BOREN, P.J.
In this lawsuit, nine students who were attending California public schools sued the State of California and several state officials, seeking a court order declaring various provisions of the Education Code unconstitutional. According to plaintiffs, these provisions, which govern how kindergarten through grade 12 public school teachers obtain tenure, how they are dismissed, and how they are laid off on the basis of seniority, violate the California Constitution's guarantee that all citizens enjoy the "equal protection of the laws." (Cal. Const., art. I, § 7, subd. (a).) The matter went to trial. After hearing eight weeks of evidence, the trial court issued a ruling declaring five sections of the Education Code — sections 44929.21, subdivision (b), 44934, 44938, subdivision (b)(1) and (2), 44944, and 44955
We reverse the trial court's decision. Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators — not the statutes — ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court's job is merely to determine whether the statutes are constitutional, not if they are "a good idea." (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388 [261 Cal.Rptr. 318, 777 P.2d 91].) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
The California Constitution requires "[t]he Legislature [to] provide for a system of common schools." (Cal. Const., art. IX, § 5.) Pursuant to this command, the state is obligated to provide a free public education. (Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th 175, 182 [165 Cal.Rptr.3d 460, 314 P.3d 767].) "`[M]anagement and control of the public schools [is] a matter of state[, not local,] care and supervision....'" (Butt v. State of California (1992) 4 Cal.4th 668, 681 [15 Cal.Rptr.2d 480, 842 P.2d 1240] (Butt).)
The California Constitution also provides for the incorporation and organization of school districts by the Legislature. (Cal. Const., art. IX, § 14.) Local school districts, as agents of the state, are responsible for implementation of educational programs and activities. (Ibid.; Butt, supra, 4 Cal.4th 668, 681.) "[T]he Legislature has assigned much of the governance of the public schools to the local districts...." (Butt, at p. 681.)
School districts are expected to operate as "strong, vigorous, and properly organized local school administrative units." (§ 14000.) To this end, the Legislature has granted each district (through its governing board) the power to hire teachers (§§ 44830-44834), to dismiss teachers (§§ 44932-44944), to fix teachers' compensation (§§ 45022, 45032), and to accept their resignations (§ 44930). (See generally C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 871 [138 Cal.Rptr.3d 1, 270 P.3d 699]; Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916-918 [129 Cal.Rptr.2d 811, 62 P.3d 54].)
The power to assign teachers to specific schools or to transfer teachers between schools within a district belongs to the district's superintendent (§ 35035, subds. (e), (f)), subject to conditions imposed by collective bargaining agreements (see Gov. Code, § 3543.2; United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 515 [142 Cal.Rptr.3d 850, 278 P.3d 1204] [teacher transfer and reassignment policies are proper subjects of collective bargaining]), and by statute (see § 35036, subd. (a) [prohibiting transfer of a teacher to a low-performing school when principal objects]).
In their operative first amended complaint against defendants,
The first amended complaint identified two groups of students who allegedly were denied equal protection because of the challenged statutes. The first group (Group 1) was a "subset" of the general student population, whose "fundamental right to education" was adversely impacted due to being assigned to grossly ineffective teachers. According to plaintiffs, the students comprising this subset were located throughout the state, in all sorts of schools, and were of substantially the same age and aptitude as students of the general population. The Group 1 members were disadvantaged, however, because they received a lesser education than students not assigned to grossly ineffective teachers.
The second group (Group 2) allegedly impacted by the challenged statutes was made up of minority and economically disadvantaged students. Plaintiffs alleged that schools predominantly serving these students have more than their proportionate share of grossly ineffective teachers, making assignment to a grossly ineffective teacher more likely for a poor and/or minority student.
At the time of trial,
Then, after the 90-day period has lapsed, the district must file a written statement of charges and "give notice to the permanent employee of its intention to dismiss...." (Former § 44934.) The statement of charges of unsatisfactory performance must specify instances of the teacher's behavior and the conduct constituting the charge, the statutes and rules violated (where applicable), and "the facts relevant to each occasion of alleged ... unsatisfactory performance." (Ibid.)
Following the conclusion of the CPC hearing, the CPC must issue "a written decision containing findings of fact, determination of issues, and a disposition" to either dismiss the subject teacher, suspend the teacher for a specific period of time, or not suspend or dismiss the teacher. (Former § 44944, subd. (c)(1).) The written decision is deemed the "final decision" of the district. (Former § 44944, subd. (c)(4).) If the CPC determines that the teacher should not be dismissed or suspended, the district is required to pay the expenses for the dismissal hearing and the teacher's attorney fees. (Former § 44944, subd. (e)(2).) If the teacher is dismissed or suspended, the parties split the expenses of the hearing and pay their own attorney fees. (Former § 44944, subd. (e)(1).) A party may seek judicial review of the CPC's decision. (§ 44945.)
Aside from altering the order and notation of subdivisions, the 2015 revisions to the dismissal statutes made several other changes.
When a school district must "decrease the number of permanent employees in the district" pursuant to section 44955, "the services of no permanent employee may be terminated ... while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render." (§ 44955, subd. (b).) This seniority system requires that permanent teachers be terminated in "the inverse of the order in which they were employed" (§ 44955, subd. (c)), meaning that a permanent teacher generally cannot be terminated unless all teachers with less seniority have been terminated.
Two exceptions allow a district to deviate from the seniority system in certain circumstances: (1) if "[t]he district demonstrates a specific need for personnel to teach a specific course or course of study" and the junior certificated teacher has special training and experience that teachers with more seniority do not possess (§ 44955, subd. (d)(1)), or (2) to maintain or achieve "compliance with constitutional requirements related to equal protection of the laws" (§ 44955, subd. (d)(2)).
Plaintiffs initially sued three school districts (Los Angeles Unified School District, Oakland Unified School District, and Alum Rock Union) in addition to the State defendants. Prior to trial, plaintiffs dismissed these districts as defendants, opting to pursue a facial challenge to the statutes instead of one focusing on implementation.
The trial court conducted a bench trial. Over 50 lay and expert witnesses testified, including teachers, principals, superintendents, and CDE employees.
At trial, plaintiffs elicited testimony from numerous witnesses who agreed that effective teachers are vital to a child's education. Along these lines, plaintiffs introduced into evidence a CDE publication stating, "The academic success of California's diverse students is inextricably tied to the quality and commitment of our educator workforce."
Thomas Kane, a professor of education and economics at the Harvard Graduate School of Education, conducted a study concluding that effective and ineffective teachers could be identified by measures including student achievement gains, as well as classroom observations and student surveys. Based on a study of Los Angeles Unified School District (LAUSD), which included data on 58,000 teachers and 3.9 million student test scores (but did not include classroom observations or student surveys), Kane determined that students assigned to teachers in the lowest 50th percentile of effectiveness lost an estimated nine and one-half to 11 and one-half months of learning when compared to students assigned to an average teacher.
Numerous other witnesses testified that highly ineffective teachers impede a child's access to a reasonable education. Furthermore, although a host of factors, including child poverty and safety, affect student achievement, teachers nevertheless have a highly important and significant impact on student learning.
Various witnesses testified that the period provided for in the tenure statute is too short for administrators to make a reasoned determination of a probationary teacher's effectiveness when deciding whether to reelect the teacher as a permanent employee. The statute requires that a probationary teacher be notified of any reelection decision by March 15 of the teacher's second year (§ 44929.21, subd. (b)), but, because the process of evaluating a
Witnesses familiar with the process estimated that, including summer months, principals have approximately 16 months to make a reelection decision. One witness, John Deasy, then-superintendent of LAUSD, testified that there is "no way" the time provided by the statute is "a sufficient amount of time to make ... that incredibly important judgment" of reelection. Another witness, Mark Douglas, assistant superintendent in the Fullerton School District, stated that most teachers do not "hit full stride" until three to five years of teaching, and that it could be a "crapshoot" determining whether a beginning teacher would develop into an effective one. Two expert witnesses called by defendants testified consistently, both agreeing that a probationary period of three to five years would be superior to the current timeline for identifying teachers worthy of reelection. According to several witnesses called by plaintiffs, the tenure statute's short probationary period prevented administrators from making adequately informed reelection decisions, resulting in highly ineffective teachers being retained as permanent employees.
Plaintiffs also presented evidence relevant to their assertion that the process of dismissing a teacher for unsatisfactory performance is time-consuming and expensive. Performance-based teacher dismissal proceedings lasted anywhere from one to 10 years before completion, and costs ranged from $50,000 to $450,000. In addition to the proceeding itself, the process of documenting a teacher's deficiencies could take years. Witnesses familiar with the dismissal process testified that the time and cost of the proceedings were a significant disincentive to initiating dismissal proceedings. Because of these issues, districts rarely proceeded with formal dismissal proceedings against highly ineffective teachers. Plaintiffs presented evidence showing that, from 2003 to 2013, approximately two teachers statewide were dismissed on average per year for unsatisfactory performance by completion of the full formal dismissal process, out of an approximate total kindergarten through grade 12 public school teacher population of 277,000. Meanwhile, the chief labor negotiator and former chief human resources officer of LAUSD, Vivian Ekchian, testified that during the 2012-2013 school year alone, LAUSD would have sought to dismiss approximately 350 teachers for unsatisfactory performance if the dismissal process were streamlined.
Plaintiffs presented evidence that ineffective teachers are often transferred into and concentrated in schools that predominantly serve minority
Plaintiffs' expert witness Kane testified that ineffective teachers in LAUSD are disproportionately assigned to African-American and Latino students. According to Kane, Latino and African-American students in LAUSD are, respectively, 68 percent and 43 percent more likely than White students to be taught by a teacher in the lowest 5 percent for effectiveness. Kane testified that this disproportionate distribution "could" be a result of the requirement of determining teacher effectiveness quickly due to the short probationary period, and the difficulties of dismissing ineffective teachers under the dismissal process. Kane further stated that, in a system where tenure decisions are made prematurely and dismissals are difficult to obtain, ineffective teachers will "tend to" accumulate in schools with the most teacher vacancies, which often are those serving Latino and African-American students.
Plaintiffs also presented evidence that schools in some districts serving low-income and minority students have higher proportions of inexperienced teachers and experience more layoffs. Arun Ramanathan, an expert witness retained by plaintiffs and executive director of an organization called Education Trust-West, testified that his organization conducted a study of three large California school districts and found that students attending schools in the highest poverty quartile were 65 percent more likely to experience a teacher layoff than those in the lowest poverty quartile. And Jonathan Raymond, former superintendent of the Sacramento City Unified School District, observed "a constant churn of the faculty and staff" at high-poverty, high-minority schools due to the seniority-based reduction-in-force statute.
Witnesses called by plaintiffs acknowledged that decisions on how and where to assign and transfer teachers are made by local administrators, and that such decisions are often influenced by collective bargaining agreements between the districts and the teachers. Some collective bargaining agreements allow certain teachers to choose where they want to teach within a district. Teachers with such an option often choose not to teach at schools predominantly serving low-income and minority children because the schools can have challenging working conditions.
David Berliner, an educational psychologist and professor emeritus from Arizona State University, testified that in-school effects on children's achievement were generally overstated when compared to out-of-school effects. Berliner opined that student test scores were rarely under a teacher's control, and were more often determined by peer-group composition of the group tested, including students' social class and their parents' educational level. Berliner estimated that teachers account for approximately 10 percent of variation in aggregate scores, with the remaining 90 percent attributable to other factors. Berliner further stated that VAM was "notoriously unreliable and therefore invalid" in assessing educational outcomes. Under cross-examination, however, Berliner acknowledged that a VAM analysis utilizing four years of data should be able to identify "very bad" teachers. He agreed that a small percentage of teachers — approximately 1 to 3 percent — consistently have strong negative effects on student outcomes, regardless of the classroom and school composition.
Linda Darling-Hammond, a professor of education at Stanford University, testified that there were several problems with using test scores as a definitive indicator of a teacher's effectiveness, including that tests often do not measure the material taught by a teacher, and that test score improvements or declines may be attributable to factors other than the teacher.
Several witnesses called by defendants testified that, in theory and practice, the challenged statutes protect teachers from arbitrary discipline and dismissal, and that they promote academic freedom. Jesse Rothstein, a professor of economics and public policy at the University of California, Berkeley, conducted a study regarding effects of the tenure and dismissal statutes, and found that the statutes help districts attract and retain teachers, because the statutes provide job security. Lynda Nichols, an education program consultant with the CDE and a former teacher, testified that during her teaching career, parents complained when she taught about subjects including Islam and Catholicism. Nichols believed that her status as a permanent employee, because it provided job protections, insulated her from potential retribution by parents and the local school board.
With regard to the probationary period provided by the tenure statute, Susan Mills, assistant superintendent of personnel for the Riverside Unified School District, testified that the period provided sufficient time to make a
Multiple school administrators called by defendants testified that, under the dismissal statutory scheme, they are able to remove poorly performing teachers. Robert Fraisse, former superintendent of Laguna Beach Unified School District, Conejo Valley Unified School District, and Hueneme Elementary School District, testified that he was able to use various strategies for resolving dismissals short of the formal dismissal process. These included letting poorly performing teachers know that there were serious concerns, which often led to resignation; paying a small amount of compensation in return for a resignation; and working with teachers' associations that could counsel suspect teachers to resign. Other administrators testified that the majority of potential teacher dismissals are resolved through resignation, settlement, retirement, or remediation rather than a CPC hearing.
Records from LAUSD showed that a larger number of teachers resigned to avoid the formal dismissal process than those who elected to go through the process. These records also showed that the number of teachers dismissed or resigning to avoid dismissal increased from a total of 16 in 2005-2006 to a total of 212 in 2012-2013. This change was due in part to an LAUSD policy of initiating the dismissal process whenever a teacher received two below-standard evaluations. From May 2007 through April 2013, LAUSD negotiated 191 settlements to informally resolve dismissal cases, with a total payout of slightly more than $5 million, approximately $26,000 per teacher.
As for the reduction-in-force statute, Fraisse testified that "it is a fair method that is perceived as fair," and that he was not aware of "a better, more objective system than seniority."
Witnesses called by both plaintiffs and defendants testified that decisions on how and where to assign and transfer teachers are determined by local school district administrators and collective bargaining agreements.
Defendants also presented evidence that societal circumstances pose challenges to the retention and assignment of teachers. According to a 2006 study, 22 percent of new teachers in California leave the profession within their first four years, and according to a 2001 study, the attrition rate nationally is 50 percent greater in high-poverty schools when compared to more affluent ones. Several witnesses stated that difficult working conditions impaired districts' efforts to recruit or retain experienced teachers at disadvantaged schools. Rothstein testified that, over the past half-century, teacher salaries had fallen a significant amount when compared to jobs requiring a similar degree of educational attainment.
Some districts attempted to address discrepancy between low- and high-income schools by assigning higher performers to lower income schools. Mills, the Riverside assistant superintendent, testified that there was no disparity in teacher quality between schools in her district serving low-income and higher-income students. Part of the reason was that the district tended to assign its "stronger leaders" to the poorer schools. Fraisse testified that during his years at Hueneme Elementary School District in the late 1990's, the district assigned its "best principals" to the highest need schools, which encouraged highly effective teachers to migrate to those schools "because of the leadership."
On June 10, 2014, the trial court issued a 16-page tentative decision, finding the challenged statutes unconstitutional under the equal protection clause of the California Constitution.
In its decision, the trial court noted that in Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241] (Serrano I) and Serrano v. Priest (1976)
The trial court found that competent teachers are a critical component of the success of a child's educational experience, and that grossly ineffective teachers substantially undermine the ability of a child to succeed in school. It further found that evidence presented at trial on the effects of grossly ineffective teachers was compelling and "shocks the conscience." The court wrote there was "no dispute" that a significant number of grossly ineffective teachers are active in California classrooms and, based on the testimony of defendants' expert Berliner, estimated this number to comprise 1 to 3 percent of California teachers — or approximately 2,750 to 8,250 teachers. Based on its determination that the challenged statutes (i) impose a "real and appreciable impact" on students' fundamental rights to equality of education, and (ii) "impose a disproportionate burden on poor and minority students," the court employed a "strict scrutiny" examination of the challenged statutes.
With respect to the tenure statute, the trial court found "extensive evidence" that the probationary period "does not provide nearly enough time for an informed decision to be made regarding the decision of tenure." As a result, "teachers are being reelected who would not have been had more time been provided for the process," and students "are unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current [tenure statute]." The court determined that defendants had not met their burden under the strict scrutiny standard and declared the tenure statute unconstitutional.
Turning to the dismissal statutes, the trial court found that, based on the evidence presented, the dismissal process's time and costs cause districts to be very reluctant to commence dismissal procedures. Due to this situation,
Regarding the reduction-in-force statute, the trial court noted it contained no exception based on teacher effectiveness. Therefore, the court found, because the "last-hired" teacher is statutorily mandated to be "first fired" when layoffs occur, students are separated from competent junior teachers while incompetent teachers with seniority remain in the classroom. "The result is classroom disruption on two fronts, a lose-lose situation." Again, the court found that defendants did not carry their burden under the strict scrutiny test, and deemed the reduction-in-force statute unconstitutional.
Finally, the trial court determined that substantial evidence showed the challenged statutes disproportionately affect poor and/or minority students. Citing to the 2007 CDE report, it found that students attending high-poverty, low-performing schools were far more likely than wealthier peers to attend schools with a disproportionately high number of underqualified, inexperienced, and ineffective teachers. The court further found that the "dance of the lemons" — where poorly performing teachers are transferred from school to school — was caused by the lack of effective dismissal statutes and the reduction-in-force statute, and that it affected high-poverty and minority students disproportionately.
After the trial court issued its tentative decision, the parties each requested a statement of decision pursuant to Code of Civil Procedure section 632. In their request, defendants sought rulings on a broad set of subjects, including (i) whether plaintiffs, in bringing an equal protection challenge, were required to prove that the statutes classified students in an unequal manner; (ii) whether plaintiffs were required to prove that the statutes inevitably posed a total and fatal conflict with the right to basic educational equality; and (iii) whether school districts had the authority to decide where teachers would be assigned to teach. The trial court did not respond to these questions, but instead ruled that defendants' requests for statements of decision were improper because they covered matters going beyond the principal controverted issues at trial. The court ordered that its tentative decision become the
The judgment replicated the earlier-issued tentative decision, concluding that the challenged statutes are unconstitutional. The trial court ordered the statutes enjoined, and stayed all injunctions pending appellate review.
The constitutionality of a statute is a question of law, which we review de novo. (Sanchez v. State of California (2009) 179 Cal.App.4th 467, 486 [101 Cal.Rptr.3d 670] (Sanchez); Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 360 [9 Cal.Rptr.3d 197].) De novo review is also the general standard of review when a mixed question of law and fact implicates constitutional rights. (People v. Cromer (2001) 24 Cal.4th 889, 894 [103 Cal.Rptr.2d 23, 15 P.3d 243]; Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 448-449 [79 Cal.Rptr.3d 312, 187 P.3d 37].) Mixed questions of law and fact arise when "`"historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated."'" (People v. Cromer, supra, 24 Cal.4th at p. 894, quoting Ornelas v. United States (1996) 517 U.S. 690, 696-697 [134 L.Ed.2d 911, 116 S.Ct. 1657]; see Pullman-Standard v. Swint (1982) 456 U.S. 273, 289, fn. 19 [72 L.Ed.2d 66, 102 S.Ct. 1781].) De novo review is generally appropriate in such circumstances "`"because usually the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles."'" (Haworth v. Superior Court (2010) 50 Cal.4th 372, 385 [112 Cal.Rptr.3d 853, 235 P.3d 152].) To the extent our review requires us to analyze factual determinations based on evidence presented at trial, we review the trial court's findings of fact for substantial evidence. (Serrano II, supra, 18 Cal.3d 728, 776; Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1127-1130 [61 Cal.Rptr.2d 207].)
Both plaintiffs and defendants characterize this case — which seeks to enjoin any enforcement of the tenure, dismissal, and reduction-in-force statutes — as a facial challenge to the constitutionality of the subject statutes. "A facial challenge to the constitutional validity of a statute ... considers only the text of the measure itself, not its application to the particular circumstances of an individual." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145] (Tobe); see also id. at pp. 1087-1088 [action, which sought to enjoin "any enforcement" of ordinance, was a facial attack].) In contrast, an "as applied" constitutional challenge seeks "relief from a specific application of a facially valid statute or ordinance," or an injunction against future application of the statute or ordinance in the manner in which it has previously been applied. (Id. at p. 1084; see also Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 665 [51 Cal.Rptr.3d 821].) A plaintiff seeking to void a statute as a whole for facial unconstitutionality "`cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, [the plaintiff] must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.'" (Arcadia Unified, supra, 2 Cal.4th 251, 267.) A person may bring a facial challenge by showing that "the subject of [the] particular challenge has the effect of infringing some constitutional or statutory right" (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 315 [109 Cal.Rptr.2d 154]), but need not necessarily show that he or she has personally suffered this infringement (see ibid.; Arcadia Unified, supra, 2 Cal.4th at p. 267; In re M.S. (1995) 10 Cal.4th 698, 709-710 [42 Cal.Rptr.2d 355, 896 P.2d 1365]).
As its name suggests, equal protection of the laws assures that people who are "`similarly situated for purposes of [a] law'" are generally treated similarly by the law. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177, 57 P.3d 654] (Cooley).) Thus, "`[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.'" (Ibid., italics omitted.) The equal protection clause applies to laws that "`discriminate explicitly between groups of people,'" as well as laws that, "`though evenhanded on their face, in operation have a disproportionate impact on certain groups.'" (Sanchez, supra, 179 Cal.App.4th 467, 487; see also Arcadia Unified, supra, 2 Cal.4th 251, 266 [claim that school transportation fees discriminated against poor may have had merit if not for payment exemption for indigent children]; Hardy v. Stumpf (1978) 21 Cal.3d 1, 7-8 [145 Cal.Rptr. 176, 576 P.2d 1342] (Hardy) [examining facially neutral physical agility test under equal protection inquiry]; Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256 [60 L.Ed.2d 870, 99 S.Ct. 2282] [employing equal protection review of a veterans' preference statute that operated to the disadvantage of women].)
As explained above, plaintiffs contend that the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute's probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions in force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students — Group 1 (an "unlucky subset" of students within the population of students at large) and Group 2 (poor and minority students) — were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.
Plaintiffs describe Group 1 as an "unlucky subset" of the general student population that is denied the fundamental right to basic educational equality because students within this subset are assigned to grossly ineffective teachers. According to plaintiffs, the students comprising Group 1 are, in all pertinent respects, similar to the population of students at large, except for their exposure to grossly ineffective teachers. In the judgment, the trial court found that the challenged statutes are unconstitutional because they lead students within Group 1 to be assigned to grossly ineffective teachers and thereby have a real and appreciable impact on these students' fundamental right of education.
Here, the unlucky subset is not an identifiable class of persons sufficient to maintain an equal protection challenge. Although a group need not be specifically identified in a statute
Plaintiffs argue that a class need only be identifiable when the asserted equal protection violation stems from the differential treatment of a suspect class, rather than the infringement of a fundamental right. For support, they cite Moreno v. Draper (1999) 70 Cal.App.4th 886, 893 [83 Cal.Rptr.2d 82] (Moreno). But Moreno does not support their argument. The statute at issue in Moreno, which the plaintiff claimed infringed the fundamental right to raise one's children, "create[d] two classes of parents paying child support — those with children receiving public assistance and those with children not receiving public assistance." (Id. at p. 888.) Indeed, every equal protection case based on the infringement of a fundamental right has involved a class identified by some characteristic other than asserted harm. In Butt, the classes were the students of the Richmond Unified School District, who would be harmed by the closing of schools, and the students outside that district. (Butt, supra, 4 Cal.4th 668, 687.) In the Serrano cases, the impairment of the fundamental right to education was suffered by students living in relatively poor school districts, which had less taxable wealth and therefore, under the then-existent financing systems, lower levels of educational expenditures. In other words, students were impacted by the system based on their residency. (Serrano I, supra, 5 Cal.3d 584, 592-595, 614; Serrano II, supra, 18 Cal.3d 728, 756-759, 765-766.) In In re Marriage Cases, the classes were defined by sexual orientation. (In re Marriage Cases, supra, 43 Cal.4th 757, 839.) And in Gould, which examined the constitutionality of an election procedure affording incumbents the top ballot position, the classes were defined by candidates (and their supporters) listed first on the ballot and those listed later. (Gould, supra, 14 Cal.3d 661, 664.)
In contrast, the unlucky subset constituting Group 1 is definable only by the characteristic that group members have assertedly suffered constitutional harm. What is more, the statutes do not assist plaintiffs with their definitional deficiency because they do not specify which students will be the "unlucky ones." In Gould, our Supreme Court held that a system that assigned ballot position randomly would not violate equal protection because, since all candidates had an equal chance of obtaining the top position, it would not "continually work a disadvantage upon a fixed class of candidates." (Gould, supra, 14 Cal.3d 661, 676.) The claimed effect on students here is analogous.
The claimed unlucky subset, therefore, is not an identifiable class sufficient to maintain an equal protection claim, and the judgment, insofar as it is based on plaintiffs' Group 1 theory, cannot be affirmed.
It is clear that the challenged statutes here, by only their text, do not inevitably cause poor and minority students to receive an unequal, deficient education. With respect to students, the challenged statutes do not differentiate by any distinguishing characteristic, including race or wealth.
Plaintiffs still could have demonstrated a facial equal protection violation, however, by showing that the challenged statutes, regardless of how they are implemented, inevitably cause poor and minority students to be provided with an education that is not "basically equivalent to" their more affluent and/or White peers. (Butt, supra, 4 Cal.4th 668, 685.) It is possible, though not certain, that plaintiffs could have made such a showing by proving that any implementation of the statutes inevitably resulted in the consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students.
The trial court's conclusions do not support a contrary finding. In determining that the challenged statutes disproportionately affect Group 2 students, the trial court (i) cited to a CDE report stating that students attending high-poverty, low-performing schools are far more likely than wealthier peers to attend schools with a high number of underqualified, inexperienced, and ineffective teachers, and (ii) found that the "dance of the lemons" is caused by the lack of effective dismissal statutes and the reduction-in-force statute, and that it affects high-poverty and minority students disproportionately. Neither of these findings supports a conclusion that the challenged statutes determine where grossly ineffective teachers work. The CDE report relied on by the court does not suggest that the challenged statutes cause disparities in the assignment of poor or minority students to grossly ineffective teachers. Instead, it repeatedly documents the reason for higher concentrations of ineffective teachers in schools serving such students — the "counterproductive hiring and placement practices" of local administrators. Nor did the trial evidence show the "dance of the lemons" is inevitably caused by the statutes. Instead, as described at trial, the dance of the lemons is a process driven by local administrators. 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. (See Tobe, supra, 9 Cal.4th 1069, 1102 [ordinance that did not inevitably conflict with constitutional right was not subject to valid facial challenge].)
Plaintiffs contend that the testimony of their expert witnesses supports their position that the challenged statutes cause grossly ineffective teachers to be disproportionately assigned to schools with large low-income and minority populations. These witnesses opined that grossly ineffective teachers "tend to" accumulate in schools serving minority students, and that the challenged statutes "could" be a cause. We are not required to defer to expert opinion regarding the ultimate issue in a case, particularly when the issue is a predominantly legal mixed question of law and fact. (See Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 [82 Cal.Rptr.2d 162] ["There are limits to expert testimony, not the least of which is the prohibition against admission of an expert's opinion on a question of law."].) In any event, these opinions do not sustain plaintiffs' burden. The first opinion does not explain why grossly ineffective teachers "tend to" accumulate at certain schools, and the second opinion only indicates the statutes "could be" a cause, not that they are or, more importantly, inevitably are.
It is possible that the challenged statutes — in the way they pertain to teacher tenure and seniority — lead to a higher number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection violation, which requires a classification affecting similarly situated groups in an unequal manner. (Cooley, supra, 29 Cal.4th 228, 253.)
Assuming that poor and minority students encounter more grossly ineffective teachers and that this impacts their constitutional right to "basic educational equality" (Butt, supra, 4 Cal.4th 668, 681), the constitutional infringement is the product of staffing decisions, not the challenged statutes. Even if the statutes were struck down, the harm at issue — the disproportionate assignment of inferior teachers to poor and minority students — could still occur as before. (Any system will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect, do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators from assigning the worst teachers to schools serving poor and minority students.
In sum, the evidence presented at trial highlighted likely drawbacks to the current tenure, dismissal, and layoff statutes, but it did not demonstrate a facial constitutional violation. The evidence also revealed deplorable staffing decisions being made by some local administrators that have a deleterious impact on poor and minority students in California's public schools. The evidence did not show that the challenged statutes inevitably cause this impact. Plaintiffs elected not to target local administrative decisions and instead opted to challenge the statutes themselves. This was a heavy burden and one plaintiffs did not carry. The trial court's judgment declaring the statutes unconstitutional, therefore, cannot be affirmed.
The judgment is reversed. The matter is remanded to the trial court with directions to enter judgment in favor of defendants on all causes of action. Each party shall bear its own costs on appeal.
Ashmann-Gerst, J., and Hoffstadt, J., concurred.