Can students sue “grossly ineffective teachers”?

Lana Ulrich

During the recent appeal in the Vergara v. California case, a judge mentioned, “Is there anybody in this room who probably didn’t have a bad teacher at some time?” The attorney for California admitted that in public schools, some ineffective teachers do slip through the cracks. But what happens when students—particularly low-income and minority students—are disproportionately assigned ineffective teachers? Does this amount to a violation of their fundamental right to education guaranteed by the California Constitution? And if so, is this violation caused by California’s teacher tenure statutes?


The California students in Vergara thought so. In May 2012, nine public school students (supported by the group Students Matter) sued the state of California, claiming that several of its teacher employment statutes were unconstitutional and violated the equal protection rights of minority and low-income students under the California Constitution. The students argued that the following statutes, which govern the employment, grant of tenure, and dismissal procedures of California public school teachers, have resulted in the hiring and continued employment of too many “grossly ineffective teachers” in the California school system:

  • A permanent employment statute, which grants tenure to new teachers after two years; but requires a decision on tenure earlier into their employment;
  • Several dismissal statutes, which afford teachers certain due process rights before being subject to termination (such as investigations, hearings, union grievances, administrative appeals); and
  • A “last-in, first out” statute, which mandates a seniority-based layoff system requiring that layoffs be conducted by seniority status—so recently-hired teachers are dismissed first, regardless of performance.

The students backed their claims with troubling statistics: according to the U.S. Department of Education, California public schools ranked 46th in the nation in 4th-grade reading and 47th in the nation in 8th-grade math. The students also emphasized the importance of teacher quality in education; one study found that replacing a grossly ineffective teacher with even an average teacher would increase students’ lifetime income by a total of $1.4 million per classroom taught by that teacher. But because of the way the statutes functioned, firing an ineffective teacher was costly and time-consuming; so school districts shuffled these teachers around to schools with openings—which were usually schools that served economically disadvantaged students, students of color, and English learners. The resulting “dance of the lemons” violated the fundamental right to education of the minority and low-income students who were disproportionately assigned ineffective teachers.

California defended against the lawsuit, supported by two California teachers’ unions representing over 400,000 teachers. They argued that these statutes, which strengthened the employment rights of public school teachers and enhanced the status of the teaching profession, were not the real cause of California’s failing schools. The lawsuit distracted from the real issue: the need for smaller classrooms and adequate resources to improve public education. Not only were the statutes constitutional, California argued, but they also protected the important constitutional due process rights of teachers as public employees.

In August 2014, however, the trial judge sided with the students. The court found that “substantial evidence” showed the statutes imposed a real and appreciable impact on students’ fundamental right to equality of education, and imposed a disproportionate burden on poor and minority students. Thus, the court examined them with strict scrutiny. After analyzing the provisions, how they functioned, and how they affected minority students, the court ruled that the statutes did not serve a compelling state interest and failed the more exacting inquiry. As Judge Treu wrote, “Evidence has been elicited in this trial of the specific effect of grossly ineffective teachers on students. The evidence is compelling. Indeed, it shocks the conscience.”

California appealed the judgment, and the California Court of Appeal recently heard oral arguments in the case. One of the main issues under appeal is whether the trial court employed the correct equal protection analysis in striking down the statutes.

Seeking to have Judge Treu’s decision upheld, the plaintiffs have emphasized the unique equal protection analysis under the California Constitution:

“[L]aws that have a disparate impact on the educational opportunities afforded to minority or low-income students are unconstitutional because both race and wealth are suspect classifications under the California Constitution’s equal protection guarantee. Moreover, irrespective of the standard in federal court, such laws are unconstitutional in California even where they do not draw express distinctions between students on the basis of race or wealth, and even where there is no evidence that the statutes were enacted (or are being applied) with the purpose or intent of harming minority or low-income students.”

The U.S. Supreme Court has not recognized a fundamental right to education under the federal Constitution (San Antonio Independent School District v. Rodriguez (1973)), whereas the California Supreme Court has recognized that a child’s right to education is a fundamental interest ensured by the California Constitution (Serrano v. Priest, 487 P.2d 1241 (Cal. 1971)). And while the Equal Protection Clause of the federal Constitution prohibits states from discriminating based on race but not socioeconomic status, the California Constitution also prohibits the state from discriminating both on the basis of race and socioeconomic status.

Moreover, the right to education in California means more than just access to a classroom: it includes a basic level of education that enables children to “compete successfully in the economic marketplace,” and “participate in the social, political and cultural aspects of society.” Becauseeducation is the lifeline of both the individual and society” and serves as “the bright hope for entry of the poor and oppressed into the mainstream of American society,” laws that inflict a “real and appreciable impact” on the fundamental right to education, and which are not narrowly tailored to serve a compelling state interest (or meet strict scrutiny), are unconstitutional. (Butt v. California, 842 P.2d 1240 (Cal. 1992)). The state must provide a statewide public education system “open on equal terms to all,” and students must have access to “substantially equal opportunities for learning.” (Serrano v. Priest, 557 P.2d 929 (Cal. 1976)). Where substantial disparities exist, the state has a duty to intervene to ensure the equality of treatment of all students.

But California and the teachers’ unions contend that the trial court employed the wrong equal protection analysis; unlike other laws that discriminated on their face, these statutes—which only apply to the hiring and firing of teachers—do not cause any class of students to be disadvantaged:

[T]hese state statutes on their face do not create any favored or disfavored class of students, or treat Plaintiffs better or worse than anyone else. Moreover, the evidence showed that local administrators are able to manage their schools and districts appropriately within the statutory structure. The law does not permit a court to strike down a state law that, like these, creates no disfavored class and is perfectly capable of being constitutionally applied.

As the Deputy Attorney General for California emphasized during oral argument, there is insufficient causation to prove the plaintiffs’ equal protection claims. If school districts are assigning a disproportionate share of poor teachers to low-income students, this is not actually caused by the statutes, but results from the independent decisions made by the district themselves. Ted Boutros, the students’ attorney, countered that even if the statutes don’t spell out their harmful effects, the court must look to their practical effects—and the trial court heard overwhelming evidence of their harmful, negative effects on the students’ fundamental right to education.

A decision is expected within 90 days, and could have enormous impact on the future of public education—and equal protection in education—in California and across the country.

Lana Ulrich is associate in-house counsel at the National Constitution Center.

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