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Commentary: In the fine print of the Vergara ruling, 3 key arguments that might sway CA’s Supreme Court

Dmitri Mehlhorn | April 19, 2016



Elizabeth Vergara, at the press conference

Elizabeth Vergara at a news conference. She and sister Beatriz are among the nine student plaintiffs in the case.

On Thursday, a three-judge Court of Appeal overturned a trial court’s decision in the case of Vergara v. California, upholding the state’s existing education laws in a ruling of significance for millions of public school students in the state and across the country. (Read more about the sharply divided reactions after the ruling).

The real implications of Thursday’s decision, however, may be even more far reaching, as the appellate court’s semantic choices could hamper broader civil rights enforcement in education and elsewhere. The appellate ruling language, therefore, sets up a far-reaching controversy for review by California’s Supreme Court.

Beatriz Vergara vs. the State of California

Nearly two years ago, at the conclusion of a two-month trial, Los Angeles County Superior Court Judge Rolf Treu found that California had denied Beatriz Vergara a decent education.

The California laws at issue mandated that teachers receive specific job security protections, known as tenure, after two years in the classroom. Judge Treu found that this time period was far too short to exclude ineffective teachers, and that the job security protections made it onerous to remove ineffective teachers from classrooms. The operational and political reality of public school systems, therefore, led these ineffective tenured teachers to be highly concentrated in schools that served low-income students of color.

Judge Treu further concluded from the evidence at trial that good teachers were the linchpin of a decent education.

Since Vergara and several of her fellow plaintiffs were students of color from low-income families, and since education is a fundamental right under California’s constitution, Judge Treu’s findings of fact made the relevant education laws constitutionally suspect. In legal terms, that meant that the laws were subject to “strict scrutiny,” so they had to be “necessary” to achieve a “compelling” state interest. Judge Treu did not find them necessary for a compelling state interest.

Thus, Judge Treu struck down the laws in question. His decision met with immediate and widespread approval. Almost every major newspaper editorial board of the left, right and center — including the San Jose Mercury News, the New York Times, the Los Angeles Times, the Chicago Tribune and the Wall Street Journal — applauded the ruling as creating an opening for public schools to better serve students like Vergara. Even President Obama’s Secretary of Education, Arne Duncan, said that the decision presented an opportunity to build a new framework that better served teachers and students.

Unfortunately, the decision was decried by the California Teachers Association, by far the most powerful lobbying group in California. The CTA invested heavily in a local and national campaign to undermine the legitimacy of Judge Treu’s ruling, while also bringing high-powered legal resources to appeal the decision.

The CTA’s twinned efforts in public relations and legal advocacy put enormous pressure on the appellate court. As any political scientist knows, judges do not operate in a vacuum, and courts are conservative institutions. Overruling the wishes of a powerful bureaucracy and lobby requires the expenditure of enormous political capital. This particular appellate panel consisted of three cautious and long-serving justices. The Vergara plaintiffs thus were prepared for the possibility of an appellate reversal, and all parties have long understood that California’s Supreme Court would ultimately resolve this case.

The real question was how Appellate Presiding Justice Roger Boren would justify his deference to California’s bureaucracy and the powerful CTA.

The appellate theory — the problem is just a few bad apples

Justice Boren confirmed that Beatriz Vergara got a raw deal from California’s educational system, and that the California laws played a role in that. The appellate ruling accepted Judge Treu’s findings of fact that the state law “does not provide nearly enough time for an informed decision to be made regarding the decision of tenure,” that dismissal of tenured teachers was “so complex, time consuming and expensive as to make [the prospect of dismissing] a grossly ineffective teacher illusory,” and that the result was that ineffective teachers “tend to” be shuffled to schools with the least political power to resist them. The expert witnesses who had testified about these facts included leading education researchers from the nation’s top universities. In summarizing his review of this evidence, Justice Boren wrote that the evidence at trial “highlighted likely drawbacks to the current tenure, dismissal and layoff statutes,” and that “staffing decisions” did indeed “have a deleterious impact on poor and minority students in California’s public schools.”

In overturning the earlier Vergara decision, however,Justice Boren ruled that this state of affairs did not constitute a constitutional violation. Since the staffing decisions were made by local administrators in all cases, the fact that these decisions “tend to” deprive low-income and minority students of their fundamental interest was not sufficient for a constitutional violation. In other words, according to the appellate court, the problem was due to the individual actors in the system, not the system itself.

With concurrence from the other two justices,Justice Boren wrote that Vergara “did not demonstrate a facial constitutional violation [because the] deplorable staffing decisions [were] being made by some local administrators [and the] evidence did not show that the challenged statutes inevitably cause this impact.” In other words, the laws did not “inevitably” violate the constitution; rather, the constitutional deprivation of a good education to poor and minority students occurred only because of the “deplorable” decisions of “some local administrators.”

Peel away the legalistic verbiage and this emerges as the classic “just a few bad apples” defense. Does a rotten system that repeatedly violates rights require politically difficult reform? No, of course not, not if the rights violations occurred only because of the actions of a few bad apples.

The many arguments Vergara plaintiffs can pursue on appeal

When appealing to the California Supreme Court, the Vergara plaintiffs will have several strong rebuttals.

The first rebuttal is practical. The appellate court agreed that the actions of the state bureaucracy violated the fundamental rights of a suspect class. The implication of the court’s ruling, however, is that every plaintiff in Beatriz Vergara’s situation would need to file a lawsuit against the actions of administrators within their district.

Although it required tremendous philanthropic fundraising to pursue a single lawsuit against the state bureaucracy and its most powerful lobby, the appellate court would require disadvantaged students to raise many thousands of times that much money to sue in the many thousands of individual cases where students’ rights have been violated. To borrow an already-borrowed line from the lower court holding, that idea shocks the conscience.

The second rebuttal is the idea of “stare decisis,” which is the legal principle of determining points in litigation according to precedent. The relevant precedent in the Vergara case is the California case law surrounding Serrano v. Priest. Initiated in Los Angeles Superior Court in 1968 and resulting in California Supreme Court rulings in 1971, 1976 and 1977, the Serrano case law required California to use state funds to pay for education districts. The reasoning of the California Supreme Court in these decisions was that the prior funding system of property taxes “inevitably” created a constitutional deprivation of education to poor students. This was “inevitable” because poor school districts simply could not be expected to tax themselves sufficiently to reach the level of school funding enjoyed by wealthier districts.

Justice Boren’s understanding of the term “inevitably” appears to be sharply different from the Court’s holdings in Serrano. After all, it was conceptually possible for low-income neighborhoods to spend substantially higher portions of their incomes on property taxes. To be sure, they would “tend to” avoid doing so because of the costs and consequences, but it would have been conceptually possible for them to do so. By Justice Boren’s logic, their failure to do so was their local failure, not the failure of the California public treasury to equalize local property taxes. Justice Boren thus ignored the clear meaning of the term “inevitably” from Serrano as “inevitably given the evidence, and given a realistic and fact-based understanding of human behavior.”

The third strong argument available to plaintiffs is that the implications of Justice Boren’s ruling would cripple future civil rights enforcement in the Golden State. Advocates for marginalized citizens always face the duplicitous “just a few bad apples” defense of abusive bureaucracies. The defense is powerful because it always has at least a grain of truth: no bureaucracy eliminates human discretion entirely.

Human beings implement policies — including policies that, on average, tend to make it costly and expensive to behave well, and cheap and easy to deprive citizens of rights and liberties based on race or gender. Even in such cases of biased laws, at least a few human beings of extraordinary leadership and character will always find ways to hold themselves to a higher standard. Under Justice Boren’s ruling, those rare acts of leadership would protect even odious laws from scrutiny, because the unconstitutional application would always be a matter of human judgment rather than an “inevitable” extension of the law.

The next step: California’s Supreme Court

The appeal to the state Supreme Court will not be easy. Even the most self-confident courts will always be careful of intervening in the operations of a large bureaucracy. Even the highest court of California is not immune to political considerations. The California Teachers Association and their allies in the state bureaucracy will raise the stakes by spending considerably on law and public relations.

That said, the plaintiffs would be hard-pressed to find a more balanced set of jurists than the California Supreme Court. Although the justices are sometimes characterized as left-of-center on average, not one of them is doctrinaire or diffident. Chief Justice Tani Cantil-Sakauye was appointed to judicial positions of increasing stature by the state’s last three Republican governors (Deukmejian, Wilson and Schwarzenegger), and then was confirmed for a 12-year term as Chief Justice by the California electorate. Justice Goodwin Liu has often been mentioned as a short-list candidate for the federal Supreme Court, and the other justices such as Mariano-Florentino Cuellar have been known throughout their careers as impressive and high-integrity thinkers.

As other state courts grapple with similar questions under their different constitutions, and as the overall trajectory of national education law prioritizes the needs of individuals over the interests of bureaucracies, Beatriz Vergara and students like her still have a good shot at justice.


Dmitri Mehlhorn is a Democratic activist, donor and investor. He currently serves on the board of directors of StudentsFirst, a bipartisan organization that advocates on behalf of students as a counterweight to the teachers unions. He spent two years as the founding chief operating officer of StudentsFirst and also was a co-founder of Hope Street Group, a national nonprofit pushing for equal opportunity in jobs, healthcare and education.

This article was published in partnership with The74Million.org.

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