window
that had and continues to have the potential to lead to lasting change in the
area. Numerous commentators have highlighted that Vergara has at least
temporarily sprung teacher tenure to the forefront of education reform.212
Secretary of Education Arne Duncan noted that Vergara presented an
opportunity to “move from the courtroom toward a collaborative process in
California that is fair, thoughtful, practical and swift. Every state, every school
district needs to have that kind of conversation.”213 While criticizing the
constitutional underpinnings of the Vergara decision, Professor Linda
DarlingHammond noted that the decision was an “opportunity to open up this kind of
conversation.”214 Professor Koski characterized that a benefit of the decision
was at least to have a “conversation at the public dialogue level” despite the
lack of a substantive policy dialogue on the issue.215 Nonetheless, as seen in
previous school finance cases, the mere existence of a policy window means
nothing if other factors involved in a possible political remedy are not in
alignment. Political leadership and interest groups need to have a high degree
of alignment to have a higher chance of success as happened in Rose.
Political leadership has been a critical factor in determining the ultimate
efficiency and effectiveness of a court-ordered remedy. In Kentucky,
Governors Martha Layne Collins and Wallace Wilkinson campaigned heavily
on the issue of education reform, providing the priming needed for the
212. See, e.g., Duncan, supra note 84 (“Today’s court decision is a mandate to fix these
problems. . . . This decision presents an opportunity for a progressive state with a tradition of
innovation to build a new framework for the teaching profession that protects students’ rights to equal
214. Vergara v. Calif.: Will It Make a Difference for Students (1 of 2), supra note 91, at 1:00:15.
215. Id. at 1:01:42.
Kentucky legislature to effectively pass KERA despite its high cost.216 In
contrast, in both New Jersey and New York, political shifts from Democratic to
Republican control consistently reshaped the school finance litigation remedies
process. For example, in New Jersey, Democratic Governor Jim Florio sought
to implement the bold QEA bill in 1990, but was quickly replaced by anti-tax
Republican Christine Whitman.217 More powerfully, in New York, the constant
dance between Democrats, like Cuomo and Spitzer, whose interests aligned
with Campaign, and the introduction of ardent anti-tax Republican Pataki,
likely stalled any opportunity for a political settlement. Further, Williams
shows that the political leadership factor need not depend on the supposed
predispositions of the leader’s political party. Gray Davis was a Democrat, who
by all accounts should have supported furthering the interests of making sure
schools had enough chairs and books, among other necessities, to be functional.
However, it was Schwarzenegger, a Republican, who performed an about-face
and was willing to engage in reform.218 One can speculate as to his motives.
Perhaps he sought to focus his agenda on less contentious issues; perhaps he
viewed Williams as a politically infeasible and costly fight. But the point is that
a change in political leadership can severely impact the feasibility of an
efficient and effective compromise solution.
The politics of Vergara and teacher tenure reform are far more
complicated than a simple Democratic-Republican binary and reflect deep
divisions that would likely imperil any judicially ordered legislative remedy.
Vergara was particularly intriguing because many liberals painted it as a
conservative effort to quash the rights of unions and teachers.219 Meanwhile,
what I term a Democratic Divide has emerged, splitting the traditionally unified
party between those who support the traditional teacher unions and tenure
(Traditional Democrats) and those who believe in pursuing what some would
term the “corporate” education reform agenda (Reformer Democrats).220
This Democratic Divide is likely to create a dearth of political leadership
that would have likely doomed any chance of a successful court-ordered
resolution to Vergara. On one side, Governor Jerry Brown and Attorney
General Kamala Harris221 stood ready with the teacher unions to appeal the
Vergara decision to the California Supreme Court.222 On the other side,
Reformer Democrats viewed the Vergara decision quite positively, much to the
ire of Traditional Democrats in their own party. While the Traditional
Democrats slammed the Vergara decision,223 Secretary of Education Duncan
(and arguably through him President Obama), former chief of the District of
Columbia Public Schools Michelle Rhee, and the Center for American Progress
issued statements largely in support of the decision.224 Intriguingly, it was two
staunchly liberal Democratic appointees, Justices Goodwin Liu and Mariano
Cuéllar who stood up for the plaintiffs in Vergara with strongly worded
dissents.225 Many of the Republican appointees on the court voted not to hear
The 2014 State Superintendent of Public Instruction race served as a
critical litmus test for Vergara’s viability and illustrates the increasing
importance of the Democratic Divide.227 The traditional Democratic base,
including teachers unions, special interest groups, firefighters, and pro-labor
groups, backed incumbent Tom Torlakson.228 Many millionaires including
Laurene Powell Jobs and celebrity mayors like Kevin Johnson and Antonio
Villaraigosa backed his challenger, Marshall Tuck. The race was seen as vitally
important because “the heart of the Democratic Party [was] up for grabs,
making this a bit of a big deal.”229 Torlakson initiated the Vergara appeal and
vowed to continue the fight, while Tuck would have dropped the Vergara
appeal in favor of substantive tenure reforms. In many ways, the usually
lowkey superintendent race quickly became a referendum on Vergara with an
astonishing $20 million in outside funding spent on the race. Tuck used
Vergara “like a bludgeon,” seeking to convince voters to get behind the
decision.230 The ultimate result was somewhat close with Torlakson winning
with 53 percent of the vote and Tuck with 47 percent.231
Thus, current politics show far more division amongst the political
leadership and indicate a likelihood that a court-ordered Vergara remedy would
have been more similar to the New York and New Jersey situations of political
instability, rather than Kentucky’s unified stand for education reform. Here, it
seems unlikely that Jerry Brown would have performed an about-face on his
Vergara position. However, Williams does show that a future leader of
California could quickly settle such a situation if political motivations are
present. As will be seen, conflict between political leadership motivations and
those of major interest groups complicates court-ordered remedies and
decreases both the efficiency and effectiveness of possible reforms.
Secondly, the importance of interest groups seems to also affect the
success of a court-ordered remedy. For example, Kentucky’s Pritchard
Committee worked hard to prime the Kentucky legislature for the relatively
successful KERA remedy. In contrast, in New Jersey, the New Jersey
Education Association (NJEA) actively sought to crumble Governor Florio’s
attempts to pass the QEA bill because of its opposition to the way retirement
costs would be allocated. Similarly, in New York, the juggernaut that was the
Campaign with its multimillion dollar budgets and white shoe law firm support
resulted in ultimately zero substantive change to the school finance system.
Thus, one hypothesis might be that when interest groups conflict heavily with
political leadership changes (as in New York with the change from Cuomo to
Pataki and to Giuliani), a court-ordered remedy could be effectively nullified
by the political realities of the situation.
The Vergara case acutely exemplifies the impact of a battleground of
interest groups likely to create a standstill even greater than in New Jersey or
New York. Similar to the NJEA’s opposition to the QEA (which actually did
meet most of its members’ interests in that school funding would increase), the
California Teachers Association and California Federation of Teachers have
served as the critical intervenors in the case, vehemently opposing Vergara as a
230. Alexei Koseff, Torlakson Declares Victory over Tuck for California Schools Chief,
SACRAMENTO BEE (Nov.
challenge to the rights of teachers.232 Meanwhile, Students Matter, the
nonprofit spearheading support for the lawsuit, is serving a modern-day
Pritchard Committee or Campaign role in leading the charge against teacher
tenure. Unlike in Kentucky, where there were shared policy goals between
interest groups and political leadership, in California, the Traditional
Democrats and teacher unions have vigorously criticized Students Matter for its
ties to large Silicon Valley money, conservative law firms and litigators
(Gibson, Dunn & Crutcher and Ted Olsen), and its hedge fund base.233 Notably
and in contrast to the Pritchard Committee’s successful sheparding of KERA
through the Kentucky legislature, any Vergara remedy would likely have been
on a New York low-efficiency/no-effectiveness pathway because Students
Matter was on a collision path with further litigation in direct conflict with the
Thus, even if Vergara had resulted in a court ordered remedy, the political
factors that have mattered in past school finance cases show a likelihood of
low-efficiency endless litigation and ineffective legislative reform. As such,
plaintiffs and defendants in Vergara should have had incentives to follow a
Williams high-efficiency/moderate-effectiveness model by seeking moderate
tenure reform through settlement.
I have argued that a lack of unity in political leadership, exacerbated by a
Democratic Divide, and conflicts between interest groups would likely have
lead to a New York-style cycle of endless litigation even if Vergara were
successful on the merits. Thus, the proper solution in future teacher tenure
cases is to seek the same solution that the plaintiffs eventually sought in New
York: attempt to extrajudicially solve the tenure issue through moderate,
compromise reforms. By doing so, both the plaintiffs in Students Matter and
the defendant state of California and its respective teacher unions could
actually and effectively take advantage of the ever-narrowing policy window
on the issue. I argue that, as a matter of policy, such a settlement could occur
through (1) legislative change compelled by the pressure of the Vergara
decision or (2) reviving a statewide initiative around teacher tenure reform.
However, I also note in Part IV.E the effect of plaintiffs’ loss on appeal, which
would have construed the case to be more similar to Reed than Williams.
TOWARD A WILLIAMS HIGH-EFFICIENCY/MODERATE-EFFECTIVENESS
The immediate aftermath of the Vergara trial court decision created a
policy window for compromise legislative reform. Already, some legislative
changes have either been passed or are pending based on the momentum from
the Vergara litigation. Arguably, implementing a legislative settlement would
have been the best strategy and avoids the pitfalls of the Campaign and its
twenty-year litigation story. It is my hope that Vergara will not be a missed
opportunity for substantive change to a broken system.234 As former
superintendent Gary Bloom stated in response to a Time cover criticizing
“Rotten Apple” teachers, “It is too bad that it has taken a court challenge to
shake this tree, but I am thankful that the tree has been shaken.”235 Similarly,
Secretary of Education Arne Duncan stated that Vergara “presents an
opportunity for a progressive State with a tradition of innovation to build a new
framework for the teaching profession . . . . My hope is that today’s decision
moves from the courtroom toward a collaborative process in California that is
fair, thoughtful, practical and swift.”236
In future teacher tenure cases, plaintiffs must convince defendants of their
mutual incentives to settle. First, one of the most convincing reasons to settle
would be to save on substantial court costs for both sides, especially in light of
the millions of dollars and tens of thousands of legal billable hours spent on
Campaign with no efficient result to show for it.237 Notably, as a result of the
Vergara case, Gibson, Dunn & Crutcher was awarded $390,000 in attorneys’
fees from the state for only the first trial-court phase of the case, a fact that
underscores both the tremendous costs of potentially ineffective litigation for
plaintiffs and the potential for forced attorneys’ fees for the state.238 Further, a
low-efficiency, drawn-out litigation battle benefits neither the plaintiffs who
seek changes to tenure, nor defendants who may want to promote other aspects
of California’s education agenda like the new Local Control Funding Formula
or Common Core, but are bogged down by their defense in Vergara. In
addition, defendants may have an interest in settling to avoid a landmark
California Supreme Court decision (especially given the pro-plaintiff leanings
of both Justices Liu and Cuéllar). Most importantly, there remains a moral
public policy objection to California’s teacher tenure laws where state leaders
should be morally compelled to recognize the tremendous problems created by
the state’s broken tenure system.239 Defendants and plaintiffs alike share a
mutual interest in ensuring that California’s teacher tenure laws are able to
achieve at least moderate reforms in line with similar reforms recently made
throughout the country.
An effective legislative reform must address the three main challenged
areas in Vergara that were found unconstitutional by the trial court. These are
(1) the Permanent Employee Statute or the length of teacher tenure; (2) the
Dismissal Statutes; and (3) the LIFO system. The easiest and most realistic
possibility for success in future cases would be for Reformer Democrats to ally
with Republicans, which would hopefully compel the pressure needed to force
moderate changes by Traditional Democrats and preemptively resolve the
teacher tenure issues.
A. Permanent Employment Statute
Reform of the Permanent Employment Statute will likely require a change
in time period for teacher tenure. California’s two-year system was particularly
egregious to the trial court because “32 states have a three year period, and nine
states have four or five.” Only five “outlier” states have a period of two years
or less. Four states have no tenure at all.240 On February 27, 2015, Republican
Assembly member Rocky Chavez introduced Assembly Bill (AB) 1248,
seeking to reform California Education Code section 44929.21 and impose a
three-year minimum for teachers to acquire tenure that is contingent on
achieving three consecutive “effective” ratings.241 Teachers with existing
tenure could lose their tenured status with two consecutive “ineffective”
ratings.242 In June 2016, Assemblywoman Susan Bonilla (D-Concord),
introduced a similar bill AB 934 that attempted to lengthen the tenure
provisions from eighteen months to three years.243 The bill failed to move
beyond the Education Committee, obtaining only two out of the nine votes.244
(2013) (describing the arguments for maintaining tenure systems and misconceptions about tenure in
40. Vergara, 2014
WL 6478415, at *5.
241. AB 1248, 2015–2016 Leg., Reg. Sess.
. AB 1248 was rejected by the state
Education Committee. U-T San Diego, State Panel Blocks Teacher Evaluation, Tenure Bills, SAN
DIEGO UNION-TRIB. (Apr. 30, 2015),
242. U-T San Diego, supra note 241.
243. California Legislature Fights Education Reform the State Needs, S.F. CHRON. (June 26,
244. John Fensterwald, Bill Extending Teacher Probation Dies in Committee, EDSOURCE (June
29, 2016), https://edsource.org/2016/bill-extending-teacher-probation-fails-to-move-forward/566428
[https://perma.cc/T2KS-YN2K]. Assemblywoman Bonilla lamented the failure of her bill stating that,
“It is frustrating when two opposing sides are not only unwilling to compromise, but are vehemently
reluctant to work together to achieve the mutual goal of providing a high quality education for all
California students.” Id. The failure of AB 934 illustrates many of the issues described in this Note,
including the unique power held by special interest groups and the inability of the legislature to pass
substantive education reform without the impetus of a court-ordered remedy.
These proposals to extend teacher tenure probation periods were
consistent with developments nationwide. For example, Governor Andrew
Cuomo’s recent April 2015 initiative has forced an increase in the New York
tenure statute from three years to a four-year probationary period contingent on
receiving scores of “effective” for three or more years.245 Other states such as
Tennessee and New Hampshire have similarly followed suit increasing
pretenure probationary periods from three to five years.246 Thus, the national
reforms serve as a guidepost pointing to an increase from two years to perhaps
three or four year tenure period as an effective, moderate reform in the state.
While these attempts at probationary period reform have already been shot
down, there remains hope—despite the loss in Vergara—that such plans could
serve as a blueprint for a moderate teacher tenure settlement in the future to
achieve a Williams high-efficiency/moderate-effectiveness situation in future
teacher tenure cases.247
Governor Jerry Brown has already passed and signed the first direct
legislative response to Vergara.248 AB 215, passed on June 25, 2014, fast tracks
the firing of teachers accused of the most “egregious misconduct” such as sex
offenses, controlled substances, and child abuse.249 While this bill is a result of
Vergara, it is a limited attempt at reform that does not address the larger issue
of grossly ineffective teachers who do not commit egregious misconduct.
Nonetheless, AB 215 serves as an example of a bill directly compelled by the
pressure stemming from Vergara.
The Dismissal Statutes may possibly be the least politically feasible
change between the three primary areas. The post-Vergara March 2015
Republican reform package, “Claim the Future: Strengthening the Middle
Class,” provided for substantive reforms in teacher tenure length (AB 1248)
and teacher evaluation (AB 1078). The reform package also allowed for the
Repeal of LIFO (AB 1044).250 Given the emboldening of the state Republicans
post-Vergara, it is intriguing that they did not seek, in their reform package, to
even touch the Dismissal Statutes that affect currently ineffective teachers.
Instead, they opted instead to focus on areas of lower-hanging fruit that are
outof-line with norms of other states like the probationary tenure period and
LIFO.251 Perhaps extensive changes to the due process and dismissal
procedures would have been too politically risky given the already tense
C. LIFO (Last-In-First-Out) Firing in an Economic Crisis
Judge Treu also provided not-so-subtle suggestions to the legislature on
what to do with the LIFO statute. Twenty states provide that seniority need be
only one—not the only—factor in consideration when layoffs occur.252
Eighteen states and the District of Columbia leave layoffs entirely to district
discretion. Two states do not consider seniority at all. Another ten states follow
California’s model and consider only seniority. Thus, the existing layoff
procedures for teachers in other states suggest that reform of the LIFO statute is
entirely feasible and should draw on the models created in the other states.
AB 1044, introduced by Assemblywoman Catharine Baker, a moderate
Bay Area Republican, sought to overturn the existing RIF laws requiring
termination by seniority.253 The bill would overturn the existing LIFO statute
and “permit a school district to deviate from using the evaluation rating of
certificated employees as a significant factor in determining the order of
dismissal of certificated employees if the school district demonstrates specified
conditions” (though it would only apply after existing collective bargaining
agreements expired).254 Arguably, this bill can be seen as legislating Vergara
and is an example of the potential reform that needs to happen to avoid the
waste, cost, and inefficiency of a drawn-out litigation cycle in future teacher
[https://perma.cc/DQN5EWMM]. “Democrats” in the assembly as of April 2015 have already shut down these bills. See, e.g.,
White, supra note 247 (“killing” teacher tenure (AB 1248) and LIFO Repeal (AB 1044), while
relegating the Teacher Evaluation Bill to “interim study,” effectively stalling its implementation).
251. See Greenhut, supra note 220.
252. Vergara v. State, No. BC484642, 2014 WL 6478415, at *
7 (Cal. Super. Ct. 2014
253. See AB 1044, 2015–2016 Leg. Reg. Sess.
. In 2016, California Assembly
Member Susan Bonilla attempted to craft a compromise bill to resolve the teacher tenure issue.
However, that bill, titled AB 934, was amended to keep in place the LIFO system. The bill, even in
this form, was defeated in the state Senate Education Committee, drawing opposition from both the
powerful teachers unions and education reformers. Sarah Favot, Teacher Tenure Bill Defeated in
Committee, LA SCH. REP. (June 29, 2016),
254. AB 1044.
D. The Legacy of Vergara: Reform by Initiative
One final method of accomplishing reform might be to go directly to the
people and utilize California’s historic initiative system to avoid the pitfalls of
politics in the legislative system. As such, a high-minded settlement
opportunity might be simply to let the voters decide on these issues and
effectively and efficiently render a conclusion to the Vergara litigation.
Direct precedent exists for tenure reform through the initiative process,
though it was unsuccessful. In 2005, Governor Schwarzenegger introduced
Proposition 74 seeking to increase the probationary time for teacher tenure
from two to five years.255 The proposition also pushed to allow administrators
to fire teachers who receive “ineffective” evaluations without a ninety-day
grace period for improvement or a comprehensive appeals process. Opposed by
the CTA and other unions that at the time were providing millions of dollars in
advertising spending,256 the measure was defeated by a 55.2 percent No vote to
a 44.8 percent Yes vote.257
I argue that a revived Proposition 74 (perhaps in a more moderate
capacity) could have been an effective compromise solution to the Vergara
case and one that is much more likely to succeed today than in 2005. A recent
poll by the University of Southern California’s Dornsife College of Letters,
Arts and Sciences, and the Los Angeles Times shows that 38 percent of
respondents think that teacher tenure should not be granted at all and that more
than one-third believe only in teacher tenure being granted only after a
probationary period of four to ten years.258 Combined with the relatively close
election results in the nonpresidential election year in 2014 for the state
superintendent, these results show that California voters are inching at least
toward a stronger desire for teacher tenure reform.
E. The Effect of Plaintiffs’ Loss on Appeal
Much of the hope for a Williams-type settlement was contingent on a
plaintiff victory on appeal to the California Supreme Court. However, with the
April 4, 2016 appellate reversal of Vergara, settlement leverage swung in the
defendants’ favor. Consequently, the appellate reversal suggested that any
possibility of settlement was trending toward a Reed-type situation at best
(before the supreme court refused to grant review). Reed suggests that
plaintiffs’ loss on appeal strongly devastates any leverage to compel a Williams
high-efficiency/moderate-effectiveness settlement. Notably, while Reed and
Williams share a high efficiency status as settlements reached within a few
years of litigation, the plaintiffs in Reed did not obtain their original goal of a
LIFO injunction, settling instead for marginal school finance improvements
and professional development budgets—essentially a low-effectiveness
solution. Plaintiffs’ loss on appeal, like in Reed where UTLA was able to
overturn the ACLU’s prior successful settlement with LAUSD critically hurt a
chance at meaningful moderate reform. Thus, plaintiffs in future teacher tenure
cases should be wary of accepting a Reed-type settlement after a loss on appeal
because its stature as a high-efficiency/low-effectiveness solution would have a
limited systemic impact on education reform.
F. The Legacy of Vergara and the future of Teacher Tenure Reform
Arguably, despite the denial of the petition for review of Vergara in the
California Supreme Court, there may still be a policy window created by the
trial court’s initial order that can still result in moderate reform. For example,
Marshall Tuck, who failed in his candidacy for state superintendent, stated that
Vergara had created momentum for moderate reform in the California
legislature.259 Further after the denial of review, the Los Angeles Times
editorial board issued a vehement editorial titled “Now that the Vergara case is
over let’s reform teacher tenure laws,” arguing that while the Supreme Court
made the right call that the Challenged Statutes were not unconstitutional, the
state’s tenure laws were still problematic and required legislative change.260
The Los Angeles Times editorial board stated that California’s teacher tenure
laws did “tend to protect the worst teachers at the expense of students” and that
the legislature was too “obliging to the desires of the teachers unions” to
reform these flawed laws.261
The post-Vergara world suggests several possibilities. First, legislative
change may, but most likely will not, occur merely because of the policy
window created by the Vergara case. It is unlikely because teachers unions
continue to hold disproportionate power in Sacramento where they remain one
of the state’s most powerful lobbying groups.262 Second, future teacher tenure
cases may be brought in California that may actually succeed to a judicially
ordered remedy before the California Supreme Court. Third, teacher tenure
259. Sarah Favot, With Vergara’s Demise, Heat’s on California Legislature to Take up Teacher
Tenure, L.A. SCHOOL REPORT (Aug. 2
260. Editorial Board, Now that the Vergara Case Is over, Let’s Reform Teacher Tenure Laws,
L.A. TIMES (Aug. 24, 2016),
262. Favot, supra note 259.
lawsuits are still active nationwide in New York, Minnesota, and likely will be
filed in other states. Plaintiffs in these future teacher tenure cases must take
note of the lessons of school finance reform that even a victory at a state’s
highest court is not a final victory. Plaintiffs in these future teacher tenure cases
must also evaluate the efficiency and effectiveness of future judicially ordered
legislative remedies to optimize the best possible outcome for their cause.
Overall, the Vergara trial court decision opened a brief policy window
where the best solution would have been for plaintiffs and defendants to create
a Williams situation of high-efficiency/moderate-effectiveness reform. The
history of school finance teaches that an absence of unified political leadership
with the respective interest groups and a lack of political priming on an issue
can result in low-efficiency/no-effectiveness thirty-year litigation battles that
achieve little to no substantive results. Instead of legislative success as in
Kentucky’s Rose and its legislative response through KERA, this Note argues
that even a successful Vergara litigation would likely only have lead to an
inefficient cycle of drawn out litigation similar to Abbott and the Campaign.
This Note argues that despite difficulties, both sides of this issue would have
benefitted from seeking moderate extrajudicial reforms to settle the Vergara
case and achieve the substantive desired results, without years of pointless
litigation and the resulting millions of dollars in litigation costs and fatigue.
Nonetheless, a unique policy window has been crafted where future California
and national teacher tenure cases could be brought on a similar theory to
Vergara. In those cases, I hope that the legislative response to judicially
ordered remedies can be both an effective and efficient reform that greatly
benefits the children of California.
1. No. BC484642 , 2014 WL 6478415, at *1- 3 (Cal. Super. Ct. 2014 ).
2. Vergara v. State , 202 Cal. Rptr. 3d 262 ( Ct. App . 2016 ). The court found that plaintiffs failed to establish that the challenged statutes violated 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 .” Id. at * 268 - 69 . This Note was originally written before the appellate court's decision was released in April 2016 and before the California Supreme Court's denial of plaintiff's petition for review. The effects of the successful appeal and the California Supreme Court's decision to decline review are discussed in Part IV below .
3. Vergara v. State, No. B258589 , 2016 WL 4443590, at * 17 ( Cal. Ct . App. Aug. 22 , 2016 ).
4. See, e.g., Mary Tillotson , Anti-Tenure Lawsuit Filed in New York, HEARTLAND INST. (Oct. 3 , 2014 ), https://www.heartland.org/news-opinion/news/anti -tenure-lawsuit-filed- in- new-york [https://perma.cc/MB99-G5QA] (describing the Partnership for Educational Justice litigation in New York where six parents are using Vergara as a litigation model). The lawsuit is being led in part by former CNN Anchor Campbell Brown, who was recently featured on the Colbert Report promoting
6. Compare Diane Ravitch , Vergara Decision Is Latest Attempt to Blame Teachers and Weaken Public Education , HUFFINGTON POST ( June 11 , 2014 ), http://www.huffingtonpost.com/dianeravitch/vergara-teacher-tenure_b_5484237.html [https://perma.cc/2MB2-Z7JB] (construing Vergara to be a part of the “blame-shifting strategy of the privatization movement” against teachers), with Gloria Romero, Students Stand up to the System, and Win , ORANGE COUNTY REG. (June 13 , 2014 ), http://www.ocregister.com/articles/education-618215 - teachers-california.html [https://perma.cc/VDJ6- SRF5] (characterizing Vergara as “historic” and arguing vehemently against appeal to “deliver on the promise of education as the key to the American Dream” ).
7. First Amended Complaint at 3, Vergara v. State, No. BC484642 , 2014 WL 6478415 ( Cal . Super. Ct. 2014 ).
8. State Defendants ' Points and Authorities in Support of Motion for Summary Judgment at 11, Vergara , 2014 WL 6478415 (No. BC484642 ).
9. See, e.g., Campaign for Fiscal Equity, Inc . v. State, 801 N.E. 2d 326 (N.Y . 2003 ); RoblesWong v . State, No. RG10515768 , 2011 WL 5902812 ( Cal . Super. Ct. 2010 ).
10. Vergara , 2014 WL 6478415, at *2.
11. CAL. EDUC. CODE § 44929 .21(b).
12. Id .
13. Vergara , 2014 WL 6478415, at *3.
14. EDUC. § 49934 .
15. EDUC. § 44938 ( b)(1)-(2).
16. EDUC. § 44944 ; Vergara , 2014 WL 6478415, at *3.
17. EDUC. § 44955 .
18. For an analytical framework tying Vergara and school quality litigation to the prior wave of school finance cases, see generally Nipun Kant , Teachers, School Spending, and Educational Achievement: Toward a New Wave of School Quality Litigation ( 2014 ), http://digitalcommons.law .yale.edu/student_papers/130 [https://perma.cc/SFK9-S7EU] (unpublished and written before the Vergara decision was issued).
19. 347 U.S. 483 , 495 ( 1954 ).
20. Id . at 493.
34. His reelection as State Superintendent became a politicized referendum on the Vergara decision . See infra Part III.
35. First Amended Complaint, supra note 7 , at 7-8.
36. Motion to Intervene at 2, Vergara v. State, No. BC484642 , 2014 WL 6478415 ( Cal . Super. Ct. 2014 ).
37. Vergara , 2014 WL 6478415, at *3.
38. CAL. CONST. art. I, § 7 ( a ).
39. Vergara , 2014 WL 6478415, at *3.
40. Id . at *4. This standard may be lower than the one in Butt. See Kevin Welner, A Silver Lining in the Vergara Decision?, WASH . POST (June 14 , 2014 ), https://www.washingtonpost.com/ news/answer-sheet/wp/2014/06/11/a -silver-lining-in-the-vergara-decision [https://perma .cc/6TY3- JHGK] (arguing that Judge Treu is shifting from a standard of requiring plaintiffs to show “fundamentally below prevailing statewide standards” in Butt to need only show the law results in “real and appreciable impact” on students' fundamental right to quality of education). Welner argues Judge Treu's reliance on a weak evidentiary record shows “real and appreciable impact” is an easier standard to meet . Id.
41. Vergara , 2014 WL 6478415, at *4.
42. Id . (quoting Serrano v . Priest , 487 P.2d 1241 , 1249 (Cal. 1971 )) (internal quotation and alteration marks omitted).
66. Kyle Stokes , Vergara v California: Ruling That Would Have Ended State's Teacher Tenure Rejected on Appeal , KPCC (Apr. 14 , 2016 ), http://www.scpr.org/news/ 2016/04/14/59624/appeals-court -overturns-lower-court-s- ruling- on-ca [https://perma.cc/8USWZ2XN] (“'The Court of Appeal's decision,' said the plaintiffs' lead counsel Ted Boutros [sic], 'mistakenly blames local school districts for the egregious constitutional violations students are suffering each and every day, but 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 .'”).
67. Vergara v. State, No. B258589 , 2016 WL 4443590, at * 17 ( Cal. Ct . App. Aug. 22 , 2016 ).
68. Id .
69. California Supreme Court Declines to Hear Vergara v. California Appeal, STUDENTS MATTER (Aug. 22 , 2016 ), http://studentsmatter.org/wp-content/uploads/2016/08/SM_Release _ Vergara-CA-Supreme-Court-Petition-Denied_FINAL .pdf [https://perma.cc/UT8T-EKMT]. Justice Goodwin Liu was an education law professor at Berkeley Law, while Justice Mariano-Florentino Cuéllar was cochair of the Equity and Excellence Commission in 2011-2013 that focused on solutions for communities facing blighted systems that dealt with the “lowest-performing teachers, the most rundown facilities, and low academic expectations and opportunities .” See Peter Schrag , Odds Are Low State Supreme Court Will Intervene in Education Equity Cases , EDSOURCE (Mar. 21 , 2016 ), http://edsource.org/ 2016 /odds-are-low-state-supreme-court-will-intervene-in-education- equitycases /562072 [https://perma.cc/FR83-YV9L].
70. California Supreme Court Declines to Hear Vergara v. California Appeal, supra note 69.
71. Vergara , 2016 WL 4443590, at *17 (Liu, J., dissenting).
72. Id .
73. Id . at 18.
81. Id . at 24.
82. See , e.g., Jennifer Medina , Judge Rejects Teacher Tenure for California, N.Y. TIMES (June 10, 2014 ), http://www.nytimes.com/ 2014 /06/11/us/california-teacher -tenure-laws-ruledunconstitutional .html [https://perma.cc/MEY9-M28M] ; Michelle Rhee, Editorial, California Tenure Ruling Is a Win for Teachers and Children, WASH . POST (June 11 , 2014 ), https://www.washington post.com/opinions/michelle-rhee -california-tenure-ruling-is-a-win-for-teachers- andchildren / 2014 /06/11/65bff4e6-f182 - 11e3 - bf76 -447a5df6411f_story .html [https://perma.cc/BW4QEVDY].
83. See generally MCKINSEY & CO., THE ECONOMIC IMPACT OF THE ACHIEVEMENT GAP IN AMERICA'S SCHOOLS ( 2009 ), http://mckinseyonsociety.com/ downloads/reports/Education/achievement_gap_report.pdf [https://perma.cc/VXR8-NB8X].
84. Arne Duncan , Statement from U.S. Secretary of Education Arne Duncan Regarding the Decision in Vergara v . California, U.S. DEP'T EDUC . (June 10, 2014 ), http://www.ed.gov/news/pressreleases/statement-us -secretary-education-arne-duncan-regarding-decision- vergara- v-california [https://perma.cc/YZ7R-3U99].
85. Rhee , supra note 82.
86. Jesse Rothstein , Taking on Teacher Tenure Backfires: California Ruling on Teacher Tenure Is Not Whole Picture, N.Y. TIMES (June 12, 2014 ), http://www.nytimes.com/ 2014 /06/13/opinion/california -ruling-on-teacher-tenure-is-not-whole-picture .html [https://perma.cc/K7HN-X9N8].
87. Id .
88. Fred Glass , California Educators and State of California to Appeal Judge's Ruling in Vergara v. State of California, CAL . TCHR. ASS'N (June 10 , 2014 ), http://www.cta.org/en/AboutCTA/News-Room/Press-Releases/ 2014 /06/20140610.aspx [https://perma.cc/6NVV-HVVM].
89. See generally Vergara v . State, No. BC484642 , 2014 WL 6478415, at * 1 - 16 (Cal. Super. Ct. 2014 ).
90. See id. at *8- 14 .
91. Berkeley Graduate Sch. of Educ., Vergara v. Calif.: Will It Make a Difference for Students (1 of 2 ), YOUTUBE (Nov. 7 , 2014 ), https://www.youtube.com/watch?v=F3qIxp0UhC0&list= UU6zLcCg_xbYz3NStACUo3Uw% 20 - % 20t= 368 [https://perma.cc/3K9U-ZPKJ], at 5: 10 .
92. Id . at 6: 40 .
93. Id . at 7: 00 .
94. Jordan Weissmann , Fuzzy Math: The Guesstimate that Struck Down California's Teacher Tenure Laws , SLATE (June 12 , 2014 ), http://www.slate.com/articles/business/moneybox/ 2014/06/judge_strikes_ down_california_s_teacher_tenure_laws_a_made_up_statistic .html [https://perma.cc/LQT3-E2YF].
95. Diane Ravitch , What Was the Evidence in the Vergara Case? Who Wins? Who Loses? , DIANE RAVITCH'S BLOG ( June 11 , 2014 ), http://dianeravitch.net/ 2014 /06/11/what -was-the-evidencein-the-vergara-case-who-wins-who-loses [https://perma .cc/3DD4-ZTJD].
96. Karen Weise , One Year with a Bad Teacher Costs Each Student $ 50 ,000 in Lifetime Earnings, BUSINESSWEEK (June 12 , 2014 ), http://www.bloomberg.com/news/articles/2014-06-12/tostrip-teacher -tenure-judge-cites-the-economic-cost-of-bad-teaching [https://perma .cc/JVB2-3KTT].
97. Ravitch , supra note 95.
98. Derek W. Black , The Constitutional Challenge to Teacher Tenure, 104 CALIF. L. REV. 75 ( 2016 ).
104. Vergara v. State, No. BC484642 , 2014 WL 6478415, at *2- 3 (Cal. Super. Ct. 2014 ).
105. See , e.g., Julie K. Underwood , School Finance Litigation: Legal Theories, Judicial Activism, and Social Neglect, 20 J. EDUC. FIN. 143 , 161 ( 1994 ) (“The courts now are becoming more active because the United States is not meeting the needs of an increasing number of children . . . . We can no longer afford judicial deference .”).
106. See generally Joshua Cowen & Katharine O. Strunk , How Do Teachers' Unions Influence Education Policy? What We Know and What We Need to Learn (Educ . Pol'y Ctr., Mich . St. U., Working Paper No. 42 , 2014 ).
107. See , e.g., Romero, supra note 6 (“The decision underscores the power of the independent judiciary-and the legacy of children and their parents fighting for justice in courtrooms when they have been abandoned by political representatives paralyzed and submissive to the power of campaign money .”).
108. Larry Sand , The CTA's Dirty Little Secret , CITY J. (Sept. 27 2013 ), http://www.cityjournal.org/html/cta%E2% 80%99s-dirty-little-secret-11253 .html [https://perma.cc/PE33-CZQ3].
109. See William Koski, The Politics of Judicial Decision-Making, 55 HASTINGS L .J. 1077 , 1103 n. 96 ( 2004 ) (noting, based on a comment by Professor William Simon, that the judiciary may not be providing “cover” but acting as a “facilitator” to overcome a coordination problem among the elite ).
110. Vergara v. State, No. BC484642 , 2014 WL 6478415, at *7 ( Cal. Super . Ct. 2014 ).
162. Sol Stern , Campaign for Fiscal Equity v . New York: The March of Folly, in COURTING FAILURE: HOW SCHOOL FINANCE TRIALS EXPLOIT JUDGES' GOOD INTENTIONS AND HARM OUR CHILDREN 1, 1 (Eric A . Hanushek ed., 2006 ).
163. See generally MARINA MARCOU-O'MALLEY , BILLIONS BEHIND : NEW YORK STATE CONTINUES TO VIOLATE STUDENTS' CONSTITUTIONAL RIGHTS ( 2014 ) (describing continued cuts to education in spite of a successful 2007 Campaign for Fiscal Equity decision from the New York Court of Appeals and governor and legislature commitment to settle the case for $5.5 billion in new aid); The Campaign for Fiscal Equity, ALLIANCE FOR QUALITY EDUC ., http://www.aqeny.org/campaigns /campaign-for - fiscal-equity [https://perma.cc/PF2E-2M2W] (“But then in 2009 as a result of the fiscal crisis school aid was frozen. Then over the following two years the state enacted over $2.7 billion in cuts, including over $2.1 billion in classroom cuts, in effect reversing CFE .”).
164. MARINA MARCOU-O'MALLEY , BILLIONS BEHIND : NEW YORK STATE CONTINUES TO VIOLATE STUDENTS' CONSTITUTIONAL RIGHTS ( 2014 ).
165. Stern , supra note 162, at 3.
166. Id . at 3-4.
167. Id . at 5.
168. 439 N.E.2d 359 , 370 (N.Y . 1982 ).
169. Id . at 369; Stern, supra note 162, at 9.
170. Campaign for Fiscal Equity, Inc . v. State, 616 N.Y.S.2d 851 , 855 (Sup. Ct. 1994 ).
171. Campaign for Fiscal Equity, Inc . v. State, 619 N.Y.S.2d 699 ( App. Div . 1994 ).
172. Campaign for Fiscal Equity, Inc . v. State, 655 N.E. 2d 661 (N.Y . 1995 ).
182. Id . at 27-28.
183. Id . at 21 , 25 .
184. Id . at 25-26; see also Williams, supra note 161 , at 202-03 ( describing competing “costing out” analyses about the amount it would take to deliver a “sound basic education” in New York's schools and the ultimate referee decision to go with $5.3 billion) .
185. See Jessica Bakeman, State Spending $ 1 .7M to Fight School Funding Challenge, POLITICO (Mar. 23 , 2015 ), http://www.politico.com/states/new-york/albany/story/2015/03/statespending-17 - m -to-fight-school- funding- challenge- 020671 [https://perma.cc/QAC2-AN4E] (describing how Governor Cuomo is spending $1.7 million to defend against the latest iteration of Campaign) . See generally Amended Complaint , New Yorkers for Students' Educational Rights (NYSER) v . State, No. 650450 (N.Y. Sup . Ct. 2014 ).
186. Third Amended Complaint for Injunctive and Declaratory Relief, Reed v . State, No. BC432420 (Cal. Super. Ct. May 4 , 2010 ).
187. Id .
188. Id . at 1.
189. Id . at 3-4.
190. Historic Settlement in Teacher Layoff Case , ACLU (Oct. 6 , 2012 ), https://www.aclusocal. org/historic-settlement-in-teacher-layoff-case [https://perma .cc/6G7E-JFSB].
191. Opening Brief of Appellant United Teachers Los Angeles, Reed, No. B230817 (Cal. Ct. App . 2011 ).
192. Reed v. United Teachers Los Angeles, 145 Cal. Rptr. 3d 454 ( Ct. App . 2012 ) (finding that union's due process right to a hearing on the merits was violated and that failure to sign consent decree precluded enforcement of that decree against the union); see also Stephen Ceasar , L.A. Unified Settlement Bypassing Seniority-Based Layoffs Nullified , L.A. TIMES (Aug. 11, 2012 ), http://articles.latimes.com/2012/aug/11/local/la-me - lausd-layoffs- 20120811 [https://perma.cc/8ER3- 63XN].
193. See , e.g., Larry Sand , UTLA , LAUSD, and ACLU Fiddle While Children Don't Learn , UNION WATCH (Apr. 15 , 2014 ), http://unionwatch.org /utla-lausd-and-aclu-fiddle-while-children-dontlearn [https://perma .cc/4R7Q-R2BB] (arguing that the “landmark” settlement is actually a weak settlement given the omission to even discuss “seniority” or the LIFO system) . Sand also argued that
197. Ed Mendel, A World of Difference, SAN DIEGO UNION-TRIB. (Feb. 9 , 2003 ), http://legacy.sandiegouniontribune.com/news/education/20030209- 9999 _1n9edfund.html [https://perma.cc/L5QH-3KKV].
198. Michael Finnegan , Gov. Davis Is Recalled; Schwarzenegger Wins, L.A. TIMES (Oct. 8 2003 ), http://articles.latimes.com/2003/oct/08/local/me-recall8 [https://perma.cc/MGK3-BAMZ].
199. Joetta L. Sack , Settlement of School Equity Case Caught up in Calif. Budget Battle, EDUC . WEEK (July 14 , 2004 ), http://www.edweek.org/ew/articles/2004/07/14/42calif.h23.html [https://perma.cc/7NGX-PSGN].
200. Williams v. California, PUB. ADVOC., http://www.publicadvocates.org/williams-vcalifornia [https://perma.cc/F7ZW-S4AH] (last visited Feb . 28 , 2016 ).
201. See generally SALLY CHUNG, WILLIAMS V. CALIFORNIA: LESSONS FROM NINE YEARS OF IMPLEMENTATION (Sept . 29, 2013 ), https://www.aclusocal.org/cases/williams-v-california/nineyears [https://perma.cc/42XR-8ASS] (finding that although much has changed since early years of Williams implementation, the Williams settlement has remained a “steadfast constant, maintaining a foundation of opportunity during a time of fiscal crisis”).
202. See , e.g., California Reneges on 8-year-old School Funding Settlement Agreement, ACCESS NETWORK , http://schoolfunding.info/ 2012 /07/california-reneges-on-8 -year-old-schoolfunding-settlement-agreement [https://perma .cc/S54K-6BQ4] (last visited Feb . 28 , 2016 ) (arguing that the state has failed to pay even half of the $800 million in Emergency Funds promised in the Williams Settlement, perpetuating “slum conditions” throughout the state). Judge Awaits Second Chance to Corral a Majority on School Funding Lawsuit , EDSOURCE (Aug. 31 2016 ), https://edsource.org/2016/justice-liu -awaits-second-chance-to-corral-a-majority-on-schoolfunding-robles-wong-california-supreme-court/568827 [https://perma.cc/MY2W-M2UJ]. A similar argument could be made that Justices Liu and Cuéllar could be awaiting a second Vergara-type decision to make a final, reasoned ruling on teacher tenure litigation in California.
208. Howard Blume and Joy Resmovits, In a Major Win for Teachers Unions , California Supreme Court Lets Teacher Tenure Ruling Stand , L.A. TIMES (Aug. 23 2016 ), http://www.latimes.com/local/education/la-me -edu-ca-supreme-court-lets-teacher-tenure-survive20160819-snap-story .html [https://perma.cc/TLZ7-EE6T]. Boutrous has already attempted to use the Liu dissent to jumpstart a new lawsuit in Connecticut (Martinez v. Malloy) to establish a federal fundamental right to education, a concept rejected by the court in the 1973 Rodriguez case . See Theodore J. Boutrous , Jr. & Joshua S. Lipshutz , Poor Children Need a New Brown v. Board of Education, WALL ST . J. (Aug 28 . 2016 ), http://www.wsj.com/articles/poor -children-need-a-newbrown-v-board-of-education- 1472421024 [https://perma.cc/72NX-KFQ9].
209. Alex Dobuzinskis , California Legal Setback Fails to Discourage Tenure Opponents, REUTERS (Aug. 28 , 2016 ), http://www.reuters.com/article/us-usa -teachers-tenure-idUSKCN1130BZ [https://perma .cc/QMM4-ZZMN].
210. Id .
211. Id .
216. Carr & Fuhrman, supra note 116, at 156-57 (“ Governor Martha Collins was the first governor in Kentucky to talk almost exclusively about education. She argued that improved education would be the key to the future economic development of Kentucky and its survival in the global economy .”).
217. See Hess, supra note 124 , at 169-70.
218. See Duke Helfand & Cara Mia DiMassa, State, ACLU Settle Suit on Education, L.A. TIMES (Aug. 11, 2004 ), http://articles.latimes.com/2004/aug/11/local/me-williams11 [https://perma.cc /YBB2-4KFW].
219. See , e.g., About This Case, VERGARA TRIAL , http://www.vergaratrial.com/who [https://perma.cc/TMT7-FBZ7] (last visited Feb . 28 , 2016 ) (describing the involvement of the solicitor general under “George W . Bush,” Hedge Funds, etc.).
220. See , e.g., Steven Greenhut , Vergara Decision Emboldens State GOP , SAN DIEGO UNIONTRIB. (Mar. 9 , 2015 ), http://www.sandiegouniontribune.com/news/2015/mar/09/republicanssacramento-vergara - education-reform [https://perma.cc/62Z6-TTG] (noting the “growing divide within the party”).
221. She is the “Prohibitive Favorite” for the state's next U.S. Senate seat. See Michael Finnegan & Patrick McGreevy, Kamala Harris the “Prohibitive Favorite” for Senate, Which Has Drawbacks , L.A. TIMES (Feb. 25, 2015 ), http://www.latimes.com/local/politics/la-me -pol-senatevillaraigosa-20150226-story .html [https://perma.cc/9VGP-2VZ6].
222. See , e.g., Howard Blume , Gov. Brown Appeals Ruling that Struck Down Teacher Job Protections, L.A. TIMES (Aug. 30, 2014 ), http://www.latimes.com/local/lanow/la-me -ln-governorappeals-vergara-20140829-story .html [https://perma.cc/WG2D-BLBB].
223. See , e.g., Rothstein, supra note 86 (“ Attacking tenure as a protection racket for ineffective teachers makes for good headlines. But it does little to close the achievement gap, and risks compounding the problem .”).
224. Valerie Strauss , Why Many Democrats Have Turned Against Teachers Unions, WASH . POST (July 5 , 2014 ), https://www.washingtonpost.com/news/answer-sheet/wp/2014/07/05/why-manydemocrats -turned-against-teachers-unions [https://perma .cc/P4LD-4KLR].
225. Vergara v. State, No. B258589 , 2016 WL 4443590, at * 17 ( Cal. Ct . App. Aug. 22 , 2016 ).
226. California Supreme Court Declines to Hear Vergara v. California Appeal, STUDENTS MATTER (Aug. 22 , 2016 ), http://studentsmatter.org/wp-content/uploads/2016/08/SM_ Release_ Vergara-CA-Supreme-Court-Petition-Denied_FINAL .pdf [https://perma.cc/XL3Z-YSEV].
227. See , e.g., Sherry Bebitch & Douglas Jeffe, The Most Expensive Political Contest in California Is for an Office Nobody's Heard of , REUTERS (Nov. 3 , 2014 ), http://blogs.reuters.com /great-debate/ 2014 /11/03/the-most -expensive-political-contest-in-california-is-for-an-office-nobodysheard-of [https://perma.cc/VU6W-N8L6]. The state's teachers' unions spent millions supporting the Democratic incumbent Tom Torlakson. Fellow Democrat Marshall Tuck, a former charter school executive, was backed by the “reform coalition” including civil rights organizations, parents' groups, and groups in Silicon Valley .
228. Matt Fleming , Tuck Versus Torlakson for State Superintendent Is a Struggle for Democrats' Hearts , L.A WEEKLY ( Oct . 15 , 2014 ), http://www.laweekly.com/news/tuck -versustorlakson-for-state-superintendent-is-a-struggle-for- democrats- hearts- 5146173 [https://perma.cc/G7XL-FVE5].
232. See , e.g., Your Professional Rights Are on Trial, CAL . TCHR. ASS'N (Dec . 2013 ), http://www.cta.org/Professional-Development/Publications/2013/12/December-2013-January2014/Vergara.aspx [https://perma.cc/6AAV-NJXQ].
233. See generally About This Case, supra note 219.
234. The recent appellate decision and the California Supreme Court's refusal to hear the case makes me think that it will be such a missed significant opportunity .
235. Gary Bloom , Former California Superintendent Responds to TIME's Cover, TIME (Oct . 27 , 2014 ), http://time.com/3541399/superintendent-to-times-cover [https://perma.cc/A2UX-K5K5].
236. Duncan , supra note 84.
237. See Stern, supra note 162 , at 14 (describing the tremendous 33,000 hours of pro bono services of Simpson Thacher, on the case over eight years, an excessive amount of time).
238. See Daniel Siegal, Gibson Dunn Attys Win Costs in Calif. Teacher Tenure Row, LAW 360 (Feb. 2 , 2015 ), http://www.law360.com/articles/784950/calif-teacher -tenure-laws-saved-by-appeal [https://perma .cc/8RHB-9YYF].
239. See Vergara v. State, No. BC484642 , 2014 WL 6478415 ( Cal . Super. Ct. 2014 ) (describing the tremendous harms that come from California's system of tenure) . But see , e.g., Laura McNeal , Total Recall: The Rise and Fall of Teacher Tenure, 30 HOFSTRA LAB . & EMP . L.J. 489
245. See Stephen Sawchuk , N.Y. Budget Accord Seeks to Tighten Rules on Teacher Quality, EDUC . WEEK (Apr. 15 , 2015 ), http://www.edweek.org/ew/articles/2015/04/15/ny-budget -accordseeks-to-tighten-rules .html [https://perma.cc/9PEM-ZHNY].
246. McNeal , supra note 239 (describing similar tenure efforts in Nevada, Tennessee , and New Hampshire).
247. See Jeremy B. White , Democrats Kill Republican Bills on Teacher Tenure , Firing, SACRAMENTO BEE ( Apr . 29, 2015 ), http://www.sacbee.com/news/politics-government/capitolalert/article19903074.html [https://perma.cc/VQ9K-QNM6].
248. See AB 215, 2013 - 2014 Leg., Reg. Sess. (Cal . 2014 ).
249. Id .; see also Sarah Ferris, California Bill Would Fast-Track Firings for Teachers Accused of Misconduct, WASH . POST (June 18 , 2014 ), https://www.washingtonpost.com/blogs/govbeat/ wp/2014/06/18/california-bill -would-fast-track-firings-for-teachers-accused-of-misconduct [https://perma .cc/UTG2-JFP6].
250. CAL. ASSEMBLY REPUBLICAN CAUCUS, CLAIM THE FUTURE: STRENGTHENING THE MIDDLE CLASS (Mar . 4, 2015 ), https://www.assemblygop.com/sites/default/files/
255. Proposition 74: Public School Teachers, Waiting Period for Permanent Status . Dismissal. Initiative., CAL. VOTER FOUND. (July 6 , 2005 ), http://www.calvoter.org/voter/elections/ 2005/special/props/prop74.html [https://perma.cc/U5MQ-9M6H].
256. Michael Janofsky , In California, a Fierce Battle Is Joined over Teachers, N.Y. TIMES (Oct. 20 , 2005 ), http://www.nytimes.com/ 2005 /10/20/us/in-california -a-fierce-battle-is-joined-overteachers .html [https://perma.cc/B9FN-EH4T].
257. Election Results , Proposition 74, INST. GOVERNMENTAL STUD . BERKELEY, https://igs.berkeley.edu/library/elections/proposition-74 [https://perma.cc/M5XG-YUXJ].
258. Caroline Porter , Poll: California Residents Support Performance Metrics over Teacher Tenure, WALL ST . J. (Apr. 12 , 2015 ), http://www.wsj.com/articles/poll-california -residents-supportjob-performance-over- teacher- tenure- 1428884268 [https://perma.cc/5DV9- F7FE ].