Case No. B258589

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION TWO

BEATRIZ VERGARA, et al. Plaintiffs-Respondents,

v.

STATE OF CALIFORNIA, et al. Defendants-Appellants,

and

CALIFORNIA TEACHERS ASSOCIATION and CALIFORNIA FEDERATION OF TEACHERS,

Intervenors-Appellants.

Appeal from Final Judgment of the Superior Court of California, County of Los Angeles, Case No. BC484642

Hon. Rolf M. Treu, Dept. 58 (T: (213) 974-5689)

REPLY BRIEF OF INTERVENORS-APPELLANTS CALIFORNIA TEACHERS ASSOCIATION AND

CALIFORNIA FEDERATION OF TEACHERS

GLENN ROTHNER (SBN 67353) Rothner Segall & Greenstone 510 South Marengo Avenue Pasadena, CA 91101 Telephone: (626) 796-7555 Facsimile: (626) 577-0124 grothner@rsglabor.com

*MICHAEL RUBIN (SBN 80618) STACEY M. LEYTON (203827) EILEEN B. GOLDSMITH (218029) P. CASEY PITTS (262463) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 mrubin@altber.com sleyton@altber.com egoldsmith@altber.com cpitts@altber.com

Attorneys for Intervenors-Appellants California Teachers Association and California Federation of Teachers

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TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................ iii INTRODUCTION ......................................................................................... 1 STANDARD OF REVIEW ........................................................................... 4 ARGUMENT ................................................................................................ 7

I. The Challenged Statutes Are Facially Constitutional .......................... 7

II. The Challenged Statutes Do Not Violate Equal Protection Because They Do Not Require Differential Treatment of Identifiable Groups ............................................................................ 12

III. Strict Scrutiny Does Not Apply ......................................................... 16

A. The Trial Court’s Fundamental Rights Equal Protection

Analysis Is Fatally Flawed ....................................................... 16

1. The Impact of the Challenged Statutes on Fundamental Rights Is Indirect and Attenuated .............. 17

a. The appropriate level of scrutiny is a legal

question ................................................................. 17

b. Independent, intervening causal factors render any impact on a fundamental right too attenuated to support strict scrutiny ...................... 18

c. The impact of the challenged statutes is too

attenuated to support strict scrutiny ...................... 21

d. Plaintiffs’ causation theory is fundamentally flawed ................................................................... 29

2. The Challenged Statutes’ Net Effects Must Be

Considered ....................................................................... 31

3. Plaintiffs’ Theories Lack Limiting Principles ................. 33

ii

B. The Trial Court Erred in Applying Strict Scrutiny Under a “Suspect Class” Theory ........................................................... 35

1. The Record Lacks Necessary Evidence of Discriminatory Intent ....................................................... 35

2. There Is No Evidence of Disparate Impact ..................... 37

IV. AB 215 Moots Plaintiffs’ Challenge .................................................. 42

V. Plaintiffs Have No Standing .............................................................. 45

VI. Plaintiffs’ As-Applied Challenges Must Be Rejected ....................... 47

CONCLUSION ........................................................................................... 48 CERTIFICATE OF WORD COUNT ......................................................... 49 PROOF OF SERVICE ................................................................................ 50

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Ayotte v. Planned Parenthood of Northern New England (2006) 546 U.S. 320 ................................................................... 16, 29, 30

Bullock v. Carter (1972) 405 U.S. 134 ................................................................... 11, 14, 15

Citizens United v. Fed. Election Comm’n (2010) 558 U.S. 310 ............................................................................... 10

City of Los Angeles v. Lyons (1983) 461 U.S. 95 ........................................................................... 46, 47

Clapper v. Amnesty Int’l USA (2013) 133 S.Ct. 1138 ............................................................................ 47

Griffin v. Illinois (1956) 351 U.S. 12 ................................................................................. 14

Harper v. Va. Bd. of Elections (1966) 383 U.S. 663 ................................................................... 13, 14, 15

Isaacson v. Horne (9th Cir. 2013) 716 F.3d 1213 ............................................................... 11

Kramer v. Union Free Sch. Dist. No. 15 (1969) 395 U.S. 621 ............................................................................... 13

Lanier v. City of Woodburn (9th Cir. 2008) 518 F.3d 1147 ............................................................... 16

Lawrence v. Texas (2003) 539 U.S. 558 ............................................................................... 14

Loving v. Virginia (1967) 388 U.S. 1 ................................................................................... 14

Sullivan v. Louisiana (1993) 508 U.S. 275 ............................................................................... 11

iv

Texas Dept. of Housing & Comm. Affairs v. Inclusive Communities Project, Inc. (2015) 135 S.Ct. 2507 ..................................................................... passim

Vacco v. Quill (1997) 521 U.S. 793 ............................................................................... 12

Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 ...................................................................... 40, 41

California Cases

Alviso v. Sonoma County Sheriff’s Dept. (2010) 186 Cal.App.4th 198 .................................................................... 9

Am. Civil Rights Found. v. Berkeley USD (2009) 172 Cal.App.4th 207 .................................................................... 7

American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 .............................................................. 8, 9, 10, 38

Arcadia USD v. State Dept. of Educ. (1992) 2 Cal.4th 251 ................................................................................ 8

Associated Home Builders v. City of Livermore (1976) 18 Cal.3d 582 ............................................................................. 18

Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83 ..................................................................... 46

Butt v. California (1992) 4 Cal.4th 668 ....................................................................... passim

Cal. Redevelopment Ass’n v. Matosantos (2011) 53 Cal.4th 231 ............................................................................ 38

Cal. Teachers Ass’n v. State (1999) 20 Cal.4th 327 ........................................................................ 9, 10

Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313 ................................................................ 38

Choudhry v. Free (1976) 17 Cal.3d 660 ............................................................................. 20

v

Citizens for Parental Rights v. San Mateo County Bd. of Educ. (1975) 51 Cal.App.3d 1 ......................................................................... 13

City & Cty. of San Francisco v. Garnett (1999) 70 Cal.App.4th 845 .................................................................... 18

Cooley v. Super. Ct. (2002) 29 Cal.4th 228 ............................................................................ 12

County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798 .................................................................. 46

Crawford v. Bd. of Educ. (1976) 17 Cal.3d 280 ............................................................................. 37

Daniels v. McMahon (1992) 4 Cal.App.4th 48 .................................................................. 14, 18

DiBona v. Matthews (1990) 220 Cal.App.3d 1329 ................................................................. 47

DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236 .................................................................... 7

Enrique M. v. Angelina V. (2009) 174 Cal.App.4th 1148 ................................................................ 17

FPPC v. Superior Court (1979) 25 Cal.3d 33 ............................................................................... 20

Fullerton Joint Union High Sch. Dist. v. State Bd. of Educ. (1982) 32 Cal.3d 779 ............................................................................. 20

Gould v. Grubb (1975) 14 Cal.3d 661 ...................................................................... passim

Hardy v. Stumpf (1978) 21 Cal.3d 1 ........................................................................... 36, 37

Hawn v. County of Ventura (1977) 73 Cal.App.3d 1009 ................................................................... 20

Herbst v. Swan (2002) 102 Cal.App.4th 813 .................................................................. 16

vi

Hill v. NCAA (1994) 7 Cal.4th 1 .................................................................................... 6

Johnson v. Dept. of Justice (2015) 60 Cal.4th 871 ............................................................................ 37

King v. McMahon (1986) 186 Cal.App.3d 648 ................................................................... 18

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848 .................................................................... 16

In re Marriage Cases (2008) 43 Cal.4th 757 ................................................................ 11, 14, 15

In re Marriage of Hardin (1995) 38 Cal.App.4th 448 .................................................................... 12

Moreno v. Draper (1999) 70 Cal.App.4th 886 .................................................................... 14

People v. Super. Ct. (1999) 75 Cal.App.4th 394 .................................................................... 36

Peter W. v. San Francisco USD (1976) 60 Cal.App.3d 814 ..................................................................... 33

Planning & Conservation League, Inc. v. Lungren (1995) 38 Cal.App.4th 497 .................................................................... 20

Rubin v. Padilla (2015) 233 Cal.App.4th 1128 ................................................................ 13

Sanchez v. California (2009) 179 Cal.App.4th 467 .................................................................. 36

Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660 .............................................................. 9, 36

In re Santos Y. (2001) 92 Cal.App.4th 1274 .................................................................. 16

Serrano v. Priest (1971) 5 Cal.3d 584 ........................................................................ passim

vii

Serrano v. Priest (1976) 18 Cal.3d 728 ...................................................................... passim

Serrano v. Priest (1977) 20 Cal.3d 25 ................................................................................. 9

Sneed v. Saenz (2004) 120 Cal.App.4th 1220 .......................................................... 17, 18

Somers v. Super. Ct. (2009) 172 Cal.App.4th 1407 .......................................................... 11, 14

In re Taylor (2015) 60 Cal.4th 1019 .......................................................................... 30

Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 .............................................................. 7, 9, 11, 12

Today’s Fresh Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th 197 .............................................................................. 9

U.D. Registry, Inc. v. State of Cal. (2006) 144 Cal.App.4th 405 .................................................................. 16

Valtz v. Penta Inv. Corp. (1983) 139 Cal.App.3d 803 ................................................................... 13

Wilson v. State Bd. of Educ. (1999) 75 Cal.App.4th 1125 .................................................................. 34

Wise v. DLA Piper LLP (2013) 220 Cal.App.4th 1180 ................................................................ 40

California Statues and Regulations

Code of Civil Procedure § 632 ..................................................................................................... 5, 6 § 634 ......................................................................................................... 5

Education Code § 35056 ................................................................................................... 40 § 44929.21 ....................................................................................... passim § 44934 ............................................................................................ passim § 44936 ................................................................................................... 44

viii

§ 44938 ............................................................................................ passim § 44939 ................................................................................................... 44 § 44944 ............................................................................................ passim § 44944.05 .............................................................................................. 43 § 44955 ............................................................................................ passim

Other Authorities

AB 215, Stats. 2015, Ch. 55 ...................................................... 42, 43, 44, 45

Levin et al., Unintended Consequences ...................................................... 39

Motoko Rich, “Teacher Shortages Spur a Nationwide Hiring Scramble (Credentials Optional),” New York Times, Aug. 9, 2015, A1 .................. 4

Stephen Sawchuk, “Steep Drops Seen in Teacher-Prep Enrollment Numbers,” Education Week, Oct. 22, 2014 ............................................. 4

Eric Westervelt, “Teacher Shortage? Or Teacher Pipeline Problem?,” Morning Edition, Aug. 19, 2015 .............................................................. 4

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INTRODUCTION

The California Legislature enacted the five statutes challenged in

this lawsuit to enable local school districts to attract and retain the best

possible teachers for the State’s schoolchildren. The trial court obviously

disagreed with the manner in which the Legislature sought to accomplish

those goals. Yet a court cannot invalidate a statutory scheme as facially

unconstitutional merely because it disagrees with how the Legislature chose

to balance competing policy concerns; and nothing in the trial court’s 16-

page ruling or Plaintiffs’ 118-page defense of that ruling provides a legally

supportable basis for the trial court’s unprecedented injunction.

None of the critical elements required to establish an equal

protection violation under California law are present here. As State

Defendants and Intervenors have shown, none of the statutes violate equal

protection, because none require the differential treatment of any defined

groups of students, directly impact students’ fundamental rights, or were

enacted for a discriminatory purpose. The trial court also had no basis for

holding the statutes facially unconstitutional (that is, as applied in all

circumstances) because most teachers are anything but “grossly ineffective”

– whatever that pejorative but undefined term might mean – and because

many districts successfully exercise their discretion under the statutes

without assigning students to such teachers. Moreover, because none of the

statutes directly affect students’ assignments to particular teachers,

Plaintiffs failed to establish that they (or any other students) face a

sufficiently concrete threat of harm to establish standing.

Plaintiffs try to paper over these fatal flaws by mischaracterizing this

appeal as a dispute over whether “substantial evidence” supports the trial

court’s ruling, and then mischaracterizing that evidence. Citing testimony

from a handful of experts and school administrators, as well as recent op-ed

pieces in the popular media, Plaintiffs contend that the challenged statutes

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make it “inevitable” that some California students will someday be

assigned to a “grossly ineffective” teacher, and that the negative

consequences of even a single such assignment deprive students of the

fundamental right to equal educational opportunity.

These assertions rest on half-truths and misrepresentations of the

record. For example, Plaintiffs repeatedly state that because of the

challenged statutes, “only 2.2 teachers are dismissed on average, each year,

for unsatisfactory performance,” Respondents’ Brief (“RB”) 3 (emphases

omitted), when the undisputed evidence shows that school districts subject

to the statutes successfully remove hundreds of California teachers from

employment for poor performance every year. See infra at 24-27.

Plaintiffs assert that the Legislature’s rationale for requiring consideration

of seniority in budgetary layoffs is “unfathomable,” yet Plaintiffs’ own

witnesses acknowledge that a seniority-based layoff system increases the

overall effectiveness of a school’s teachers while providing an objective

standard for painful layoff decisions. See infra at 27-28. Plaintiffs

complain that a two-year probationary period is too short to weed out every

teacher who might become “grossly ineffective,” but they cannot identify a

single “grossly ineffective” teacher who would have been denied permanent

status with a longer probationary period, and they ignore that extending the

probationary period would necessarily result in some under-performing

teachers remaining in the classroom for longer. See infra at 22-23. And

while they assert that the challenged statutes cause disproportionate harm to

poor and minority students, there is no evidence that the challenged statutes

cause disproportionate assignment of poor or minority students to “grossly

ineffective” teachers; such assignments, to the extent they even exist, would

be the result of discretionary school district decisions and individual teacher

preferences. See infra at 37-42.

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Plaintiffs’ legal arguments fare even worse. Like the trial court,

Plaintiffs interpret Serrano v. Priest (1971) 5 Cal.3d 584 (“Serrano I”),

Serrano v. Priest (1976) 18 Cal.3d 728 (“Serrano II”), and Butt v.

California (1992) 4 Cal.4th 668, as if the Supreme Court intended to

exempt challenges to educational policy decisions from otherwise settled

rules of constitutional adjudication. Yet properly read, Serrano and Butt

are fully consistent with the established constitutional principles relied

upon by State Defendants and Intervenors, as both involved as-applied

challenges to state actions that mandated differential treatment of defined

groups of students and deprived one group’s members of their fundamental

right to basic educational equality.

The trial court’s unprecedented approach to constitutional

adjudication, if accepted, would swamp the courts with litigation by

students (or parents) dissatisfied with various aspects of their educational

experience, from teacher assignments to textbook choices to class curricula.

Plaintiffs have not identified any judicially manageable standard for

determining when an individual student’s classroom experience becomes

constitutionally deficient (due to a teacher’s “grossly ineffective”

performance or otherwise), and their constitutional theories have no

limiting principles. Indeed, if Plaintiffs’ framework were accepted, no

statutory scheme regulating teachers’ employment could pass constitutional

muster. For no matter how much or how little discretion the Legislature

gives local school districts making individual personnel decisions, there

will always be some risk that some student will be assigned to a “grossly

ineffective” teacher, and a statistical certainty that a small percentage of

students will be assigned to teachers whose effectiveness (to the extent

effectiveness can be reliably quantified) falls below 95% of their peers.

Giving school districts unfettered discretion to fire teachers, or

changing the probationary period and the procedures governing dismissal

4

and layoffs (as the Legislature has repeatedly done), will not prevent the

employment of all low-performing teachers. Nor will the trial court’s

sweeping injunction prevent any of the claimed harms that purportedly

gave rise to this case, because it does not require any school district to

change its practices in granting teachers permanent status, dismissing

ineffective teachers, or making layoff decisions, much less assigning

students to particular teachers. Instead, the injunction is most likely to

exacerbate the current teacher shortage by making it more difficult for

districts to attract and retain high quality teachers in California’s schools,

with significant negative consequences for California students.1 There is no

legal or factual justification for that outcome.

STANDARD OF REVIEW

Plaintiffs acknowledge that the constitutionality of the challenged

statutes and related legal questions must be reviewed de novo. RB 62.

Nonetheless, they argue that this appeal rests on disputes over the weight of

the evidence and that substantial evidence review requires deference to the

trial court’s express and implied findings. RB 62-64. Plaintiffs are wrong

for three reasons.

First, each core issue presented by this appeal raises a question of

law, including:

* Whether statutes that in most circumstances are constitutional as

applied can be facially invalid;

1 See, e.g., Motoko Rich, “Teacher Shortages Spur a Nationwide

Hiring Scramble (Credentials Optional),” New York Times, Aug. 9, 2015, A1; Stephen Sawchuk, “Steep Drops Seen in Teacher-Prep Enrollment Numbers,” Education Week, Oct. 22, 2014, available at http://www.edweek.org/ew/articles/2014/10/22/09enroll.h34.html; Eric Westervelt, “Teacher Shortage? Or Teacher Pipeline Problem?,” Morning Edition, Aug. 19, 2015, available at http://www.npr.org/sections/ed/2015/ 08/19/432724094/teacher-shortage-or-teacher-pipeline-problem.

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* Whether statutes that neither classify nor mandate differential

treatment of ascertainable groups can violate equal protection;

* Whether strict scrutiny applies absent proof of intentional

discrimination or a statutory classification with a direct and

unattenuated impact upon fundamental rights;

* Whether Plaintiffs who cannot establish that a statute has been, or is

likely to be, applied to their detriment have standing.

If this Court accepts Intervenors’ and State Defendants’ position on any of

these legal issues, reversal is required.

Second, this Court may not draw factual inferences in support of the

ruling because the trial court failed to address any of the disputed factual

issues that Intervenors and State Defendants asked be addressed. See

Intervenors’ Brief (“IB”) 27-29.2 C.C.P. §634 provides that if a Statement

of Decision “does not resolve a controverted issue” and “the omission or

ambiguity was brought to the attention of the trial court … prior to entry of

judgment, … it shall not be inferred on appeal … that the trial court

decided in favor of the prevailing party as to those facts or on that issue.”

(Emphasis added). Plaintiffs’ brief makes no attempt to reconcile §634’s

clear language with Plaintiffs’ request that this Court infer numerous

factual findings in support of the ruling below. While Plaintiffs argue that

the Statement of Decision was legally sufficient under C.C.P. §632, see RB

64, the requirements of §632 addressed in Plaintiffs’ cases are entirely

distinct from those of §634. Compare C.C.P. §632 (statement must explain

“factual and legal basis” for decision as to “principal controverted issues”)

(emphasis added), with C.C.P. §634 (prohibiting inferred findings as to any

2 Through silence, Plaintiffs concede that the trial court erred in

ruling that appellants’ Requests for Statement of Decision were improper. See IB 28 n.23.

6

“controverted issue”). Even if the Statement of Decision were adequate

under §632 – which it is not – this Court could not draw factual inferences

to support the trial court’s ruling.3

This Court also should not defer to any findings “premised on an

erroneous view of the applicable legal standard.” Hill v. NCAA (1994) 7

Cal.4th 1, 47. Nearly all of the trial court’s factual statements were made in

determining whether the challenged statutes satisfied strict scrutiny, not

whether strict scrutiny applied. AA 7301-06. The only purported findings

pertaining to the latter question were those estimating the number of

“grossly ineffective” teachers in California and the consequences of

assigning students to such teachers. AA 7299-7300. Those “findings” say

nothing about causation, and thus cannot justify the court’s decision to

apply strict scrutiny. See IB 43-49; infra Section III. Accordingly, just as

the Supreme Court in Hill refused to defer to findings regarding the

“merits” and “efficacy” of the NCAA’s drug testing program (because they

were made under the incorrect assumption that the NCAA’s program had to

be justified by a “compelling state interest”), 7 Cal.4th at 13, 47, so should

this Court not defer to findings made under the erroneous belief that the

statutes are subject to strict scrutiny.4

Finally, Plaintiffs’ argument that Intervenors waived their right to

challenge the factual basis for the decision below is without merit.

3 The Statement of Decision was facially insufficient because it

omitted “ultimate facts” concerning the elements of a proper facial challenge to the dismissal statutes, the causal relationship between the challenged statutes and harm to Plaintiffs, and Plaintiffs’ “disparate impact” claims. See infra Sections I, III, V.

4 Hill referenced the “substantial evidence” standard only in explaining that Plaintiffs had failed to introduce any evidence as to one controverted issue, requiring dismissal rather than remand. See Hill, 7 Cal.4th at 47, 51; compare RB 64.

7

Intervenors’ brief repeatedly cited and discussed Plaintiffs’ evidence. IB 4,

9-10 & n.6, 16, 17 n.13, 18 n.15, 21, 53, 54 n.33, 62 n.35, 71, 72-74 & nn.

42-43, 76-77. Plaintiffs’ argument is also immaterial, because they do not

contend that the State Defendants waived any such challenge, and the

parties’ briefs – including Plaintiffs’ 59-page statement of the case –

provide a comprehensive evidentiary summary. See DiQuisto v. County of

Santa Clara (2010) 181 Cal.App.4th 236, 260.

ARGUMENT

I. The Challenged Statutes Are Facially Constitutional. The trial court invalidated all five challenged statutes on their face,

enjoining any future application. See IB 33. To be facially

unconstitutional, however, a statute must be in “total and fatal conflict with

applicable constitutional prohibitions” and there must be “no set of

circumstances … under which the law would be valid.” Tobe v. City of

Santa Ana (1995) 9 Cal.4th 1069, 1084; Am. Civil Rights Found. v.

Berkeley USD (2009) 172 Cal.App.4th 207, 216 (internal quotations and

substitutions omitted). That rigorous standard could only have been met if

Plaintiffs had proven that no school district has applied or could apply any

of the challenged statutes to any teacher without violating equal protection.

Plaintiffs did not come close.

The record is undisputed that the challenged statutes are regularly

applied by California school districts and to California teachers in a

constitutional manner, and that many school districts (including large

districts like Long Beach, Riverside, and San Juan) successfully identify

and remove ineffective teachers while fully complying with statutorily

required procedures. See, e.g., IB 34-36. The record is also undisputed that

the overwhelming majority of California’s approximately 270,000 teachers

are not “grossly ineffective” – no matter how that term is defined. AA 31

¶9, 7300. Consequently, the vast majority of students have never been

8

assigned to a “grossly ineffective” teacher and are not at significant risk of

such an assignment (let alone to a teacher who would have been denied

tenure, dismissed, or laid off absent the challenged statutes). Because the

challenged statutes are constitutional as applied to the hiring, retention, and

layoff of the approximately 270,000 California teachers whom the trial

court agrees are “effective,” see AA 7300, the statutes are not facially

unconstitutional. Arcadia USD v. State Dept. of Educ. (1992) 2 Cal.4th

251, 266 (facial challenge failed where “properly administered” statute did

not create violation).

Plaintiffs counter that the “inevitab[ility]” that “some California

students” – or by logical extension even a single student – will at some

point be assigned to a “grossly ineffective” teacher renders the statutes

facially unconstitutional. RB 70, 74 (emphasis in original). But it is

“inevitable” under any employment and retention scheme involving a

workforce of more than 270,000 individuals that some employees could at

some point be characterized as “grossly ineffective,” and Plaintiffs’

unprecedented approach obliterates the distinction between as-applied and

facial challenges.5

Plaintiffs rest their argument on a misreading of Serrano and

American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307.

Serrano involved an as-applied challenge to the State’s school financing

5 The trial court did not find “that the Challenged Statutes are

problematic statewide,” RB 74-75, nor make other findings that would support a facial challenge. The court stated only that “1-3%” of the “roughly 275,000 active teachers in this state” might be “grossly ineffective.” AA 7300. Contrary to Plaintiffs’ misstatement, RB 75, the court did not making any findings regarding the districts that successfully operate within the existing statutory scheme or their testifying administrators (even though such findings were requested, AA 7159 ¶¶95-96, 7160 ¶108, 7162 ¶¶125-32, 7255 ¶26, 7258-59 ¶¶32-34).

9

scheme brought by students seeking to eliminate systemic funding

discrepancies. Serrano I, 5 Cal.3d at 589-91; Serrano v. Priest (1977) 20

Cal.3d 25, 31 n.1. Rather than striking down any particular statute on its

face, the trial court and the Supreme Court simply held that the existing

funding system could not be applied in a manner that rendered the

adversely affected students’ education “a function of the taxable wealth …

of the districts in which they live.” Serrano II, 18 Cal.3d at 769; cf. Tobe, 9

Cal.4th at 1084.6

In Lungren, the Supreme Court concluded that a statute that “broadly

impinges upon fundamental constitutional privacy rights in its general,

normal, and intended application” by limiting access to abortion may be

facially invalid even if “there may be a small subclass of persons covered

by the statute as to whom a similar but much more narrowly drawn statute

constitutionally could be applied.” 16 Cal.4th at 343. Lungren’s standard

for establishing facial invalidity, however, applies only in cases involving

due process, First Amendment, and privacy rights not asserted here. See,

e.g., Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 679; Alviso v.

Sonoma County Sheriff’s Dept. (2010) 186 Cal.App.4th 198, 205; Today’s

Fresh Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal.4th

197, 218; Cal. Teachers Ass’n v. State (1999) 20 Cal.4th 327, 347.

Even under Lungren, Plaintiffs’ challenge would fail because they

did not show the challenged statutes were unconstitutional “in the vast

majority of applications.” 16 Cal.4th at 343. Lungren emphasized that if a

law is “constitutional in its general and ordinary application,” it cannot be

“struck down ‘on its face’ merely because there might be some instances in

6 The portion of Serrano II cited by Plaintiffs describes the trial

court’s factual findings and offers no support for Plaintiffs’ legal theory. See 18 Cal.3d at 744.

10

which application of the law might improperly impinge upon constitutional

rights.” Id. at 347. Plaintiffs “concede that the majority of teachers in

California provide their students with an adequate education.” RB 73. The

trial court likewise estimated that 97-99% of California teachers are at least

minimally effective. AA 7300. Because the challenged statutes are thus

constitutional in “general and ordinary application,” they would not be

facially unconstitutional under Lungren. 16 Cal.4th at 343, 347.

To be sure, courts may facially invalidate a law that is

unconstitutional in all meaningful applications. See, e.g., id. at 346; Cal.

Teachers Ass’n, 20 Cal.4th at 338. But Plaintiffs do not (and cannot)

contend that the statutes are only applied in circumstances involving

“grossly ineffective” teachers, because the statutes apply uniformly to all

California teachers. A teacher facing dismissal following an unwarranted

“witch hunt,” AA 5672-76 ¶¶12-30, receives the same procedural

protections as a purportedly “grossly ineffective” teacher, and the

availability of those protections enables all California teachers to teach

without fearing arbitrary or unfair termination. See IB 6-7, 14-16. Section

44955 likewise applies to all layoff decisions, not simply those involving

“grossly ineffective” teachers, and §44929.21(b) establishes the

probationary period for all new teachers.7

Plaintiffs contend that facial invalidation is permissible even when a

statute is constitutional in most applications because equal protection

claims usually involve harm to a minority “while the majority is treated in a

perfectly satisfactory manner.” RB 73. That argument confuses the

substantive law governing equal protection claims with the principles

governing appropriate constitutional remedies. Citizens United v. Fed.

Election Comm’n (2010) 558 U.S. 310, 331 (distinction between facial and

7 All cites are to the Education Code unless otherwise noted.

11

as-applied claims “goes to the breadth of the remedy employed by the

Court”); Isaacson v. Horne (9th Cir. 2013) 716 F.3d 1213, 1230. The

substantive law of equal protection focuses on whether the constitutional

right to be free from unfair discrimination has been violated by state actors.

Tobe’s facial challenge standard, by contrast, determines whether the

courts, after identifying a violation, may preclude all future applications of

a statute, or should limit their remedy to the particular application causing a

violation. Isaacson, 716 F.3d at 1231. Because Plaintiffs could not

establish that the challenged statutes are unconstitutional as applied in all

circumstances, Plaintiffs’ facial challenge fails and the trial court’s decision

to deny all California teachers the statutes’ protections must be reversed.8

Plaintiffs’ confusion is made evident by their reliance on Somers v.

Super. Ct. (2009) 172 Cal.App.4th 1407. Somers involved an as-applied

challenge premised upon the challenged statute’s application to “California-

born transgender individuals who reside out of state,” and granted relief

only to the individual plaintiff. See id. at 1415-16. Sullivan v. Louisiana

(1993) 508 U.S. 275, also did not involve a facial challenge. Id. at 280-82

(considering whether confusing jury instruction regarding burden of proof

can constitute harmless error).

8 Of course, if a statute on its face requires unconstitutional

discrimination between defined groups and thus disfavors one group in every application, the statutory language itself “pose[s] a present total and fatal conflict with” equal protection. Tobe, 9 Cal.4th at 1084 (citation omitted); see, e.g., In re Marriage Cases (2008) 43 Cal.4th 757, 795, 800. For example, the ordinance in Gould v. Grubb (1975) 14 Cal.3d 661, on its face mandated unconstitutional discrimination between incumbents and non-incumbents (and their respective supporters). Id. at 670. Likewise, the excessive filing fee challenged in Bullock v. Carter (1972) 405 U.S. 134, inherently discriminated between candidates and their supporters “according to their economic status.” Id. at 144. Plaintiffs do not contend, and the trial court did not find, that the challenged statutes’ text mandates unconstitutional discrimination between such defined groups.

12

Finally, for a statute to be facially invalid, some requirement in the

text of the statute itself must render it unconstitutional in all applications.

Tobe, 9 Cal.4th at 1084. In this respect, the trial court’s analysis of the

dismissal statutes was particularly inadequate. The trial court made no

effort to explain how any of those statutes’ textual requirements violate

applicable constitutional provisions, and considered “the dismissal process”

as an undifferentiated whole without identifying any specific textual

requirement with a real and substantial impact on Plaintiffs’ fundamental

rights. See AA 7302-05. Because the statement of decision did not make

the essential findings required to facially invalidate the dismissal statutes,

the trial court’s fatally deficient ruling must be reversed. In re Marriage of

Hardin (1995) 38 Cal.App.4th 448, 453.9

II. The Challenged Statutes Do Not Violate Equal Protection Because They Do Not Require Differential Treatment of Identifiable Groups. “The first prerequisite to a meritorious claim under the equal

protection clause is a showing that the state has adopted a classification that

affects two or more similarly situated groups in an unequal manner.”

Cooley v. Super. Ct. (2002) 29 Cal.4th 228, 253 (emphasis altered); see IB

37-42. Equal protection protects individuals from discrimination; it is not a

free-floating guarantee of substantive rights or outcomes. Absent

legislative or governmental line-drawing, there is no discrimination

between similarly situated groups that the State must justify. Vacco v. Quill

(1997) 521 U.S. 793, 800.

The challenged statutes draw no such distinctions. On their face and

in practice, they apply uniformly throughout California, requiring school

9 Intervenors have never contended that the trial court erred in

considering “evidence beyond the statutory text itself” in evaluating Plaintiffs’ facial challenge. See RB 70-73.

13

districts to make tenure decisions on the same time frame, providing the

same procedural rights to permanent teachers facing dismissal, and

establishing uniform standards for implementing budget-based layoffs.

Because the statutes do not distinguish between different groups, they

cannot violate equal protection. See Valtz v. Penta Inv. Corp. (1983) 139

Cal.App.3d 803, 810; Citizens for Parental Rights v. San Mateo County Bd.

of Educ. (1975) 51 Cal.App.3d 1, 27; Rubin v. Padilla (2015) 233

Cal.App.4th 1128, 1152-53.

Ignoring these controlling cases, Plaintiffs insist the trial court

properly based its equal protection analysis on the challenged statutes’

purported infringement of certain students’ “fundamental” rights, even

though those students do not belong to any distinct or identifiable group.

RB 76. But the California Supreme Court has made clear that the

classification “prerequisite” applies to equal protection claims based on

“fundamental rights” no less than “suspect classifications.” Butt, 4 Cal.4th

at 685-86 (“[H]eightened scrutiny applies to State-maintained

discrimination whenever … the disparate treatment has a real and

appreciable impact on a fundamental right or interest.”) (emphasis added).

A statute’s discriminatory infringement of fundamental rights affects the

level of equal protection scrutiny, but no scrutiny applies in the absence of

differential treatment of discrete and identifiable groups.

None of Plaintiffs’ cases support their radical theory that equal

protection provides a free-standing mechanism for enforcing fundamental

rights. Instead, those cases confirm that an equal protection challenge

arises only when the state has adopted a classification or otherwise

mandated discrimination against an identifiable group. See, e.g., Kramer v.

Union Free Sch. Dist. No. 15 (1969) 395 U.S. 621, 629 (“exacting

examination” required “because some resident citizens are permitted to

participate [in elections] and some are not”); Harper v. Va. Bd. of Elections

14

(1966) 383 U.S. 663, 665 (“[O]nce the franchise is granted to the electorate,

lines may not be drawn which are inconsistent with [equal protection].”)

(emphasis added); id. at 670 (“[W]here fundamental rights and liberties are

asserted under the Equal Protection Clause, classifications which might

invade or restrain them must be closely scrutinized and carefully

confined.”) (emphasis added); Butt, 4 Cal.4th at 688-89 (in establishing

local school districts, state retains “constitutional responsibility for basic

equality” between districts); see also Lawrence v. Texas (2003) 539 U.S.

558, 575 (distinguishing substantive fundamental right claim from narrower

equal protection claim premised on differential treatment). Every equal

protection case cited by Plaintiffs involves alleged discriminatory treatment

of separate, identifiable groups.10

Plaintiffs try to skirt this fundamental principle by asserting that the

discriminatory aspects of a law challenged under equal protection need not

appear on the face of the statute. RB 76-81. That is only true when the

challenged law inherently distinguishes between identifiable groups

notwithstanding its facial “neutrality.” See, e.g., Somers, 172 Cal.App.4th

at 1413 (requirement inherently disadvantaged out-of-state residents);

10 See Griffin v. Illinois (1956) 351 U.S. 12, 23 (Frankfurter, J.,

concurring) (discrimination against “indigent defendants”); Loving v. Virginia (1967) 388 U.S. 1, 12 (“racial classifications”); Bullock, 405 U.S. at 144 (“economic status”); In re Marriage Cases, 43 Cal.4th at 784 (statutory scheme “classif[ied] or discriminat[ed] on the basis of sexual orientation”); id. at 844 (“classification drawn by the statutes” infringed fundamental interest); Serrano I, 5 Cal.3d at 598 (wealth); Gould, 14 Cal.3d at 674-75 (incumbency); Somers, 172 Cal.App.4th at 1413 (state residence); Moreno v. Draper (1999) 70 Cal.App.4th 886, 888 (“two classes of parents paying child support”); Daniels v. McMahon (1992) 4 Cal.App.4th 48, 57 (individuals who requested hearing and others).

15

Harper, 383 U.S. at 666 (poll tax inherently discriminated on basis of

wealth).11

Plaintiffs also ignore that in every case they cite, the affected group

was identifiable by some shared characteristic other than the alleged

infringement of fundamental rights. In Serrano II, 18 Cal.3d at 753-56, the

challenged statutory scheme classified districts and students on the basis of

wealth and created inter-district (i.e., geographical) disparities in

educational quality. See also Butt, 4 Cal.4th at 685-87 (“disparate

treatment” based upon “residence and geography”). The group whose

voting rights were infringed in Bullock was defined by economic status,

405 U.S. at 144, and in Gould by support for non-incumbent candidates. 14

Cal.3d at 674-75. While the particular individuals in a group need not be

identifiable ex ante and may vary over time, the group’s characteristics

must be “fixed” in the sense that the group is defined by some shared trait

other than the purported infringement of a fundamental right. See also

supra notes 10-11.

This rule was clearly established in Gould, which held that laws

giving ballot placement preference to incumbents or candidates with names

earlier in the alphabet were invalid, but that laws assigning ballot positions

for particular elections randomly were permissible. 14 Cal.3d at 676. Even

though random assignment disadvantages candidates assigned to lower

ballot positions and thus inevitably dilutes the votes of those candidates’

supporters, and even though alternative systems eliminate that dilution,

random-assignment laws do not violate equal protection because the group

11 Serrano, Gould, and In re Marriage Cases each involved statutes

that expressly distinguished between groups of individuals. See Serrano I, 5 Cal.3d at 598; Gould, 14 Cal.3d at 674-75; In re Marriage Cases, 43 Cal.4th at 784.

16

whose voting rights are infringed is not defined by any characteristic apart

from that infringement. Id.

If equal protection did not require a threshold showing of

discrimination among groups defined by a shared characteristic other than

the purported infringement, every plaintiff asserting that state action

infringed fundamental rights could assert an equal protection claim.

Indeed, when Plaintiffs’ radical reformulation of equal protection is

combined with their equally extreme position that facial unconstitutionality

results whenever a law has the “inevitable” effect of violating anyone’s

fundamental rights (even indirectly and unintentionally), every government

policy with any potential adverse impact upon any student’s education is

allegedly facially invalid. This Court should reject Plaintiffs’ outlandish

theory.12

III. Strict Scrutiny Does Not Apply. A. The Trial Court’s Fundamental Rights Equal Protection

Analysis Is Fatally Flawed. Even if statutes could be challenged on equal protection grounds

absent statutory discrimination, the trial court erred in applying strict

scrutiny based on its flawed “fundamental rights” analysis. First, because

of numerous independent, intervening causal factors (including, most

importantly, local school districts’ role in making hiring, tenure, and

12 Plaintiffs posit that if state action would “inevitably” allow even a

single instance of interference with a fundamental right “as applied,” the law as a whole must be invalidated as facially unconstitutional under equal protection, but that has never been the law. See, e.g., In re Santos Y. (2001) 92 Cal.App.4th 1274, 1314-17; Herbst v. Swan (2002) 102 Cal.App.4th 813, 820; Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863-84. Rather, as-applied fundamental rights claims generally do not justify facial invalidation. See, e.g., Ayotte v. Planned Parenthood of Northern New England (2006) 546 U.S. 320, 329; U.D. Registry, Inc. v. State of Cal. (2006) 144 Cal.App.4th 405, 409, 425-29; Lanier v. City of Woodburn (9th Cir. 2008) 518 F.3d 1147, 1150-52.

17

dismissal decisions), any possible impact of the challenged statutes on the

right to basic educational equality is indirect and attenuated. Second, the

trial court failed to consider the net effects of the challenged statutes on

students’ educational experience, including their positive impacts on the

overall quality of the teaching force.

1. The Impact of the Challenged Statutes on Fundamental Rights Is Indirect and Attenuated. a. The appropriate level of scrutiny is a legal

question.

Plaintiffs acknowledge that strict scrutiny does not apply to “‘every

governmental regulation implicating … fundamental rights,’” but only to

those having a “‘real and appreciable impact’” on such rights. RB 67

(quoting Planning & Conservation League, Inc. v. Lungren (1995) 38

Cal.App.4th 497, 506-07). Contrary to Plaintiffs’ contentions, RB 86-87,

the applicable level of scrutiny is a question of law, and this Court reviews

de novo whether the purported impact of each challenged statute upon

plaintiffs’ fundamental right to basic educational equality is sufficient to

trigger strict scrutiny. See Sneed v. Saenz (2004) 120 Cal.App.4th 1220,

1234, 1249-50 (“interpretation” and “application” of statute, including

whether burden on fundamental right warrants strict scrutiny, present “pure

questions of law”); Enrique M. v. Angelina V. (2009) 174 Cal.App.4th

1148, 1153-54.13

//

//

13 Plaintiffs’ purportedly contrary authorities, RB 86, consider only

whether intervening causes are sufficiently unforeseeable to eliminate proximate cause for tort liability purposes.

18

b. Independent, intervening causal factors render any impact on a fundamental right too attenuated to support strict scrutiny.

“[M]any laws affect[]” fundamental rights, and “[i]t would be absurd

to suggest that all such laws must pass strict constitutional scrutiny if they

affect some children more severely than others.” City & Cty. of San

Francisco v. Garnett (1999) 70 Cal.App.4th 845, 850. Instead, where a

challenged law’s impact on fundamental rights is indirect and uncertain

because its impact depends upon intervening causal factors (such as the

exercise of independent discretion by those charged with its

implementation), rational basis review applies. IB 44-45 (citing In re

Flodihn (1979) 25 Cal.3d 561, 568; City & County of San Francisco v.

Freeman (1999) 71 Cal.App.4th 869).14

Because California’s “local control” system requires local school

officials to make all decisions about hiring, tenure, and dismissal for

ineffectiveness or implementing budgetary RIFs, any impact of the

challenged statutes upon those discretionary decisions is necessarily

indirect. IB 45-49; see also IB 47 (discussing impact of teacher preferences

and local conditions). Plaintiffs do not dispute that the challenged statutes

14 See also Associated Home Builders v. City of Livermore (1976) 18

Cal.3d 582, 602–03 (legislation that “merely makes it more difficult for the outsider to establish his residence in [chosen] place” has indirect effect upon right to travel); Sneed, 120 Cal.App.4th at 1249 (parents’ “fundamental right to raise their children in their own home is not implicated” by statute that incentivizes but does not require some families to live apart); Daniels v. McMahon (1992) 4 Cal.App.4th 48, 52-53, 57, 60-61 (policy denying otherwise available supplemental payments to benefit recipients may have chilled exercise of hearing right but “d[id] not directly interfere with the exercise of [that] right”); King v. McMahon (1986) 186 Cal.App.3d 648, 662 (ineligibility of foster children living with relatives for certain state benefits has attenuated impact upon right to choose co-habitants).

19

delegate discretionary decision-making authority to local school officials,

RB 88-91, and do not even attempt to distinguish Intervenors’ on-point

authorities holding that statutes with such indirect impacts on fundamental

rights need only have a rational basis. Instead, Plaintiffs cite decisions that

do not even consider intervening causes.

Plaintiffs contend that Gould applied strict scrutiny even though

ballot placement only “constituted one ‘factor’ affecting the outcome” of

elections. RB 91. But the constitutional violation in Gould involved vote

dilution, not the right to any particular electoral outcome. 14 Cal.3d at 669-

71 & nn.9-11. The Court upheld the trial court’s finding that candidates

with favorable ballot positions “receive[d] a substantial number of votes

simply by virtue of their ballot position,” so reserving those positions for

incumbents “inevitably dilutes the weight of the vote of all those electors

who cast their ballots for [non-incumbents].” Id. at 670 (emphasis added).

While other factors might affect electoral outcomes, the ballot placement

preference directly diluted certain votes, in violation of those voters’

constitutional rights.

Plaintiffs also rely on Serrano II, RB 91, but ignore its repeated

references to undisputed fact findings establishing that the funding system

directly and inherently produced disparities with a significant impact on the

fundamental right to education.15

15 See, e.g., 18 Cal.3d at 747 (“Substantial disparities in

expenditures per pupil among school districts cause and perpetuate substantial disparities in the quality and extent of availability of educational opportunities.”); id. at 748 (funding system “gives high-wealth districts a substantial advantage in obtaining higher quality staff, program expansion and variety, beneficial teacher-pupil ratios and class sizes” and other areas) (emphasis added throughout); see also id. at 775 (system “condition[s] educational opportunity on the taxable wealth of the district in which the student attends school”). Plaintiffs contend that the system in

20

Plaintiffs’ other authorities do not support application of strict

scrutiny either. In Choudhry v. Free (1976) 17 Cal.3d 660, 662, 665,

Fullerton Joint Union High Sch. Dist. v. State Bd. of Educ. (1982) 32

Cal.3d 779, 784, 799-800, and Hawn v. County of Ventura (1977) 73

Cal.App.3d 1009, 1015, 1018-20, the challenged laws directly prohibited

voters who lived in certain areas from voting and candidates who did not

own property from running for office. In Planning & Conservation League

and FPPC v. Superior Court (1979) 25 Cal.3d 33, the statutes directly

chilled the plaintiffs’ First Amendment-protected activity. See FPPC, 25

Cal.3d at 47-48 (strict scrutiny applied to “onerous” and “extremely

burdensome” requirement that “constitute[d] a significant interference with

the fundamental right to petition”); Planning & Conservation League, 38

Cal.App.4th at 507 (prohibition “appreciably reduce[d] the likelihood of

success” of protected petitioning activity).

Finally, Plaintiffs assert that intervening causes should be ignored

here because Butt prohibited “blam[ing] educational inequalities on local

district mismanagement.” RB 92 (citing 4 Cal.4th at 684-85). Butt simply

held, however, that if local mismanagement causes a violation of students’

constitutional rights, the State can as a last resort be required to provide a

remedy. Butt, 4 Cal.4th at 688, 692. That holding would be analogous

here, and the State could be required to step in, if, for example, Plaintiffs’

school districts could not afford to hire qualified teachers, and as a result

the overall quality of education in those districts fell fundamentally below

prevailing statewide standards. But nothing in Butt holds that when local

districts exercise discretionary statutory authority in a manner that

Serrano II “created only a ‘potential disparity’ in educational opportunities,” RB 91, but the Court used that phrase only in explaining why substantial disparities necessarily resulted from the system. 18 Cal.3d at 745-48.

21

purportedly results in constitutional violations, the statute under which that

discretion is exercised is subject to heightened constitutional scrutiny.

c. The impact of the challenged statutes is too attenuated to support strict scrutiny.

Because local district officials assign students to teachers and make

decisions about hiring, tenure, for-cause dismissals, and layoffs, the

challenged statutes could have at most an indirect impact upon any

student’s assignment to a “grossly ineffective” teacher. Even if the

challenged statutes influence how or when local districts exercise their

discretionary decision-making, such indirect influence does not trigger

strict scrutiny.

Plaintiffs assert that the trial court “agree[d] with Plaintiffs that ‘the

Challenged Statutes result in grossly ineffective teachers obtaining and

retaining permanent employment’ and … ‘cause the potential and/or

unreasonable exposure of grossly ineffective teachers to all California

students.’” RB 82-83 (quoting AA 7295). But they quote the portion of the

trial court’s opinion that describes what “Plaintiffs claim,” not the court’s

own conclusions or findings. AA 7295. In its actual findings, the court did

not identify any direct causal relationship between the challenged statutes

and infringement of Plaintiffs’ fundamental right to basic educational

equality. Instead, the trial court’s discussion of causation consisted of a

single, conclusory statement: “Plaintiffs have proven, by a preponderance

of the evidence, that the Challenged Statutes impose a real and appreciable

impact on students’ fundamental right to equality of education ….” AA

7300. That is a legal conclusion, not a factual finding, and is not entitled to

any deference.

All other findings regarding the challenged statutes (to the extent

they can be characterized as such) were made in the context of applying

strict scrutiny, and are therefore not entitled to deference. See supra at 6.

22

As explained below, however, even if those findings were entitled to

deference, they are insufficient to establish that the challenged statutes have

a direct impact upon fundamental rights, and the record evidence would not

permit any such finding. Probationary period. The trial court concluded that “teachers are

being reelected who would not have been had more time been provided for

the process.” AA 7301-02. But the purpose of §44929.21(b) is to

determine when probationary teachers should receive basic protections

against arbitrary dismissal without cause and to ensure that districts remove

ineffective probationary teachers promptly (thereby limiting their negative

impact on students), not to ensure that school districts make perfect tenure

decisions in every instance – an impossibility under any system. IB 8-9.

More fundamentally, the court made no finding that the tenure statute

causes “grossly ineffective” teachers to obtain tenure (directly or

otherwise). AA 7152 ¶¶35-40, 7249 ¶13 (requesting findings). Nor did it

find that a longer probationary period would ensure the denial of tenure to

all teachers who were, or might later turn out to be, “grossly ineffective,” or

that a longer tenure period would result in a constitutionally significant

reduction in the number or percentage of “grossly ineffective” teachers.

AA 7153-54 ¶¶49-52, 7250-51 ¶¶15-16 (requesting findings). Indeed, the

court did not even find that the teachers who would have been denied

tenure but for the existing probationary period were “grossly ineffective.”

AA 7197 ¶24, 7274 ¶24 (requesting findings).

As the trial court and Plaintiffs acknowledge, school districts have

an absolute right to deny tenure to any probationary teacher whose

performance they consider inadequate. IB 11 & n.7; AA 7301-02; RB 29.

The undisputed record establishes that many districts are able to observe

and evaluate new teachers within the statutory period. IB 10-11 & n.6.

Plaintiffs respond that LAUSD’s new policy of denying tenure to any

23

questionable or borderline teacher has not prevented all ineffective

teachers from obtaining tenure. RB 89. But some teachers who later turn

out to be “grossly ineffective” will earn tenure regardless of the length of

the probationary period (particularly when many district administrators do

not take the time to observe and evaluate new teachers, see IB 48), and

any statutory limit on the probationary period necessarily limits the data

available for tenure decisions.16 There was no trial evidence regarding the

number or percentage of “grossly ineffective” teachers who would be

denied tenure if the period were extended.17 If perfection were required,

as Plaintiffs contend, the only constitutionally permissible system would

be one in which all teachers are at-will employees who can be fired

immediately, without recourse, for any perceived under-performance.18

16 Plaintiffs complain that insufficient standardized test data is

available after two years, but elsewhere concede that such data need not be used “when making employment decisions.” RB 23 n.5, 30.

17 Plaintiffs rely on expert testimony that a longer tenure period would provide districts with additional information, RB 26, but neither expert quantified the number of “grossly ineffective” teachers who would be identified if the tenure period were longer or considered how many underperforming probationary teachers might remain in the classroom longer if the period were extended. RT 2753:17-2754:26 (Kane); 1259:13-1260:18 (Chetty; admitting his analysis only modeled hypothetical policy whereby “bottom five percent of [a statistical] distribution” of teachers were replaced with average teachers, and that such “simplistic policy” would not likely be implemented). Chetty’s estimate of the earnings difference between a “16-month” and “3-year” tenure policy amounted to just $5,821 per student over a lifetime. RT 1260:14-18.

18 Plaintiffs misstate Kane’s testimony in asserting that he concluded that disparities in teacher effectiveness within LAUSD were “the result of many years of being stuck under the rule of the Challenged Statutes.” RB 21. The cited testimony does not address the causes of such disparities. Tellingly, recent changes in LAUSD’s tenure and dismissal policies have significantly increased the number of teachers denied tenure or dismissed based on performance, IB 16, 46, demonstrating that LAUSD’s prior

24

Dismissal Statutes. The court did not find that the time and cost of

implementing the dismissal statutes’ specific requirements were the direct

cause of any administrator not pursuing dismissal of a “grossly ineffective”

teacher. See AA 7155-59 ¶¶60-80, 82-93, AA 7252-55 ¶¶20-24. At most,

the trial court found that some administrators chose not to initiate

dismissals of some low-performing teachers due to perceived cost and time

constraints. See AA 7303. The court did not find those constraints actually

made it impossible to pursue dismissal, or that the teachers at issue were

“grossly ineffective” rather than merely less effective than their colleagues.

The court’s conclusions also were not linked to specific statutory

provisions, separate and apart from protections mandated by due process or

non-statutory factors like the “incapable of remediation” standard that some

district officials mistakenly believed applied to such proceedings. See IB

13-14, 17 n.13. Indeed, by relying upon evidence of administrators’ beliefs

and preferences, the trial court acknowledged that the decision whether to

pursue dismissals is discretionary. Id.19

practices, not the challenged statutes, are responsible for any disparities that might exist.

Plaintiffs also misrepresent testimony by two defense witnesses who testified that the impact of extending the probationary period would be minimal. Rothstein testified that his modeling showed a .0008 increase in student achievement on standardized tests if tenure decisions were made after three years rather than two, a difference he considered “extremely small.” RT 6236:16-6237:25. Berliner testified that while extending the tenure period would benefit teachers, he was not concerned that the existing tenure period “results in ineffective teachers being granted tenure.” RT 8487:5-20, 8488:14-19. But see RB 27, 106; AA 7302.

19 The court also concluded that “the current system [is] so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.” AA 7305. However, it did not define “effective,” “efficient,” or “fair,” or identify which specific statutory requirements purportedly cause the system to be so ineffective or inefficient.

25

Like the trial court’s findings, Plaintiffs’ evidence falls far short of

showing that the dismissal statutes directly cause students’ assignment to

“grossly ineffective” teachers. Undisputed evidence establishes that many

districts regularly initiate dismissal proceedings and succeed in removing

ineffective teachers without using reductions-in-force (which are designed

for an entirely different purpose). IB 10-11 & n.6, 16-18. Plaintiffs’

“contrary” evidence shows, at most, that compared to a scheme affording

teachers fewer employment protections, the challenged statutes make it

somewhat more difficult or costly to dismiss certain teachers and may

thereby discourage certain dismissals. But see RT 790:7-11 (Deasy) (cost

constraints did not prevent LAUSD from initiating any dismissal). The

evidence does not establish that statutory costs or time constraints actually

prevent dismissals of “grossly ineffective” teachers.

Indeed, it is undisputed that many large urban districts are able to

remove ineffective teachers without going through the full statutory

dismissal process. For example, between 2009-10 and 2012-13, LAUSD

eliminated 786 teachers with performance problems through a

combination of formal dismissals and resignations, and spent on average

just $26,000 per case on settlements. Likewise, Fresno USD eliminated

21 tenured teachers, 20 by settlements without a hearing from 2010 to

2012; and Long Beach USD resolves fully 95% of its dismissal cases

informally. IB 16-17; AA 690; RT 6506:6-6506:24, 6508:25-6509:2

(Tuttle), 6986:14-24 (Boyd), 9217:23-9220:26, 9224:25-9225:23

(Ekchian).

Plaintiffs dismiss this evidence as irrelevant and focus solely on the

small number of teachers dismissed for unsatisfactory performance after a

full Commission on Professional Competence (“CPC”) hearing and

26

decision. RB 3, 35.20 But any determination about whether the overall

cost and time to school districts of the dismissal process directly affects

students’ constitutional right to basic educational equality must account

for the much lower costs of the vast majority of dismissals, the

effectiveness of such informal procedures in securing the removal of

poorly performing teachers, and the costs and benefits of remediation – all

of which the trial court ignored. AA 7154 ¶56, 7162 ¶¶127-129, 7252

¶19, 7258 ¶33 (requesting findings).21

Plaintiffs also dramatically overstate the length and expense of

dismissal proceedings. Undisputed evidence establishes that dismissal

cases that go to a CPC hearing are resolved in an average of 310 days. IB

20 Plaintiffs assert that only 2.2 teachers per year are dismissed for

unsatisfactory performance, but include only those instances where a CPC issued a formal decision upholding a performance-related dismissal after a full administrative hearing. The record shows that the vast majority of CPC proceedings (more than 8 out of 9) are resolved by teacher resignation before any decision. Compare AA 5107-29 (over 5 years, districts initiated 683 CPC dismissal proceedings), with AA 4552 (over 10 years, CPCs issued only 151 decisions). Even more teachers resign before CPC proceedings are initiated. For example, during the four years when LAUSD removed 786 teachers for performance-related reasons, it initiated only 168 CPC proceedings (for any cause). See AA 690, 5107-29. Although school districts prevail in the majority of CPC decisions, AA 4552; but see RB 3 (wrongly asserting that districts are “likely to fail”), the mixed outcomes demonstrate that dismissal cases that proceed to decision tend to be those where the evidence is least clear-cut and where providing due process protections to prevent unjust termination is correspondingly most important.

21 Plaintiffs appear to believe that, in the absence of the dismissal statutes, school districts would dismiss teachers as soon as performance problems became evident. But the evidence showed that most school districts choose to treat their teachers with respect and avoid turnover costs by providing teachers with opportunities to improve or resign. See supra note 20.

27

18. Plaintiffs respond that the dismissal process could take years, RB 31-

32, but their estimate includes substantial time that is indisputably not

required by the statutory dismissal process,22 and irrelevant cases

involving dismissals for reasons other than unsatisfactory performance.23

Intervenors’ showing, by contrast, relies upon records of actual CPC

proceedings. Plaintiffs’ cost estimates, RB 33 & n.11, are likewise based

only on one or two cases or calculated using irrelevant misconduct cases.24

RIF statute. The trial court also made no finding that the RIF

statute actually causes students’ assignment to “grossly ineffective”

22 Christmas’s time estimate included years of preliminary

documentation and remediation before an accusation issued, and his estimate assumed that poor performance is always identified at the beginning of the school year. RT 1516:23-1517:9, 1960:25-1961:23, 1962:27-1963:8. Other witnesses’ time estimates were similarly exaggerated. See RT 2102:24-2103:8 (Raymond); 2342:11-26 (Kappenhagen); 2420:27-2421:21 (Douglas). The only time required by the statutory dismissal process for documentation and remediation is the 90-day cure period. §44938(b)(1).

23 See RB 32, 34 & n.12; IB 12 n.8; see AA 2114-31, 3051-91, 3665-78, 3666, 3832-48, 3906-29. Even in those complex cases, the CPC reached a decision within 6-23 months after the accusation was filed. AA 2114-31 (OUSD), 3051-91, 5136 (Riverside), 3665-78 (Long Beach), 3832-48 (LAUSD), 3906-29 (LAUSD). The CPC decisions from LAUSD undercut Plaintiffs’ reliance on LAUSD official Vivian Ekchian’s testimony that LAUSD has “never” completed a CPC hearing in under two years. RB 31-32. Former LAUSD superintendent Deasy acknowledged that one to two years is average, even including complex and time-consuming misconduct cases. IB 18 n.14.

24 See RB 33; RT 2417:15-19 (estimate from official who had never been through full CPC process); RT 1809:7-22, IB 18 n.15 (estimate based on two unsatisfactory performance proceedings); RT 2031:18-2032:12; IB 18 n.15 (estimate based on one proceeding). The only testimony regarding costs in LAUSD came from Deasy, who conceded that his averages included expensive misconduct cases that are not relevant here. IB 18 n.15; RT 537:6-538:9, 787:13-22, 788:10-13.

28

teachers. See AA 7152 ¶40, 7249 ¶13 (requesting findings). It simply

speculated that §44955 – which was designed to provide objective, easily

administered standards for implementing budgetary layoffs – sometimes

results in less effective teachers being retained, which could result in “a

senior grossly ineffective [teacher] … [being] left in place.” AA 7305-06.

Such speculation does not establish direct, unattenuated causation. Plaintiffs’ causation theory is further undermined by undisputed

evidence that because teacher experience correlates with effectiveness,

RIFs conducted at least in part by seniority result, on average, in the

retention of more effective teachers. IB 20-21. While Plaintiffs contend

that no trial evidence correlated teacher experience with effectiveness, their

experts uniformly testified to a significant correlation, IB 20 n.18, and none

of Plaintiffs’ cited evidence undercuts that undisputed correlation. RB 38

n.14; see, e.g., RT 1287:16-20 (Chetty).25 That the RIF statute does not

require layoffs that perfectly correlate with effectiveness in no way

establishes that it causes the retention of “grossly ineffective” teachers –

who should in any event be dismissed under the statutory “for cause”

dismissal process.26

//

25 See also RT 2898:25-2899:7 (Kane); 3819:12-3821:3

(Goldhaber); 4134:17-4135:19 (Ramanathan). 26 Plaintiffs misrepresent the impact of the RIF statute, though even

their misrepresentations would not establish direct causation. Plaintiffs cite CDE official Lynda Nichols’ testimony for the proposition that §44955(d)(2) is “so ambiguous that districts cannot – and do not – assume the risk of invoking it.” RB 42. But Nichols testified only that no district sought her advice regarding subdivision (d)(2). RT 8626:6-8627:15. Contrary to Plaintiffs’ contention, the record showed that subdivision (d)(2) has been used to retain certain junior teachers with special training to work at high-poverty, high-minority schools. IB 21; AA 4636-64.

29

d. Plaintiffs’ causation theory is fundamentally flawed.

The fundamental flaws with Plaintiffs’ causation theory are

underscored by the inadequate remedy Plaintiffs obtained and Plaintiffs’

inability to identify an alternative system with demonstrably better

outcomes.

The remedy here – invalidation of the challenged statutes, giving

districts unfettered discretion to place new teachers in “at-will” status

indefinitely and to dismiss disfavored permanent teachers during layoffs or

whenever they otherwise choose – will not prevent (and does not even

target) the alleged constitutional harms at issue, as it does nothing to

prevent school districts from assigning students to “grossly ineffective”

teachers going forward. The injunction does not require any new behavior

from the district officials directly responsible for teacher hiring,

assignment, and dismissal decisions, and does not require any student

currently assigned to a “grossly ineffective” teacher to be reassigned. It

simply provides administrators discretion to make good or bad decisions,

with the same “inevitable” effects, because no statutory scheme can

guarantee that local district officials diligently observe and evaluate

teachers, accurately identify those who are “grossly ineffective,” and

remove them. Because the challenged statutes do not directly cause any

student to be assigned to a “grossly ineffective” teacher, their invalidation

will not eliminate “grossly ineffective” teachers from California’s

schools.27

27 In invalidating the statutes on their face rather than attempting to

“tailor” the relief “to the harm at issue” or to “strive for the least disruptive remedy adequate to its legitimate task,” Butt, 4 Cal.4th at 695-96, the trial court improperly chose the “most blunt remedy” available, Ayotte, 546 U.S. at 330, and grossly overstepped the proper bounds of judicial review. See,

30

Plaintiffs also offered no proof that a different system providing

fewer protections would reduce the number of “grossly ineffective”

teachers in a constitutionally meaningful manner.28 Charter schools in

California are not subject to the challenged statutes but do not perform

significantly better than traditional public schools, and there is no

evidence they have fewer “grossly ineffective” teachers. IB 49 n.30.

Likewise, no evidence shows that states with longer tenure periods or

different ways of conducting RIFs employ fewer “grossly ineffective”

teachers, distribute such teachers more equitably, or see better student

achievement as a result.29 The only evidence concerning any alternative

teacher layoff system shows that administrators who could take teacher

effectiveness into account nevertheless chose to conduct layoffs by

reverse seniority because it was administrable and prevented discord. IB

19-20 (citing RT 4562:15-4564:15 (Johnson)).30

e.g., id. at 328-29; In re Taylor (2015) 60 Cal.4th 1019, 1039. Plaintiffs fail to address the overbreadth of the remedy, see IB 80-82, effectively conceding that the trial court’s order was neither necessary nor narrowly tailored.

28 Plaintiffs rely on evidence regarding dismissal of classified employees (such as clerical and janitorial staff). RB 108; RT 2112:6-10. However, there was no evidence that applying such a regime to teachers would result in the employment of fewer “grossly ineffective” teachers or serve the same important purposes, such as protecting teachers from ideological or political coercion and making teaching a more attractive profession, as the existing statutory scheme.

29 Findings on these issues were requested but not made. AA7159 ¶¶97-98, 7254-55 ¶24 (charter schools); AA 7163 ¶¶135-138, 7260-61 ¶¶36-38 (other states).

30 Plaintiffs attempt to disparage Prof. Susan Moore Johnson and other defense experts by arguing that they were repeatedly impeached at trial. RB 52 n.19. But the supposed “impeachment” in no way undercuts the strength of their testimony. For example, Plaintiffs “impeach[ed]” Prof. Johnson’s testimony that she studied a California school district other than

31

The absence of any proof that the trial court’s remedy will actually

reduce the number of students assigned to “grossly ineffective” teachers

highlights the attenuated and indirect nature of any causation: Striking

down the challenged statutes will not redress the problem identified

(students’ assignment to “grossly ineffective” teachers), because the

statutes do not cause that problem.

2. The Challenged Statutes’ Net Effects Must Be Considered.

Even if local districts’ intervening discretionary decisions did not

render any possible impact indirect and attenuated, the trial court would

still have to be reversed because it failed to consider the statutes’ net impact

in determining whether they cause students’ educational experience,

“viewed as a whole,” to fall below “prevailing statewide standards.” Butt, 4

Cal.4th at 686-87 (emphasis added).

Plaintiffs concede that the trial court did not consider any of the

challenged statutes’ positive impacts on the overall quality of the teaching

pool in determining the appropriate level of scrutiny, but contend that such

positive impacts are only relevant in deciding whether a statute survives

strict scrutiny. RB 94-95. This argument confuses the impact of a statute

on fundamental rights with the justification for any infringement of

fundamental rights, and misreads Butt.

In Butt, the Court considered when “disparities in educational

quality or service” rise to the level of a “real and appreciable impact on a

fundamental right or interest” requiring application of strict scrutiny. 4

San Juan USD. See RT 4568:5-4569:3. But after Plaintiffs’ counsel read a deposition excerpt where she said she had not studied other California school districts, Intervenors’ counsel read a subsequent passage where Dr. Johnson testified that the other district she had studied, Long Beach, had simply “slipped [her] mind.” RT 4618:4-17.

32

Cal.4th at 685-86. The Court noted that the shortened school year in that

case would not inevitably have such an impact; the reduction “might be

compensated by other means, such as extended daily hours, more intensive

lesson plans, summer sessions, volunteer programs, and the like.” Id. at

686. These compensating factors and the resulting net impact of early

closure had to be considered in measuring the closure’s impact upon basic

educational equality and thus, the appropriate standard of review: “Unless

the actual quality of the district’s program, viewed as a whole” – i.e., when

considering compensating factors – “falls fundamentally below prevailing

statewide standards, no constitutional violation occurs.” Id. at 686-87.31

Here, the trial court made no findings regarding the statutes’ net

effects. While it described the Legislature’s intent and purposes as

“unfathomable” and “no[t] legally cognizable,” RB 95 (quoting AA 7302,

7306), those statements merely demonstrate that the trial court ignored the

Legislature’s purposes and the extensive evidence of the statutes’ benefits,

much of which was uncontested. See IB 6-21, 58-62. Indeed, the court

specifically excluded highly relevant evidence regarding the challenged

statutes’ benefits. IB 59.32

31 Plaintiffs cite Butt’s rejection of the State’s “local autonomy”

defense as evidence that a law’s positive effects are appropriately considered only in applying strict scrutiny. RB 94-95. But the State asserted that autonomy interest to justify its inaction, not as something mitigating the adverse impact of early closure on the district’s students. Plaintiffs also assert that Serrano II “reject[ed]” the argument that equal protection analysis requires consideration of the adequacy and equality of students’ education as a whole, RB 94-95, but Serrano II simply concluded that funding disparities did impact the overall “quality of education” in disadvantaged districts. 18 Cal.3d at 755-57.

32 In arguing that the evidence did not establish the statutes’ beneficial effect on students, Plaintiffs ignore the extensive evidence Intervenors identified. IB 6-21, 58-62. Plaintiffs specifically assert that no

33

3. Plaintiffs’ Theories Lack Limiting Principles. The underlying flaws in Plaintiffs’ constitutional theories are

highlighted by their inability to provide any judicially administrable

standard for identifying when teachers are so ineffective as to violate a

student’s fundamental right to basic educational equality, or to what extent

a statute must be the cause of a particular student’s assignment to that

teacher. In the absence of any such standards, Plaintiffs’ theory would

subject every state or district-level decision involving education policy to

constitutional challenge and invalidation.

First, Plaintiffs have not identified any standard for measuring the

constitutionality of a teacher’s performance. That district administrators

have a variety of methods for evaluating teaching effectiveness, RB 22,

does not mean that there is any judicially administrable standard for courts

to use in determining when a teacher becomes so “grossly ineffective” as to

violate students’ constitutional rights, particularly given the variation in

even a single teacher’s effectiveness over time or as affected by subject,

grade, or conditions in the teacher’s school, district, and neighborhood. IB

52-56. Instead, such variation demonstrates that the courts (which lack

comparable expertise in education matters) are ill-equipped to evaluate

teacher performance. See Peter W. v. San Francisco USD (1976) 60

Cal.App.3d 814, 824-25.

In the trial court, Plaintiffs’ effort to prove constitutional harm – in

particular, their purported quantification of harm through experts’ studies –

rested entirely upon the reliability of measures derived from student test

scores (“value-added measures” or “VAMs”) in measuring the impact of

testimony establishes that teachers’ inclusion on the CPC serves the important purpose of having an independent decision-maker familiar with the educational practice issues at stake in such proceedings, but two witnesses testified to that fact. See IB 15 & n.12; but see RB 107 n.47.

34

teachers on students’ educational progress. RT 1203:2-20, 1262:17-26

(Chetty); 2764:8-2765:2 (Kane); 3717:2-23, 3718:10-14 (Goldhaber);

3968:1-20 (Ramanathan). On appeal, though, Plaintiffs expressly disclaim

any contention that VAMs (which they concede are “imperfect,” RB 22

n.5) must be used in evaluating teacher performance – without identifying

any alternative standard. RB 23 n.5.

Plaintiffs also have not provided a standard for measuring the effect

of one teacher’s performance in the context of a student’s overall education.

Plaintiffs’ experts conceded that any given student is just as likely to be

assigned to a “highly effective” teacher as to a “grossly ineffective”

teacher, but could not explain what would happen if a student assigned to a

“grossly ineffective” teacher one year were assigned to a “highly effective”

teacher the next, or if a student had different teachers for different subjects.

IB 57. The trial court did not even attempt to explain how courts should

evaluate the effect of a single teacher on a student’s education “viewed as a

whole.”

In the absence of any such standards, Plaintiffs’ and trial court’s

theory has no logical stopping point – particularly when combined with

Plaintiffs’ assertion that statutes with only indirect and attenuated impacts

on fundamental rights are nonetheless subject to strict scrutiny. Any

employment protections for teachers would be subject to strict scrutiny

under their approach. Students (and parents) could bring equal protection

challenges to specific teacher assignments, principals, curricular choices,

and a multitude of other school-related practices, IB 42-43, 52 – injecting

the courts into countless legislative and administrative educational

decisions. Cf. Wilson v. State Bd. of Educ. (1999) 75 Cal.App.4th 1125,

1134-35 (describing Legislature’s “sweeping” and “comprehensive” power

to formulate education policy).

35

Plaintiffs counter that the implications of a decision in their favor

need not be considered because courts must decide whether to apply strict

scrutiny “on a case-by-case basis.” RB 93. Yet to invalidate five state

statutes without articulating the relevant standards and without making

specific factual findings is to ignore the role of the judiciary – which is not

to re-weigh competing goals and pronounce optimal educational policies

but to defer to legislative policy judgments unless a contrary ruling is

necessary to protect clearly established constitutional rights.33

B. The Trial Court Erred in Applying Strict Scrutiny Under a “Suspect Class” Theory.

The trial court also applied strict scrutiny based on its alternative

conclusion that the challenged statutes disproportionately harm a suspect

class of poor and minority students. AA 7306-07. That too was error. The

statutes are facially neutral and were not enacted with any intent to

discriminate (as Plaintiffs concede). Nor was there evidence that the

statutes disproportionately harm poor or minority students. IB 65-75.

1. The Record Lacks Necessary Evidence of Discriminatory Intent.

It is undisputed that the challenged statutes were not enacted with an

intent to discriminate. While Plaintiffs assert that a neutral statute’s

unintended but disparate impact on a suspect class triggers strict scrutiny

under the California Constitution, RB 96-99, three decades of case

precedent hold otherwise. See IB 65-67 (citing Hardy v. Stumpf (1978) 21

Cal.3d 1, 7; Kim v. Workers’ Comp. Appeals Bd. (1999) 73 Cal.App.4th

33 Far from holding that the broader implications of a plaintiff’s

constitutional theories should be disregarded, Serrano merely rejected the argument that the Court’s analysis would require basic equality of all government-funded public services. See Serrano I, 5 Cal.3d at 614; Serrano II, 18 Cal.3d at 766 n.45.

36

1357, 1361; Sanchez v. California (2009) 179 Cal.App.4th 467, 487-89);

see also People v. Super. Ct. (1999) 75 Cal.App.4th 394, 403-04.

Plaintiffs ask this Court to ignore Hardy’s discriminatory intent

requirement because that case concerned discrimination in public

employment. RB 98. Nothing in Hardy supports that distinction. The

“discriminatory intent” requirement is part of every “suspect class” equal

protection claim, all of which arise under the same clauses of the California

Constitution. The Court of Appeal applied Hardy’s requirement of

discriminatory intent in the education context as recently as 2009, when

considering whether a state school construction funding statute violated

equal protection by discriminating against “less affluent and minority

children.” Sanchez, 179 Cal.App.4th at 487-89. The Court of Appeal

rejected the appellant’s claim because he “fail[ed] to show a discriminatory

intent on the part of the Legislature or regulatory body.” Id. at 489.34

Plaintiffs next contend that under Serrano, strict scrutiny applies any

time disparate impact is shown in the education context. RB 96-97. But

the Supreme Court was careful to point out in both Serrano I and II that the

case involved not mere “de facto discrimination” – i.e., unintentional

disparate impact based on practical effects rather than statutory

classifications (as Plaintiffs allege here) – but an actual statutory

classification that distinguished between school districts and their students

based on wealth. See IB 68 & n.39 (citing Serrano I and II); see also Butt,

4 Cal.4th at 682 (Serrano concerned “purposeful state legislative action

34 Plaintiffs assert that the absence of any disparate impact was

“undisputed” in Sanchez, RB 98 n.39, but the school district there argued that the challenged policies had a disproportionate impact on “less affluent and minority children” who lived in the district and other high growth areas. 179 Cal.App.4th at 487-89.

37

which had produced the geographically based wealth classifications”).35

The Court in Serrano I “disagree[d]” that the case “involve[d] at most de

facto discrimination,” and described the case as “unusual in the extent to

which governmental action is the cause of the wealth classifications.” 5

Cal.3d at 603 (emphasis in original). Because Serrano involved de jure

discrimination, any speculation regarding what standards might apply in a

de facto discrimination case was at most dicta that did not survive later

developments in California law. See Hardy, 21 Cal.3d at 7.36

2. There Is No Evidence of Disparate Impact. Even if California law allowed equal protection challenges based on

disparate impact alone, the trial court still erred in its “suspect class”

analysis, because the record does not establish that the challenged statutory

provisions cause any statistically significant harm to poor or minority

students. See IB 69-70 (citing cases); see also Texas Dept. of Housing &

Comm. Affairs v. Inclusive Communities Project, Inc. (2015) 135 S.Ct.

2507, 2523 (strong causation proof is required to prevent recognition of

such claims from posing “serious constitutional concerns”).

First, as a legal matter, anecdotal evidence from a few school

districts cannot support a conclusion that the challenged statutes

35 Butt provides no support to Plaintiffs because it did not involve a

suspect class claim. 4 Cal.4th at 685-86. 36 Plaintiffs cite Johnson v. Dept. of Justice (2015) 60 Cal.4th 871,

where there was no disparate impact claim, and Crawford v. Bd. of Educ. (1976) 17 Cal.3d 280, a pre-Hardy case holding that school districts have a legal obligation to desegregate their schools. No case has ever applied Crawford outside that context, which was the narrow focus of the Court’s decision – as demonstrated by its statement (which Plaintiffs omit) that the obligation arises from “the detrimental consequences that segregated schools have traditionally imposed on minority children, and a school board’s plenary authority over the governance of its schools.” Crawford, 17 Cal.3d at 296; compare RB 97.

38

disproportionately and systemically harm poor and minority students

throughout the State. Carter v. CB Richard Ellis, Inc. (2004) 122

Cal.App.4th 1313, 1323-24; IB 69-70 & n.40.37

More fundamentally, the factual record does not establish that the

challenged statutes cause constitutionally disproportionate numbers of poor

and minority students to be assigned to “grossly ineffective” teachers.

Instead it shows that school district officials exercise independent

discretion in making such assignment decisions, and that numerous other

factors also impact student assignments. See IB 45-49.38

Plaintiffs’ contrary arguments about causation are meritless.

Plaintiffs repeatedly cite a 2007 California Department of Education report

(the only evidence the trial court referenced in its analysis) as proof of the

challenged statutes’ disproportionate impact. See RB 45-46, 99-100; AA

4681-4740, 7306-07. That report in no way establishes that the challenged

statutes cause a statewide, statistically significant disparity in the

distribution of “grossly ineffective” teachers. IB 71 & n.41. The focus of

that report was compliance with the federal No Child Left Behind law, see

AA 4681, 4683-84, which requires states to ensure that poor and minority

children are not disproportionately taught by “inexperienced,

37 Plaintiffs’ authorities are inapposite. Gould, 14 Cal.3d 661, and

Lungren, 16 Cal.4th 307, were decided on a fundamental rights theory, not a “disparate impact” theory. Cal. Redevelopment Ass’n v. Matosantos (2011) 53 Cal.4th 231, involved a challenge to a statute that allegedly conflicted with a voter-approved constitutional amendment, not an equal protection claim, and the majority’s analysis relied solely on the statutory text without considering evidence regarding the statute’s operation. Id. at 267-70.

38 Because the trial court failed to make factual findings concerning disparate impact, AA 7165 ¶154; 7263 ¶42, this Court may not infer them. See IB 67, 70.

39

underqualified, and out-of-field teachers,” AA 4685; see also AA 4691 – a

different and far broader category than “grossly ineffective.”39 The

statement that administrators sometimes transfer poorly-performing

teachers because of the difficulties of dismissing teachers, RB 45-46, was

based on a 2005 study (now ten years old) of “five representative urban

districts” throughout the United States, none of which were identified as

being in California.40 Nor did the report indicate how frequently those

transfers occurred (in those five districts or elsewhere), what role (if any)

the challenged statutes played in creating the asserted “difficulties” giving

rise to the transfers, or whether those transfers resulted in statistically

disproportionate distribution of poorly-performing teachers to certain

students in any of those “representative urban” districts. AA 4725-26.

Plaintiffs also cite the report for their assertion that students in high-

poverty, low-performing schools are more likely to be taught by ineffective

teachers. RB 46 (citing AA 4685). But nothing in the report attempts to

quantify that difference, either in a California urban school district or

elsewhere, much less with any statistical precision. And the report nowhere

blames any such disparities on the challenged statutes. IB 71; AA 4681-

4740.

Plaintiffs next point to testimony that the challenged statutes “could”

cause a “dance of the lemons.” RB 101; RT 2784:10-85:15 (Kane). This

speculative assertion proves nothing about the actual causal relationship

39 Plaintiffs try to bend the report to their own purposes by omitting

critical language without ellipses. See RB 46 (quoting report as referring to “schools having a disproportionate number of ineffective teachers” when report actually refers to “schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers”).

40 At least four were definitely outside California. See Levin et al., Unintended Consequences, at *4, available at http://tntp.org/assets/ documents/UnintendedConsequences.pdf.

40

between the challenged statutes and Plaintiffs’ alleged harms, and does not

meet the threshold test of substantiality. See, e.g., Wise v. DLA Piper LLP

(2013) 220 Cal.App.4th 1180, 1191-92, 1194. Indeed, the trial court

expressly disavowed any reliance on that testimony for its causation

analysis. RT 2879:17-2880:22 (“[A]ny testimony … based on the word

‘could’ is of minimal weight as far as the Court is concerned”). The actual

evidence showed that the practice, where it exists, is a school district choice

that districts can and do avoid. IB 72-73.

Plaintiffs’ reliance on other evidence to support the trial court’s

references to “churning” and “dance of the lemons,” AA 7306-07, is

equally unavailing, both because the necessary factual findings may not be

inferred and because the evidence does not establish the requisite causation:

a statistically significant disparate impact on poor or minority students in

any district caused by the challenged statutes. IB 72-75. Plaintiffs’

supposed causation evidence was limited to a few anecdotes (without any

corresponding statistical evidence) from two school districts, which is

insufficient to establish a statewide disparate impact claim. RB 44-45, 100

(citing Kappenhagen and Douglas); see Wal-Mart Stores, Inc. v. Dukes

(2011) 131 S.Ct. 2541, 2556.41 Plaintiffs’ evidence ignores that §35056

already restricts teacher transfers into low-performing schools. See IB 73.

And Plaintiffs’ evidence fails to consider the impact of misassigning

teachers outside their credentials (a common district practice) on any

identified disparities in teacher effectiveness. IB 46 n.23.

41 Plaintiffs’ reliance on other evidence is equally misplaced.

Larissa Adam testified about “priority placements” of OUSD teachers displaced from other schools, but admitted the challenged statutes did not require that process. RT 1438:20-1439:5. Superintendent Seymour and many other administrators testified that their districts “did not” allow a “dance of the lemons,” confirming that the supposed phenomenon is not caused by the challenged statutes. RT 7134:5-13 (emphasis added); IB 73.

41

Plaintiffs’ evidence regarding the RIF statute likewise did not

establish that it causes “grossly ineffective” teachers to be

disproportionately assigned to high-poverty and high-minority schools.

Plaintiffs rest their arguments on the 2012 “Greatness by Design” report,

RB 45-46, 99-100, but nothing in that report blamed §44955 for “massive

instability” at high-poverty, high-minority schools, cf. RB 4, 50, or for the

continued employment of “grossly ineffective” teachers, cf. RB 40-41.

Rather, the report observed that some excellent teachers were lost during

the massive layoffs of the late 2000s, and that teacher retention remains a

serious problem. AA 4784, 4810. Nowhere did it suggest that “grossly

ineffective” teachers were retained while more effective teachers were laid

off, or that budgetary layoffs should be used as a shortcut for performance

dismissals.

While the evidence showed that in some school districts, large-scale

layoffs sometimes fall disproportionately on high-poverty, high-minority

schools, RB 48-49, the evidence also showed that those patterns are not

consistent across California, and that where such patterns do exist, it is

because less experienced teachers concentrate in schools for reasons

entirely unrelated to the challenged statutes. IB 47-48, 74-75.42 High

teacher turnover will exist in those schools with or without §44955, and is

properly addressed by investing effort and resources in improving the

working conditions therein. Id.43

42 The evidence regarding an achievement “gap” between affluent

white students and poorer minority students is similarly immaterial in light of Plaintiffs’ concession that the challenged statutes do not cause that gap. RB 47.

43 At trial, Plaintiffs’ suspect class claim rested on the argument that the challenged statutes cause “grossly ineffective” teachers to be disproportionately assigned to high-poverty, high-minority schools. AA

42

At most, Plaintiffs have shown that some schools in some districts

have a disproportionate number of less experienced teachers.44 Because the

record does not establish that the challenged statutes are the cause of any

statistically significant statewide disparity in assignments of “grossly

ineffective” teachers to those schools (much less to the exclusion of the

other factors that necessarily bear on teacher assignments), IB 45-48, the

statutes cannot be invalidated on a “disparate impact” theory. Texas Dept.

of Housing, 135 S.Ct. at 2523; see IB 47-48.45

IV. AB 215 Moots Plaintiffs’ Challenge. AB 215 was enacted last year to “update[] and streamline[] the

teacher discipline and dismissal process, saving school districts time and

money while at the same time ensuring due process.” Intervenors’ RJN

Exh. 7, at 7. As previously explained, AB 215’s amendments of the

dismissal statutes would moot this case even if there were some merit to the

trial court’s analysis. IB 64-65. Plaintiffs do not dispute the applicable

mootness standards, but assert that AB 215 will not accomplish the

7305-07. Plaintiffs cannot now assert a claim based solely on the purported disproportionate impact of teacher layoffs on certain schools, which has never been their theory. See AA 45-48, FAC ¶¶61-73; but see RB 48-49. Even if Plaintiffs could pursue a new theory at this point, they failed to provide the necessary statistical evidence, including most fundamentally evidence showing that the requirements of the RIF statute, separate and apart from discretionary district decisions about how to implement layoffs, had a statistically significant disparate impact on poor and minority students in specific California school districts. See IB 74 & n.43.

44 Intervenors addressed the limitations of that evidence at IB 74 & n.43. In response, Plaintiffs misquote Professor Rothstein, who testified that, “controlling for experience,” there is no significantly disproportionate distribution of effective teachers. IB 72 (citing RT 6113:1-19); cf. RB 100.

45 As explained in IB 75-76, the challenged statutes would have to be upheld even if rational basis review or strict scrutiny applied (which neither does).

43

Legislature’s stated purposes because teacher dismissals will remain

“burdensome, time-consuming, and costly,” and AB 215 might make it

“more difficult … to dismiss grossly ineffective teachers.” RB 111-12

(emphasis in original). Plaintiffs’ arguments are illogical and contradicted

by the amended statutes’ text.

Before AB 215, there was no statutory deadline by which a dismissal

hearing had to be completed (prompting Plaintiffs to complain that delays

in resolving such cases imposed unconstitutional burdens). AA 7302-03.

Under AB 215, parties must commence hearings within six months, and

complete them within seven. AB 215 §15 (amending §44944(b)(1)). AB

215 also limits ALJs’ discretion to postpone hearings and restricts

extensions beyond the seven-month deadline to cases where the parties

have made “substantial progress” and good cause exists. Id. By setting

firm deadlines and limiting extensions, AB 215 reduces the risk that

hearings will be prolonged or delayed – as the Legislature intended.46

Plaintiffs also complain that prior dismissal procedures imposed

costly and burdensome discovery obligations. AA 15 ¶51, 370, 7061, 7303,

7305; RT 1522:10-20, 1978:10-1979:3, 2000:1-13, 6524:15-6525:14. AB

215 significantly reduces that cost and time by replacing civil discovery

with mutual pre-trial disclosures. AB 215 §16 (adding §44944.05). Further,

discovery disputes no longer necessitate a detour into civil court. See

§44944(a)(2). Instead, disputes are resolved before an ALJ familiar with

the case, within the statutory deadlines. AB 215 §§15-16 (adding

§44944.05, amending §44944(a)); see also IB 23.

46 Plaintiffs speculate that the new deadline might increase delays

because a hearing not completed by the deadline would have to restart, RB 13, 112, but nothing in AB 215 requires “do-overs” or otherwise specifies the consequences of missed deadlines.

44

Plaintiffs ignore these changes, just as they ignore the other cost-and

time-saving measures implemented by AB 215. Section 44936 previously

prohibited districts from initiating “unsatisfactory performance” dismissals

between May 15 and September 15; the new law lifts this prohibition,

eliminating summer delays. See IB 23. AB 215 also expands the pool of

eligible CPC panelists, permits the parties to waive the right to a panel, and

requires the State to pay half the district’s hearing costs when a dismissal is

upheld. Id. All of these reforms reduce the cost and time of teacher

dismissal hearings.

Plaintiffs’ criticisms of AB 215 are similarly misplaced. Plaintiffs

complain that AB 215 permits teachers to seek immediate administrative

review of suspensions without pay, but teachers already had the ability to

seek such review through a civil petition for writ of mandate. AB 215

eliminates the need for this separate civil suit, while setting a short deadline

and strict limitations on the scope of administrative review. AB 215 §8

(amending §44939(c)). Plaintiffs also complain that parties may object to

CPC members, ignoring that such objections have always been permitted

and AB 215 simply establishes an early cutoff for their resolution. AB 215

§15 (amending §44944(c)(4)).

AB 215 moots Plaintiffs’ challenges to the tenure and RIF statutes as

well. AB 215’s amendments significantly restructure the teacher dismissal

process, and Plaintiffs have consistently emphasized the interconnectedness

of the dismissal statutes with the RIF and tenure statutes. The trial court

likewise ruled that the challenged statutes in combination “impose a real

and appreciable impact on students’ fundamental right to equality of

education and … a disproportionate burden on poor and minority students.”

AA 7300. The principal basis for that ruling was that “there are a

significant number of grossly ineffective teachers currently active in

45

California classrooms.” Id.47 Because AB 215 makes it less costly and less

time-consuming to remove ineffective teachers for cause, it matters far less

– even under Plaintiffs’ theory – that some such teachers may obtain tenure

under §44929.21(b) or avoid layoffs under §44955.48

Plaintiffs urge this Court to exercise its discretion to ignore

mootness because this appeal raises an issue of broad public interest. RB

113. While educational policy is an important public issue, the claims in

this case concern five specific provisions of the Education Code, two of

which have been materially amended in a manner that affects the analysis

of all five. How the revised statutes will operate in practice will not be

known for several years. While there may be value in ruling on the

threshold constitutional issues as a matter of law (which would necessarily

lead to reversal), the Court cannot affirm an injunction against the

continued operation of statutes that have been materially amended.

V. Plaintiffs Have No Standing. Plaintiffs effectively concede that they have never been assigned to

“grossly ineffective” teachers because of the challenged statutes, but

47 Because the trial court’s conclusion that the challenged statutes

were subject to strict scrutiny was premised on the combined effect of the statutes, it is irrelevant that the trial court “unambiguously h[e]ld[] each statute unconstitutional on its own” when applying strict scrutiny. RB 110 n.49. In assessing whether streamlining the dismissal process moots any challenge to the tenure and RIF statutes, the relevant question is not whether those statutes survive strict scrutiny, but whether they would be subject to strict scrutiny if the supposed defects of the dismissal statutes were eliminated.

48 Plaintiffs separately argue that the amendments did not take effect until after final judgment. RB 112 n.50. But Plaintiffs do not dispute that the material modification of a challenged statute while an appeal is pending can moot that appeal. IB 64-65 (citing, e.g., Bell v. Bd. of Supervisors (1976) 55 Cal.App.3d 629, 636-37).

46

contend “[t]here is no need for Plaintiffs to prove that the Challenged

Statutes have caused them harm in the past” because standing can be based

on “threatened injury.” RB 114. Plaintiffs failed to prove such threatened

injury, though, and the trial court made no findings regarding standing that

would support Plaintiffs’ position. IB 79 n.45.49

Plaintiffs have never presented any evidence that they are likely to

be assigned to a “grossly ineffective” teacher. At most, they have shown

that LAUSD and OUSD would like to dismiss some unknown number of

teachers for performance reasons (who may or may not be “grossly

ineffective”). RB 115. That is not enough to establish a real, non-

speculative risk of injury, let alone an injury caused by the challenged

statutes that would be redressable by enjoining their future application.

“It is the reality of the threat of repeated injury that is relevant to the

standing inquiry, not the plaintiff’s subjective apprehensions,” and the

“reasonableness of [any such] fear is dependent upon the likelihood of a

recurrence of the allegedly unlawful conduct.” City of Los Angeles v.

Lyons (1983) 461 U.S. 95, 107 n.8 (emphasis in original). There must be

proof, not just speculation, that Plaintiffs face a substantial risk of being

assigned to a “grossly ineffective” teacher due to the challenged statutes.

Yet Plaintiffs DeBose and Elliott have already graduated. IB 78. The

Vergara sisters attend a school whose teacher workforce is not affected by

the challenged statutes. RB 115-116; IB 78. Monterroza is entitled to

remain at her charter school, where she is “happy” and unaffected by the

49 Each of Plaintiffs’ standing cases involved a plaintiff who was

directly affected by the challenged policy. See RB 113-16. Plaintiffs’ generalized “interest in the quality of their education,” RB 114, is not sufficient to establish their standing. See County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 814; Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87-90. Plaintiffs also cite Serrano I, but that case does not address standing.

47

challenged statutes. RT 3655:13-16. Several Plaintiffs did not express any

concern about future assignments to “grossly ineffective” teachers. AA

6535-48 (Liss), 6522-32 (Campbell), 5717-5717A, 5731 (Elliott).

Although Plaintiffs assert that Martinez “would attend traditional district

schools if [she were] not at risk of being taught by grossly ineffective

teachers,” RB 115, that is not what her mother testified. See AA 1195-96.

Any threat that these individual plaintiffs might someday be assigned to

“grossly ineffective” teachers as a result of the challenged statutes thus

lacks the “immediacy and reality” necessary for standing. Lyons, 461 U.S.

at 104.50

VI. Plaintiffs’ As-Applied Challenges Must Be Rejected. Plaintiffs assert in a single sentence that the trial court’s ruling

should be construed as holding the challenged statutes unconstitutional “as

applied,” not just on their face. RB 116-17. However, Plaintiffs do not

present any supporting argument or analysis, and offer no response to

Intervenors’ showing that the challenged statutes caused no actual injury to

any Plaintiff and that Plaintiffs’ dismissal of the school district defendants

who administer the statutes precludes any “as-applied” remedy. IB 76-79,

82 n.47. Nor did the trial court make any of the necessary findings

regarding such a claim. See AA 7293-7308 (judgment); see also AA 7163-

65 ¶¶139-51, 7261-62 ¶¶39-40 (requesting findings). Thus, the decision

below cannot be affirmed (even in part) on an “as-applied” theory.

50 Unlike in DiBona v. Matthews (1990) 220 Cal.App.3d 1329, any

injury to a Plaintiff claiming to be deterred from re-enrolling in a traditional public school is highly attenuated and affected by multiple intervening causes. IB 45-49. Plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper v. Amnesty Int’l USA (2013) 133 S.Ct. 1138, 1151.

50

PROOF OF SERVICE

CASE: Beatriz Vergara, et al. v. State of California, et al.

CASE NO: California Court Of Appeal, Second District, No. B258589

I am employed in the City and County of San Francisco, California.

I am over the age of eighteen years and not a party to the within action; my

business address is 177 Post Street, Suite 300, San Francisco, California

94108. On September 2, 2015, I served the following documents:

REPLY BRIEF OF INTERVENORS-APPELLANTS CALIFORNIA TEACHERS ASSOCIATION AND

CALIFORNIA FEDERATION OF TEACHERS

on the parties, through their attorneys of record, by placing true copies

thereof in sealed envelopes addressed as shown below for service as

designated below:

A. By U.S. First Class Mail: I am readily familiar with the practice of

Altshuler Berzon LLP for the collection and processing of correspondence

for mailing with the United States Postal Service. I placed each such

envelope, with first-class postage thereon fully prepaid, to be deposited in a

recognized place of deposit of the U.S. Mail in San Francisco, California,

for collection and mailing to the office of the addressee on the date shown

herein.

B. By E-Filing: I submitted the document via the California Court of

Appeal, Second Appellate District electronic submission system at

http://www.courts.ca.gov/2dca-efile.htm, per C.R.C. 8.212(c)(2) .

ADDRESSEE PARTY A Theodore J. Boutrous

Marcellus A. McRae Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071

Beatriz Vergara, et al., Plaintiffs and Respondents