April 15, 2016

Livetweeting #Vergara

By Bellwether

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UPDATE: As of May 2018, the social media story tool Storify, which we used below, no longer exists. That section of this blog post is no longer visible.
 Yesterday, April 14, 2016, a unanimous panel of the California Court of Appeal overturned the trial court’s ruling in Vergara v. State of California, a closely watched case about the constitutionality of California’s teacher tenure laws. While expressing deep concern about the tenure policies at issue, the Court ultimately determined that while perhaps unwise, these statutes are not unconstitutional. The Court’s decision means that California’s tenure and seniority laws will remain, at least for now.
Based on evidence of serious harms to low-income students, in 2014 the lower court found several provisions of California’s education code unconstitutional, upending the way that teachers are employed in the state. If that decision had been sustained, California would have been forced to rewrite three categories of statutes: permanent employment, dismissal, and LIFO.
(This isn’t the first time teacher tenure has been challenged in California. I was plaintiffs’ counsel in the preceding case, Reed v. State of California — a challenge to the system of strict reverse-seniority layoffs that was ultimately settled in 2014. I did have a few early conversations with the attorneys in this case but I have played no part in the litigation).
I livetweeted my reading of the decision and you can find those thoughts collected here and below.
There’s lots of interesting stuff in this decision, but the most important takeaway from the appellate decision is instructive for similar cases across the country: the viability of facial constitutional challenges and necessity of “inevitability.”
What does that mean exactly? First, a quick definition of facial challenges vs. as-applied challenges:

In the conventional account of the basic principles of constitutional adjudication, constitutional challenges can be sorted into two distinct categories: “facial” challenges and “as-applied” challenges. A facial attack is typically described as one where “no application of the statute would be constitutional.” In contrast, courts define an as- applied challenge as one “under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiff’s particular circumstances.”  Alex Kriet

When the plaintiffs made the decision to advance a facial challenge, they took on the burden of proving that “no application of the statute would be constitutional.” In order to do so, they would have to prove that the operation of these teacher tenure laws inevitably led to the harms shown.  Proving that the harms occurred and that students suffered isn’t sufficient.  And proving that the laws contributed to them, or created the circumstances for them to occur, or made it difficult to have any other outcome also isn’t enough.
But when this court repeatedly signaled their disappointment with the high bar that plaintiffs set for themselves in choosing this approach, they may have been suggesting that they would be more sympathetic to an “as applied” challenge to the same laws.  Smart plaintiffs will take note.
What happens next? Well, nothing. The trial court’s ruling is currently stayed pending appeal so it never took effect. Now the plaintiffs will file a petition for review in the California Supreme Court. Jurisdiction there is discretionary and the Supreme Court can simply deny the petition without explanation — which would leave this opinion as the authoritative decision on the matter.

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