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California’s High-Stakes Teacher Tenure Case Goes to Judge After Closing Arguments

LOS ANGELES (CN) - Attorneys concluded closing statements Thursday in a hotly contested dispute over whether California unconstitutionally rewards "grossly ineffective" teachers with permanent employment through tenure.

Two years ago, the Gibson, Dunn & Crutcher law firm signed on to represent eight California public students targeting teacher tenure, in Vergara v. California. The Superior Court case went to trial this year, with the students alleging that the state's education system violates the equal protection provision of the California Constitution.

At issue are state education laws that students say unfairly give teachers permanent employment, prevent removal of grossly ineffective teachers from classrooms, and during economic downturns require layoffs of teachers based on seniority rather than their ability to teach.

Under those laws, poor and minority schools end up with a disproportionate amount of "lemon" teachers, who secure tenure in as little as 16 months, according to the lawsuit. The plaintiffs asked that the probationary period be extended to 3 years, to bring it in line with most states in the nation.

California and the teacher's union defending the case argued that extending the probationary period would chip away at a benefit that that attracts quality teachers and protects them from the whims of officials and administrators.

Teacher tenure originally was instituted because of the poor pay and work conditions teachers faced. It was not until the United States began requiring attendance through age 16, and men began entering the teaching profession, that teachers' work conditions began to improve. That was about a century ago.

On Thursday at the Stanley Mosk courthouse in downtown L.A., Judge Rolf Treu underlined the historical significance of the case by gesturing to a portrait of Earl Warren at the back of courthouse. Warren presided over the Supreme Court that ruled in the landmark desegregation case, Brown vs. Board of Education.

Gibson, Dunn & Crutcher attorney Theodore Boutrous Jr. told the court there are "echoes" of that 1954 ruling in Vergara because California's education law is inflicting a "profound harm" on poor and minority students.

"There are grossly ineffective teachers teaching in the classroom right now," Boutrous said.

But "superstar" teachers are being laid off because of a last-in first-out statute that allows poorly performing teachers to stay in their jobs because they've been around longer, the attorney said.

The firm's attorney Marcellus McRae was even more emphatic. He called the education laws an "abomination," "crazy," and "irrational" and said the state is depriving poor and minority students of a quality education.

Citing expert testimony, McRae noted that it could cost from $250,000 to $400,000 to dismiss a single teacher. Because the process is so slow and expensive, fewer than 0.002 percent of teachers receive their walking papers, the attorney said.

In what he called a "Dance of Lemons," McRae said a disproportionate amount of poorly performing or inexperienced teachers are sent to poor and minority districts in the state.

"You can't make sense of nonsense," McRae said. "You can't make the crazy sane. You cannot make the irrational, rational. This has to stop."

But California Teacher's Association attorney James Finberg, with Altshuler Berzon, said the student-plaintiffs based their evidence on subjective, anecdotal evidence from 20 of California's 1,044 school districts.

Only four of the student plaintiffs testified, Finberg said, and just one parent had taken the stand. There are 6 million students in the state and 277,000 teachers. Twenty teachers testified.

"These statutes should not be struck down based on a handful of anecdotes," Finberg told Judge Treu.

Finberg contended that the plaintiffs are attempting strike down the laws by citing the "bad management" of a few school districts, and urged the court not to discount that the laws have been applied constitutionally and effectively in most school districts.

Finberg said there was no evidence plaintiffs faced "imminent harm," noting that some of teachers branded as poor performers by the plaintiffs had good records in their districts.

Moreover, Finberg argued, there was no evidence that the state's tenure law influenced the decision to move an inexperienced or struggling teacher into a minority school. It was up to the school district to make that decision, the attorney said, and had nothing to do with any state law.

Finberg said that the dismissal process is "neither time-consuming nor expensive" and that extending the probationary period would merely keep underperforming teachers in their jobs longer.

"Without tenure, they would be at risk of losing their jobs," Finberg said. "Job security is one of the things that attracts and helps retain teachers."

He urged the court not to let school district's make "high-stakes" decisions about teachers based on "outlier anecdotes."

During rebuttal, Boutrous took aim at California Deputy Attorney General Susan Carson's suggestion during closing arguments that parents could use the electoral process to oust underperforming school boards or administrators.

Boutrous said California would be "in a world of trouble" if the only way to boot underperforming teachers was through a vote at the ballot box.

At a press conference hosted by Student Matters, Boutrous said that California and the union had presented expert testimony and evidence that proved the students' claims.

"When we looked at all the admissions from the state of California and the teachers union, we really decided, we could have proven our case with their witnesses," Boutrous said. "They admitted basically every fact: that the system is compelling the superintendents to keep grossly ineffective teachers in the system. That those teachers are harming our students and costing billions of dollars of earnings for our kids in California."

Judge Rolf Treu said the court will issue a ruling after April 10, within 90 days.

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