IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA …studentsmatter.org/wp...ACB_SchwarzeneggerWilson.pdf · Governors Arnold Schwarzenegger and Pete Wilson (“Applicants”) apply

Case No. B258589

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

_______________________________________________________

STATE OF CALIFORNIA, ET AL., Defendants

CALIFORNIA TEACHERS ASSOCIATION, ET AL., Intervenors,

Appellants,

v.

BEATRIZ VERGARA, ET AL., Plaintiffs

Respondents.

_________________________________________________________

Appeal from the Los Angeles County Superior Court Case No. BC484642

Honorable Rolf M. Treu, Judge _________________________________________________________

APPLICATION FOR PERMISSION TO FILE AN AMICI CURIAE BRIEF

WHITE & CASE LLP BRYAN A. MERRYMAN (SBN 134357) ELLIOTT E. DIONISIO (SBN 294539) J. TAYLOR AKERBLOM (SBN 299042) 555 South Flower Street, Suite 2700 Los Angeles, California 90071-2433 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson

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APPLICATION FOR PERMISSION TO FILE AN

AMICI CURIAE BRIEF In accordance with California Rule of Court 8.200(c), Amici Curiae

Governors Arnold Schwarzenegger and Pete Wilson (“Applicants”) apply for

permission to file an amici curiae brief.

A. Applicants’ Interest and the Amici Brief’s Ability to Assist the Court (CRC 8.200(c)(2))

Applicants are former Governors of California. Both served two

consecutive terms: Governor Schwarzenegger from 2003 to 2011, and

Governor Wilson from 1991 to 1999.

Applicants have a significant interest in the outcome of State v.

Vergara, No. B258589. As former governors of California, Applicants were

responsible for ensuring that California’s children receive their

constitutionally-protected right to a quality education. During their

respective terms, Applicants worked to institute policies and reforms in

support of this responsibility while overseeing the state’s education system.

Applicants have also worked to overturn the statutes at issue here, a

previously unsuccessful goal that the judiciary may now accomplish.

Applicants’ brief will help this Court understand the negative impacts

of California Education Code sections 44929.21(b), 44934, 44938(b)(1) &

(2), 44944, and 44955 on all students across the state and on the prosperity of

California as a whole. The brief will illustrate other previously failed

attempts to remedy the problems with the challenged statutes by other

branches of government, and discuss why the judiciary is the most

appropriate forum to finally resolve the debate over the challenged statutes.

B. Authors (CRC 8.200(c)(3)(A)(i)) No parties or counsel for parties authored the proposed amici brief in

whole or in part.

C. Contributors (CRC 8.200(c)(3)(A)(ii), (B))

No parties, counsel for parties, entities, or other persons made a

monetary contribution toward the preparation and submission of this brief.

We respectfully request permission to file an amici brief in support of

plaintiffs Beatriz Vergara, Elizabeth Vergara, Clara Grace Campbell,

Brandon DeBose, Jr., Kate Elliott, Herschel Liss, Julia Macias, Daniella

Martinez, and Raylene Monterroza.

Dated: September 16, 2015

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WHITE & CASE LLP

Bryan A. Merryma

Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson

Case No. B258589

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

_______________________________________________________

STATE OF CALIFORNIA, ET AL., Defendants

CALIFORNIA TEACHERS ASSOCIATION, ET AL., Intervenors,

Appellants,

v.

BEATRIZ VERGARA, ET AL., Plaintiffs

Respondents.

_________________________________________________________

Appeal from the Los Angeles County Superior Court Case No. BC484642

Honorable Rolf M. Treu, Judge _________________________________________________________

AMICI CURIAE BRIEF IN SUPPORT OF BEATRIZ VERGARA, ET AL.

WHITE & CASE LLP BRYAN A. MERRYMAN (SBN 134357) ELLIOTT E. DIONISIO (SBN 294539) J. TAYLOR AKERBLOM (SBN 299042) 555 South Flower Street, Suite 2700 Los Angeles, California 90071-2433 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson

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TABLE OF CONTENTS

Page

I. Introduction ........................................................................................ 1

II. The Challenged Statutes Create A Statewide Problem For All Students, and Not Only Those Students From Low-Income And Predominantly Minority Schools .......................... 3

III. California’s Constitutional Guarantee Of A Quality Public Education Is Critical To Our State’s Future Success ............................................................................................... 5

IV. The Challenged Statutes Disproportionately Impact Low Income And Minority Students .................................................. 7

V. The Political Process Has Failed To Remedy These Constitutional Violations .................................................................... 9

A. Failed Amendments to the Permanent Employment Statute .............................................................. 10

B. Failed Amendments to the Last In, First Out Statute .................................................................................... 11

C. Failed Amendments to the Dismissal Statutes ...................... 12

D. Proposition 74 and the 2005 Special Election ....................... 14

VI. Judicial Intervention Is Not Only Proper, But Required .................. 16

VI. Conclusion ........................................................................................ 17

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TABLE OF AUTHORITIES

Page(s)

CASES

Cal. Radioactive Materials Management Forum v. Dept. of Health Services (1993) 15 Cal.App.4th 841 .................................................................... 16

Knox v. Service Employees Internat. Union, Local 1000 (2012) 132 S.Ct. 2277 ............................................................................ 15

Schabarum v. Cal. Leg. (1998) 60 Cal.App.4th 1205 .................................................................. 16

Serrano v. Priest (1971) 5 Cal.3d 584 ......................................................................... 16, 17

Vergara v. State of California (Cal. Super. Ct. 2014) No. BC484642 ............................................... 4, 16

LEGISLATIVE PROCEEDINGS

Assem. Bill No. 292 (1999-2000 Reg. Sess.) .............................................. 10


Assem. Bill No. 36 (1999-2000 1st Ex. Sess.) ............................................ 10

Sen. Bill No. 1097 (2001-2002 Reg. Sess.) ................................................. 10

Sen. Bill No. 124 (2003-2004 Reg. Sess.) ................................................... 10

Assem. Bill No. 1761 (2007-2008 Reg. Sess.) ............................................ 10


Assem. Bill No. 2028 (2011-2012 Reg. Sess.) ...................................... 13, 14


Sen. Bill No. 1059 (2011-2012 Reg. Sess.) ........................................... 13, 14


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Sen. Rules Com., Hearing on Assem. Bill No. 375, (2013-2014 Reg. Sess.) ................................................................... 12, 13

Assem. Bill No. 375, veto message by Governor, Oct. 10, 2013 (2013-2014 Reg. Sess.) .......................................................................... 13

Assem. Bill No. 947 (2013-2014 Reg. Sess.) ........................................ 11, 12



Assem. Com. on Ed., Analysis of Assem. Bill No. 2240 (2013-2014 Reg. Sess.) Apr. 30, 2014 ................................................... 12

Sen. Bill No. 453 (2013-2014 Reg. Sess.) ....................................... 11, 12, 13

Sen. Bill No. 531 (2013-2014 Reg. Sess.) ............................................. 13, 14

STATE STATUTES

Cal. Ed. Code § 44929.21(b) ............................................................. 1, 10, 11

Cal. Ed. Code § 44934 ............................................................................. 1, 12

Cal. Ed. Code § 44938(b)(1) ................................................................... 1, 13

Cal. Ed. Code § 44938(b)(2) ................................................................... 1, 13

Cal. Ed. Code § 44944 ............................................................................. 1, 13

Cal. Ed. Code § 44955 ................................................................... 1, 7, 11, 12

Cal. Ed. Code § 44955(d)(2) ......................................................................... 7

TREATISES

Bartik, From Preschool to Prosperity: The Economic Payoff to Early Childhood Education (2014) W.E. Upjohn Institute p. 9-19 <http://www.upjohn.org/ publications/upjohn-institute-press/preschool-prosperity-economic-payoff-early-childhood-education> [as of Sept. 10, 2015] ........................................................................... 6, 7

Berger & Fisher, A Well-Educated Workforce Is Key to State Prosperity (Aug. 22, 2013) .................................................................................... 5, 6

iv

Proposition 74, Institute of Governmental Studies, University of California, Berkeley (2015) <https://igs.berkeley. edu/library/elections/proposition-74> [as of Sept. 10, 2015] ...................................................................... 14

Special Statewide Election—Statement of Vote, November 8, 2005, California Secretary of State <http://www.sos.ca.gov/elections/prior-elections/statewide-election-results/special-statewide-election-november-8-2005/statement-vote/> [as of Sept. 10, 2015).) ................. 15

Tanner, Voters Reject Schwarzenegger Reforms, The Washington Post (Nov. 9, 2005) <http://www.washington post.com/wp-dyn/content/article/2005/11/09/ AR2005110900241.html> .................. 15

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AMICI CURIAE BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT

I. INTRODUCTION

These former Governors of California know that the constitutional

guarantee of a quality public education for all of California’s students is a

significant right and one that is critically important, not just to our lower

income families and underrepresented minorities, but to the future of our

state, its continued economic vitality and global competitiveness, and to

our citizens who need a quality education to join the workforce.

Thus, when the nine student plaintiffs -- Beatriz Vergara, Elizabeth

Vergara, Clara Grace Campbell, Brandon DeBose, Jr., Kate Elliott,

Herschel Liss, Julia Macias, Daniella Martinez, and Raylene Monterroza --

turned to the California courts to repeal statutes that were impairing their

right to a quality education, their decision could hardly have been a

surprise. The notion that California Education Code sections 44929.21(b)

(“Permanent Employment Statute”), 44934, 44938(b)(1) & (2), and 44944

(collectively, “Dismissal Statutes”), and 44955 (“Last In, First Out

Statute”) were destructive to the state school system and its students’

education was not novel. The laws governing teacher tenure and dismissal

have a history of controversy, in some ways, unparalleled to that of any

other state laws.

Although the statutes were enacted to strengthen teachers’ job

security, they unfortunately also acted to retain grossly ineffective

teachers. This was not an insignificant development. Administrators and

school officials took notice: California law made it nearly impossible to

remove ineffective teachers from classrooms. Researchers and

statisticians took notice: they found that learning under grossly ineffective

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teachers resulted in drastic and potentially life-long harm to students. The

legislature took notice: over the last fifteen years, the California State

Assembly and Senate attempted unsuccessfully to revise the challenged

statutes. The public took notice: citizens learned about the harmful effects

of the statutes through highly publicized debates and political advertising

prior to California’s 2005 special election.

Despite all of this attention and many efforts to amend or repeal the

statutes, there has been no meaningful relief for California students. Given

this history, the judiciary is the best, most appropriate, forum to remedy

the constitutional infirmities of the challenged statutes and improve the

educational experience for the nine plaintiffs, and all students in

California.

Amici, former Governors of California, file this brief to show that,

given the failed attempts to repeal or amend the challenged statutes

through the legislature and a special election, the judiciary should and

must decide whether the challenged statutes are constitutional.

First, this brief reviews the impact of the challenged statutes to

illustrate that the problems they created are pervasive and widespread

throughout California’s schools. (See infra Sec. II.) Each and every

student across California is at risk of learning from grossly ineffective

teachers—not just students of lower socioeconomic status and students

attending predominantly minority schools. (Ibid.) The impact of learning

from such teachers extends beyond the prosperity of the individual to the

prosperity of the entire state of California. (See infra Sec. III.)

Second, this brief reiterates that the statutes result in an

unconstitutional injustice on the access of California students to a quality

education, resulting in harm to already vulnerable demographics and

perpetuating a costly and ineffective teacher dismissal process. (See infra

Sec. IV.)

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Third, we highlight the disheartening history of the governmental

bodies and persons that have attempted unsuccessfully to amend or repeal

the challenged statutes, further demonstrating that the judiciary must act

here to strike them down. Judicial intervention is absolutely necessary to

make a significant impact on the school system and California students.

(See infra Sec. VI.)

The Court should affirm the trial court’s judgment in favor of the

nine student plaintiffs.

II. THE CHALLENGED STATUTES CREATE A STATEWIDE

PROBLEM FOR ALL STUDENTS, AND NOT ONLY THOSE STUDENTS FROM LOW-INCOME AND PREDOMINANTLY

MINORITY SCHOOLS

The challenged statutes negatively affect all California students, not

only a select number of students, classrooms, and districts. A close look at

the record reveals that the Permanent Employment Statute, Dismissal

Statutes, and Last In, First Out Statute pose problems for all California

students, regardless of socioeconomic background or place of learning.

Grossly ineffective teachers are ineffective because of their inability to

teach—not because of the profile of the students, or the site where the

teaching occurs.

Many of the measures, statistics, and effects of the challenged

statutes that are in the record are class and ethnic-neutral, reflecting the

statewide scope of the problem:

• All parties in this case agree that the importance of teacher

effectiveness toward student success cannot be overstated,

especially amidst decades of research confirming the same. (2

AA 367:15-368:6.)

• Administrators from school districts across California have

testified to their experiences working with and observing grossly

4

ineffective teachers—including verbally abusive teachers who,

were it not for the protections of the challenged statutes, would

have been removed from California’s education system (notably

in Baldwin Park, Corcoran, Cupertino, Emeryville, Gilroy, Los

Angeles, Oakland, Oceanside, Sacramento, San Gabriel, San

Jose, and Simi Valley). (Id. at 376:18-377:6, 379:1-381:21.)

• In the past ten years, the state’s Commission on Professional

Competence has allowed California’s 1,052 school districts to

dismiss only ninety-one teachers—out of the 275,000 teachers

statewide—mostly for egregious conduct, instead of

ineffectiveness. (Id. at 382:2-10.)

• Students that experience a single year of instruction by a grossly

ineffective teacher ranking in the bottom ten percent of

effectiveness miss out on at least one-half year of academic

growth. (Id. at 383:16-18.) Students assigned to two or more

grossly ineffective teachers in a row are unlikely to ever catch up

and perform at grade level. (Id. at 383:18-20.)

• Students learning under grossly ineffective teachers have lower

graduation rates, lower college attendance rates, higher teenage

pregnancy rates, and lower lifetime earnings than peers that learn

under more effective teachers. (Respondents’ Brief (“RB”) at 2.)

• Students taught by grossly ineffective teachers in Los Angeles

Unified School District lose nearly ten months of learning per

school year compared to students with simply average teachers.

(Vergara v. State (Cal. Super. Ct. 2014) No. BC484642 at, 7.)

• Grossly ineffective teachers continue to occupy classrooms

across the state in part because of the expensive, prolonged

dismissal process (notably in Fullerton, Los Angeles, and

Sacramento). (RB at 35.)

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• The Last In, First Out Statute is responsible for the dismissals of

extraordinary ‘teachers-of-the-year’ across the state (notably in

Arcadia and Pasadena). (Id. at 39.)

• District administrators from across the state posit that the current

sixteen-month probationary period is too short to make well-

informed tenure decisions (notably in Fullerton, Los Angeles, El

Monte, Oakland, and San Jose). (Id. at 26-27, 29-30.)

School district personnel across the state have observed the problems

grossly ineffective teachers cause, as well as the conditions created by the

challenged statutes that perpetuate these problems. All students who attend

California public schools face the risk of being assigned to grossly

ineffective teachers and the accompanying lifelong effects. The impact of

poor teaching does not discriminate among groups of students. All

students, statewide, are at risk. This Court should act to preserve the best

possible future for California’s students.

III. CALIFORNIA’S CONSTITUTIONAL GUARANTEE OF A

QUALITY PUBLIC EDUCATION IS CRITICAL TO OUR STATE’S FUTURE SUCCESS

At stake in this case is not only the future of California’s students,

but also the future of California. As students who learn from grossly

ineffective teachers face lifelong setbacks, by extension, California’s

future economic and social success is similarly impacted. California’s

ability to provide a quality education through effective teaching is critical

for the success of students and the state.

Research shows a correlation between a strong education system

and greater economic prosperity. (Berger & Fisher, A Well-Educated

Workforce Is Key to State Prosperity (Aug. 22, 2013) Economic Policy

Institute <http://www.epi.org/publication/states-education-productivity-

6

growth-foundations/> [as of Sept. 10, 2015].) The higher the level of

educational attainment in a state, the higher the median wages of that

state’s workforce. (Id. at 4-9.) By adopting and enforcing policies that

increase the pool of well-educated workers, states can increase the strength

of their economies. (Id. at 9-10.) In addition, studies show that early

childhood education predicts future economic success. (Bartik, From

Preschool to Prosperity: The Economic Payoff to Early Childhood

Education (2014) W.E. Upjohn Institute pp. 9-19 <http://www.upjohn.org/

publications/upjohn-institute-press/preschool-prosperity-economic-payoff-

early-childhood-education> [as of Sept. 10, 2015].) In fact, early

education programs can increase a student’s future adult earnings by more

than 25%. (Id. at 9.)

The caliber of instruction is not the only predictive aspect of

education. More pointedly, positive student-teacher interaction also

correlates to greater earnings. Test scores from classrooms divided by

greater and lesser quality of student-teacher interaction predict a 6%

variance of future income. (Bartik, From Preschool to Prosperity: The

Economic Payoff to Early Childhood Education supra, at 42.) Separate

measures show that classrooms of students taught by grossly ineffective

teachers lose $1.4 million in lifetime earnings compared to classrooms

taught by average teachers. (RB at 2.) Here, too, every little bit counts:

“only modest increases in effectiveness are needed for . . . strong teacher

credentials to have future earnings benefits[.]” (Bartik, From Preschool to

Prosperity: The Economic Payoff to Early Childhood Education supra, at

43.)

Students also benefit from gaining interpersonal skills needed to

prepare them for achieving in the workforce. (Bartik, From Preschool to

Prosperity: The Economic Payoff to Early Childhood Education supra, at

5.) Social skills and character are “as important as cognitive skills in

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making a worker more employable and more productive.” (Id. at 33.)

“[S]kills development from early childhood education will create good

jobs,” sustaining and strengthening California’s economic prosperity. (Id.

at 77.) To see prosperity tomorrow, California must nurture its students

today.

The reverberating effects of the challenged statutes have the power

to cause problems that last a lifetime for affected students and touch upon

the economic wellbeing of the entire state. Research shows this, our

former California Governors understand this, and now the Court should act

to ensure the best possible future for California.

IV. THE CHALLENGED STATUTES DISPROPORTIONATELY

IMPACT LOW INCOME AND MINORITY STUDENTS

While the challenged statutes detrimentally affect students statewide,

the disproportionate impact the statutes have on schools serving low

income and minority students cannot be understated. Specifically, the

effects of the Last In, First Out Statute are magnified in these schools

because the teacher populations serving these schools typically have less

experience and seniority. (RB at 48.) The Last In, First Out Statute

mandates that reductions in force occur strictly on a reverse seniority basis,

minimizing the discretion of school districts to keep teachers based on

effectiveness or other considerations. (Cal. Ed. Code § 44955.)

While subdivision (d)(2) of this statute allows school districts to

“skip” laying off junior teachers to comply with “constitutional

requirements related to equal protection of the laws,” as Respondents have

noted, the evidence at trial proved that “no school district has ever

successfully ‘skipped’ laying off a teacher pursuant to the [Last In, First

Out] statute subdivision (d)(2).” (Cal. Ed. Code § 44955(d)(2); RB at 15.)

Thus, schools serving low income and minority students are harshly

8

impacted every time layoffs occur because they suffer a disproportionate

percentage of layoffs. (RB at 48-50.) The destabilizing effect of

consistent layoffs and layoff notices detrimentally affects both student

achievement and the morale of the teaching staff. (Id. at 49-50.)

Statewide, the Last In, First Out Statute has been shown to reduce

student test scores by 11% and diminish lifetime earnings by up to $2.1

million. (RB, supra, at 40.) Thus, the statute’s magnified effects on low

income and minority students reduce test scores and lifetime earnings by

even greater margins.

The detrimental effects of the Last in, First Out Statute on schools

serving low income and minority students is compounded by the Permanent

Employment Statute and the Dismissal Statutes. Under the Permanent

Employment Statute, school districts have only sixteen months to evaluate

teachers and make tenure decisions. (RB, supra, at 9.) Plaintiffs presented

overwhelming evidence that this unjustifiably short probationary period is

insufficient for principals to make informed tenure decisions, and inevitably

results in grossly ineffective teachers achieving tenure. (Id. at 25-28.)

Under the Dismissal Statutes, it is “virtually impossible for districts

to remove” grossly ineffective teachers after they obtain tenure. (RB,

supra, at 3.) The convoluted and inefficient dismissal process takes several

years, costs between $50,000 and $400,000 per teacher, and often

ultimately fails to remove the grossly ineffective teacher. (Id. at 3, 31-37.)

These grossly ineffective teachers remain employed by virtue of the failings

of the Dismissal Statutes and are shuffled from one school to the next, often

teaching at schools that serve low income and minority students because of

recent vacancies caused by layoffs under the Last In, First Out Statute, in a

process commonly known as “the Dance of the Lemons.” (Id. at 4.) This

practice is nothing more than a helter-skelter process that has evolved from

California’s overprotective teacher employment laws.

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Thus, a disproportionate number of teachers from schools serving

low income and minority students are terminated by seniority, not

effectiveness, when layoffs are conducted under the Last In, First Out

Statute. These vacancies are often filled with grossly ineffective teachers

who received tenure only because of the unreasonably short sixteen-month

evaluation period under the Permanent Employment Statute and who

cannot be terminated under the prohibitively expensive and time-

consuming process required by the Dismissal Statutes. The “Dance of the

Lemons” exemplifies the cyclical, downward spiral nature of the effects of

the challenged statutes on low income and minority students.

V. THE POLITICAL PROCESS HAS FAILED TO REMEDY THESE

CONSTITUTIONAL VIOLATIONS

California state lawmakers have not risen to the occasion to remedy

the challenged statutes’ constitutional violations. While the California

legislature has recognized the need to amend the statutes, it has repeatedly

tried and failed to make amendments that protect California students and

enhance their educational experience.

In the fifteen-year period from 1999 to 2014, the California State

Assembly and Senate combined to draft over thirty bills attempting to

modify the challenged statutes. Yet, no meaningful action occurred.

Instead, there were years of introduced bills, inaction, second attempts, and

failures. Not a single bill proposing significant change became law. The

few bills that passed were limited in scope, cosmetic in nature, and did not

address the statutes’ inherent failings.

In 2005, the legislators even went directly to the voters with a ballot

measure meant to improve the tenure and dismissal procedures the statutes

addressed. After aggressive campaigning by teachers unions against the

proposition—including some tactics later found to be unconstitutional—

10

the measure eventually failed in the special election. All of these instances

of business-as-usual infighting and wrangling simply mean that the

political process is broken and unfit to remedy the challenged statutes.

A. Failed Amendments to the Permanent Employment Statute On six occasions, the legislature attempted to extend the

probationary period before tenure described in California Education Code

section 44929.21(b) from two years to either three or four years. None of

those bills passed into law.

During the 1999-2000 legislative term, the legislature first

attempted to extend the probationary period to four years. (Assem. Bill

No. 292 (1999-2000 Reg. Sess.).) The provision was abandoned in

revisions. (Id. (Amend. dated Apr. 5, 1999).) Then, the State Assembly

sought a three-year period. (Assem. Bill No. 723 (1999-2000 Reg. Sess.).)

That bill died in committee. (Ibid. (failed passage in Com. on Ed.).) In

the first extended session of the term, the Assembly again tried to

implement a four-year probationary period, including concessionary

language allowing the district to grant permanent-teacher status in fewer

than four years. (Assem. Bill No. 36 (1999-2000 1st Ex. Sess.).) Still, the

bill did not pass. (Assem. Bill No. 36, from Com. without further action

(1999-2000 1st Ex. Sess.).)

Twice more in the 2001-2002 and 2003-2004 terms, the legislature

attempted to secure a four-year probationary period, and twice more the

effort was futile. (Sen. Bill No. 1097, failed passage in Com. on Ed.

(2001-2002 Reg. Sess.); Sen. Bill No. 124, failed passage in Com. on Ed.

(2003-2004 Reg. Sess.).) The legislature’s last attempt came in the 2007-

2008 term, in which it sought a period of not less than two years, but no

more than four years before allowing tenure. (Assem. Bill No. 1761

(2007-2008 Reg. Sess.).) Once again, this bill never crossed the

Governor’s desk. (Ibid. (from committee without further action).)

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Across a period of ten years, the California legislature tried

unsuccessfully six times to extend the period that teachers would be

assessed and observed before granting tenure. Several of these bills were

designed to double the probationary period, and others were reconfigured

to secure some legislative compromise toward amending Education Code

section 44929.21(b). However, all attempts failed, and the statute today

continues to rush teachers into tenure.

B. Failed Amendments to the Last In, First Out Statute On six occasions, the legislature attempted to expand the

circumstances in which school districts would be allowed to deviate from

the seniority-based dismissal scheme of California Education Code section

44955. None of those bills passed into law.

The legislature even tried to add teacher evaluations as an exception

to its Last In, First Out Statute. Its efforts failed. During the 2009-2010

term, the California Senate proposed that teacher effectiveness should be

considered in determining transfer, subject matter assignment, and

termination decisions. (Sen. Bill No. 955 (2009-2010 Reg. Sess.).) The

bill went nowhere. (Ibid. (referred to Com. on Rules without further

action).) The next term, the Senate tried again with a bill adding that

performance evaluations should be considered, in addition to seniority, to

achieve workplace reduction terminations. (Sen. Bill No. 355 (2011-2012

Reg. Sess.).) The bill failed to pass in the Committee on Education and

was sent to the Secretary of the Senate, where it disappeared. (Ibid. (failed

passage in Com. on Ed.).)

Most recently, in the 2013-2014 term, the legislature attempted with

three different bills to break from the rigid seniority model to terminate

teachers based on performance. (Assem. Bill No. 947 (2013-2014 Reg.

Sess.); Assem. Bill No. 2240 (2013-2014 Reg. Sess.); Sen. Bill No. 453

(2013-2014 Reg. Sess.).) The legislative history specifically notes that one

12

of these bills was meant to “achieve compliance with constitutional

requirements related to equal protection of the law as it applies to pupils.”

(Assem. Com. on Ed., Analysis of Assem. Bill No. 2240 (2013-2014 Reg.

Sess.) Apr. 30, 2014.) The Committee on Education passed none of these

bills, and took no further action. (Assem. Bill No. 947 (failed passage in

Com. on Ed.); Assem. Bill No. 2240 (failed passage in Com. on Ed.); Sen.

Bill No. 453 (failed passage in Com. on Ed.).)

The California legislature tried to lessen the rigidity of the Last In,

First Out dismissal structure of Education Code section 44955, recognizing

that teacher evaluations and constitutional protections are at least on equal

footing as time on the job when considering the dismissal of teachers. But

like the Permanent Employment Statute, teacher seniority remains

California’s default for dismissal.

C. Failed Amendments to the Dismissal Statutes The Dismissal Statutes have also undergone a tumultuous history of

attempted revisions. Efforts to reform the dismissal process were again

and again diluted in committee or failed completely.

One bill stands out as particularly emblematic of the legislature’s

inability to act on the challenged statutes. In the 2013-2014 session, the

State Assembly and Senate approved a bill seemingly designed to

streamline the dismissal process under statute 44934. (Assem. Bill No.

375 (2013-2014 Reg. Sess.).) Among other revisions, the bill sought to

limit the number of depositions in dismissal proceedings to five per side,

and restrict a district’s ability to amend charges against teachers—even

when new evidence arises—only by motion to an administrative law

judge. (Ibid.) However, the California School Boards Association, the

Association of California School Administrators, and numerous education

policy advocates argued that the bill would actually make the dismissal

process even longer. (Sen. Rules Com., Hearing on Assem. Bill No. 375,

13

(2013-2014 Reg. Sess.).) Governor Jerry Brown agreed. In his veto, the

Governor noted that some of the bill’s changes made the process “too rigid

and could create new problems,” resulting in “more harm than good.”

(Assem. Bill No. 375, veto message by Governor, Oct. 10, 2013 (2013-

2014 Reg. Sess.).) The Governor encouraged further work to reform the

dismissal statutes, inviting the legislature to “identify changes that are

balanced and [that] reduce procedural complexities.” (Ibid.)

Other attempts to streamline the process to dismiss grossly

ineffective teachers have been similarly unsuccessful. On four separate

occasions over two terms, both the Assembly and Senate attempted to

expedite the dismissal of teachers charged with unsatisfactory performance

by truncating the filing and notification process.1 (Assem. Bill No. 2028

(2011-2012 Reg. Sess.); Sen. Bill No. 453 (2013-2014 Reg. Sess.); Assem.

Bill No. 1221 (2013-2014 Reg. Sess.); Sen. Bill No. 531 (2013-2014 Reg.

Sess.).) None of the attempts was successful. (Assem. Bill No. 2028

(Amend. dated Mar. 22, 2012); Sen. Bill No. 453 (failed passage in Com.

on Ed.); Assem. Bill No. 1221 (failed passage in Com. on Ed.); Sen. Bill

No. 531 (failed passage in Com. on Ed.).) The legislature also made four

attempts to consolidate the hearing commission to only one administrative

judge instead of three appointees selected by the employee, the governing

board, and the commission.2 (Assem. Bill No. 2028; Sen. Bill No. 1059

(2011-2012 Reg. Sess.); Assem. Bill No. 1221; Sen. Bill No. 531.) All of

1 The bills attempted to change California Education Code sections 44938(b)(1) and (2) to remove the requirement that teachers charged with unsatisfactory performance receive written notice of the charges ninety days before filing and an opportunity to correct their behavior. 2 The bills attempted to change the makeup of the Commission on Professional Competence noted in California Education Code section 44944 from its current allocation of one member selected by the employee, one member selected by the governing board, and one administrative judge.

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these bills are dead or exist in legislative purgatory, pending in their

respective stages of passage as days, months, and years pass without

further attention. (Assem. Bill No. 2028 (held under submission in Com.

on Appropriations); Sen. Bill No. 1059 (reconsideration granted with no

further action); Assem. Bill No. 1221 (returned to Chief Clerk of the Sen.

as carryover bill); Sen. Bill No. 531 (failed passage in Com. on Ed.).)

The California legislature is not blind to the administrative

inefficiencies that hamper the teacher dismissal process. But, like the

Permanent Employment Statute and the Last in, First Out Statute, the

Dismissal Statutes still maintain the same cumbersome status quo.

D. Proposition 74 and the 2005 Special Election Opting for a different plan, the legislature in 2005 went straight to

the public to reform teacher tenure and dismissal laws with Proposition 74.

The attempt ended unsuccessfully—unsurprisingly—but it was also

notable for the sheer political spectacle and the aggressive campaign to

sway public opinion that followed.

On March 1, 2005, Governor Schwarzenegger endorsed the Put the

Kids First Act. (Proposition 74, Institute of Governmental Studies,

University of California, Berkeley (2015) <https://igs.berkeley.

edu/library/elections/proposition-74> [as of Sept. 10, 2015].) The

initiative became Proposition 74 and was set for a special election. The

proposition was intended to address two of the same core aspects of the

challenged statutes that the legislature had struggled unsuccessfully to

change since 1999. The probationary period before tenure was granted

was to be extended from two years to five years, and school districts would

be allowed to dismiss teachers who received two consecutive negative

evaluations. (Proposition 74, Institute of Governmental Studies Library,

University of California, Berkeley, supra.)

15

In the lead up to the election, teachers unions, interest groups, and

the Governor engaged in a contentious battle to persuade voters to support

their respective positions. By some measures, the special election was the

most expensive in California history, totaling $300 million, including

advertising and administrative costs.3 (Tanner, Voters Reject

Schwarzenegger Reforms, The Washington Post (Nov. 9, 2005)

<http://www.washington post.com/wp-dyn/content/article/2005/11/09/

AR2005110900241.html> [as of Sept. 10, 2015].) Proposition 74 was

ultimately defeated in the special election.

Highlighting the controversial nature of the special election, the

political fight was not confined to the borders of California. In 2012, the

United States Supreme Court decided that compulsory fundraising

methods used by California’s largest labor union during the campaign

prior to the election violated the First Amendment rights of certain state

employees. (Knox v. Service Employees Internat. Union, Local 1000

(2012) 132 S.Ct. 2277.) This special election demonstrated that use of the

political process to change the challenged statutes was not feasible.

The $300 million battle over public opinion and the

unconstitutional fundraising tactics used to defeat Proposition 74 continue

to serve as a cautionary tale for anyone considering another attempt to

amend the challenged statutes. What began as Governor

Schwarzenegger’s earnest effort to address some of the failings of the

teacher tenure and dismissal processes ultimately became another example

3 The special election included a vote on Proposition 74, addressing education reforms, and seven other propositions. (Special Statewide Election—Statement of Vote, November 8, 2005, California Secretary of State <http://www.sos.ca.gov/elections/prior-elections/statewide-election-results/special-statewide-election-november-8-2005/statement-vote/> [as of Sept. 10, 2015).)

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of the inability of the political process to exact meaningful change for

California’s school system and students.

VI. JUDICIAL INTERVENTION IS NOT ONLY PROPER, BUT

REQUIRED

The courts need not rely on the legislative or executive branches to

amend or replace the challenged statutes. While the judicial branch

“accord[s] appropriate deference to the legislative and executive exercise of

political prerogatives . . . deference does not mean forbearance.”

(Schabarum v. Cal. Leg. (1998) 60 Cal.App.4th 1205, 1215 (quoting Cal.

Radioactive Materials Management Forum v. Dept. of Health Services

(1993) 15 Cal.App.4th 841, 869).) A constitutional challenge “is inherently

a judicial rather than political question and neither the Legislature, nor the

executive branch, or both acting in concert can validate an unconstitutional

act or deprive the courts of jurisdiction to decide questions of

constitutionality.” (Ibid.)

The trial court properly exercised its authority to address the

constitutionality of the challenged statutes, especially because neither the

California legislature nor the executive branch (by ballot initiative in an

attempt to circumvent the legislature) was able to make meaningful changes

to the challenged statutes. In holding that the challenged statutes violated

the equal protection clause of the California Constitution under Serrano v.

Priest (1971) 5 Cal.3d 584, the trial court fulfilled its “duty and function as

dictated by the Constitution of the United States, the Constitution of the

State of California, and the Common law[] to avoid considering the

political aspects of the case and focus on the legal ones.” (Vergara v. State

(Cal. Super. Ct. 2014) No. BC484642, at 5.) Here, judicial intervention is

not only warranted, but is required to address the constitutional infirmities

of the challenged statutes. The Court should affirm the trial court's holding

under the well-established precedent of Serrano v. Priest.

VII. CONCLUSION

Based on the foregoing, Amici Curiae respectfully request that this

_Court affirm the trial court's judgment finding the Permanent Employment

Statute, the Dismissal Statutes, and the Last In, First Out Statute to be

unconstitutional.


17

WHITE & CASE LLP

By:


WORD COUNT CERTIFICATION

Pursuant to California Rule of Court 8.204( c), Counsel for Amici

Curiae Governors Arnold Schwarzenegger and Pete Wilson certify that the

Amici Curiae Brief in Support of Beatriz Vergara, et al., contains 4606

words.


18

WHITE & CASE LLP

By: fu/kk Bryan A. Merryman


PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18

and not a party to the within action. My business address is 555 South Flower Street, Suite 2700,

Los Angeles, California 90071-2433. I am employed by a member of the Bar of this Court at

whose direction the service was made.

On Wednesday, September 16, 2015, I served the foregoing document(s) described as:

• APPLICATION FOR PERMISSION TO FILE AN AMICI CURIAE BRIEF; and • AMICI CURIAE BRIEF IN SUPPORT OF BEATRIZ VERGARA, ET AL.

on the person(s) below, as follows:

BY U.S. MAIL: I enclosed the document(s) in a sealed envelope or package addressed to

the person(s) at the address(es) listed below and placed the envelope for collection and mailing at

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ordinary business practices. I am readily familiar with White & Case LLP's practice for

collection and processing of correspondence for mailing with the United States Postal Service.

Under that practice, the correspondence would be deposited in the United States Postal Service

on that same day in the ordinary course of business. Superior Court (Via Messenger)

Hon. Rolph M. Treu c/o Clerk ofthe Court Los Angeles County Superior Ct. Stanley Mosk Cowihouse 111 North Hill Street Los Angeles, CA 90012

Defendants-Appellants

Susan M. Carson Office of the Attorney General 455 Golden Gate Ave., 11th Floor San Francisco, CA 94102

Plaintiffs-Respondents

Kevin Ring-Dowell Gibson, Dunn & Crutcher LLP 555 Mission St., Suite 3000 San Francisco, CA 94105

Intervenors-Appellants

Eileen B. Goldsmith Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108

Executed Wednesday, September 16, 2015, at Los Angeles, California.

I declare under penalty of perjury under the laws ofthe State of California and the United

States of America that the above is true and correct.

Hector M. Cordova

Documents

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA …studentsmatter.org/wp...ACB_SchwarzeneggerWilson.pdf · Governors Arnold Schwarzenegger and Pete Wilson (“Applicants”) apply