Teachers’ Tenure and Seniority Upheld

Overview: In the highly publicized employment law case of Vergara v. State of California the Court of Appeal overturned the trial court and upheld public school teachers’ tenure (16 months from hiring), and seniority (firing the last hired vs the most qualified teacher) and teacher lay off laws in California, the latter make it extremely difficult to fire a tenured teacher.  This case as we wrote previously will likely make it to the California Supreme Court.  Stay tuned.


Last June, we wrote of a highly publicized lawsuit filed by nine students in Southern California whose high-profile lawyers sued the State of California, the California Teachers’ Association and others claiming they were treated unfairly due to three State laws.

Those laws claimed unconstitutional are:   California teachers’ tenure laws,  teachers’ seniority laws favoring length of service over performance, and teachers’ dismissal laws, the latter making it difficult to lay-off teachers, even bad teachers.

Amicus Briefs

I predicted this case would be appealed and perhaps make it to the California and U.S. Supreme Courts.  Not sure about the latter but certainly this case will reach California’s big court.

Nine different individuals and groups joined with the State and CTA filing Amicus Curiae (Friend of the Court) briefs.  The other side, supporting the students, had 14 groups and individuals, including former Governors Pete Wilson and Arnold Schwarzenegger, filing Amicus briefs urging changes in the law.

“Shocks the Conscience”

The trial judge Rolf Treu wrote that the unfairness of the laws, especially when applied to minority groups, “shocks the conscience.”

Three Challenged Laws

Under California’s tenure laws, public school teachers attain tenure 24 months after being hired; however, it is actually 16 months because at that point the school district must object to the teacher attaining tenure, so in reality, California’s tenure law is 16 months.  That seems way too early to me.

The trial court also struck down California’s seniority “last in, first out” (LIFO) laws where, as the trial court wrote, the “last-hired teacher is the statutorily-mandated first-fired one when layoffs occur” regardless of skills.  The student-plaintiffs’ objection about the third law, teacher layoffs, is that a tenured teacher is “impossible” to fire, as the trial court wrote.  All three laws allegedly discriminate against minorities.

An interesting footnote in the Court of Appeal case recited that Latino students constitute “approximately 50%” of California public school children, which as the Court  noted, made the term “minority” a possible misnomer.

Evidence of Inequality

One of the quotes in the Court of Appeal case struck my interest:  “According to trial testimony, some principals rid their schools of highly ineffective teachers by transferring them to other schools, often to low-income schools.  This phenomenon is extremely troubling and should not be allowed to occur, but it does not inevitably flow from the challenged statutes, and therefore cannot provide the basis for a facial challenge to the statutes.”

No Violation

The Court of Appeal wrote that the three challenged public school teacher statutes (seniority, LIFO and layoff laws) possibly lead to a higher number of grossly ineffective teachers being in the educational system which may present a problem with school policy (there’s a statement) but it does not necessarily give rise to an equal protection of the law violation of minority students’ rights.

Deplorable Staffing Decisions

The Court of Appeal acknowledged “drawbacks to the current tenure, dismissal, and layoff statutes” and even “deplorable staffing decisions being made by some local administrators that have a deleterious impact on poor and minority students in California’s public schools.”  However, the Court found the schools and school administrators and not the three State laws are the cause.

The Justices found lots of systemic flaws affecting poor and minority students, but they were not convinced the tenure, dismissal and layoff statutes were the reasons.  For now the statutes are Constitutional and remain on the books.

Here we come California Supreme Court.


Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada.  Jim’s practice areas include:  real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters.  He may be reached at porter@portersimon.com or www.portersimon.com.  

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