Squeezing Public Schools’ Lemons: Theorizing an Adequacy Challenge to Teacher Tenure

Washington and Lee Law Review, Dec 2016

Peter M. Szeremeta

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Squeezing Public Schools’ Lemons: Theorizing an Adequacy Challenge to Teacher Tenure

Squeezing Public Schools' Lemons: Theorizing an Adequacy Challenge to Teacher Tenure Peter M. Szeremeta 0 1 2 0 Thi s Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 1 Peter M. Szeremeta, Squeezing Public Schools' Lemons: Theorizing an Adequacy Challenge to Teacher Tenure, 73 Wash. & Lee L. Rev. 1601, 2016 2 Washington and Lee University School of Law , USA Squeezing Public Schools’ Lemons: Theorizing an Adequacy Challenge to Teacher Tenure Peter M. Szeremeta∗ I. Introduction ...................................................................1602 II. The History of School Finance Litigation .....................1609 A. Stage One: Federal Equal Protection Claims .........1611 C. Stage Three: Hybrid Adequacy Claims ...................1617 III: Vergara and the System of Teacher Tenure in California ...................................................................1621 A. Permanence Provision .............................................1624 B. Dismissal Provisions ...............................................1625 ∗ J.D. Candidate May 2017, Washington and Lee University School of Law. I would like to thank my family for their unwavering support and editorial insights on this Note. I would further like to thank Professor Hu for her counsel on the constitutional law questions presented in this Note. I would also like to thank the following educators: Dwight Ho-Sang, Claudine Miles, Nate Snyder, Margaret Dantzler, and Vivian Pyles. These stellar instructors greatly informed my own experience as a teacher and showed me firsthand the power that an educator can have on the trajectory of a young person’s life. Lastly, I would like to dedicate this Note to my mother, Caroline Szeremeta, who was always my dearest advisor and my most profound role model. I. Introduction Tupac Shakur once analogized the urban minority student to a rose growing in concrete.1 As applied to education, the roses represent successful, college-educated members of society. The U.S. public education system’s objective is to produce as many roses as possible, despite the inevitability that not all students will blossom into roses.2 This is where the concrete factors in. While all schools aim to produce as many roses as possible, the growing conditions in many schools more closely resemble concrete than fertile garden soil.3 Concrete-like conditions embody deficiencies in many areas deemed necessary for student educational achievement, such as school funding, technological resources, and teacher quality.4 The contrast between concrete schools and garden schools forms a symbolic backdrop for the widening of the achievement gap in the United States. The “achievement gap” refers to the growing disparity between the educational experiences of white and minority students.5 Despite increased integration in the decades following Brown v. Board of Education,6 recent studies indicate that re-segregation has steadily become the norm in public schools since the 1980s.7 In nearly every significant category of academic achievement, black and Latino students lag behind their white counterparts.8 This holds true for elementary and middle school standardized test scores,9 SAT scores,10 and high school graduation rates.11 From Brown to the present day, the achievement gap has prompted students to pursue legal challenges to educational inequality under the umbrella of equal protection.12 Most between white and black students, from percentage of students enrolled in AP classes, to quality educational facilities). 6. 347 U.S. 483 (1954). 7. See ERICA FRANKENBERG ET AL., A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 31 (2003) (finding that “over 70% of black students attend predominantly minority schools,” defined as schools with 50–100% minority student populations); see also Nikole Hannah-Jones, School Districts Still Face Fights—and Confusion—on Integration, ATLANTIC (May 2, 2014), http://www.theatlantic.com/education/archive/2014/ 05/lack-oforder-the-erosion-of-a-once-great-force-for-integration/361563/ (last visited Sept. 30, 2016) (stating that over 300 school districts are still under active desegregation orders) (on file with the Washington and Lee Law Review). challenges have centered on quantitative disparities between concrete and garden schools, such as unequal levels of funding.13 Quantitative school-funding challenges are an obvious starting point for legal challenges to educational inequality. One can measure a district’s amount of per-pupil funding and easily identify district-wide funding disparities.14 These challenges allege the following syllogism: greater funding leads to greater resources; greater resources result in superior educational opportunities; therefore more funding necessarily leads to greater educational outcomes.15 Notwithstanding the importance of adequate funding, education achievement statistics in states that have won funding challenges suggest that money might not be the variable best suited to transform the concrete into a rose garden.16 Recent studies indicate that teacher effectiveness is the most significant determining factor behind a student’s quality of education.17 This growing recognition of the importance of teacher Winning the War?, 57 VAND. L. REV. 2351, 2358 (2004) (asserting that Brown sparked the “modern revolution in school funding equity”). 13. See id. at 2354 (noting that after the California Supreme Court struck down unequal school funding in Serrano v. Priest, most states have experienced similar forms of school funding litigation). 16. See infra note 17 and accompanying text (citing studies which describe the immense value of effective teaching). 17. See, e.g., Raj Chetty, John N. Friedman & Jonah E. Rockoff, Measuring the Impacts of Teachers II: Teacher Value-Added and Student Outcomes in Adulthood, 104 AM. ECON. REV. 2633, 2675 (2011) (using value-added analysis to determine that an ineffective teacher decreases the lifetime earning capacity of a single classroom by $1.4 million); Thomas J. Kane, Andrew Bacher-Hicks & Douglas O. Staiger, Validating Teacher Effect Estimates Using Changes in Teacher Assignments in Los Angeles 12–13 (Nat’l Bureau of Econ. Research, Working Paper No. 20657, 2014) (finding substantially higher levels of student achievement with teachers in the seventy-fifth percentile); Steven G. Rivkin, Teachers, Schools, and Academic Achievement, 73 ECONOMETRICA 417, 419 (2005) (“The results reveal large differences among teachers in their impacts on achievement and show that high quality instruction throughout primary school could substantially offset disadvantages associated with low socioeconomic background.”). effectiveness prompted the lawsuit in Vergara v. California.18 In Vergara, nine student plaintiffs argued that their quality of education was so poor that it violated their equal protection rights under the California constitution.19 Instead of challenging funding, the Vergara plaintiffs attacked California’s teacher tenure statutes, alleging that these laws operated to secure permanent employment for grossly ineffective teachers.20 While acknowledging that the problem of strict teacher tenure affects students statewide, the Vergara complaint also alleged that the tenure laws’ deleterious effects are most acute in schools serving predominantly minority students.21 In an unprecedented decision, Judge Rolf Treu invalidated California’s teacher tenure statutes.22 The decision predictably received instant rebuke from teacher unions,23 but high-profile education figures like former U.S. Secretary of Education Arne Duncan lauded Vergara’s implications.24 Judge Treu relied on 18. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *3–4 (Cal. Super. Ct. Aug. 27, 2014) (recognizing the “growing body of research” that recognizes teacher quality as the paramount factor in student development). 19. See Jennifer Medina, Judge Rejects Teacher Tenure for California, N.Y. TIMES (June 10, 2014), http://www.nytimes.com/2014/06/11/us/california-teachertenure-laws-ruled-unconstitutional.html?_r=0 (last visited Sept. 30, 2016) (providing background information on the Vergara plaintiffs) (on file with the Washington and Lee Law Review). 20. See Amended Complaint for Declaratory and Injunctive Relief at 1, Vergara v. State, No. BC484642, 2014 WL 6478415 [hereinafter Vergara Complaint] (asserting that the tenure statutes force school administrators to act without their students’ best interests in mind when making employment and dismissal decisions). 21. See id. (claiming that tenure statutes “make the quality of education provided to school-age children in California a function of race . . . in violation of the equal protection provisions of the California Constitution”). 22. See Vergara, 2014 WL 6478415, at *7 (finding that each tenure statute could not meet strict scrutiny). 23. See Issues and Action: Vergara v. State of California, CAL. TCHRS. ASS’N, http://www.cta.org/Vergara (last visited Sept. 30, 2016) (asserting that the Vergara complaint focused on the “wrong problems” and that Judge Treu’s holding circumvented the legislative process) (on file with the Washington and Lee Law Review). 24. See Press Release, Arne Duncan, U.S. DEP’T EDUC., Statement from U.S. Secretary of Education Arne Duncan Regarding the Decision in Vergara v. California (June 10, 2014) http://www.ed.gov/news/press-releases/statement-ussecretary-education-arne-duncan-regarding-decision-vergara-v-califo (last visited Sept. 30, 2016) (“This decision presents an opportunity . . . to build a new framework for the teaching profession that protects students’ rights to equal precedent from the Supreme Court of California to find that the California constitution provides each student with the fundamental right to an equal education.25 Reviewing each tenure provision under strict scrutiny, Judge Treu found that the government interest behind each tenure provision was not sufficiently compelling to withstand constitutional challenge.26 Judge Treu also found that schools with predominantly minority populations employ the greatest number of grossly ineffective teachers.27 By referencing this disproportionate burden on minority students, Judge Treu seemed to indicate that the tenure laws could have also been struck down on a disparate impact theory.28 Because the tenure laws do not explicitly discriminate against minority students, plaintiffs would need to prove that the tenure laws nonetheless impose a discriminatory effect on minority students.29 While the parties to Vergara dispute the applicable standard for disparate impact, under either interpretation plaintiffs would have to show that California’s grossly ineffective teachers are disproportionately staffed in predominantly minority schools. 30 The Vergara ruling—though only a trial court decision— captured national attention because of its potential to open a new era of education litigation.31 While previous lawsuits focused on educational opportunities.”) (on file with the Washington and Lee Law Review). 25. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *3 (Cal. Super. Ct. Aug. 27, 2014) (claiming that the California constitution is the “ultimate guarantor of a meaningful, basically equal educational opportunity”). 26. See id. at *5 (finding that the defense could not even present a “legally cognizable reason” to support the Permanent Employment Statute). 27. See id. at *7 (finding that, because minority children disproportionately attend the low-income, low-performing schools in which grossly ineffective teachers are largely staffed, “minority children bear the brunt of staffing inequalities”). 28. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (describing laws imposing disparate impact as those which are not intended to discriminate but that nonetheless bear disproportionately adverse effects on minorities). 29. See id. at 586 (finding evidence of statistical disparities in the pass rate of the firefighter’s captain exam in New Haven, Connecticut). 30. See id. (interpreting those statistical disparities as evidence of adverse racial impact because the pass rate for whites on a firefighter’s captain exam was nearly double that of minority candidates). 31. See Joshua Lewis, ‘Vergara’ Decision Signals the Start of a Third Wave of Education Reform, WASH. POST (Aug. 14, 2014), https://www.washingtonpost.com/opinions/vergara-decision-signals-the-start-ofschool inputs such as funding, Vergara challenged teacher effectiveness—a qualitative factor managed and apportioned within the schoolhouse gates.32 Recently, the California Court of Appeal overturned Judge Treu’s ruling and the Supreme Court of California denied plaintiffs’ petition for review.33 The appellate court found that Judge Treu skipped a crucial threshold step in his equal protection analysis: determining whether plaintiffs outlined a sufficiently “identifiable class of persons” to sustain an equal protection challenge.34 In the appellate court’s view, the subset of individuals harmed by grossly ineffective teachers changed each year, such that the only defining characteristic between these students was that they all once had the misfortune of sharing a classroom with a poor teacher.35 While the Vergara plaintiffs petitioned the Supreme Court of California for review, in August 2016 the court denied review by a 4–3 vote.36 Given Vergara’s initial success, and subsequent reversal on appeal, this Note examines the question of whether similar teacher tenure challenges are viable in other states. If so, does an equal protection argument like that employed in Vergara represent the strongest formulation for a tenure challenge? Or should plaintiffs employ adequacy theory and base their challenges to ineffective teaching on the state’s constitutional obligation to provide an adequate level of education? Answering these questions first requires examining the history of school funding litigation within the United States, including the California precedent upon which Judge Treu relied on in Vergara. Part II analyzes the three stages of educational reform litigation. It introduces the equal-protection based “equality” arguments of Stages One and Two. Additionally, Part II discusses the evolution of Stage Three “adequacy” arguments, which derive their cause of action from the text of state constitutional education clauses. Part III explores the background of the Vergara suit. Part III also analyzes the evidentiary foundation behind the principal theory of Vergara, which at its most general formulation is that tenure laws burden the educational opportunities of students. To do this, Part III dissects each specific tenure provision challenged in Vergara. Part IV presents Vergara’s legal arguments. Vergara cites both the California constitution’s Equal Protection Clause and its education clause to make dual equal protection arguments. First, Part IV analyzes the claim in Vergara that the tenure provisions burden students’ fundamental right to education. Second, Part IV assesses the independent equal protection claim that the tenure provisions disproportionately burdened low-income and minority students. To assess the viability of a disparate impact claim to teacher tenure, Part IV weighs both the evidence of discriminatory effect, as well as whether this proof is legally sufficient. Part V builds on Vergara and the history of school funding litigation to formulate the ideal legal theory for future teacher tenure challenges. First, Part V argues that tenure challenges will be more successful if brought under state constitutional provisions. Part V then grapples with the chief criticism of Vergara—that tenure challenges are flawed because of an evidentiary lack of causation. Critics of Vergara claim that the evidence cited by Judge Treu does not prove that teacher tenure laws are responsible for ineffective teachers in the classroom.37 Part V contends that because of the qualitative nature of teacher effectiveness, the Vergara plaintiffs met their burden of proof to show causation. Finally, Part V recommends that plaintiffs adopt adequacy theory 37. See infra note 275 and accompanying text (criticizing Judge Treu for summarily accepting plaintiffs’ evidence of causation). for future teacher tenure challenges. As evidenced by the recent reversal of Vergara on appeal, and the subsequent denial of review by the Supreme Court of California, equality arguments have several weaknesses that will prevent them from becoming consistently successful in other states.38 II. The History of School Finance Litigation Most education reform litigation aimed at bridging the achievement gap has targeted public school funding systems.39 While states retain ultimate authority for funding public schools, most states have delegated this responsibility to local governments.40 At the local level, funding formulas are often based on property tax revenue.41 This type of funding formula inevitably creates large disparities between property-wealthy and propertypoor districts.42 To legally challenge these disparities, plaintiffs have alleged a direct link between disparities in funding and disparities in the “quality and extent” of educational opportunities.43 Metaphorically, this argument holds that funding inequalities are what prevent concrete from developing into rose gardens. Commentators generally divide the history of school reform litigation into three stages.44 The first stage immediately followed 38. See infra note 275 and accompanying text (analyzing the weaknesses of equality challenges to teacher tenure). 39. See Dayton & Dupre, supra note 12, at 2353–54 (noting that, after the California Supreme Court struck down unequal school funding in Serrano v. Priest, most states have experienced similar forms of school-funding litigation). 40. See id. at 2355–57 (describing the basis for school funding disputes). 41. See id. (noting how local governments implement property taxes to supplement any school funding granted by the state). 42. See Quentin A. Palfrey, The State Judiciary’s Role in Fulfilling Brown’s Promise, 8 MICH. J. RACE & L. 1, 8 (2002) (noting that in Arizona, for example, disparities in “assessed valuation per pupil between the wealthiest and the poorest districts . . . are greater than 7,000 to 1”). 43. See Serrano I, 487 P.2d 1241, 1244 (Cal. 1971) (alleging that the funding in plaintiffs’ school district is substantially inferior to the funding available to many other districts in California). 44. See, e.g., William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. REV. 597, 600–04 (1994) [hereinafter The Third Wave] (establishing a three-wave temporal framework for education reform litigation); Peter Enrich, Leaving the Court’s historic ruling in Brown v. Board of Education.45 During this first stage, plaintiffs initiated school-funding arguments grounded in the U.S. Constitution’s Equal Protection Clause.46 First-stage arguments continued until 1973, when the Court refused to classify education as a fundamental right in San Antonio Independent School District v. Rodriguez.47 Moving to new legal ground, plaintiffs initiated a second stage of litigation by bringing similar equal protection arguments under state constitutional equal protection clauses.48 While some schoolfunding challenges succeeded in the second stage,49 most states followed Rodriguez and refused to recognize education as a fundamental right under their own equal protection clauses.50 The third stage of school funding litigation has shifted away from the equality arguments of the first two stages.51 In the third Equality Behind: New Directions in School Finance Reform, 48 VAND. L. REV. 101, 104 (1995) (same). 45. 46. See U.S. CONST. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). 48. See The Third Wave, supra note 44, at 601–03 (discussing the cases that characterized the second wave). 49. See, e.g., Serrano v. Priest (Serrano II), 557 P.2d 929, 953 (Cal. 1976) (noting that the equal protection provisions of the California constitution possess an “independent vitality” in recognizing education as a fundamental right, notwithstanding Rodriguez); Robinson v. Cahill, 303 A.2d 273, 297–98 (N.J. 1973) (finding that reliance on local taxation produced educational disparities that clearly fell short of the New Jersey constitutional mandate of “thorough and efficient schools”); Horton v. Meskill, 376 A.2d 359, 374–75 (Conn. 1977) (invalidating a property tax funding scheme that abridged students’ fundamental right to education); Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979) (same). 50. See, e.g., Danson v. Casey, 399 A.2d 360, 367 (Pa. 1979) (rejecting the contention that the Pennsylvania constitutional mandate of “thorough and efficient” schools required uniformity of funding); Fair Sch. Fin. Council of Okla., Inc. v. State, 746 P.2d 1135, 1151 (Okla. 1987) (refusing to classify education as a fundamental right); Hornbeck v. Somerset Cty. Bd. of Educ., 458 A.2d 758, 789– 90 (Md. 1983) (expressing concern that the recognition of education as a fundamental right would force the court to recognize several other important state-provided services as “fundamental”); Bd. of Educ. v. Nyquist, 439 N.E.2d 359, 369 (N.Y. 1982) (stating that the importance of education as a state governmental concern does not inherently implicate fundamental right classification). 51. See The Third Wave, supra note 44, at 603–05 (observing that plaintiffs within the third stage focused on “differences in quality of education delivered, rather than on the resources available to the districts”). stage, plaintiffs base their claims on state constitution education clauses.52 These claims do not focus on attaining equality of expenditures for all schools.53 Rather, the “adequacy” arguments in the third stage allege that learning conditions within a school do not meet the minimum standard of quality guaranteed in the education clause.54 A. Stage One: Federal Equal Protection Claims Plaintiffs hoping to equalize disparities in school conditions believed that Brown provided them with a textual basis for contending that education was a fundamental right under the U.S. Constitution.55 After all, Brown declared education to be “perhaps the most important function of state and local governments” and a right “which must be made available to all on equal terms.”56 If these plaintiffs could cast education as a fundamental right, they then could challenge school funding laws under strict scrutiny, a heightened standard of review that most funding statutes could not meet.57 In Serrano I,58 the Supreme Court of California accepted education as a fundamental right and became the first 52. See id. at 603 (discussing the third-stage reliance on state equal protection clauses). 53. See id. (limiting the importance of comparing financial resources on a school-by-school basis). 54. See id. (stating that quality is no longer measured in financial terms, but rather by the actual caliber of education provided). To illustrate the contrast between minimum standards established in state education clauses, compare N.Y. CONST. art. XI, § 1 (“The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”), with CAL. CONST. art. IX, § 1 (“A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.”). 55. See Enrich, supra note 44, at 116 (referring to the language of Brown as an “invitation to pursue this clearly stated right to equal educational opportunity into settings other than segregation”). 56. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). 57. See Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law, 65 TEMP. L. REV. 1325, 1331–35 (1992) (evaluating the differences between reviewing a claim under strict scrutiny and the more deferential rational basis test). Serrano v. Priest (Serrano I) 487 P.2d 1241 (Cal. 1971). court to invalidate school funding under the Fourteenth Amendment.59 Before Serrano I, extensive disparities in per-pupil funding existed among California’s public school districts.60 For example, in California from 1968 to 1969, the per-pupil funding in the property-poor district of Baldwin Park was $577.49, as compared to the $1,231.72 expended per student in the property-wealthy Beverly Hills district.61 The Serrano I plaintiffs alleged that these funding disparities resulted in substantial educational inequalities.62 The Supreme Court of California, seizing upon the promising language in Brown, declared education to be a fundamental interest and applied the resulting strict scrutiny standard to the school-funding system.63 The court found that the funding laws invidiously discriminated against the poor and, as such, could not withstand constitutional challenge under the Equal Protection Clause.64 Serrano I sparked copycat suits in several states, many of which similarly struck down school-funding laws.65 But, with Rodriguez in 1973, the Supreme Court effectively negated any education funding argument that alleged a violation of the federal Equal Protection Clause.66 The facts of Rodriguez are very similar to those of Serrano I in that Rodriguez concerned gross disparities 59. See id. at 1244 (finding that California’s funding scheme “invidiously” discriminates against the poor, in violation of the Fourteenth Amendment). 60. See id. (noting that the heavy dependence on property taxes created “resultant wide disparities in school revenue”). 61. See id. at 1248 (comparing per-pupil funding across several California school districts). 62. See id. at 1244 (noting that certain school districts receive substantially less funding per pupil due to much smaller property tax bases). 63. See id. at 1255–57 (emphasizing the “indispensable role” that education plays in modern society). 64. See id. at 1244 (finding that California’s funding scheme violated the equal protection clause of both the U.S. Constitution and California constitution). 65. See, e.g., Robinson v. Cahill, 287 A.2d 187, 217 (N.J. 1972) (citing Serrano I in declaring education a fundamental right that must be made available to all on equal terms); Van Dusartz v. Hatfield, 334 F. Supp. 870, 877 (D. Minn. 1971) (analogizing the Minnesota funding scheme to California’s and finding the Serrano I court’s reasoning to be “completely persuasive”). 66. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 15–17 (1973) (“It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”). within Texas’s public school funding scheme.67 The Court reaffirmed Brown and recognized the significance of education, but noted that the appropriate inquiry for determining a fundamental right is not the importance of a given service.68 Finding no explicit or implicit constitutional basis for classifying education as a fundamental right, the Court applied the weaker rational basis test and upheld Texas’s funding scheme.69 Rodriguez further recognized an important limitation of equality-based challenges.70 The Court noted the lack of “logical limitations” if it were to hold that the Equal Protection Clause guaranteed an equal right to education—mainly, that the argument could be expanded to demand equal funding and resources with respect to other state-provided services.71 The defense in Serrano I raised a similar argument, contending that recognition of equal education under the Equal Protection Clause would mandate similar state protections to “all tax-supported public services.”72 The Rodriguez Court further cautioned against the potential ramifications of invalidating local property taxes as a permissible means of funding education.73 If property taxes 67. See id. (describing the difference in per-pupil spending between the lesser affluent Edgewood District ($356 per student) and the more affluent Alamo Heights District ($594 per student)). 68. See id. at 30 (noting the “historic dedication to public education,” yet rejecting the notion that the Court could grant fundamental rights classification based on the importance of a State-provided service). 69. See id. at 35 (rejecting the argument that the Constitution impliedly guarantees education because education is a fundamental pre-requisite to other constitutionally guaranteed rights, such as the right to vote and the right to exercise First Amendment freedoms). 70. See id. at 37 (noting that even if education was a fundamental right, the relative differences in spending levels would not constitute interference with a fundamental right for equal protection purposes). 71. See id. (questioning how it would be possible to distinguish education from other “significant personal interests in the basics of decent food and shelter”). 72. See Serrano v. Priest (Serrano I), 487 P.2d 1241, 1262 (Cal. 1971) (rejecting defense counsel’s argument that this would “spell the destruction of local government” and finding that education retains a certain “uniqueness among public activities”). 73. See Rodriguez v. San Antonio Indep. Sch. Dist., 411 U.S. 1, 54 (1973) (contending that it has never been within the Court’s purview to invalidate “statewide measures for financing public services merely because the burdens or benefits fall unevenly depending upon the relative wealth of the political create unconstitutional inequalities in education, then it might also be just as impermissible in the context of other locally provided services, such as public utility facilities and public hospitals.74 These concerns continued to trouble state courts as plaintiffs brought equality arguments under state equal protection clauses in the second stage.75 B. Stage Two: State Equal Protection Claims The Rodriguez Court concluded that education is “not among the rights afforded explicit protection under our Federal Constitution,”76 notably omitting that all state constitution’s guarantee the right to education.77 The Court further stated that reforms to state taxation and education were matters best reserved for state legislatures.78 Following this cue, post-Rodriguez education reform litigation shifted to equality arguments based on state constitutions’ equal protection clauses.79 Many plaintiffs buttressed their equal protection claim by arguing that state education clauses also provided the textual basis to regard education as a fundamental right.80 subdivisions in which citizens live”). 74. See id. at 58 (reserving the right to reform state taxation and education to state legislative bodies). 75. See, e.g., Hornbeck v. Somerset Cty. Bd. of Educ., 458 A.2d 758, 785 (Md. 1983) (noting that “police, fire, welfare, health care and other social services” are equally as fundamental as education); Robinson v. Cahill, 303 A.2d 273, 283 (N.J. 1973) (hesitating to decide a school funding challenge on New Jersey’s Equal Protection Clause because of the potential obligation to then sustain other challenges to other state-provided services). 76. Rodriguez, 411 U.S. at 35. 77. See Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307, 311 (1991) (observing that each state’s education clause “generally requires the state legislature to establish some system of free public schools”). 78. See Rodriguez, 411 U.S. at 58 (asserting that solutions to funding disparities in schools must ultimately “come from the lawmakers and from the democratic pressures of those who elect them”). 79. See The Third Wave, supra note 44, at 601–03 (describing the mixed success of plaintiffs in the second stage). 80. See Joseph S. Patt, School Finance Battles: Survey Says? It’s All Just a Change in Attitudes, 34 HARV. C.R.-C.L. L. REV. 547, 559–61 (1999) (describing the methodology of legal arguments within the second stage). Despite this stronger textual basis, plaintiffs experienced only mixed success in the second stage.81 In light of the Rodriguez ruling, Serrano came back to the Supreme Court of California in 1976 for renewed consideration.82 The Supreme Court of California recognized that Rodriguez “undercut” the ruling of Serrano I, but only to the extent that Serrano I held that the funding statutes violated the Fourteenth Amendment.83 In Serrano II,84 the California Supreme Court acknowledged the sameness of the state and federal equal protection clauses, but found that the state clause possessed “an independent vitality” that demanded a separate analysis.85 As such, the holding of Rodriguez had no bearing on the Supreme Court of California’s decision to interpret its state constitutional provisions as recognizing education as a fundamental interest.86 In large part, state courts faced with funding challenges adopted the Supreme Court’s conceptual framework for analyzing federal equal protection claims.87 As in Serrano II—when a state court interpreted its own constitution as recognizing education as a fundamental right—state courts applied strict scrutiny and invalidated school funding laws.88 If a state court found that 81. See Robert M. Jensen, Advancing Education Through Education Clauses of State Constitutions, 1997 B.Y.U. EDUC. & L.J. 1, 10–11 (arguing that equality arguments are, “at best, only a semi-successful method of . . . advancement of education” and that most equality arguments in the second stage “continued in the unsuccessful ruts of Rodriguez”). 82. See Serrano v. Priest (Serrano II), 557 P.2d 929, 930–31 (Cal. 1976) (discussing the holding of Serrano I and the subsequent enactment of legislative changes to California’s education funding scheme). 83. See id. at 949 (explaining that the holding of Serrano I depended on both the U.S. Constitution and the California constitution). 84. Serrano v. Priest (Serrano II) 557 P.2d 929 (Cal. 1976). 85. See id. at 950 (noting that U.S. Supreme Court decisions defining fundamental rights “are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law”); see also Horton v. Meskill, 376 A.2d 359, 371 (Conn. 1977) (discussing the implications of Rodriguez while fully recognizing the “independent vitality” of the provisions of the Connecticut constitution). 86. See Serrano II, 557 P.2d at 950–51 (adhering to the ruling of Serrano I under the California constitution). 87. See Palfrey, supra note 42, at 17 (finding that state courts largely mirrored the requirements for strict scrutiny that applied in federal equal protection cases). See, e.g., Horton, 376 A.2d at 373–74 (interpreting the state education was not a fundamental right, then the state could argue for rational basis review.89 Under rational basis, the state usually contended that local control over schools satisfied a legitimate government objective.90 Applying the rational basis test generally resulted in the court upholding a school-funding statute.91 Despite initial success in cases like Serrano II, most state courts began to rule against equality arguments as the second stage progressed.92 In assessing the potential for challenges to teacher tenure, it is necessary to consider why equality arguments faltered as recourse for those seeking to improve educational conditions.93 State courts treated equality arguments with great trepidation, wary of their illusory simplicity.94 This wariness arose as courts attempted to identify the “appropriate dimension for comparison” in remedying unequal education.95 Many might constitutional provision for the right to education to be so “basic and fundamental” that any law burdening education should be subject to strict scrutiny); Washakie Cty. Sch. Dist. No. One v. Herschler, 606 P.2d 310, 333 (Wyo. 1980) (same). 89. See Palfrey, supra note 42, at 17 (observing that, where education was not treated as a fundamental right, a state only had to demonstrate that the funding scheme was rationally related to a legitimate state objective). 90. See id. (remarking that courts usually found local control to be a legitimate state objective). 91. But cf. Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 154 (Tenn. 1993) (rejecting the premise that local control was rationally related to the school funding scheme). 92. See, e.g., Bd. of Educ. v. Nyquist, 439 N.E.2d 359, 366 (N.Y. 1982) (following Rodriguez’s reasoning by noting that the high priority of education does not automatically trigger strict scrutiny); Lujan v. Bd. of Educ., 649 P.2d 1005, 1017–18 (Colo. 1982) (noting that, despite the guarantee in the Colorado constitution of a “thorough and uniform system of free public schools,” fundamental rights are not solely defined through an implicit or explicit textual basis); Britt v. N.C. State Bd. of Educ., 357 S.E.2d 432, 436 (N.C. Ct. App. 1987) (confining constitutional language mandating “equal opportunities . . . for all students” to issues of racial segregation); McDaniel v. Thomas, 285 S.E.2d 156, 168 (Ga. 1981) (finding that the Georgia education system met the minimum standards promised by the Georgia constitution); Hornbeck v. Bd. of Educ., 458 A.2d 758, 786 (Md. 1983) (concluding that education is not a fundamental right for equal protection purposes under the Maryland constitution). 93. See Enrich, supra note 44, at 144 (discussing the many inadequacies of equality arguments). 94. See id. (noting that most presume that the simplicity of an equality argument is one of its greatest strengths). 95. Id. at 145. presume that in a challenge to unequal school funding, the obvious metric for determining equality would be funding.96 Yet, the evidence concerning the correlative relationship between school funding and quality of education is hazy at best.97 For example, states in which education litigants have won funding challenges, like California and New Jersey,98 continue to have similar disparities in white-black student achievement as states, such as New York and Ohio,99 where litigants have been unsuccessful.100 C. Stage Three: Hybrid Adequacy Claims While the U.S. Constitution does not contain any express provision guaranteeing the right to education,101 almost every state constitution has an education clause that, at minimum, directs the state legislature to maintain a free system of public schools.102 With the advent of the third stage in 1989,103 school-funding litigants began to depend on the textual mandate of these state 96. See id. at 147 (explaining that actual funding provided to schools “retains the virtue of easy quantification”). 97. See id. at 154–55 (arguing that the substantial progress some states have made in equalizing school budgets “has proven insufficient to put the educational opportunities of disadvantaged children on a par with those of their better-off peers”). 101. See McUsic, supra note 77, at 312 (noting the theoretical difficulties state courts face when interpreting rights that are guaranteed in both the state and federal constitutions). 102. See id. at 311 (discussing the slight variations among textual guarantees amongst state education clauses). 103. See The Third Wave, supra note 44, at 603 (stating that the third wave began with plaintiffs’ victories in Kentucky, Montana, and Texas). constitutional education clauses.104 Instead of alleging that unequal funding amounted to a violation under the state equal protection clause, third-stage plaintiffs contended that increased funding was necessary to ensure that the quality of education in their district met the adequacy standard set out in the education clause.105 This profound strategy shift provided several significant advantages over the equality-based arguments of the first and second stages.106 Most notably, education clauses provide an unambiguous textual basis to address deficiencies in public schools.107 Courts addressing school-funding challenges can measure the facts of the case against the mandate of the education clause.108 Furthermore, reliance on equal protection clauses in the second stage forced courts to grapple with federalism concerns and the potential for spillover challenges to other state-provided services.109 The third stage’s new focus on education clauses alleviated these concerns because education clauses are singularly targeted at education.110 Adequacy arguments under education clauses are also more conducive to judicial intervention.111 Second-stage equality 104. See Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 190 (Ky. 1989) (restating plaintiffs’ argument that the funding scheme was inadequate under Kentucky’s education clause). 105. See The Third Wave, supra note 44, at 603 (noting that, in third-stage suits, school systems are struck down not because of financial inequalities, but because of disparities in the quality of education). 106. See Enrich, supra note 44, at 166 (extolling the virtues of adequacy arguments). 107. See id. (noting the convenience this textual basis provides to third-stage litigants, as education clauses are plainly addressed to the status of public schools). 108. See id. (explaining that third-stage arguments are “addressed to a single, specific sphere of governmental responsibility”). 109. See McUsic, supra note 77, at 314 (claiming that the slippery slope created by equal protection arguments hampered plaintiffs’ success in the second stage). 110. See The Third Wave, supra note 44, at 603 (noting that the use of education clauses under the third stage has fewer implications for other areas of law than would a decision grounded in either state or federal equal protection clauses). 111. See Enrich, supra note 44, at 167 (explaining that courts are more prone to accept adequacy arguments because of the universal importance society places on education). arguments evoked leveling concerns—the fear that, by comparing one district’s resources to another, an underfunded district could only be improved at the expense of nearby wealthier districts.112 In contrast, adequacy arguments do not engage in comparative factfinding and only seek to enforce the constitutional standard of educational adequacy.113 When addressing a third-stage argument, a court must first decide if the suit is an adequacy suit or an equality suit.114 In many third-stage cases, plaintiffs consolidate challenges to both the state education clause and the state equal protection clause into the same action.115 Equality suits, presented on their own, require an equal protection analysis similar to that of the first and second stages.116 When presented in conjunction with an adequacy argument, however, the two arguments are often mutually reinforcing.117 Courts must also define the specific obligations imposed on the state based on the clause’s specific language.118 Each state utilizes different diction and phrasing in its education clause, resulting in education quality standards that vary by state.119 Some education 112. See id. at 168 (referring to such comparative analysis as a zero-sum game). 113. See Palfrey, supra note 42, at 21 (noting that, under the third wave, a very low-performing school district could engender a claim despite having relatively high per-pupil expenditures). 114. See The Third Wave, supra note 44, at 608–09 (claiming that all third wave cases to date have been quality suits). 115. See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 190 (Ky. 1989) (detailing plaintiff’s complaint that the unequal funding scheme violated the guarantee of an efficient system of schools, as well as the guarantee of equal protection of the laws); Helena Elem. Sch. Dist. No. 1 v. State, 769 P.2d 684, 691 (Mont. 1989) (declining to address plaintiff’s equal protection claim after finding the funding scheme unconstitutional under Montana’s education clause). 116. See The Third Wave, supra note 44, at 605 (claiming that the equal protection analysis will often be dominated by the determination of whether the state court holds education to be a fundamental right). 117. See Enrich, supra note 44, at 107 (discussing how the presence of the education clause allows state courts to justify determining that the state equal protection clause provides for greater educational rights than the federal Equal Protection Clause). 118. See The Third Wave, supra note 44, at 610 (describing the obligation to determine the specific quality standard set forth in an education clause). 119. See William E. Thro, The Role of Language of the State Education Clauses in School Finance Litigation, 79 EDUC. L. REP. 19, 23 (1993) [hereinafter interpreted the state’s education clause as imposing a stringent legislative duty to provide equal education.205 Judge Treu regarded the California courts’ consistent pro-education position to be firm evidence that the Supreme Court of California established education as a fundamental right within the state.206 Once plaintiffs show that the challenged state law burdens the exercise of a fundamental right, the law can only meet strict scrutiny review if the state can demonstrate a “compelling state interest” justifying the law.207 This compelling state interest must also be “narrowly drawn” to be the least restrictive means possible.208 The Vergara opinion addresses each tenure provision individually, concluding in each instance that the provision has a negative and appreciable impact on educational quality.209 As to the permanent employment statute, Judge Treu accepted the evidence on the negative consequences of the brief probationary period.210 Judge Treu agreed that this brief period precluded an informed decision as to a teacher’s skill, and stated that he could not even find a “legally cognizable reason” behind the statute.211 Reviewing the dismissal provisions, Judge Treu once again agreed with the plaintiffs’ argument, finding that the dismissal process was too costly and too complex to work efficiently.212 Judge Treu noted the estimate at trial that 1–3% of all teachers in society warrants, indeed compels, our treating it as a ‘fundamental interest.’”). 205. See Butt v. State, 842 P.2d 1240, 1249 (Cal. 1992) (finding that this legislative duty accords California citizens greater rights against statemaintained educational discrimination than does the U.S. Constitution). 206. See Vergara, 2014 WL 6478415, at *3–4 (“In Serrano I and II and Butt, . . . an overarching theme is paradigmatized: the Constitution of California is the ultimate guarantor of a meaningful, basically equal educational opportunity being afforded to the students of this state.”). 207. Roe v. Wade, 410 U.S. 113, 155 (1973). 208. See id. (noting that courts striking down state laws on abortion have scrutinized the state’s purported interest in “protecting health and potential life”). 209. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *2 (Cal. Super. Ct. Aug. 27, 2014) (finding that plaintiffs “met their burden of proof on all issues presented”). 210. See id. at *5 (concluding that this brief period results in teachers “being reelected” who may have been refused permanent status had the probationary period been longer). 211. Id. 212. See id. at *6 (finding that the sophistication of the dismissal procedures rendered an “efficient, yet fair dismissal of a grossly ineffective teacher illusory”). California are grossly ineffective.213 Considering the impracticality of the dismissal process, Judge Treu proclaimed that it “cannot be gainsaid that the number of grossly ineffective teacher has a direct, real, appreciable, and negative impact on a significant number of California students.”214 Finally, Judge Treu found that the LIFO provision poses a “lose-lose situation” for students, in that seniority-based layoffs often force students to miss out on the “junior/efficient teacher” while also leaving the senior/ineffective one in place.215 After noting the burden imposed by each tenure provision, Judge Treu also addressed whether the State could put forth a compelling interest in advancing the tenure provisions.216 This analysis was very brief—at the outset of the opinion, Judge Treu noted that the cumulative effect of plaintiffs’ evidence was sufficient to “shock the conscience.”217 The dismissal provision garnered the most analysis regarding a potentially compelling state interest.218 The State contended that the procedural protections were necessary to afford teachers with due process.219 Instead, Judge Treu found that the dismissal provision as constituted resembled “über due process.”220 Because the 213. See id. at *4 (comparing this percentage rate to the roughly 275,000 active teachers in California and finding that this results in a numerical range of grossly ineffective teachers from 2,750 to 8,250). 214. See Vergara, 2014 WL 6478415, at *4 (noting that this negative and appreciable impact extends well into the future for however long these teachers retain their employment). 215. See id. at *6–7 (observing that the LIFO provision does not contain a waiver or exception for those junior teachers that prove themselves to be effective). 216. See id. at *4 (adding that the State must also demonstrate that the distinctions drawn by the tenure statutes are “necessary to further their purpose” (quoting Serrano v. Priest (Serrano I), 487 P.2d 1241, 1249 (1971))). 217. See id. at *4 (adding that plaintiffs’ cumulative body of evidence was “compelling”). 218. See id. at *5–6 (responding to the “entirely legitimate issue of due process” raised by the State). 219. See Appellants’ Brief at 13, Vergara v. State, No. B258589 (Cal Ct. App. May 1, 2015) [hereinafter Appellants’ Brief] (referring to grossly ineffective teachers as those who cannot, or will not, teach). “The statutory dismissal process serves critical legislative purposes by ensuring that districts provide adequate procedural protections to tenured teachers facing dismissal, including protections required by due process.” Id. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *5 (Cal. procedural protections far exceeded what due process required, Judge Treu found that harm imposed on students by the dismissal statutes outweighed any state interest in added protections.221 B. The Disparate Impact of the Tenure Provisions 1. Evidence of Discriminatory Effect The other side to the Vergara plaintiffs’ equal protection claim was the allegation that the tenure provisions discriminated against low-income and minority students.222 An equal protection claim alleging discrimination often arises when a law draws distinctions based on a suspect classification, such as race or gender.223 There are generally two ways to establish a suspect classification. First, some laws explicitly draw impermissible distinctions between different groups of people.224 Second, even if a law is facially neutral, a court may invalidate that law if its effect is to discriminate unfairly against one or more suspect classes.225 Given the facial neutrality of the tenure provisions, the Vergara plaintiffs employed the latter argument of effects-based discrimination.226 Super. Ct. Aug. 27, 2014) (discussing the balancing test for procedural due process that applies to other California state employees). 221. See id. at *6 (expressing confidence that California courts are just as dedicated to protecting due process rights of teachers as they are to safeguarding the rights of students to equal educational opportunities). 222. See Vergara Complaint, supra note 20, at 1 (acknowledging that grossly ineffective teachers harm students statewide, but alleging that “the problem is worse” for students attending disproportionately minority and low-income schools). 223 See Mark Strasser, Suspect Classes and Suspect Classifications: On Discriminating, Unwittingly or Otherwise, 64 TEMP. L. REV. 937, 938 (1991) (noting that a suspect class is a group of individuals deserving of added protections because of a history of discrimination against that group). 224. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (striking down Virginia’s miscegenation statutes because they drew impermissible distinctions solely according to race). 225. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977) (noting that for a statute to be invalidated on disparate impact grounds, plaintiffs must demonstrate proof of racially discriminatory intent or purpose). 226. See Respondents’ Brief, supra note 133, at 71 (citing to Serrano I, where the California Supreme Court invalidated the facially neutral school funding Analyzing how the tenure provisions act in concert to disproportionately burden the educational opportunities of minorities is thus crucial to substantiating a disparate impact claim.227 The most influential mechanism through which the tenure provisions disadvantage minority students is through the “Dance of the Lemons.”228 A lemon is a grossly ineffective teacher who, because of the early award of tenure and the complexity and cost of the dismissal procedures, a school cannot reasonably fire.229 Because dismissal is not a practical option, school administrators often transfer their lemons.230 Due to their ineffectiveness, these unwanted lemons dance from school to school, negatively affecting the educational growth of each classroom they land in.231 Each of the challenged tenure provisions in Vergara perpetuates a different stage of the lemon dance, and the cumulative effect is that most lemons end up teaching in low-income schools that serve predominantly minority populations.232 statute because it had the effect of discriminating based on wealth). 227. See Serrano v. Priest (Serrano I), 487 P.2d 1241, 1250 (Cal. 1971) (noting the facial neutrality of the property tax formula but emphasizing the importance of considering the effects of the formula as “a practical matter”). 228. See Barrett, supra note 157 (describing the administrative tactics that keep the lemon dance churning, such as paying ineffective tenured teachers to leave or transferring these teachers to “unsuspecting schools”). 229. See id. (describing what type of teacher constitutes a “lemon” teacher). Barrett documents the story of Roque Burio, a former science teacher at San Pedro High School in LAUSD. Id. Burio was ineffective as a teacher—in his first four years teaching, he received five “below-standard” teaching evaluations. Id. Burio’s approach to the classroom was “inquiry-based” learning, which his principal translated to mean “teachers do not teach.” Id. The article cites one bizarre lab experiment in which Burio told students to document behavior of live animals, yet did not bring any animals to class for observation. Id. Instead, Burio told his students to look at pictures of animals in books and complete the assignment that way. Id. Burio’s principal spent six years attempting to train Burio, conducting weekly observations and providing him with personal mentors. Id. Ultimately unable to fire Burio, LAUSD paid him $50,000 to “quietly leave.” Id. 230. See id. (explaining that lemon teachers are either transferred or “repeatedly and fruitlessly” retained). 231. See id. (referencing the example of a teacher who was paid $40,000 to stop teaching in LAUSD, but who is still actively listed in LAUSD’s substitute teacher pool). 232. See Respondents’ Brief, supra note 133, at 99 (alleging that the lemon dance exacerbates “the achievement gap” and concentrates “teacher layoffs in schools serving high-need communities”). The permanence and dismissal provisions also have the combined effect of producing lemons. The brief probationary period before awarding tenure increases the likelihood that more grossly ineffective teachers will receive permanent status.233 Faced with a lemon teacher, school administrators would much rather transfer that lemon than initiate an expensive, multi-year dismissal proceeding.234 A report from the California Department of Education (CDE) itself admits that this transfer mechanism is the most “practical course of action at the individual school level.”235 The lemon dance’s discriminatory effects emerge when one looks at which schools have the majority of teacher vacancies. The CDE Report found that “poorly performing teachers generally are removed from higher-income or higher-performing schools and placed in low-income and low-performing schools,”236 adding that because “minority children disproportionately attend such schools, minority students bear the brunt of staffing inequities.”237 The lemon dance has downward movement—lemons can only be transferred to schools with vacancies, which statistically tend to be low-income schools with high minority populations.238 The Vergara plaintiffs alleged that, because the tenure provisions create and protect the lemons, the provisions bear responsibility for the discriminatory impact these lemons have on the educational quality of low-income and minority students.239 The final piece to understanding the discriminatory impact of the lemon dance lies with the role of the LIFO provision. In 233. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *5 (Cal. Super. Ct. Aug. 27, 2014) (noting that California is only one of five states that has a probationary period of two years or less). 234. See supra note 178 and accompanying text (detailing the labyrinth of procedures administrators must navigate to dismiss a teacher for unsatisfactory performance). 235. See CALIF. DEP’T OF EDUC., EVALUATING PROGRESS TOWARD EQUITABLE DISTRIBUTION OF EFFECTIVE EDUCATORS 46 (2007) [hereinafter CDE REPORT] (finding that dismissal proceedings are rarely initiated due to the reluctance of administrators). 236. Id. at 46. 237. Id. at 5. 238. See id. at 46 (finding that nearly half of school administrators in LAUSD’s Western district admitted to trying to hide their openings to avoid hiring “excessed teachers”). 239. See supra note 232 and accompanying text (describing how the lemon dance disproportionately affects low-income and minority students). California, the LIFO provision mandates that, in the event of layoffs, seniority determines which teachers retain their jobs.240 Again, this would appear to affect all schools uniformly. Lowincome, minority schools, however, are the schools with the “highest concentration of teachers with the lowest seniority.”241 The overall impact is that when layoffs occur, the LIFO provision ensures that the schools with the highest percentage of vacancies will be these low-income, underachieving schools.242 Two immediate consequences arise: ( 1 ) low-income, high-minority schools more commonly experience teacher turnover;243 and ( 2 ) the need created by these vacancies guarantees other lemons a place to teach.244 2. Legal Theory of Disparate Impact Whether a disparate impact challenge to teacher tenure is successful largely depends on the applicable legal standard for proving disparate impact.245 In Vergara, the State advocated the Supreme Court’s position as set forth in Washington v. Davis,246 which held that along with discriminatory effect, plaintiffs must also demonstrate a discriminatory motive or purpose behind the passage of the law.247 Discriminatory purpose obviously exists 240. See supra Part III.C (explaining the operation of the LIFO statute). 241. See Vergara Complaint, supra note 20, at 18 (citing the California Committee on Education Excellence, which found that the “State of California has created a pattern of disparities . . . that not only limits the opportunities for these students, but reinforces and enlarges the existing social inequalities confronting them”). 242. See Respondents’ Brief, supra note 133, at 49 (citing a study which analyzed actual teacher layoff data in LAUSD and found that “schools in the highest quartile of poverty are 65% more likely than other schools to have a teacher laid off under the LIFO Statute”). 243. See CDE REPORT, supra note 235, at 19 (noting the harmful effects that high teacher turnover has on school achievement). 244. See Barrett, supra note 157 (describing the cyclical nature of the Lemon Dance). 245. Compare Respondents’ Brief, supra note 133, at 96 (“California courts do not require a showing of discriminatory intent in the face of disparate impact.”), with Appellants’ Brief, supra note 219, at 66 (alleging that the discriminatory intent requirement “applies to claims under the California Constitution”). 246. 426 U.S. 229 (1976). 247. See id. at 239 (describing the methods by which discriminatory purpose when the law is facially discriminatory.248 The tenure provisions, however, are facially neutral—they speak solely to the issue of teacher employment and do not draw any ostensible classifications.249 The Supreme Court did not foreclose finding discriminatory purpose behind a facially neutral law.250 The Court instead imposed a high burden by requiring plaintiffs to show a clear racial pattern “unexplainable on grounds other than race.”251 The Vergara plaintiffs contend that demonstrating the discriminatory impact of the tenure provisions is sufficient to render the provisions unconstitutional.252 Regardless of “whatever the federal rule might be,” the plaintiffs assert that a showing of disparate impact under California law does not require proof of discriminatory purpose.253 In Serrano II, the Supreme Court of California distinguished California’s equal protection provisions, noting that they “are possessed of an independent vitality.”254 The State cited to the Supreme Court of California’s decision in Hardy v. Stumpf255 to refute this argument.256 In Hardy, the results of a can be proven). 248. See supra note 224 and accompanying text (discussing how laws that facially distinguish between suspect classes automatically invoke heightened scrutiny). 249. See Respondents’ Brief, supra note 133, at 95 (conceding that the tenure provisions are facially neutral, but contending that strict scrutiny applies because of the disproportionate harmful effects imposed). 250. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67 (1977) (finding that plaintiffs can show discriminatory purpose by looking to the historical background of the law, or to the administrative history behind the law). 251. See id. (observing that cases where such a pattern can be shown are “rare”). 252. See supra note 245 and accompanying text (citing plaintiffs’ argument that disparate impact does not require a showing of discriminatory purpose in California). 253. See Respondents’ Brief, supra note 133, at 96 (fortifying the claim by referencing the California Supreme Court’s guarantee in Serrano II that the California constitution demands an analysis independent of the federal standard). 254. See Serrano II, 557 P.2d 929, 950 (1976) (stating that this independent vitality exists despite the fact that the text of both equal protection clauses is substantially the same). 21 Cal.3d 1 (Cal. 1978). 256. See Appellants’ Brief, supra note 219, at 66 (alleging that Hardy established a requirement of discriminatory purpose for disparate impact cases physical agility test for police department applicants showed that a disproportionately greater percentage of men passed than women.257 In rejecting the plaintiff’s equal protection claim, the Supreme Court of California quoted Washington’s language that “standing alone, disproportionate impact does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny.”258 Butt v. State,259 decided after Hardy, provides further pivotal insight into the standard for disparate impact in California.260 The Vergara plaintiffs maintained that Butt is more dispositive than Hardy because Butt pertained to educational discrimination and was decided more recently.261 The Butt court first noted that the California constitution grants greater rights against educational discrimination than does federal law.262 Then, the court stated that “[d]espite contrary federal authority, California constitutional principles require State assistance to correct basic ‘interdistrict’ disparities in the system of common schools, even when the discriminatory effect was not produced by the purposeful conduct of the State or its agents.”263 In the Vergara opinion, Judge Treu devoted very little analysis to the plaintiffs’ disparate impact argument. Judge Treu found that the evidence was “clear” that the tenure provisions had a disproportionate burden on low income and/or minority students, but made no mention of the potential requirement of a discriminatory purpose.264 In reversing Judge Treu, the California in California). 257. See Stumpf, 21 Cal.3d at 6 (noting that eighty-five percent of men passed the test, compared to just fifteen percent of women). 258. Id. at 8. 259. 842 P.2d 1240 (Cal. 1992). 260. See id. at 1250 (emphasizing “the State’s ultimate responsibility for maintaining a nondiscriminatory common school system”). 261. See Respondents’ Brief, supra note 133, at 98–99 (noting that Butt reaffirmed Serrano and was decided well after Hardy). 262. See Butt, 842 P.2d at 1249 (noting that these greater rights stem from the “uniquely fundamental personal interest” in education that exists in California). 263. Id. (emphasis added). 264. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *7 (Cal. Super. Ct. Aug. 27, 2014) (claiming that the “substantial evidence” shown at trial “makes it clear” that the tenure provisions have a discriminatory effect on Court of Appeal relied on a lack of causation, finding that any statistical evidence of ineffective teachers disproportionately working in minority schools was the result of school administrators’ decision-making, and not the tenure statutes.265 In future tenure challenges, the critical issue will be whether the court requires proof of discriminatory purpose. When state courts decide to follow Washington and require discriminatory intent, the disparate impact challenge to tenure will likely fail.266 V. Framing the Ideal Legal Challenge to Teacher Tenure In framing the ideal challenge to teacher tenure, the initial hurdle plaintiffs face is deciding whether to bring the challenge under state or federal law.267 Using the three stages of school funding as a guide, the most effective arguments will be under state constitutional provisions.268 In large part, this is because the Supreme Court has blocked many of the legal paths that plaintiffs might take to sustain a tenure challenge under federal law.269 Rodriguez denied education status as a fundamental right,270 whereas Washington required proof of discriminatory purpose to show disparate impact.271 minority students). 265. See Vergara v. State, 202 Cal. Rptr. 3d 262, 286 (Cal. Ct. App. 2016) (finding that the evidence at trial “firmly demonstrated that staffing decisions, including teacher assignments, are made by administrators”). 266. See, e.g., Kim v. Workers’ Comp. Appeals Bd., 87 Cal. Rptr. 2d 382, 382 (Cal. Ct. App. 1999) (rejecting an equal protection challenge to a workers’ compensation cap because of the absence of discriminatory purpose). 267. See supra Part II.A–B (discussing plaintiffs’ strategic decision to bring a funding suit under the U.S. Equal Protection Clause or state constitutional equal protection clauses). 268. See supra Part II.B–C (describing plaintiffs’ successes under state constitutional provisions). 269. See infra notes 270–271 and accompanying text (discussing how Rodriguez and Washington made it difficult for plaintiffs to bring tenure challenges under the U.S. Constitution). 270. See supra note 69 and accompanying text (discussing the Rodriguez court’s reasoning for denying education classification as a fundamental right). 271. See supra note 247 and accompanying text (describing the Washington court’s requirement for showing discriminatory purpose). State education clauses ultimately provide plaintiffs with the strongest arguments, regardless of whether plaintiffs formulate their claim as an equality challenge or an adequacy challenge. Under an equality argument, the education clause provides a direct textual basis for plaintiffs to assert that education is a fundamental right.272 As in Vergara, plaintiffs can argue under a state’s equal protection clause that strict scrutiny applies, leading to the invalidation of tenure laws.273 Under an adequacy argument, plaintiffs can use the heightened standard of quality set forth in the education clause to argue that the quality of education in public schools’ is constitutionally inadequate.274 A. Demonstrating Causation Suggesting the ideal format for a tenure challenge first requires grappling with the chief criticism of the Vergara lawsuit— that plaintiffs’ evidence is insufficient because it fails to prove a direct causal relationship between the tenure statutes and ineffective teachers.275 Demonstrating causation is necessary to a successful challenge regardless of whether the lawsuit is an equal protection claim or an adequacy claim.276 Judge Treu, possibly due to the brevity of his analysis, has been criticized for facially accepting plaintiffs’ arguments regarding causation without 272. See, e.g., Butt v. State, 842 P.2d 1240, 1248–50 (1992) (explaining the constitutional demand of the education clause and how California courts’ judicial interpretation of the education clause has established education as a fundamental right in California). 273. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *2 (Cal. Super. Ct. Aug. 27, 2014) (describing the plaintiffs’ equal protection claim). 274. See supra Part II.C (discussing the adequacy arguments of the third stage of school funding litigation). 275. See Brief for Erwin Chemerinsky & Catherine L. Fisk as Amici Curiae Supporting Appellants, Vergara v. State, No. B258589 (Cal. Ct. App. June 24, 2015) [hereinafter Amicus Brief for Appellants] (criticizing Judge Treu’s opinion for his lack of analysis regarding the causal effect of the tenure statutes). 276. See, e.g., Butt, 842 P.2d at 1256 (upholding the trial court’s determination that a school district’s decision to cancel the last six weeks of school “would cause educational disruption sufficient to deprive District students of basic educational equality”); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 198 (Ky. 1989) (finding that in an adequacy funding challenge, plaintiffs “showed a definite correlation between the money spent per child on education and the quality of education received”). providing a more thorough review of the evidence.277 Professor Black asserts that the Vergara challenge to tenure is meritorious enough to survive facial pleading stages, yet fails to reach the level of a constitutional violation because “the research certainly does not speak to whether tenure has a positive or negative effect on individual teachers.”278 As an amicus for the State on appeal, Professor Chemerinsky similarly contended that plaintiffs “failed to adequately demonstrate that the tenure, dismissal, and layoff statutes were the cause of any educational disparities.”279 This Note urges a more realistic lens through which to view causation. The way in which courts must measure causation in the tenure context is fundamentally different from the way causation has been measured in school funding cases. 280 This difference is because of the qualitative nature of gauging teacher effectiveness, as opposed to the strictly quantitative measurement of school funding.281 Courts reviewing funding challenges can create sideby-side numerical comparisons of a school district’s property values and corresponding tax rates.282 A court in a funding challenge therefore has a clear evidentiary basis to show how 277. See, e.g., Michael Hiltzik, Teacher Tenure Case: Another Sign the Judge’s Ruling Deserves an F, L.A. TIMES (June 12, 2014), http://www.latimes.com/business/hiltzik/la-fi-mh-teacher-tenure-trial-20140612column.html (last visited Sept. 30, 2016) (lambasting Judge Treu’s “singleminded determination to blame the ills of the California educational system entirely on due-process protection for teachers”) (on file with the Washington and Lee Law Review). 278. Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 CAL. L. REV. 75, 129 ( 2016 ). 279. See Amicus Brief for Appellants, supra note 275, at 9–10 (alleging that Judge Treu’s entire finding of causation consisted of one “block quote” from the CDE Report). 280. See, e.g., Serrano v. Priest (Serrano I), 487 P.2d 1241, 1248 (Cal. 1971) (calculating per-pupil expenditures across several school districts in Los Angeles County). For example, the court found that from 1968–1969, Baldwin Park Unified School District spent $577.49 per pupil, Pasadena Unified School District spent $840.19 per pupil, and Beverly Hills Unified School District expended $1,231.72 per pupil. Id. 281. Eric A. Hanushek, Teacher Quality, in TEACHER QUALITY 3 (Lance T. Izumi et. al. eds., 2002) (observing a wide range of differences exist among teachers and that “these differences are not captured by common measures of teachers (qualifications, experience, and the like)”). 282. See id. at 1252 n.15 (creating a table comparing school spending rates with tax rates across twelve different school districts). property tax formulas cause significant disparities in per-pupil funding among school districts.283 Teacher effectiveness, due to its qualitative nature, cannot be as readily subjected to such direct quantification.284 To demonstrate the difficulty of proving the same degree of causation as the funding cases, it is helpful to hypothetically conceive of what the ideal data set would look like in the tenure context. For example, to show the quantitative effect of the dismissal provision, school administrators would need to keep a running tally of each time they would have fired a teacher for unsatisfactory performance but refrained from doing so due to the dismissal provision’s complexity and cost. Similarly, principals would need to document each time they laid off a more effective junior teacher due to the requirements of the LIFO provision. In petitioning the Supreme Court of California for review, the Vergara plaintiffs noted the need for a similar lens through which to view causation.285 Citing Supreme Court of California precedent, the Vergara plaintiffs argued that “a court may not overlook the probable impact of a law when analyzing its constitutionality.”286 Courts should take into account “the realities of the world in which those laws operate,” and recognize that, because of their proximity to the classroom, school principals and administrators represent the strongest source of evidence as to the effects of California’s teacher tenure laws.287 When, as in Vergara, the evidence presented shows that the effects of tenure laws impose systematic and appreciable harm upon students’ learning opportunities, courts should find requisite causation to establish a constitutional violation. 283. See id. at 1247–48 (stating that the source of funding disparities between school districts is “unmistakable” in justifying the invalidation of the property tax funding scheme). 284. See id. at 11 (concluding that “teacher quality cannot be readily linked to teacher characteristics”). 285. See Petition for Review at 19–21, Vergara v. State, No. B258589 (Cal. Sup. Ct. May 24, 2016) [hereinafter Petition for Review] (emphasizing the need to examine the statutes’ disparate impact “in light of the real-world conditions in which these statutes operate”). 286. Id. at 20 (quoting Parr v. Mun. Court, 479 P.2d 353, 356 (Cal. 1971)). 287. See infra notes 288–298 and accompanying text (reviewing the substantial evidence presented at trial from school administrators and principals). At trial, both the State and the Vergara plaintiffs produced school administrators who testified as to the tenure provisions’ systematic and harmful effects on students throughout California.288 With regards to the permanence statute, various California administrators, as well as former LAUSD Superintendent John Deasy, all testified that the 16-month probationary period before awarding tenure was far too brief.289 The State’s witness, Dr. David Berliner, similarly testified that a three to five year probationary period would be preferable.290 The evidence produced at trial regarding the effects of the dismissal statutes was even more startling. Plaintiffs produced testimony from the former chief human resources officer for LAUSD, who testified that she was not aware of any performancebased dismissal proceeding that finished in less than two years.291 Multiple school principals stated that the costs of initiating dismissal proceedings ranged from $50,000–$450,000.292 Witnesses from both sides agreed that the net result of the time and cost of dismissing a teacher is such that administrators rarely elect to initiate dismissal proceedings.293 The statistics bear this assertion out. Between 2003 and 2013, only twenty-two teachers in the entire state of California were dismissed for unsatisfactory performance.294 This represents “only 0.0008% of the nearly 300,000 teachers” working across the state.295 As to the LIFO provision, plaintiffs presented significant evidence regarding the 288. See Respondents’ Brief, supra note 133, at 35 (describing testimony of State witnesses who agreed that the complexity of the dismissal provision causes administrators to view the chances of dismissing a tenured teacher as “impossible”). 289. See id. at 26 (finding that this time period was too short of a time period to properly evaluate a teacher’s skill). 290. See id. at 27 (acknowledging that this lengthened probationary period would benefit both students and teachers). 291. See id. at 31–32 (noting further that the State did not produce evidence of one single “CPC hearing that took less than 2 years”). 292. See id. (noting that the State did not produce evidence of even one CPC dismissal case that had a cost outside of this range). 293. See id. (quoting plaintiffs’ witness Ms. Larissa Adam, a principal from Oakland Unified School District, who testified that “[she] viewed [dismissal] as not a realistic option”). 294. See id. at 3 (explaining that this means “only 2.2 teachers are dismissed on average, each year, for unsatisfactory performance”). 295. Id. harms of a seniority-based layoff system.296 Plaintiffs cited a study conducted by Dr. Goldhaber, which analyzed thousands of teacher layoff notices from LIFO districts.297 At trial, Dr. Goldhaber concluded from his study that only 16% of teachers who were laid off due to seniority would have been laid off had teacher effectiveness been the main criteria.298 Causation is often viewed solely as a question of creation—do the tenure provisions create ineffective teachers?299 Courts reviewing causation in tenure challenges should instead “consider the circumstances in the light of existing conditions.”300 California’s tenure laws effectuate blind retention—no matter what force prompted a teacher to be ineffective, all grossly ineffective teachers share in the ironclad job protections that tenure provisions afford.301 California’s tenure provisions cause ineffective teaching because they do not provide administrators with the flexibility to dismiss grossly ineffective teachers.302 Absent the argument that no grossly ineffective teachers exist in California, the tenure provisions necessarily retain the employment of teachers who impair California students’ educational opportunities.303 296. See id. at 39–40 (presenting testimony from Dr. Chetty, who claimed that “48 percent of LAUSD teachers who are laid off under a seniority-based layoff system are actually more effective than the average LAUSD teacher”). 297. See id. at 39 (referencing Dr. Goldhaber’s study as proof that the harms caused by the LIFO statute are “significant and measurable”). 298. See id. at 39 (arguing that this estimate means that “84 percent of teachers laid off under a seniority-based system are more effective than all the teachers who would be laid off under an effectiveness-based layoff system”). 299. See Black, supra note 278, at 119 (listing potential causes of inadequate teaching as “poor leadership at the local level, poor professional development, overcrowded classrooms, or insufficient funds”). 300. In re Smith, 143 Cal. 368, 372 (1904). 301. See TEACHER EFFECTIVENESS TASK FORCE, FINAL REPORT 11 (2010), http://relwestarchive.wested.org/system/event_attachments/93/attachments/original/Teacher_ Effectiveness_Task_Force_Report__vfinal__0.pdf [hereinafter TASK FORCE REPORT] (observing that many view tenure as an “ironclad guarantee” and that “the framework for teacher tenure decisions should be about growth . . . not about protection from . . . dismissal”). See id. (noting that fewer than 1% of tenured teachers get fired). 303. See supra note 213 and accompanying text (discussing testimony from a State’s witness that anywhere from 1–3% of California teachers are “grossly ineffective”). The nature of plaintiffs’ evidence at trial should also not be characterized as anecdotal.304 Much of the public rebuke to California’s tenure laws does come in the form of cautionary tales of specific teachers who egregiously personify the harms of rigid tenure.305 At trial, however, most evidence presented came from school administrators who cope with the constraints of the tenure provisions on a yearly basis.306 School administrators conduct evaluations and review the test score results of their teacher employees.307 Because of the qualitative nature of teacher effectiveness, and because administrators are most qualified to present findings on the actual effects of the tenure provisions, courts reviewing tenure challenges similar to Vergara should treat this evidence as sufficient to show a “real and appreciable impact” on students’ right to education. B. Equality or Adequacy: Which Legal Theory? Due to the weaknesses inherent in equality challenges to teacher tenure, adequacy theory represents the strongest formulation for a tenure challenge. Exposing some of these weaknesses, the California Court of Appeal overturned the trial court in Vergara, finding that for equal protection purposes, students assigned to grossly ineffective teachers were not a sufficiently identifiable class.308 In their petition to the Supreme Court of California, plaintiffs argued that the appellate court erred by conflating the requirements for equal protection and substantive due process arguments.309 Regardless of which 304. See Black, supra note 278, at 130 (noting the “reports and anecdotal stories” that simply assert a causal connection between the tenure laws and ineffective teaching). 305. See, e.g., Barrett, supra note 157 (using stories of particular teachers to demonstrate the harmful effects of California’s tenure provisions). 306. See supra notes 288–298 and accompanying text (describing the evidence that various school district administrators presented at trial). 307. See TASK FORCE REPORT, supra note 301, at 9 (explaining that in LAUSD, principals conduct “STULL” evaluations which are based on the California Standards for the Teaching Profession). 308. See Vergara v. State, 202 Cal. Rptr. 3d 262, 283–84 (Cal. Ct. App. 2016) (noting that plaintiffs’ failure to satisfy this threshold requirement precluded the court from reaching fundamental rights analysis). 309. See Petition for Review, supra note 285, at 5 (“The Court of Appeal’s standard is correct under California law, an adequacy challenge to tenure would avoid such interpretive difficulties.310 An adequacy challenge requires no classification of education as a fundamental right. An adequacy challenge also does not require plaintiffs to allege that the tenure provisions impermissibly discriminate against a suspect class. Adequacy arguments are conceptually simpler for courts to interpret—an adequacy challenge only asks courts to interpret the education clause found in the state constitution.311 Because it is well within the confines of the judiciary’s authority to interpret and give meaning to state constitutions, state courts are more willing to assume an activist role while reviewing adequacy challenges.312 The Washington Supreme Court’s recent decision in McCleary v. State313 demonstrates the lengths to which a state court may be willing to go when asked to give meaning to a state education clause. Plaintiffs in McCleary brought an adequacy funding challenge, asserting that the quality of Washington schools was insufficient in light of the state’s “affirmative paramount duty” to provide for education.314 The court in McCleary classified education as a positive right; unlike traditional negative rights that restrain government action, positive rights obligate the government to provide some level of services.315 Because of the state’s affirmative constitutional obligation to provide for education, the court determined that traditional deference to the holding conflates fundamental rights claims with suspect-classification claims.”). 310. See McUsic, supra note 77, at 312–15 (discussing the difficulties plaintiffs face when bringing equal protection claims). 311. See Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1025 (Colo. 1982) (“Thus, whether a better financing system could be devised is not material to this decision, as our sole function is to rule on the constitutionality of our state’s system.”). 312. See, e.g., Gannon v. State, 319 P.3d 1196, 1220 (Kan. 2014) (“Like the Texas Supreme Court’s relationship to its state constitution, the Kansas Supreme Court is the final authority to determine adherence to the Kansas Constitution.”). 313. 269 P.3d 227 (Wash. 2012). 314. Id. at 247. 315. See id. at 248 (observing that the “distinction between positive and negative constitutional rights is important because it informs the proper orientation for determining whether the State has complied” with its duty to provide education). legislature was the “wrong lens” through which to review the funding system’s constitutionality.316 Instead of reviewing the funding system with a presumption of constitutionality, the court in McCleary based constitutionality on “whether the funding system has met, or is reasonably likely to meet, its constitutionally prescribed goals.”317 The Washington Supreme Court found the current funding scheme was insufficient given the state’s obligation to amply provide for the education of all children.318 Dissatisfied with over thirty years of perceived legislative stagnation, the court decided to retain jurisdiction over the case to monitor legislative compliance.319 Finding that the legislature had not remedied the constitutional violation, the court recently issued financial sanctions of $100,000 per day until the funding system reaches compliance.320 The McCleary decision is the extreme example of judicial activism in the adequacy context—by rejecting traditional deference to the legislature and by fashioning a more activist standard of review, the Washington Supreme Court likely overstepped its judicial authority under separation of powers principles.321 Whether the level of activism as seen in McCleary is constitutional is beyond the scope of this Note. In the context of challenges to teacher tenure, the greater point is that courts will be more willing to wade into the political thicket when asked to give substantive meaning to education clauses.322 Even state courts that defer to the legislature’s decisions in education policy-making and funding will often find that the 316. Id. 317. See id. (referring to this level of inquiry as a “delicate exercise in constitutional interpretation”). 318. Id. at 253. 319. See id. at 259 (“What we have learned from experience is that this court cannot stand on the sidelines and hope the State meets its constitutional mandate to amply fund education.”). 320. See Order of Aug. 13, 2015 at 9, McCleary v. State, 269 P.3d 227 (Wash. 2012) (No. 84362-7) (“Effective immediately, the State of Washington is assessed a remedial penalty of $100,000 per day until it adopts a complete plan for complying with article IX, section 1.”). 321. See Island Cty. v. State, 955 P.2d 377, 380 (Wash. 1998) (noting that Washington state courts deferentially review statutes out of respect for separation of powers principles). 322. See supra notes 313–321 (discussing McCleary v. State). education clause provides some minimum quality of educational opportunity.323 The key to an adequacy challenge to teacher tenure will be connecting tenure provisions with constitutionally inadequate educational opportunities.324 Demonstrating such a link brings up a common definitional problem in adequacy challenges. For as long as plaintiffs have brought adequacy challenges to education policy, state courts have struggled with defining what exactly constitutes a constitutionally adequate education.325 Considerable debate exists as to what inputs best produce superior educational opportunities—the bulk of education reform litigation in the past fifty years has centered on funding, while tenure challenges like Vergara base their claims on teacher effectiveness.326 Funding challenges have struggled with identifying a constitutionally adequate level of funding: How much funding do schools need to give students adequate educational opportunities?327 Adequacy challenges to tenure could similarly suffer in attempting to answer critics who ask: What percentage of teachers within a district must be “effective” to fend off a constitutional violation? Yet, here is where tenure suits like Vergara would have a distinct advantage in the adequacy context. Whereas plaintiffs and school districts vigorously dispute the correlative relationship 323. See, e.g., Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d 206, 227 (Conn. 2010) (holding that the fundamental right to education under Connecticut’s education clause “encompasses a minimum qualitative standard that guarantees students the right to suitable educational opportunities” (internal quotation marks omitted)). 324. See, e.g., Davis v. State, 804 N.W.2d 618, 638–39 (S.D. 2011) (rejecting plaintiff’s funding adequacy claim because, “even assuming the deficiencies, the weakest link in plaintiff’s constitutional challenge is tying the funding to the results”). 325. See, e.g., Lobato v. State, 304 P.3d 1132, 1139 (Colo. 2013) (defining a constitutionally adequate education by using Webster’s dictionary to interpret a “thorough and uniform education” as one marked by “completeness, is comprehensive, and is consistent across the state”). 326. See supra Part IV (discussing the legal arguments of the Vergara lawsuit). 327. See Morath v. Texas Taxpayer & Student Fairness Coal., No. 14–0776, 2016 WL 2853868, at *17 (Tex. Sup. Ct. May 13, 2016) (finding that to achieve the constitutional threshold of an adequate education, “a court must not only find that a cost-quality relationship exists, but also must assign specific quantitative measures to that relationship”). between more funding and superior educational outcomes, both sides agree that effective teachers are essential to students’ educational growth.328 There are not many in the education world who would dispute that good teachers are essential to opening educational opportunities for their students. In contrast, the main criticism of funding claims is that more funding does not necessarily lead to better educational opportunities.329 Plaintiffs bringing tenure challenges should formulate them as adequacy challenges, and they should further tether teacher effectiveness to the promise of educational opportunity contained in each state’s education clause. Good teachers create educational opportunities, while grossly ineffective teachers foreclose them.330 In California, tenure laws give a teacher permanent employment before adequate time has passed to diagnose that teacher’s skill level.331 When administrators find that a teacher is grossly ineffective, the tenure laws make dismissal of that teacher an unrealistic option.332 The net result is that many California students receive a quality of education that does not carry with it the educational opportunities envisioned by the California constitution’s education clause. If plaintiffs can convince courts that this harm is systematic and substantial across the entire state, then plaintiffs will have set forth a colorable adequacy challenge to teacher tenure laws. Refashioning the complaint in Vergara highlights the advantages that adequacy theory has in the tenure context. Using precedent emphasizing the “indispensable role” of education in California, plaintiffs could have argued that California’s education 328. See Vergara v. State, No. BC484642, 2014 WL 6478415, at *3 (Cal. Super. Ct. Aug. 27, 2014) (citing the State defendants’ exhibit 1005 that declared “a growing body of research confirms that the quality of teaching is what matters most for students’ development and learning in schools”). 329. See Eric A. Hanushek, The Economics of Schooling: Production and Efficiency in Public Schools, 24 J. ECON. LIT. 1141, 1167 (1986) (concluding that the schools are run in an economically inefficient manner, and that “increased expenditures by themselves offer no overall promise for improving education”). 330. See supra note 17 (describing several studies that have found teacher effectiveness to be the most important factor behind generating better student outcomes). 331. See supra Part III.A (detailing the California permanence provisions). 332. See supra Part III.B (discussing how the dismissal statutes significantly impair school administrators’ ability to dismiss grossly ineffective teachers). clause imposes a heightened definition of a constitutionally adequate education.333 Plaintiffs’ evidentiary strategy would still be the same—first quantifying the impact of a grossly ineffective teacher and then demonstrating how tenure statutes permanently employ these teachers would illustrate to a reviewing court the inadequacy of the current tenure system.334 Because this argument singularly targets the language of the education clause, a reviewing court could focus on the existing inadequacies caused by the current tenure system, as opposed to being distracted by the numerous threshold requirements and spillover consequences of finding an equal protection violation. VI. Conclusion The growing consensus regarding the importance of teacher effectiveness to a students’ educational growth has made legal challenges to teacher tenure more viable than ever. Plaintiffs in other states who decide to challenge tenure laws will face the strong inclination to adopt Vergara’s dual equal protection theories.335 Adequacy theory, however, holds greater promise for plaintiffs seeking tenure reform. Plaintiffs can focus on the gross inadequacy of teachers within their school district to contend that their educational quality does not meet the adequacy standard set forth in the education clause. Despite Vergara’s ultimate failure within the California court system, the trial court’s ruling in Vergara has signaled that courts may be willing to give state education clauses greater teeth.336 Adequacy theory will allow plaintiffs the greatest opportunity to test this hypothesis by 333. Serrano v. Priest (Serrano I), 487 P.2d 1241, 1255 (Cal. 1971). 334. See Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 198 (recognizing the testimony given by numerous educational experts at trial as to the effects funding disparities have on students’ educational opportunities). 335. See Black, supra note 278, at 123–24 (discussing the factual allegations of the New York plaintiffs). 336. See Valerie Strauss, A Silver Lining in the Vergara Decision?, WASH. POST (June 11, 2014), https://www.washingtonpost.com/news/answersheet/wp/2014/06/11/a-silver-lining-in-the-vergara-decision/ (last visited Sept. 30, 2016) (explaining that the Vergara decision could cast California courts as “a guarantor of educational equality”) (on file with the Washington and Lee Law Review). prompting plaintiffs to argue for a heightened standard of educational quality. Growing roses in concrete is a difficult feat. The issue that Vergara and decades worth of school-funding litigation have sought to address is identifying the force that can create cracks in the concrete wide enough to permit roses to grow. One of the more intractable problems in addressing educational inequality is that there exist so many differing explanations as to why certain students lag behind.337 Vergara is groundbreaking because it seizes on teacher effectiveness as the variable with the greatest potential effect on a child’s educational growth. The challenge to teacher tenure in Vergara is a valuable start—reducing barriers to eliminating the most harmful subset of ineffective teachers can only help student achievement. Down the line, however, education reformers must place greater emphasis on teacher evaluation. If teacher effectiveness truly is the most significant factor affecting student achievement, why are most LAUSD teachers observed by their superiors only once a year?338 Increasing the probationary period before awarding tenure is logical, but only if teachers are more frequently observed and evaluated during that time period. Since No Child Left Behind,339 school administrators consistently fall into the trap of equating teacher effectiveness with students’ standardized test scores.340 While scores are certainly relevant, employment decisions driven by scores as the sole criterion ignore the fact that effective teaching encompasses many other intangible traits. An effective teacher has high levels of student engagement in class and is able to create a classroom culture that is conducive to every 337. See Identifying Factors that Contribute to Achievement Gaps, NAT’L EDUC. ASS’N, http://www.nea.org/home/17413.htm (last visited Sept. 30, 2016) (dividing a list of several causes of the American achievement gap by those factors that are within schools’ control and those that are outside schools’ control) (on file with the Washington and Lee Law Review). 338. See TASK FORCE REPORT, supra note 301, at 9 (“Teachers are evaluated the first year they become permanent, and at least every other year thereafter.”). 339. The No Child Left Behind Act of 2001, 20 U.S.C. § 6301 (2002). 340. See Eric A. Hanushek & Steven G. Rivkin, The Quality and Distribution of Teachers Under the No Child Left Behind Act, 24 J. ECON. PERSP. 133, 134 (2010) (noting that under No Child Left Behind, schools hoping to remain in “good standing” must meet benchmarks based on students’ standardized test pass rates). IV. The Legal Arguments of Vergara ..................................1630 A. Education as a Fundamental Right ........................1632 B. The Disparate Impact of the Tenure Provisions .....1635 1. Evidence of Discriminatory Effect.....................1635 2. Legal Theory of Disparate Impact.....................1638 V. Framing the Ideal Legal Challenge to Teacher Tenure ............................................................................1641 A. Demonstrating Causation ....................................... 1642 B. Equality or Adequacy: Which Legal Theory?.......... 1647 1. See TUPAC SHAKUR, THE ROSE THAT GREW FROM CONCRETE 3 ( 2009 ) (reciting the difficulties that minority children face). 2 . See Overview and Mission Statement , U.S. DEP'T EDUC ., http://www2.ed.gov/about/landing. jhtml (last visited Sept . 30 , 2016 ) (stating that ensuring equal access”) (on file with the Washington and Lee Law Review). 3 . See Jeff M.R. Duncan-Andrade, Note to Educators: Hope Required When Growing Roses in Concrete, 79 HARV. EDUC. REV . 181 , 181 - 94 ( 2009 ) (noting the difficulty of growing young people in “concrete”). 4. See id. (explaining that “the quality of our teaching, along with the that allow students to grow). 5 . See Catherine E. Lhamon, “Dear Colleague” Letter, U.S. DEP'T EDUC . OFF. OF C.R . 3- 4 ( Oct . 1 , 2014 ), http://www2.ed.gov/about/offices/list/ocr/letters/ colleague-resourcecomp-201410.pdf (describing on average the many differences 8. See Kevin Brown, The Supreme Court's Role in the Growing School Choice Movement , 67 OHIO ST. L .J. 37 , 41 ( 2006 ) (noting that black and Latino students predominantly attend “minority, low-income, urban schools”). 9 . See U.S. DEP'T OF EDUC ., NCES 2015-018 , SCHOOL COMPOSITION AND THE BLACK-WHITE ACHIEVEMENT GAP 3 ( 2015 ), https://nces.ed.gov/nationsreportcard/ subject/studies/pdf/school_composition_and_the_bw_achievement_gap_2015 .pdf (NAEP) Grade 8 mathematics test, in which black students scored , on average, thirty-one points lower than white students did). 10. See THE COLLEGE BD., SAT PERCENTILE RANKS FOR 2013 COLLEGE-BOUND SENIORS 1 ( 2013 ), http://media.collegeboard.com/digitalServices/pdf /research/SAT- Percentile-Ranks-By-Gender- Ethnicity- 2013 . pdf (finding that, among SAT test -takers in 2013, the mean cumulative score of an African- American student was 1278, compared to the mean score of 1576 for a white student) . 11 . See Gary Orfield et al., Losing Our Future: How Minority Youths Are https://civilrightsproject.ucla.edu/research/k-12-education/school- graduation-rate-crisis/orfield-losing-our-future-2004.pdf (last visited Sept . 30 , 2016 ) (presenting national high school graduation rates from 2001 that list the graduation rates for Blacks and Hispanics at 50.2% and 53 .2%, respectively, compared to 74 . 9% for White) (on file with the Washington and Lee Law Review) . 12 . See John Dayton & Anne Dupre , School Funding Litigation: Who's 14 . See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 , 12 - 13 ( 1973 ) factoring in those districts' racial makeup) . 15 . See , e.g., Serrano v . Priest (Serrano I) , 487 P.2d 1241 , 1244 (Cal. 1971 ) a-third-wave-of-education-reform/ 2014 /08/14/4abe128a-1f28 - 114 - ae54-cfe1f974f8 a_story.html?utm_term= . a5ec72e842b7 (last visited Sept . 30 , 2016 ) (discussing Review) . 32 . See id. (proclaiming that Vergara “makes it acutely clear that placing education system”) . 33 . See Vergara v. State , 202 Cal. Rptr. 3d . 262 ( Cal. Ct . App. 2016 ). 34 . Id. at 284- 85 . 35 . See id. at 284 (noting that to claim an equal protection violation , “group violation of a fundamental right) . 36 . See Emma Brown, California Supreme Court Decision Leaves State's Teacher Tenure Law in Place, WASH . POST (Aug. 22 , 2016 ), https://www.washingtonpost.com/news/education/wp/2016/08/22/california-supreme- court-decision-leaves-states-teacher-tenure-law-in-place/ (last visited Sept . 30 , 2016 ) (describing the decision to deny review) (on file with the Washington and Lee Law Review) . 98 . See , e.g., Serrano v . Priest (Serrano I) , 487 P.2d 1241 , 1265 (Cal. 1971 ) Cahill , 303 A.2d 273 , 298 (N.J . 1973 ) (same ). 99 . See , e.g., Bd. of Educ . v. Nyquist, 439 N.E.2d 359 , 366 - 67 (N.Y. 1982 ) interest); Bd. of Educ. v. Walter, 390 N.E.2d 813 , 824 (Ohio 1979 ) (same ). 100 . See ALAN VANNEMAN ET AL., U.S. DEP'T OF EDUC ., NCES 2009 - 455 , EDUCATIONAL PROGRESS 21 fig. 11 ( 2009 ) (giving each state's black-white

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Peter M. Szeremeta. Squeezing Public Schools’ Lemons: Theorizing an Adequacy Challenge to Teacher Tenure, Washington and Lee Law Review, 2016,