COURT STRIKES BLOW TO TENURE

Original Story; WSJ.com

LOS ANGELES—A California judge declared the state's strong teacher-tenure laws unconstitutional in a rebuke that promises to spur similar challenges around the country.

The student plaintiffs in the lawsuit against the state and two teachers unions successfully argued that statutes protecting teacher tenure, dismissal procedures and "last-in, first-out" layoff policies serve more often to keep ineffective instructors in the schools—hurting students' chances to succeed.

In Tuesday's decision in Vergara v. California, Los Angeles County Superior Court Judge Rolf M. Treu cited the Supreme Court's 1954 Brown v. Board of Education "separate but equal" ruling, writing that the laws in this case "impose a real and appreciable impact on the students' fundamental right to equality of education."

The unions in the case—the California Teachers Association and the California Federation of Teachers—said they planned to appeal the ruling. The laws at issue will remain in effect pending that appeal.

The case seems certain to reverberate to other states. U.S. Education Secretary Arne Duncan called the ruling "a mandate" for lawmakers and education leaders to address "practices and systems that fail to identify and support our best teachers and match them with our neediest students."

California has some of the strongest teacher-employment protections in the nation, and is one of only 10 states that require seniority be considered in layoff decisions. It also is one of five states where tenure can be earned within two years or less.

The court found in Tuesday's decision that as a result of that policy, "teachers are being released who would not have been had more time been provided for the process"—hurting not only students, but also many younger teachers.

The ruling also agreed with the plaintiffs' arguments that the poorest-quality teachers tend to end up in economically underprivileged schools and "impose a disproportionate burden on poor and minority students." Judge Treu, who was appointed by Republican Gov. Pete Wilson, found all five of the statutes challenged in the case to be unconstitutional.

William Koski, a law professor at Stanford University, said the case will have "ripple effects" nationally. "We are going to see some litigation" in other states, he said, "and it's going to raise some pretty thorny issues about the role of courts and the judiciary in teacher employment policies and more specifically in education policies."

Frank Wells, a spokesman for the California Teachers Association, said, "We don't believe the court is the place to be making these kinds of policy decisions," adding that the state legislature is currently working on ways to amend the laws in question.

Marcellus McRae, a lawyer representing the student plaintiffs in the California case, called the ruling "an enormous validation and recognition of the fundamental constitutional right of all California students to equal educational opportunity," describing the case as "a catalyst for a discussion at the national level."

Dave Welch, a Silicon Valley entrepreneur who funded the nonprofit advocacy group Students Matter, which brought the student plaintiffs together and filed the lawsuit, said after the ruling that it would be "within our realm to look at filing lawsuits in other states." Ted Olson, a U.S. solicitor general under President George W. Bush, leads the legal team.

Mr. Welch said Students Matter will "work tirelessly ourselves, as well as with other organizations" to "continue to fight for kids' rights to get what they deserve—a good education—throughout the country."

Research has pointed to teacher quality as the biggest in-school determinant for student performance. In recent years, many states have moved to simplify dismissal procedures for ineffective teachers and to encourage districts to consider teacher performance in layoff decisions rather than relying solely on seniority.

Such efforts to overhaul dismissal procedures in California failed in the legislature, so students and their advocates took the case to court—a novel way to test the longstanding state policies and one that could now become a template for a broader push. The trial, which ran for more than 30 days, concluded in late March.

"This is a huge deal," said Sandi Jacobs, a policy director for the National Council on Teacher Quality, a privately funded group that aims to change states' teacher-employment policies. "This has a huge ripple effect nationally in telling policy makers that policies that harm students can be challenged," said Ms. Jacobs, who testified on behalf of the plaintiffs in the case.

Ms. Jacobs's group points to Florida, Indiana and Colorado as having what it considers to be best-practice policies where classroom performance is a "top criterion" to be considered in layoff decisions.

Randi Weingarten, president of the American Federation of Teachers called it "a sad day for public education," saying the decision focused on a small number of bad teachers, and "strips the hundreds of thousands of teachers who are doing a good job to any right to a voice."

California school districts employ roughly 280,000 full-time equivalent teachers, and the average annual teacher's salary is just under $70,000. One in eight public-school students in the nation attend California public schools.

James Ryan, dean of Harvard University's graduate school of education, said the verdict "will likely cause lawyers in other states to think about bringing similar suits." But he pointed out that the decision explicitly called on the state Legislature to fix the unconstitutional statues at issue. As a result, there will likely be "back-and-forth" between the Legislature and courts for many years to come.

"This has a long way before it's over in California and it hasn't even started yet in other states," Mr. Ryan said.