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
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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
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.
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
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
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
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)
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
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
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
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).
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).
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
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
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
53. See id. (limiting the importance of comparing financial resources on a
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”).
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
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
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
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
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).
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
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).
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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).
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
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
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
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
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
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.”
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
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
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
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: (
) low-income, high-minority
schools more commonly experience teacher turnover;243 and (
need created by these vacancies guarantees other lemons a place
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
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
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
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
251. See id. (observing that cases where such a pattern can be shown are
252. See supra note 245 and accompanying text (citing plaintiffs’ argument
that disparate impact does not require a showing of discriminatory purpose in
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
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
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
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
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
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
268. See supra Part II.B–C (describing plaintiffs’ successes under state
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 (
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
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
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
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
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
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
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”).
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’
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),
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
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
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
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
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
317. See id. (referring to this level of inquiry as a “delicate exercise in
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
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
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
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
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
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.
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
prompting plaintiffs to argue for a heightened standard of
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
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/
(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
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 ),
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