Big Los Angeles Firm Fights Teacher Tenure


     LOS ANGELES (CN) – A major law firm has signed on to represent eight public students targeting teacher tenure in California, a system that largely conservative opponents blast for keeping “grossly ineffective” teachers on the payroll.



     The complaint wants a judge to throw out five state laws: the permanent employment; written charges; correct and cure; and last-in, first-out (LIFO) statutes.
     Such statutes allegedly violate the equal protection provision of the California Constitution, and hurt poor and minority students whose schools employ a “disproportionate share” of underperforming teachers, according to the lawsuit.
     Gibson, Dunn & Crutcher attorney Theodore Boutrous Jr. told Courthouse News that the laws created “gross inequalities in education for children,” and prevent schools from acting “in the best interests of the students.”
     “There are so many wonderful teachers who work hard every day, but their efforts are undermined when administrators are compelled to allow grossly ineffective teachers to stay in the system in violation of the constitutional rights of students,” Boutrous said in an email.
     The American Federation of Teachers, the principal teachers union in California, did not respond to a message asking for comment.
     Boutrous and Gibson Dunn colleague Theodore Olson represent the eight children suing California through their guardians.
     Olson has argued 58 cases in the Supreme Court, including two of its most controversial cases. In the wake of the dispute over 2000 presidential election tallies, Olson represented President George W. Bush against Gore. The former solicitor general also argued for plaintiff Citizens United in a case that opened the floodgates for unlimited spending in political campaigns.
     The firm has deep Republican roots with former Gibson Dunn partner William French Smith serving as U.S. attorney general under then-President Ronald Reagan. Olson worked as U.S. solicitor general under President George Bush.
     Now Boutrous and Olson have taken aim at an education system in which they say a majority of California’s teachers do a good job, but a small number of “lemon” teachers can allegedly have “an enduring and negative effect on the lives of their students.”
     “The hiring and continued employment of such grossly ineffective teachers in the California public school system is the direct result of the continued enforcement of five California statutes (the ‘challenged statutes’) that confer permanent employment on California teachers, effectively prevent the removal of grossly ineffective teachers from the classroom, and, in economic downturns, require layoffs of more competent teachers,” the lawsuit states.
     Because of California’s dismissal statute, Los Angeles Unified School District has spent $3.5 million in the last decade trying to fire seven of its “lemons,” according to the complaint.
     Of those seven, four were fired, but two of those teachers received large settlements, and another remained employed, the lawsuit states.
     Under the current dismissal system, “less than 0.002 percent” of teachers receive their walking papers, compared to “the one percent of other California public employees dismissed annually for unprofessional conduct or unsatisfactory performance and the eight percent of private employees dismissed annually for cause,” the lawsuit states.
     Likewise, the last-in first-out law “creates a seniority-based layoff system, irrespective of a teacher’s performance, effectiveness or quality,” according to the complaint. In 2009, so-called “blind layoffs” allegedly allowed thousands of poor-performing teachers to keep their jobs simply because they had been around longer.
     “One study found that nearly 2000 ELA teachers and more than 1500 math teachers in the lowest quartile of teacher performance kept their jobs, while 20 percent of the ELA and math teachers laid off were in the top quartile of teacher performance,” according to the complaint, which abbreviates English language arts.
     The lawsuit says California’s public school system is failing many of its minority students and falling behind other states. Public schools in the Golden State allegedly rank 46th in the nation for fourth-grade reading, and even lower for math. While 23 states have instituted reforms for teacher evaluation, “California is not on that list,” according to the complaint.
     “In certain school districts, students of color are two to three times more likely to have bottom quartile teachers than their white and Asian peers,” the lawsuit states. “Thus, the laws at issue perpetrate and widen the very achievement gap that education is supposed to eliminate.”
     In 2005, California Gov. Arnold Schwarzenegger supported Proposition 74 for the 2005 California special election. The measure proposed extending the probationary period for public school teachers from two to five years before attainment of tenure. It sunk at the polls after 55 percent of Californians voted against it.
     The named defendants in the new lawsuit are the state of California, Gov. Jerry Brown, State Superintendent of Public Instruction Tom Torlakson, the California Department of Education, the State Board of Education, the Los Angeles Unified School District and Alum Rock Union School District.
     The governor’s office did not respond to a request for an interview, and the California Department of Education declined to comment.

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