superior court of the state of california for the

Transcription

JEFFREY B. DEMAIN(SBN 126715)
JONATHAN WEISSGLASS(SBN 185008)
2 EILEEN B. GOLDSMITH(SBN 218029)
P. CASEY PITTS(SBN 262463)
3 Altshuler Berzon LLP
177 Post Street, Suite 300
4 San Francisco, CA 94108
Telephone:(415)421-7151 /Facsimile:(415) 362-8064
5 E-Maid:[email protected];
[email protected]; [email protected];
6 [email protected]
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GLENN.ROTHNER(SBN 67353)
Rottener Segall & Greenstone
510 South Marengo Avenue
Pasadena, CA 91101
Telephone:(626)796-7555 /Facsimile:(626)577-0124
E-Mail.: [email protected]
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Attorneys for Intervenors
1l. CALIFORNIA TEACHERS ASSOCIATION and
CALIFORNIA FEDERATION OF TEACHERS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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CaseNo. BC 484642
BEATRIZ VERGARA,a minor,. by Alicia
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al.;
litem,
et
her
guardian
ad
Martinez, as
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MEMORANDUM OF POINTS AND.
AUTHORITIES IN SUPPORT OE
CALIFORNIA TEACHERS
ASSOCIATION'S AND CALIFORNIA
FEDERATIQN OF TEACHERS'
MOTION FOR SUMMARY
JUDGMENT OR IN THE
ALTERNATIVE FOR SUMMARY
ADJUDICATION
Plaintiffs,
u
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STATE OF CALIFORNIA,et al.;
Defendants,
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25.
Unlimited Civil Case
CALIFORNIA TEACHERS ASSOCIATION;
CALIFORNIA FEDERATION OF TEACHERS,
Intervenors.
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Filed 2/24/10
Date: December 13, 2013
Time: 8:30 a.m..
The. Honorable Rolf M. Treu, Dept. 58
Action Filed: May 14, 20.12
Trial Date: January 27, 2014
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Memo.of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
TABLE OF CONTENTS
..................... ii
TABLE OF AUTHORITIES .....................................
.......................... 1
SUMMARY OF ARGUMENT :.... . .........................
..................... 3
THE CHALLENGED STATUTES ..........,.......... ..........
............. . 3
Two-Year Probationary Period: Education Code §44929.21(b) .....
A.
..... . ......... 4
The Dismissal Statutes: Education Code §§44934,44938, and 44944
B.
I
................ 6
Reductions-In-Force: Education Code §44955 .................
C.
..............................8
STANDARD.:.......................................
...........................8
ARGUMENT...:....... ................... ..........
10
I.
11
II.
12
13
14
1S
16
III.
The Challenged Statutes Are Rationally Related To Legitimate .........................9
Government Purposes .....................:...........
Be Dismissed
Plaintiffs' "Suspect Class" Claims(Claims 4, 5, And 6)Should
....:............... 12
.....
.
..
.....
.....
For Lack Of Discriminatory Intent ..........
d Be Dismissed
Plaintiffs' "Fundamental Interest" Claims(Claims 1, 2, and 3) Shoul
Impact
Any
And
rmly
Unifo
ers
Teach
ts'
Because The Statutes Treat All Studen
At Most Unintended,
They Could Have On Plaintiffs' Fundamental Interests Would Be
............ , .. 14
....
Indirect, And Attenuated ..............................
t
The Challenged Statutes Do Not Contain Any Classification Subjec
A.
y .............. 15
Theor
tion
To Constitutional Scrutiny Under Plaintiffs' Equal Protec
Plaintiffs'
Any Impact The Challenged Statutes Could Possibly Have On
ated ............ 16
Attenu
And
ct,
Indire
Fundamental Interests Would Be Unintended,
18
.................. .... . 18
The Challenged Statutes Are Facially Valid
1.
19
.......... 20
The Challenged Statutes Are Valid As Applied To Plaintiffs .....
2.
20
.......................... 25
Claims 3 And 6 Are Not Ripe .........................
IV.
21
es Moot And Unripe ....... 26
AB 375 Renders Plaintiffs' Challenges To The' Dismissal Statut
V.
22
........ . ............ ...... 27
Plaintiffs Do Not Have Standing To Pursue Their Claims
VI.
23
............................. ..30
CONCLUSION ........ .........................
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17
B.
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d
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion
for Summary Judgment or Summary Adjudication
1
TABLE OF AUTHORITIES
2
FEDERAL CASES
3
City ofCleburne v. Cleburne Living Ctr.
(1985)473 U.S. 432 ................
..........................................9
4
5
6
Pers, Adm°r v. Feeney
(1979)442 U.S. 256 .....................................:.....................13
Vacco v. Quill
(1997)521 U.S. 793 .............:.............................................16
7
8
9
10
11
12
13
14
15
16
Village ofArlington Heights v. Metro. Housing Dev. Copp
(1977)429 U.S. 252 ...........................................................12
Washington v. Davis
(1976)426 U.S. 229 ...........................................................12
STATE CASES
Am. Civil Rights Found. v. BeNkeley Unified Sch. Dist.
(2009) 172 Ca1.App.4th 207 ..... .................................
....... 18, 27
Arcadia Unified Sch. Dist: v. State Dept ofEduc.
(1992)2 Cal.4th 251 ..........................................................18
Bakersfield Elem. TeacheNS Assn v. Bakersfield City Sch. Dist.
20
(2006) 145 Ca1.App.4th 1260 ................................................ 10,
Bellflower Educ. Assn v. Bellflower Unified Sch. Dist.
(1991)228 Ca1.App.3d 805 ...................... ........,.'....................19
17
18
19
~0
21
22
23
24
25
26
27
Bledsoe v. Biggs U.S.D.
(2008) 170 Cal.App.4th 127 ...................
.... .......................7, 11
Bd. ofEduc. v. Round Valley TeacheNS Assn
.. 1, 11
(1996) 13 Ca1.4th 269 .....................................................
Bd. ofSupeNVisors v. Local Agency Formation Comm'n
(1992)3 ~al.4th 903 ........ ............................
...............passim ~
Butt v. State ofCalifornia
(1992} 4 Ca1.4th 668 ................................................. 13, 15, 17, 21
California Teachers Assn v. State ofCalifoNnia
(1999)20 Cal.4th 327 .......................................
Campbell v. Graham-A~mstNOng
(1973)9 Ca1.3d 482 ... .............
....
..... 10, 11
........................................1
Citizensfor Parental Rights v. San Mateo County Bd. ofEduc.
.16
(1975).51 Cal.App.3d 1 ........................................................
28
ii
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or
Summary Adjudication
1
City ofSanta Monica _v. StewaNt
(2005) 126 Ca1.App.~th 43 ..................................................
. 25
2
3
4
Cooley v. SupeN. Ct.
(2002)29 Cal.4th 228. ....:..
.................
.......................... 14, 15
Coral Constr., Inc. v. City &County ofSan Francisco
(2004) 116 Ca1.App.4th 6 .......:...................... . ....................... 27
5
6
7
County ofSan Diego v. San Diego NORML
(2008) 165 Cal.App.4th 798 ... ........ ............................... 27, 28, 29, 30
Fresno City High Sch. Dist, v. De CaNisto
(1939)33 Cal.App.2d 666 .. .~ ...................
............................1
8
9
10
Fisher v. City ofBeNkeley
(1984)37 Ca1.3d 644 ..........................................................27
Fleice v. Chualar Union ElementaNy Sch. Dist.
(1988)206 Cal.App.3d886 ......................... .............................14
11
12
13
In Ne Flodihn
(1979)2S Ca1.3d 561 ....................................
~ ............. 17, 21, 22
Gassman v. GoveNning Bd.
(1976)18 Ca1.3d137 .......................................................11,19
14
15
16
Cleaves v. WateNs
(1985).175 Cal.App.3d 4'13 ..................................................... 28
Hardy v. Stumpf
(1978)21 Ca1.3d 1 ........................................................ 2, 9, 12
17
Hatchwell v. Blue Shield ofCal.
(1988)198 Cal.App.3d1027 ...
1g ~
......................
,
.......................27
19j Estate ofHorfnan
...7,29
(1971)5 Ca1.3d 62 ...... ................................................
20
Hoschler v: Sacramento City Unified Sch. Dist.
(2007] 149 Ca1.App.4th 258 .......... ................................ ...... 10
21
22
Kavanaugh v. West Sonoma County.Union High Sch. Dist.
(2003)29 Cal.4th~911 ............. ...........,.............................3,4
23
24
25
Kim v. Workers' Conzp, Appeals Bd.
(1999)73 Cal.App.4th 1357 ...........................
....................... 13
King v. McMahon
21
(1986) 186 Ca1.App.3d 648 ......................:..................... 15, 17, 20,
26
Lacy v. Richmond, Unified Sch. Dist.
(1975)13 Ca1.3d 469 ......
27
.............. ...................................10
28
~,
~, Memo. ofPs. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment
or Summary Adjudication
1
Lunardi v. Great-West Lfe Assurance Co.
(1995) 37 Ca1.App.4th 807 .........
.........
................................ 8.
2
3
4
Long Beach City Employees Assn v. City ofLong Beach
(1986)41 Cal.3d 937 ...........................
..
.........................15
In re Marriage Cases
(2,008)43 Ca1.4th 757 ................ f ...................................9, 12, 13
5
6
Pacific Legal Foundation v. Cal. Coastal Comm'n
(1982)33 Ca1.3d 158 .......................
..............................25,26
7 PG&E Corp, v. P. U.C.
................................................. 25
(2004) 118 Cal.App.4th 1174
8
Rittenband v. Cory
(1984) 159 Ca1.App.3d 410 .............. ..................................... 17
9
10
San Francisco v. Freeman
(1999)71 Ca1.App.4th 869 .................. ............
.................... 17
11
12
13
Sanchez v. State ofCalifornia
(2009) 179 Ca1.App.4th 467 ................... :.............................. 12, 13
Serrano v. Priest
(1976)18 Ca1.3d 728 ..........................:...................
..........15
14
15
16
17
18
19
State Compensation Insurance Fund v. Riley.
(1937)9 Cal.2d 126 ........ ......
....................................... .20
Sturgeon v. Bratton
(2049) 174 Ca1.App.4th 1407 ....................................
........... 8, 18
i
Tobe v. City ofSanta Ana
...passim
...........
...........
......
...........
(1995)9 Ca1.4th 1069 ...........
Valtz v. Penta Inv. Copp.
(1983)-139 Ca1.App.3d 803 ......
. ...............................
..... 15, 16
20
21
22
23
24
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Wilson v: State ~d. ofEduc.
(1999)75 Cal.App.4th 1.125 ..... ........
Wilson &Wilson v. City Council ofRedwood City
(201'1) 191 Ca1.App.4th 1559 ...........
................ , ...... ..............9
...............................:...... 26
Zalac v. Governing Bd. ofFerndale Unified Sch: Dist.
(2002)98 Cal.App.4th 838 .......... .......................................... 11
Zetterberg v. State Dept. ofPublic Health
X1974)43 Ca1.App.3d 657 ..........:........................................... 28
26
27
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~~v
Memo. ofPs. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
STATE STATUTES
C.C.P §437c .................................................
... ............
Ca1.Const.art.IV,§10 ..................................
.................26,27
....
....8
Ca1.Const. art. VII,§8 ..................... .........................................20
Educ. Code §44929.21 ............................ .......
..........
......... passim
Educ.Code §44932 ...........................................................
Educ. Code §44934 ..
..4,19
............................:..:......................... passim
Educ.Code §44938 .......
.................................................... passim
Educ: Code §44944 ............ ...........
.......
Educ. Code §44955 .................................
Educ. Code §47610 ................
...................
..... passim
.....................
..... ...........................
passim
............29
Gov't Code §3543.2(c) .....................................:.........................6
', Gov't Code §11524(a)
.. ............ .........
................................4
Gov't Code.§19170(a) .........~........................:.....................
..
.20
MISCELLANEOUS
The Federalist No. 78 (Hamilton) ....................................................... 9
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Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion for Stunmary Judgment or Summary Adjudication
1
SUMMARY OF ARGUMENT
2
This lawsuit challenges five longstanding provisions of the Education Code that the Legislature
3
enacted to provide California's public schools with "an efficient permanent staff of teachers ... whose
4
members are not dependent upon caprice for their positions," FNesno City High Sch. Dist. v. De CaNisto
S
(1.939) 33 Ca1.App.2d 666, 674; ensure that the state's schools "make available to all children equally
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the.abundant gifts of learning," Campbell v. Graham-Armstrong(1973)9 Ca1.3d 482, 492-93 (Wright,
7
C.J., concurring](internal quotations and citations omitted); and strike the proper balance between "the
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student's need for education, the teacher's need for job security, and the school board's need for
9
flexibility in evaluating and hiring employees," ~d, ofEduc, v. Round Valley Teachers Ass'n (1996) 13
10
Cal.4th 269, 278 (citation omitted).
11
Plaintiffs allege that the challenged statutes have caused them, or may in the future cause them,
12
to be assigned to "grossly ineffective" teachers. See, e.g., Declaration of P. Casey Pitts in Support of
13
California Teachers Associations' and California Federation of Teachers' Motion for Summary
14
Judgment or in the Alternative for Summary Adjudication("Pitts Decl.")Exh. CC ¶10. Specifically,
15
they contend that the two-year probationary period established by Education Code §44929.21(b) does
16
not provide school districts with sufficient tune to identify and deny permanent status to "grossly
17
ineffective" teachers, id. ¶¶45-47; that the process required to dismiss a permanent teacher under
18
Education Code §§44934,.44938, and 44944 (hereinafter "the dismissal statutes")is unduly burdensome,
19
id. ¶55; and that the layoff process required under Education Code §44955 causes the retention of
20
"grossly ineffective" teachers, id. ~¶64-68: (Unless otherwise noted, all subsequent statutory citations
21
are to the Education Code.) They allege that the statutes are subject to and cannot satisfy "strict
22
scrutiny" under the California Constitution's equal protection provisions, because Plaintiffs' alleged
23
assignment to "grossly ineffective" teachers, purportedly due to the statutes, infringes upon their
24
fundamental interest in education, and because.the statutes purportedly make the quality of their
25
education a function of a suspect classification, namely, their race or wealth. Id. ¶¶74, 79-108. They ask
26
this Court to strike down the- statutes both on their face and as applied. Id.
27
~
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California Legislature's considered judgment regarding the practices necessary to provide California's
This Court should grant summary judgment on all claims. The challenged statutes represent the
1
Memo. ofPs. and Auths, in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
1
schools with an effective and efficient teaching force and its careful balancing, in the execution of its
2
institutional role in our system of government, of the- interests of students, teachers, and school districts.
3
As such, the statutes are entitled to a "presumption of constitutionality," Bd. ofSupervisors v. Local
4
Agency Formation Comm'n (1992), 3 Ca1.4th 903,923, and under undisputed.facts easily satisfy the
5
"rational basis" standard of review that applies to equal protection claims involving neither
6
discrimination against a "suspect class" nor the direct impairment of a "fundamental interest." See
7
HaNdy v. Stumpf(1978)21 Ca1.3d 1, 7(rational basis review requires only that challenged law "bear
8
some rational relationship to a legitimate governmental purpose").
Because the statutes ha,~e a rational basis, Plaintiffs' claims fail unless Plaintiffs can demonstrate
9
10
that strict scrutiny, rather than rational basis review, applies and is not satisfied. The undisputed facts
11
establish that strict scrutiny does not apply to those claims: Plaintiffs cannot establish that strict scrutiny
12
applies to their "suspect class" claims(Claims 4-6) because the challenged statutes are facially neutral,
13
were enacted for nondiscriminatory purposes, and have not been applied for the purpose of harming low-
14
income or minority students. Likewise, Plaintiffs cannot establish that strict scrutiny applies to their
15
"fundamental interest" claims(Claims 1-3), because the statutes treat all students in California
16
uniformly, and any purported causal relationship between the statutes and the immediate source of the
17
purported harm to Plaintiffs' fundamental_ interests — namely, their alleged assignment to "grossly
18
ineffective" teachers by their school districts — is too unintended, indirect, and attenuated to trigger strict
19
scrutiny.
Plaintiffs' claims suffer from several other fatal flaws. Plaintiffs' challenges to §44955 (Claims
20
21
3 and 6)are unripe because no district attended by any plaintiff has taken any action to implement any
22
reduction-in-force("RIF")in the reasonably foreseeable future, while the Legislature's recent revisions
23
to the dismissal statutes, if approved by the. Governor, render Plaintiffs' challenges to the dismissal
24
statutes both moot and unripe. And if this Court concludes that any of Plaintiffs' claims survives as a
25
legal matter, their claims must nonetheless be dismissed for lack of standing. Finally, Claim 7 is entirely
26
derivative of Plaintiffs' other claims and must be dismissed for the same reasons.
27
//
28
//
2
Memo, of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
THE CHALLENGED STATUTES
1
2
Plaintiffs' claims challenge five sections of the Education Code, which together establish:(1) the
3
process through which teachers earn certain minimum due process protections against discharge after
4
two years of probationary service (referred to as "permanent" status);(2)the notice and hearing process
5
school districts must follow to dismiss permanent teachers for cause; and (3)the process for
6
implementing RIF layoffs for reasons unrelated to any individual teacher's conduct or performance. We
7
address each in turn.
Two-Year Probationary Period: Education Code §44929.21(b)
8
A:
9
The Education Code establishes four employment classifications for teachers employed by school
10
districts in California: permanent, probationary, temporary, and substitute. Kavanaugh v. West Sonoma
11
County Union High Sch. Dist.(2003)29 Cal.4th 911, 916-17. The claims in this case involve
12
probationary and permanent teachers.
13
B
During their first two years of employment with a school district, teachers not serving in
14
temporary or substitute positions are classified as probationary employees. Id. Probatiori~ry teachers
15
may be released from employment at the end of a school year "without any showing of cause;
16
(internal
any statement of reasons, and without any right of appeal or administrative redress." Id. at 917
17
quotations and citations orriitted). They may also be dismissed during the school year for cause,
18
including for unsatisfactory performance. Id.
19
without
A probationary teacher who is employed by the same school district for two complete,
school
20
consecutive school years earns "permanent" status with that district at the start of the subsequent
21
year. §44929.21(b). School districts may deny permanent status to probationary teachers by notifying
22
them, by March 15 of their second year of probationary service, that they will not be "reelected"
23
following year. Id. The Education Code does not require school districts to reelect any particular
24
teacher into permanent status, and school districts need not provide any reason for deciding not to
25
a probationary teacher. Id.; Kavanaugh, 29 Cal.4th at 917; Pitts Decl. Exh. J; at 35:20-25. Each school
26
district can set its own standard for attaining permanent status in that district. CTA's & CFT's Separate
27
Statement of Undisputed Facts in Support of Motion for Summary Judgment or in the Alternati
28
Summary Adjudication("SUF") Nos. 3-7.
for the
reelect
ve for
3
Memo. of Ps, and Auths, in Support of CTA's & CFT's Motion for Summary Judgment or Summary
Adjudication
The Dismissal Statutes: Education Code §§44934, 44938, and 449441
1
B.
2
By earning permanent status, a teacher does not acquire the right to remain employed forever.
3~ Instead, the teacher earns only certain substantive and procedural protections from discharge-namely,
4' the right to remain employed unless the district has cause to dismiss the teacher or implements a valid
5
RIF. See, e.g., Kavanaugh, 29 Ca1.4th at 917. The Education Code provides several causes for
6
dismissal, including "unsatisfactory performance" and "unprofessional conduct." §44932(a)(1),(4).
7
The Education Code also specifies the process that school districts must follow when dismissing
8
a permanent teacher for cause. That process starts with notice to the teacher of the district's concerns.
9
§44938. In the case of unsatisfactory performance, the district must give the teacher 90 days to remedy
10
the identified problems. §44938(b)(1). If the teacher fails to remedy those problems, the district may
11
then pursue the teacher's dismissal by providing the teacher with a written statement of charges.
12
§44934. The teacher has 30 days to request a hearing on those charges and, if he or she does so, the
13
hearing must occur 60 days thereafter, although,that deadline may be extended "for good cause shown."
14
§44944(a)(1); Gov't Code §11524(a); Pitts Decl. Exh. E, at 165:8-10("[T]he district could insist on the
15
60 days —and. has done so."). Both sides have a right to certain, limited pre-hearing discovery.
16
§44944(a). The hearing is conducted before an independent decision-making body known as the
17, Commission on Professional Competence, which is composed of an administrative law judge and two
18~ individuals who hold valid teaching credentials. §44944(b). The Commission issues "a written decision
19
containing findings of fact, determinations of issues, and a disposition," and either party may seek
20 judicial review of an adverse decision. §§44944(c)(1), 44945.
21
22
It is undisputed that school districts can and do pursue the dismissal of permanent teachers
through the process established by the Education Code, and that districts successfully terminate teachers
23 ~ using that process. SUF Nos. 16, 19-20. Whether a school district pursues a small or large number of
24
dismissals does not depend on the dismissal statutes. The Los Angeles Unified School District
25 ("LAUSD"), for instance, chose to increase the number of school board-initiated dismissals from 10 in
26
2009-10 to 99 in 2011-12. Pitts Decl. Exh. J, at 114:11-115:22; Pitts Decl. Ems. M. Furthermore, it is
27
28
1~ This section addresses the dismissal statutes in effect at the time of filing. As described infNa Section
V, A.B. 375 may significantly amend the dismissal statutes, effective January 1, 2014.
4
Memo. of Ps. and Auths, in Support of CTA's & CFT's Motion for Summary Judgment or Stunmary Adjudication
1
undisputed that many permanent teachers facing dismissal leave employment voluntarily, either before
2 or after the school board has initiated dismissal proceedings. SUF No. 16. In 2011-12, for example, 122
3
certificated LAUSD employees resigned their positions rather than face dismissal proceedings. Pitts
4
Decl. Exh. J, at 115:23-118:4; Pitts Decl. Exh. G, at 407:1-10. At both LAUSD and the Oakland
5
Unified School District("OUSD"), the vast majority of cases in which the school board has approved
6
written dismissal charges resolve with the teacher agreeing to resign before any Commission hearing
7 takes place. Pitts Decl. Exh. E, at 47:1-49:1; Pitts Decl. Exh. M; Declaration of Ann Niehaus in Support
8
of California Teachers Associations' and California Federation of Teachers' Motion for Summary
9 I Judgment or in the Alternative for Summary Adjudication("Niehaus Decl.")Exh. C, at 12(at LAUSD
10 "approximately 168 teachers were issued dismissal charges. and either proceeded to hearing or settled
11
their dismissal charges with the District" from July 1, 2010 to May 1, 2013, but the Commission on
12
Professional Competence issued only 15 decisions involving LAUSD teachers from January 1, 2008 to
13
May 1, 2013); Pitts Decl. Exh. G, at 407:13-408:3 (after initiating disciplinary proceedings, LAUSD
14
does. not voluntarily abandon those proceedings to allow the teacher to remain with the district). Indeed,
15
statistics from throughout the state confirm that most Commission on Professional Competence matters
16
are resolved without any hearing and issuance of a Commission decision. Declaration of Jeffrey B.
17
Demain in Support of California Teachers Associations' and California Federation of Teachers' Motion
18
for Summary Judgment or in the Alternative for Summary Adjudication ¶¶3-7 & Exhs. B-G (decisions
19
were issued in only 85 of the 530 Commission on Professional Competence matters initiated through the
20
Office bf Administrative Hearings from the 2008-09 school year through the 2011-12 school year, while
21
431 of those matters were resolved without any Commission decision issuing).
22
The dismissal statutes allow a district to remove teachers from the classroom.while dismissal
23
proceedings occur. SUF No. 17. LAUSD,for example, generally removes teachers from the classroom
24
as soon as the school board approves written dismissal charges. Pitts Decl. Exh. J, at 138:11-16; Pitts
25
Decl. Exh. G, at 399:2-400:.11. If a district's dismissal efforts are not successful, districts may assign the
26
teacher administrative or non-teaching responsibilities; the statutes do not require the district to return
27
that teacher to the classroom and, indeed, LAUSD and OUSD generally do not do so. SUF No. 18; Pitts
28
Decl. Exh. J, at 145:4-146:21, 270:17-21; Pitts Decl. Exh. E, at 165:12-166:5.
5
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
1
When a district has concerns about a teacher's effectiveness, it will often'attempt to improve that
2
teacher's performance through assistance,. mentoring, and feedback from the principal and peers before
3
initiating dismissal proceedings. SUF No. 15. These voluntary efforts often extend over a period of
4
time that significantly exceeds the 180-day time line established by the dismissal statutes (i.e., 90 days to
5
correct performance, 30 days to request a hearing, and 60 days to conduct the hearing). Pitts Decl. Exh.
6
Z, at 248:18-250:8 (before seeking dismissal, OUSD provides teachers with two years to improve their
7
performance through feedback, coaching, and peer assistance); Pitts Decl. Exl~. I, at 111:22- 114:1; Pitts
8
Decl. Exh. J, at 100:4-12(LAUSD provides two years of assistance through Peer Assistance and Review
9
before deciding to dismiss teachers). Such efforts are unsurprising.in light of the districts' investment in
10
the teachers' recruitment and professional development, and the similar costs of replacing teachers, but
11
they are not required by the challenged statutes. Pitts Decl. Exh. J, at 235:13-236:2(LAUSD gives
12
teachers an opportunity to improve because it.has "hired them,""invested resources in training them,"
13
"believe[s] in support and guidance," and "ha[s] to be secure ... that we've given every opportunity for
14
the teacher to learn to teach well"); Pitts Decl. Exh. S, at 279:4-17(OUSD "want[s] to be sure that [it
15
has] done everything possible to remediate the performance of that teacher and provide them the support
16
that they need to improve" before seeking their dismissal).
Reductions-In-Force: Education Code §44955
17
C.
18
In addition to being dismissed for cause, permanent teachers. can be laid off in a RIF undertaken.
19
for budgetary reasons or to address a mismatch in the district's teacher and student populations.
20
§44955(b); Pitts Decl. Exh. Z, at 256:4-9; Pitts Decl. Exh. E, at 112:7-113:2; Pitts Decl. Exh. B, at
21
20:16-21:7. Section 44955 specifies the process for such layoffs.? As a general rule,"the services of no
22
permanent employee may be terminated .under the. provisions of this section while any probationary
23
employee, or any other employee with less seniority, is retained to render a service which said permanent
24
employee is certificated and competent to render," and districts must "make assignments.and
25
reassignments in such a manner that employees shall be retained to render any service which their
26
seniority and qualifications entitle them to render." §44955(b),(c). In other words, under the statute
27
28
2` A school district and the exclusive bargaining representative of its teachers may agree to procedures
and criteria that differ from those established by §44955.. See Gov't Code §3543.2(c).
6
1
2
less senior teachers generally are laid off before more senior teachers with the same qualifications.
This general rule, however, is subject to several significant qualifications and exceptions. First,
3
§44955 gives districts the discretion to define the "particular kind of service" —such as a specific area of
4
instruction like English, music, or adult education —that will be reduced or eliminated during a particular
5
RIF. See, e.g,, Declaration of Jeffrey B. Demain in
Support
of Intervenor's Request for Judicial Notice
6 ("IRJN'.') Exh. E, at 2-3 (listing areas. of instruction and number of positions in each area subject to 2011
8
they will authorize us to carry out layoff for."). Second, the rule only applies
9
are "certificated and competent to render" the same service, and school districts are allowed to define
as
OUSD RIF);.Pitts Decl. Exh. B,at 23:3-5 (`.`The board determines which particular kinds of services
a
7
between teachers who
Cal.App.4th 127, 135 (district may retain "junior employees who are certificated and competentto
12
render services which more senior employees are not")(citation omitted).; IRJN Exh. E, at 3
13
purposes of 2011 OUSD RIF, competency determined by, among other things,"possession of a
14
preliminary or clear credential
the subject matter
(for
11
or
those certification and competency requirements. See, e.g., Bledsoe v. Biggs U.S.D.(2008) 170
for
10
grade level to which the employee will be
15' assigned .;.-and current possession of certification and/or credentials to teach English Learners"); Pitts
16' Decl. Exh. A, at 38:15-22(LAUSD "utilize[s] some quality criteria under the competency
requirements"). Third, districts may establish "skipping" criteria pursuant to which they will retain or
18
"skip" less senior teachers who have special training and experience that others with more seniority do
19
not possess, or who must be retained to "maintain[] or achieve] compliance with constitutional
20
requirements related to equal protection of the laws." §44955(d)(1),(2); Bledsoe, 170 Cal.App.4th at
21
138-42(school district properly retained less senior teachers with "specialized background, training and.
22
experience" needed to work with "distinct and difficult student population").
23
A school district's decision to implement a RIF in any particular year depends
on
17
several factors,
25
e.g., SUF Nos. 27-28; Pitts DecL
26
LAUSD,-for example; did not implement any RIFs between 1988 and 2008. Pitts Decl. Exh. A, at
Y, at 215:13-16; Declaration of Stephen Fiss("Fiss
becl.
such as the district's budget and predicted student population, and RIFs do not occur every year. See,
Ems.
24
")¶8.
27. 74:22-75:8; Pitts Decl. Exh. B, at 48:19-21. Neither OUSD,LAUSD,nor Alum Rock Union
28
Elementary School District("ARUESD")has any current plan to implement a RIF in the future, and
7
1
there is na evidence that any school district attended by any plaintiff intends to implement a RIF in the
2
reasonably foreseeable future or has taken any legal steps to authorize such a RIF. SUF Nos. 29, 31,
3
38.3
STANDARD
4
"[S]ummary judgment shall be granted if all the papers submitted show that there is no triable
5
6
issue as to any material fact. and that the moving party is entitled to a judgment,as a matter of law."
7
C.C.P. §437c(c); Sturgeon v. Bratton (2009) 174 Ca1.App.4th 1407, 1417("A defendant is entitled to
8
summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes
9' of action can prevail.")(internal quotations and citations omitted). A motion for summary adjudication
10
"is subject to the same rules and procedures as a summary judgment motion," and can be granted if it
11
"completely disposes of a cause of action." C.C.P. §437c(~(1); Lunardi v. Great-West Life AssuNance
12
Co.(1995) 37 Cal.App.4th 807, 819.
ARGUMENT
13
In this case, Intervenors the California Teachers.Association and the California Federation of
14
15
Teachers contend that the challenged statutes protect the quality of education in California's public
16
schools by encouraging the recruitment and retention of high quality teachers, recognizing the value of
17
teachers' professional expertise, and protecting teachers from arbitrary, unfair, or unwarranted discipline,
18
and further contend that the statutes do not in any way cause school districts to retain or assign students
19
to "grossly ineffective" teachers. However, this Court need not resolve those factual issues, or
20
reconsider the wisdom of the Legislature's policy determinations and balancing of relevant interests, to
21
grant summary judgment. The undisputed facts establish that the challenged statutes neither
22
discriminate against a suspect class nor directly infringe.Plaintiffs' fundamental rights. The challenged
23
statutes are therefore subject only to "rational basis" review under the California Constitution's equal
24
protection provisions, and they easily satisfy that standard. The Court should thus grant summary
25
judgment dismissing Plaintiffs' claims in their entirety.
26
//
27
3~ OUSD's future RIF plans are in any event irrelevant, because the only Plaintiff from OUSD is in his
28 ', senior year of high school and thus cannot be affected by any future RIF. See infi°a at 28.
8
Memo. ofPs. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment ar Summary Adjudication
1
2
3
I.
The Challenged Statutes Are Rationally Related To Legitimate Government Purposes
All statutes duly enacted by the California Legislature are entitled to a presumption of
constitutionality, Local Agency Formation Comm'n,3 Ca1.4th at 923. Any doubts must be resolved "in
4 .favor ofthe Legislature's action." Wilson v. State Bd. ofEduc.(1999)75 Cal.App.4th 1125, 1134.
5
Consistent with the distinct roles of,the courts and the legislative branch, the equal protection provisions
6 :of the California Constitution generally require only that statutory distinctions "bear some rational
7
relationship to a legitimate governmental purpose." Hardy, 21 Ca1.3d at 7; see also Local Agency
$
FoNmation Comfn'n, 3 Ca1.4th at 913("For most legislation ... a court will apply .the rational basis
9
test."). This "rational basis" standard accords "wide latitude" to the Legislature's policy choices and
10
"presumes that even improvident decisions will eventually be rectified by the democratic processes,"
11
City ofClebuNne v. Cleburne Living Ctr. (1985)473 U.S. 432, 439-41.4
12
The challenged statutes easily satisfy rational basis review because, even assuming that they treat
13
students differently(which they do not), they are rationally related to the Legislature's legitimate
14
purpose of protecting the quality of California's public schools and providing those schools with an
15
efficient, effective, and motivated teaching force. The Legislature has.plenary power over California's
16
public school system, with "sweeping and comprehensive powers" over schools, "including. broad
17
discretion to determine the types of programs and services which furthEr the purposes of education."
18
Wilson, 75 Ca1.App.4th at 1134-35. In enacting §44929.21(b), the Legislature reasonably concluded that
19
allowing teachers to attain permanent status after two years of probationary service would help "insure
20
an efficient permanent staff of teachers for our_ schools whose members are not dependent upon caprice
21
for their positions as long as they conduct themselves properly and perform their duties efficiently and
22
well." De Caristo, 33 Ca1.App.2d at 674; see also IRJN Exh. A,at 8, 9(1959 Report of the Assembly
23
Interim Committee on Education's Subcommittee on Extension and Restriction of Tenure describing
24
"widespread practice of hiring and firing teachers on a political patronage basis" prior to creation of
25
permanent status protections, and concluding that "the maintenance of a sound teacher tenure system is
26
27
28
4~ See also In re MaNriage Cases(2008)43 Ca1.4th 757, 780(courts do not review the wisdom of the
Legislature's decisions "as a matter of policy" but consider only "the constitutional validity of...
legislative provisions")(emphasis omitted); The Federalist No. 78 (Hamilton)("[T]here is no liberty, if
the power ofjudging be not separated from the legislative and executive powers.").
9
Memo. of Ps.,and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary AdjudiEation
1
advantageous to the best interests of the public school system" and that "present teacher tenure
2
provisions have operated to the benefit of education within this State"). The Legislature also reasonably
3
concluded that the two-year probationary period would "allow[] the new teacher sufficient time to gain
additional professional expertise; and provide[]`the district with ample opportunity to evaluate the
5
instructor's ability before recommending a tenured position." Bakersfield Elem. Teachers Assn v.
6
Bakersfield City Sch. Dist. (2006) 145. Cal.App.4th 1260, 1279. Similarly, the March 15 notificati~an
7
date provides probationary teachers who are not reelected to permanent status with "actual knQwTedge of
8
a district's decision early enough to prepare for the future" by "mak[ing] alternate plans, applying] for
9
other jobs, and ... relocat[ing] if necessary." Hoschler v. Sacramento City Unified Sch. Dist. (2007) 149
10
Ca1.App.4th 258, 267.
11
Likewise, the Legislature rationally concluded that the dismissal statutes provide acost-effective
12
but fair process for removing teachers with permanent status. Section 44938's notice requirement, by its
13
express terms, gives teachers facing dismissal based on unsatisfactory performance or unprofessional
14
conduct "an opportunity to correct [their] faults," while §44934's "written staterr~ent of charges"
15
requirement ensures that teachers facing dismissal "will be able to prepare.[their] defense." §§44934,
16
44938. As the California Supreme Court has explained, the dismissal process as a whole — including the
17
Commission on Professional Competence hearing — "satisf[ies] the due process requirement that the
18
state provide the teacher some pretermination opportunity to respond," prevents "unjustified or mistaken
I9
deprivations," and promotes "participation and dialogue by affected individuals in the decisionmaking
20
process." CalifoNnia TeacheNS Assn v. State ofCalifornia (1999)20 Cal.4th 327, 343-44 (internal.
21
quotations marks omitted). At the same time, that process is intended to "reduc[e] the burden and costs
22
of litigating [teacher] dismissal proceedings." Id. at 350..
23
Section 44955's RIF process also represents a careful and reasoned legislative balancing of the
24
relevant interests and legislative goals. "It is a deliberate statutory arrangement which allows [a] district
25
the flexibility of modifying the types of educational service which it provides while continuing to meet
26
its legal obligations to permanent employees[.]" Lacy v. Richmond Unified Sch. Dzst. (1975) 13 Ca1.3d
2'7
469, 474. The requirement that less senior teachers be terminated before more senior teachers with the
28
same qualifications is rational. According to the California Supreme Court, reverse.seniority is the
to
1
natural principle governing the general order of terminations during a RIF because each teacher's
2
termination "results not from any misconduct or deficiency on the part of the individual teacher."
3
Gassman v. Governing Bd.(1976) 18 Cal.3d 137, 145.. Indeed, the Court has emphasized that in the
4
context of economic RIFs,"respect for seniority ... follows quite naturally." Id. That requirement also
5
reflects the Legislature's common-sense understanding that experience matters, and it prevents
6 patronage, favoritism; and other improper factors from influencing a district's layoff decisions. See, e.g.,
7 Zalac v. Governing Bd. ofFerndale Unified Sch. Dist. (2002)98 Ca1.App.4th 838, 855 (under §44955,
8
9
the order of termination is based on "entirely objective" criteria applied in good faith).
Notably, each ofthe challenged statutes has evolved over time in response to changing
lQ
conditions. For example, before 1983, teachers earned permanent status after three years of probationary
11
service rather than two, but "the governing board's determination not to [reelect] a probationary teacher
12 I for the ensuing.school year could be for cause only," and probationary teachers had the right to a hearing
13
on that issue.. Round Valley Teachers Ass'n, 13 Ca1.4th at 277-78 (internal quotation marks omitted;.
14
interpolation in original); §44929.21(a). In 1983, the Legislature shortened the probationary period by
15
one year while. granting school districts far greater discretion to determine which teachers earn
16
permanent status by eliminating the "force cause" requirement. The 1983 amendments to the Education
17
Code also modified the RIF statute to permit school districts to exempt from RIF layoffs less senior
18
teachers who have special skills and experience or whose retention is necessary to comply with equal
19
protection. §44955(d); Bledsoe, 170 Ca1.App.4th at 137. Similarly, the Legislature created the
20
Commission on Professional Competence hearing process in 1971 "to remove the initial disciplinary
21
hearing from the jurisdiction ofthe superior court, thereby reducing the burden and costs of litigating
22
dismissal proceedings." California Teachers Ass'n, 20 Ca1.4th at 350; see also IRJN Exh. A, at 14(in
23
1959, a dismissal hearing took place in superior court and was "conducted as a regular trial"). During
24
the most recent legislative session, the Legislature again passed a bill that, if not vetoed, will amend the
25
dismissal statutes to ensure that teacher dismissal proceedings occur even more quickly and efficiently..
26
IRJN Eli. C, at 4(revising the dismissal statutes to "update and streamline the procedures for teacher
27
discipline and dismissal, making it more cost. effective and reducing the time necessary to complete the
28
teacher dismissal process").
1~
Memo. of.Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Stiinmary Adjudication
In short, the challenged statutes represent the Legislature's reasonable and balanced response to
1
2. the needs of California's students, teachers, and school districts. Plaintiffs may disagree with those
3
legislative policy decisions, but their disagreement does not render the Legislature's decisions irrational.
4
Plaintiffs' concerns are properly addressed to the Legislature, not this Court.
'Because the challenged statutes easily satisfy rational basis review, Plaintiffs' claims must be
5
6
dismissed unless they can demonstrate as an initial matter that there is sufficient evidence to conclude
7
that "strict" equal protection scrutiny —which requires that statutory.distinctions be "necessary" to
8
further a "compelling interest" instead of merely "rational," In Ne MaNriage Cases,43 Cal.4th at 832
(emphasis in original) —could potentially apply to their claims, either because the challenged statutes.
10
discriminate against a "suspect class" or because they directly impair Plaintiffs' "fundamental interests."
11
The undisputed- facts establish that neither basis for strict scrutiny- is applicable here.
12
Ii.
13
14
15
16
17
18
19
20
Plaintiffs' "Suspect Class" Claims (Claims 4,5, And 6)Should Be Dismissed For Lack Of
Discriminatory Intent
Claims 4, 5, and 6 — Plaintiff's "suspect class" claims —assert that the challenged statutes are
subject to strict scrutiny under the California Constitution's equal protection provisions because they
"make[] the quality of education for school age children in California a function" of race and wealth.
Pitts Decl. Exh. CC ¶¶91-i O5. The statutes, however, do not on their face draw any distinctions at all .
between classes of people, see infNa Section III(A), and they certainly do not draw any distinctions on the
basis of students' race or wealth.. Moreover, there is no evidence that the statutes were enacted or have
been applied with the purpose or intent to harm minority or low-income students. Because either a facial
classification or evidence of discriminatory intent or purpose is required to trigger strict scrutiny on a
21
"suspect class" theory, Claims 4, 5, and 6 should be dismissed.
22
23
24
25
26
27
Under both state and federal equal protection principles, a plaintiff pursuing a "suspect class"
challenge to a statute must establish either that the statutE on its face discriminates on the basis of a
suspect class or that it was enacted or applied with a purpose or intent to discriminate against a suspect
class; disparate impact alone is insufficient. Village ofA~lington Heights v. Metro. Housing Dev. Corp
(1977)429 U.S. 252, 265; Washington v. Davis(1976)426 U.S. 229; 242; Hardy, 21 Cal.3d at 7 (citing
Washington, 426 U.S. at 242); Sanchez v. State ofCalifornia (2009) 179 Ca1.App.4th 467, 487(claims
28
12
Memo, ofPs. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
of"discrimination by `disparate impact"'do not trigger strict scrutiny unless challenged statute was
2 "motivated at least in part by purpose or intent to harm a protected group").5~ Evidence that a particular
Kj
statute has a disparate impact on a protected class such as racial minorities, or even that the legislators
who enacted the statute knew it would have such an impact, is inadequate. The statute must have been
enacted "`because of,' not merely `in spite of,' its adverse effects upon [the protected class]." Pers.
6
7
Adm'N v. Feeney(1979)442 U.S. 256, 279.6
In Sanchez, the Court of Appeal applied this discriminatory intent requirement to a California
8
equal protection challenge to an Education Code provision that allegedly "disproportionately impacted]
9
less affluent and minority children" by causing them to be educated in "an array of second-tier schools of
10
limited quality and scope." 179 Cal.App.4th at 487, 489 (internal quotations omitted). Sanchez affirmed
11
the dismissal of the claim because the plaintiffs "fail[ed] to show a discriminatory intent on the part of
12
the Legislature" in enacting.the challenged statute. Id. at 489. Claims 4, 5, and 6 are indistinguishable
13
in this regard from the claims in Sanchez, and must be dismissed for the same reason.
14
First, the challenged statutes are facially neutral and do not draw any distinctions on the basis of
and
15' students' race or wealth. To the contrary, they create uniform statewide rules governing the time
to dismiss
16' manner in which teachers earn permanent status, the procedures school districts must follow
Those
17 permanent teachers for cause, and the manner in which school districts must implement RIFs.
18
l9
rules apply to all school districts and to all teachers, regardless of their students'.wealth or race
There is also no evidence that the challenged statutes. were enacted #'or the purpose of harming
20
minority or low-income students. To the contrary, the statutes were enacted to provide California's..
21
d at
schools with a stable, effective, and motivated teaching force. See, e.g., De Caristo, 33 Ca1.App.2
22
23
2,4
25
26
27
28
S~ See also In re Marriage Cases, 43 Ca1.4th at 839-41 (state statutes limiting marriage to one man and
one woman are subject to strict scrutiny under the state Constitution because they include facial
.classifications on the basis of sexual orientation and "cannot be understood as having merely a disparate
1361
impact" on gays and lesbians); Kim v. Workers'. Comp. Appeals Bd.(19990 73 Cal.App.4th 1357,
ion
compensat
workers
on
cap
cost
statutory
(equal protection challenge to facially neutral
reimbursements failed due to absence of discriminatory purpose or intent).
e.g.,
6~ The distinct analysis that applies to "fundamental interest" claims is addressed in Section IL See,equal
under
scrutiny
d
Heightene
ng
that
(explaini
8
Butt v. State ofCalifornia (1992)4 Ca1.4th 668,685-8
impact
protection principles may apply to laws that target a suspect class or have a "real and appreciable
to
subject
was
issue
at
action
state
that
the
g
on a fundamental right or interest," and concludin
interest).
heightened scrutiny without proof of discriminatory intent due to its impact on a fundamental
13
Memo. ofPs. and Auths, in Support of CTA's & CFT's Motion for Summary Judgment or Summary
Adjudication
674("[T]he entire purpose of the teachers' tenure act ... is to insure an efficient permanent staff of
2
teachers for our schools whose members are not dependent upon caprice for their positions as long as
3
they conduct themselves properly and perform their duties efficiently and well."); Fleice v. Chualar
4
Union Elementary.Sch. Dist..(1988)206 Cal.App.3d 886, 891 (in adopting the challenged statutes'
5
current language, the Legislature sought "to maintain orderly and efficient school campuses which
6 ,encourage positive attitudes among .students and. high morale and _high quality teaching from teachers.")
7 (citation and emphasis omitted). Plaintiffs may question.the wisdom of those legislative decisions.or
g
believe that the statutes are "outdated," Pitts Decl. Exh. CC ¶2, but there is no evidence that the
9~ Legislature adopted the statutesfor the puNpose of harming minority or law-income students. SUF Nos.
10
12, 25, 36.
Finally, there is no evidence that any of the Plaintiffs' school districts — or any districts at all —
11
12
have applied the challenged statutes with the purpose or intent of discriminating against low-income or
13
minority students. LAUSD,OUSD,and ARUESD have testified that they have not applied the
14
challenged statutes with such a purpose or intent; and Plaintiffs can identify no facts or evidence
15
suggesting that any other district acted with such a purpose or intent. SUF Nos. 8-11, 13, 21-24, 26, 32-
16
35, 37, 39.
Because there is no evidence that the challenged statutes discriminate on their face on the basis
17
18
of a suspect class, were enacted for a discriminatory purpose, or have been applied with such a purpose,
19
Plaintiffs:cannot establish the necessary elements of a "suspect class" equal protection challenge
20
statutes — regardless of any alleged disparate impact —and Claims 4, 5, and 6 should be dismissed.
21
III.
22
23
24
25
26
27
to those
Plaintiffs' "Fundamental Interest" Claims(Claims 1,2, and 3)"Should Be Dismissed
Because The Statutes Treat All Students' Teachers Uniformly And Any Impact They
Could Have On Plaintiffs' Fundamental Interests Would Be At Most Unintended,Indirect,
And Attenuated
In Claims 1, 2, and 3, Plaintiffs contend that the challenged statutes are subject to strict scrutiny
under the California Constitution due to their purported impact on Plaintiffs'.fundamental interest
in
must.
education. To trigger strict scrutiny under such a "fundamental interest" theory, however; Plaintiffs
demonstrate both that the challenged statutes classify two groups differently, Cooley v. Super. Ct. (2002)
29 Cal.4th 228, 253 (equal protection claim requires a "showing that the state has adopted a
28
14
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary
Adjudication
1
classification"), and that "th[is] disparate treatment has a real and appreciable impact on a fundamental
2 .right or interest," Butt, 4 Ca1.4th at 686. Plaintiffs cannot satisfy either requirement. The challenged
3
statutes do not classify students or distinguish between teachers on the basis of effectiveness, and any
4
impact the statutes could possibly have on Plaintiffs' fundamental interests would be too "unintended,
5
indirect, and ... attenuated" to support a "fundamental interest" claim. King v. McMahon (1986) 186
6
Cal.App.3d 648, 662(citation omitted).
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
A.
The Challenged Statutes Do Not Contain Any Classification Subject To
Constitutional Scrutiny Under Plaintiffs' Equal Protection Theory
"Not all statutes classify ...." Local Agency FoNmation Comm'n, 3 Cal.4th at 913. "The 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."
Cooley, 29 Ca1.4th at 253(emphasis altered); cf., e.g., Long Beach City Employees Assn v. City ofLong
Beach (1986)41~Ca1.3d 937,941,948-56("fundamental interest" equal protection challenge to statutory
classification permitting public employees other than "`public safety officers"'to be subjected to
invasive polygraph examinations as a condition of employment while prohibiting that practice as to
private employees and "`public safety officers"'). If a statute applies uniformly and contains no
distinctions causing disparate treatment,"there is no classification upon which to base an equal
protection claim." T~altz v. Penta Inv. CoNp.(1983) 139 Ca1.App.3d 803, 810.-'~
Plaintiffs' equal protection claims are based on a purported distinction between students assigned
to "grossly ineffective" teachers and all other students. See, e.g., Pitts Decl. Exh. CC ¶12. However,
none of the challenged statutes draws such.a distinction. SUF Nos. 40-44. First, none of the statutes
classifies students at all. Id. Second, the statutes apply to every teacher employed by every public
school district in California in precisely the same way: Each teacher must complete atwo-year
23
?~ Serrano v. Priest(1976) 18 Ca1.3d 728, and Butt, 4 Cal.4th 668, are consistent with this requirement
because both cases involved clear distinctions among school districts (and thus among the students
25 therein). The.school financing scheme at issue in Serrano distinguished among school districts "on the
basis of wealth." See SeNrano, 18 Ca1.3d at 766. In Butt, students in one particular school district faced
26 "an extreme and unprecedented disparity in educational service and progress" as compared to all other
27 students in California because the public schools in their district alone were going to close six weeks
before the end of the school year. Butt, 4 Cal.4th at 687. As such, those cases involved
"classification[s] that affected] two or more similarly situated groups" — identifiable groups of students
28 in different school districts — "in an unequal manner." Cooley, 29 Ca1.4th at 253 (emphasis omitted).
24
15
i
1
probationary period before earning permanent status, and each permanent teacher has the right to be
2
dismissed only for cause or as part of a RIF through the procedures defined by the dismissal statutes and
3
§44955. Like the statute in Valtz, which applied uniformly "to all corporations which California clearly
4
has the power to regulate," the challenged statutes apply to all California public school teachers and
5
contain "no classification upon which to base an equal protection claim." 139 Ca1.App.3d at 809-10.
6
To be sure, the dismissal statutes distinguish between permanent and probationary teachers, and
7
the RIF statute.distinguishes among teachers on the basis of their length of service and basic teaching
8
qualifications. Those distinctions,.however, do not operate as defacto distinctions between students
9
assigned to ``grossly 'ineffective" teachers and other students — or even between effective-and ineffective
10
teachers — because there is no direct and inherent inverse correlation between experience and
11
effectiveness. If anything, a teacher's effectiveness generally increases with experience. See, e.g., Pitts
12
to seven years of
Decl. Exh. R, at 156:1-21 (describing "extremely steep learning curve" during first five
.~.
13
a teacher's career). Thus, even if Plaintiffs could prove that some students are taught by "grossly
14
ineffective" teachers while others are taught by at least "minimally effective" teachers, any such
15
disparities are created by numerous independent decisions by school districts, students, and their families
16
—most immediately, by individual school district decisions in assigning students to teachers —not by any
17
distinctions in the challenged statutes. The statutes do not treat "grossly ineffective" teachers or the
18
students assigned to them any differently from other students or teachers, and every teacher and student
19
is quite literally accorded the "equal protection" of the statutes. Because equal protection principles
20
apply only to disparate treatment, Plaintiffs' equal protection claims challenging the uniform and
21
evenhanded operation of the statutes must be dismissed. See, CitizensfoN Parental Rights v. San Mateo
22
County Bd. ofEduc.(1975) 51 Ca1.App.3d 1, 27("As the program on its, face applies to all students
23
equally and is taught to all students ... without discrimination, there is no denial of equal protection[.]");
24
Vacco v. Quill(1997)521 U.S. 793, 800("[L]aws that apply evenhandedly to all unquestionably comply
25
with the Equal Protection Clause.")(internal quotations omitted).
26
27
B.
Any Impact The Challenged Statutes Could Possibly Have On Plaintiffs'
Fundamental Interests Would Be Unintended, Indirect, And Attenuated
Even if equal protection principles did apply, "[t]he mere fact ... that a state law touches on [a
28
16
1
fundamental right or interest] does not necessarily require the .application of strict scrutiny." Local
2
Agency Formation Comfn'n, 3 Ca1.4th at 914. Instead, in the public education context the equal
3
protection provisions of the state- Constitution require heightened scrutiny only if the disparate treatment
4
of students under state law has "a real and appreciable impact on the affected students' fundamental
5
California right to basic educational equality." Butt, 4. Ca1.4th at 688. Furthermore, that fundamental
6
right must be "directly affected" by the challenged statute. In re Flodzhn (1979) 25 Ca1.3d 561,.568.
7
Where, as here, any impact a statute could possibly have on that fundamental right would be
8 j "unintended, indirect, and ... attenuated," strict scrutiny does not apply. King, 186 Cal.App.3d at 662
9 (citation omitted); accoNd San~Francisco v. Freeman (.1999) 71 Ca1.App.4th 869, 872 (strict scrutiny
10
inappropriate where burden on fundamental right is "indirect and uncertain," such as where it does not
11
result dixectly from the.challenged statute but is "subject to a host of other laws, economic factoxs, and
12
... choices"); Rittenband v. CoNy(1984) 159 Ca1.App.3d 410, 423 (strict scrutiny inappropriate where
13
law's impact on fundamental interest is "incidental to a classification not aimed at" that interest)
14 (internal quotations omitted).
15
This dual requirement that the challenged statutes' impact on Plaintiffs' "fundamental California
16
right to basic educational equality" be both substantial and direct serves an important purpose: Were it
17
otherwise, every personnel decision affecting astudent — indeed, every decision with any impact
18
whatsoever on a student's education —would be subject to strict constitutional scrutiny. See; e.g., Butt, 4
19
Ca1.4th at 686 (California's vast and diverse school system "undoubtedly differs to a considerable
20
degree" among students and "[a] requirement that the State provide strictly equal educational
21
opportunities would .:. present an entirely unworkable standard ....")(internal quotations and
22
substitutions omitted). Under such a theory a student could challenge, on a constitutional basis, every
23
decision assigning him or her to a particular school or a particular teacher, allocating resources to
24
particular schools or classrooms; or in any other way differentiating his or her experience from that of
25
any other California student.
26
Plaintiffs' "fundamental interest" claims attack the challenged statutes both on their face and as
27
applied to them. However, as we next discuss, strict scrutiny does not apply to either form of attack
28
under the applicable legal standards, and summary judgment dismissing Plaintiffs' "fundamental
17
Memo. ofPs. and Auths. in Support of CTA's & CFT's Motion for Sununary Judgment or Suiruliary Adjudication
1
2
3
interest" claims is therefore proper.
L
The Challenged Statutes Are Facially Valid
"A facial~challenge to the constitutional validity of a statute or ordinance considers only the text
4
of the measure itself, not its application to the particular circumstances of an individual," and requires
5
that the statute's provisions "inevitably pose a present total and fatal conflict with applicable
6
constitutional prohibitions." Tobe v. City ofSanta Ana(1995)9 Ca1:4th 1069, 1084 (internal quotations
7
omitted). Such a challenge "is the most.difficult challenge to mount.successfully, since the challenger
8
must establish that no set of circumstances exists under which the law would be valid." Am. Civil Rights
9
Found. v. BeNkeley Unified Sch. Dist. (2009) 172 Ca1.App.4th 207,216(internal quotations and
10
substitutions omitted): If the statute "can constitutionally be applied" under some circumstances; the
11
facial challenge fails. Acadia Unified Sch. Dist. v. State Dept ofEduc.(1992}2 Ca1.4th 251, 267.
12
"[T]lie fact that the statute might operate unconstitutionally under some conceivable set of circumstances
13
is insufficient to render it wholly invalid." StuNgeon, 174 Cal.App.4th at 1418 (internal quotations
14
omitted). Plaintiffs' facial challenge fails because the challenged statutes do not inevitably and in every
15
application result in students' assignment to "grossly ineffective" teachers.
16
Plaintiffs' own admissions establish that the challenged statutes can be, and frequently are,
17
applied.in a constitutional manner. Plaintiffs admit that "the number of ... grossly ineffective teachers"
18
is "small," and -that "the majority of teachers in California are.providing students with a quality
19
education." Pitts Decl. Exh: CC ¶9; SUF Nos. 1-2. V~hen the effective teachers in this majority earn
20
"permanent status" after two years of probationary service pursuant to §44929.21(b), and thereby acquire
21
the right to be dismissed only for cause or as part of a RIF through the procedures defined by the
22
dismissal statutes and §44955,-the challenged statutes do not in any way cause the retention of"grossly
23
ineffective" teachers, let alone cause students to be assigned to those teachers. They simply afford
24
minimal employment protections to teachers "providing students with a quality education." Pitts Decl.
25
Exh. CC ¶9; SUF No. 2.
26
Even apart from these indisputably constitutional applications of the challenged statutes, it is
27
clear that, when the statutes are evaluated solely by reference to "the text of the measure[s]," they do not
28
"inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." Tobe, 9
18
1
Ca1.4th at 1084. None of the challenged statutes on its face prohibits districts from terminating "grossly
2
ineffective" teachers on the basis oftheir performance. Section 44929.21(b) permits school districts to
3
release probationary employees, including those they consider ineffective,"without any showing of
4
cause, without any statement of reasons, and without any-right of appeal or administrative redress."
5
Bellflower Educ. Assn v. BellfloweN Unified Sch. Dist.(1991)-228 Cal.App.3,d 805, 808. Nor do the
6
dismissal statutes require school districts to retain "grossly ineffective" teachers. To the contrary, they
7
expressly provide that permanent employees may be terminated for "unsatisfactory performance."
§44932(a)(A~). Likewise, §44955 provides a means for school districts to lay off teachers .for reasons
9
unrelated to performance or misconduct(while nonetheless considering teacher qualifications and
10 "competence" in determining whom to lay ofd, without limiting the districts' ability to dismiss
11
12
permanent'teachers for cause under the dismissal statutes. See Gassman, 18 Ca1.3d at 145.
Moreover,none of the procedural and substantive requirements established. by the challenged
13
statutes is so onerous., time-consuming, or costly that the statutes on their face "effectively" prohibit the
14
dismissal of grossly ineffective teachers. The dismissal statutes merely require (1)that districts provide
15
teachers with a reasonable and time-limited opportunity to correct identified performance issues before
16
initiating dismissal proceedings;(2)that districts provide teachers with a written statement of the
17
charges justifying their dismissal; and(3)that those charges_ be evaluated by an independent decision-
1.8
making body. See supra at 4. Under the statute, the entire process is supposed to occur within 180 days,
19
and school districts are permitted to remove teachers from the classroom well befoxe the process is
20
completed. See supNa at 5-6. That these requirements are not so inherently burdensome that the
21
challenged statutes effectively prohibit.districts from terminating.teachers is evidenced by the fact that
22
districts throughout California, including LAUSD and OUSD,have successfully terminated teachers and
23
continue to initiate dismissal proceedings under the statutes. SUF Nos. 19-20; see also supNa at 4-5.
24
The requirements of §44929.21(b) and §44955, on their face, likewise do not effectively prevent
25
the dismissal of"grossly ineffective" teachers. The RIF statute, §44955, is entirely unrelated to the
26
dismissal of teachers for cause, while the two-year evaluation period for probationary teachers
27
established by §44929.21(b) exceeds the statutoryprobationary periods applied to many other public
28
employees in California, including professionals such as state-employed doctors and lawyers, and has
19
Memo. of Ps. and Auths. in Support ofCTA's & CFT's Motion for Summary Judgment or Summary Adjudication
1
been characterized by the Court of Appeal as "provid[ing] the district with ample opportunity to evaluate
2 the instructor's ability before recommending a tenured position."g~
3
Finally, for the purposes of Plaintiffs' facial challenge, any impact the challenged statutes could
4
possibly have on Plaintiffs' fundamental interests would be "unintended, indirect, and ... attenuated."
5
King, 186 Ca1.App.3d at 662. The challenged statutes do not require the assignment of any student to
6
any teacher or prohibit school districts from assigning a teacher non-classroom responsibilities. Thus,
7
they cannot on their face be the direct and immediate cause of any particular student's assignment to any
8
"grossly ineffective" teacher. That decision is instead made by the school district that employs the
9
teacher, which is solely responsible for choosing which teachers to hire, grant permanent status, and
10
assign to teach specific students. See infNa Section III(B)(2). As explained.above, strict scrutiny does
11
not apply where any impact a statute could possibly~have on a plaintiff's fundamental rights would be so
12
attenuated and unintended. King, 186 Ca1.App.3d at 662.
13
In short, the challenged statutes can be constitutionally applied; they do nat on their face prohibit
i4
the dismissal of"grossly ineffective" teachers; and any'impact they could possibly have on the
15
assignment of students to such teachers would be insubstantial, "unintended, indirect, and ...
16
attenuated." Id. at 662. Strict scrutiny therefore does not apply to Plaintiffs' facial "fundamental
17
interest" claims, and those claims necessarily fail.
18
2.
The Challenged Statutes.Are Valid As Applied To Plaintiffs
19
Plaintiffs also contend that the statutes are invalid as applied to them as individuals. See Pitts
20
Decl. Exh. CC ¶¶80, 84, 88.9 The challenged statutes, however, are not "applied" to Plaintiffs in any
21
real sense.. The statutes regulate certain issues relating to the employment of teachers by California
22
school districts, but they do not require that any teacher be assigned to any particular student, or even
23
24
8~ Bakersfield Elem. Teachers Assn, 145 Ca1.App.4th at 1279; see Cal. Const. art. VII, §1("The civil
service includes every officer and employee of the state except as otherwise provided in this
25 Constitution."); Cal. Gov't Code §19170(a)(probationary period for state civil service employees lasts
from six months to ane year); State- Compensation Insurance Fund v. Riley(1937)9 Cal.2d 126, 135
26 ("Attorneys are included within [the state], civil service ....").
27
28
9~ This action was not pleaded as a class action and.no class has been certified. Plaintiffs have never
sought to represent, as class representatives or otherwise, any students not named as plaintiffs in the First
Amended Complaint.
20
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication:
1
that any teacher be given a classroom assignment rather than be assigned administrative or other non-
7
the
teaching responsibilities. Unsurprisingly, Plaintiffs cannot identify any specific instance in which
3
challenged statutes caused them to be assigned to any specific ineffective teacher, let alone to a "grossly
4
A)
ineffective" teacher. See Ps' Supp. Responses to CTA's Special Interrogatories (Niehaus Decl. Exh.
5
Nos. 9, 15; Ps' Supp. Responses to CDE's Special Interrogatories (Niehaus Decl. Exh. B)Nos. 3, 4, 5, 7,
6
8, 10, 11, 24; Niehaus Decl. ¶¶6-7. For that reason alone, Plaintiffs cannot establish that the challenged
7
statutes have ever been applied in a manner that had "a real and appreciable impact on [their]
8
fundamental California right to basic educational equality." Butt, 4 Cal.4th at 688.
9
In any event, the challenged statutes are not subject to strict scrutiny because they cannot have
10
any direct impact on Plaintiffs' fundamental interests. To the extent Plaintiffs' as-applied challenge is
11
12
13
14
15
premised on speculation that the statutes have contributed to their assignment to a "grossly ineffective"
do so, if at
teacher in the past or may do so in the future; undisputed facts establish that the statutes could
—
all, only in a manner several steps removed from the most immediate source of that purported harm
See infra
i.e., the school district's decision to assign a particular teacher to teach that particular student.
Such an
at 22-24 (describing the highly attenuated relationship between the statute and that assignment).
,
"unintended, indirect, and ... attenuated" impact on a fundamental interest does not trigger strict
as here, a
17 scrutiny. King,-186 Ca1.App.3d at 662. Like tort liability, strict scrutiny does not apply where,
ing and
18 statute's purported impact on a plaintiff's fundamental interests depends upon multiple interven
16
19
20
21
22
23
independent causes.
In re Flodihn, 25 Ca1.3d 561, is directly on point. In that case, the petitioner challenged a
screening criterion used to determine which state prisoners would be subject to a "serious offender
that the
hearing" that could lengthen their default prison terms. Id. at 565-67.'—°~ The petitioner argued
ent and
criterion was subject to strict scrutiny because its application could lead to differential punishm
was
infringe upon his personal liberty. Id, at 567-68. Even though that personal liberty interest
because
25 ~ "fundamental," the California Supreme Court concluded that strict scrutiny was inapplicable
hearing." Id.
26 "any change in custody status occurred only after a properly conducted serious offender
24
27
28
and
-'~°~ Unlike the statutes here, Flodihn involved a "classification" that "created two classes of inmates"
that was therefore the proper subject of an equal protection challenge. 25 Ca1.3d at 567.
21
Memo. of Ps.. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary
Adjudication
Because the criterion "did not directly affect the length of tune an irunate spent in custody" but simply
2
made inmates eligible for a hearing that could lengthen that time,"no fundamental liberty interest [was)
directly affected by th[e] [screening] procedure," and strict scrutiny did not apply. Id. at 568.
Plaintiffs' "fundamental interest" claims suffer from precisely the same flaw. Just as the
criterion at issue in Flodihn "did not directly affect the length of time an inmate spent in custody," the
6
challenged statutes do not directly (or even indirectly) assign any student to any "grossly ineffective"
7
teacher. Instead, school districts assign particular students to particular teachers. See, e.g., Fiss Decl, ¶7
8 ("[T]he District is responsible for assigning particular students to particular teachers."). Like the
9
hearings in Flodihn, those district decisions (and numerous related district decisions involving hiring and
10
other personnel matters) are the direct cause of any purported infringement of Plaintiffs' fundamental
11
interests resulting from their alleged assignment to "grossly ineffective" teachers.
12
Indeed, the challenged statutes' relationship to any infringement of Plaintiffs' fundamental rights
trigger
13
and interests is even more "incidental and marginal" than the relationship that was inadequate to
14
the
heightened scrutiny in Flodihn. The screening'criterion in Flodihn was only one step removed from
15
direct cause of the threatened increase in the petitioner's prison term, whereas the impact of the
16
challenged statutes on Plaintiffs' fundamental interests is mediated by a long and attenuated
causal chain
17 ~ consisting of a number of independent intervening decisions.
18 I
19
For the dismissal statutes to contribute in any way to any Plaintiff's assignment to a particular
"grossly ineffective" permanent teacher, for example, the school district that employs that teacher must
—'~
20; first recognize the teacher's performance issues and identify that teacher as "grossly ineffective."'
21
The
school district must then conclude that dismissal, rather than some less drastic response such as
22
23
tely
24 '
—'~ During the 20'11-12 school year, LAUSD evaluated less than 44% of its teachers, and approxima
Pitts
:23;
100:9-.101
I,
at
Exh.
97% of those evaluated received a satisfactory evaluation. Pitts Decl.
25 Decl. Exh. J, at 79:20-83:13, 89:17-91:9; Pitts Decl. Exhs. K,L. Likewise, only five or six ofthe
for
teachers evaluated by OUSD in 2012-13 were referred to the district's peer assistance program
when
use
to
ness"
"effective
of
26 poorly performing teachers, and OUSD lacks any shared definition
Decl. Exh.
evaluating teachers and pursuing dismissals. Pitts Decl. Exh. S, at 272:13-20, 279:4-17; Pitts
Pitts
systems.
evaluation
new
entirely
ing
27 Y, at 100:10-22. OUSD and LAUSD are now implement
Pitts
7`7;
284:16-28
at
S;
Exh.
Decl.
Pitts
73:5-12;
at
Decl. Exh. J, at IOS:l2-106:25; Pitts Decl. Exh. F,
28 Decl. Exh. Y,at 139:11-140:22.
22
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary
Adjudication
remediation, is the appropriate response to the teacher's performance problems.12~ If the district is
2
unaware,that the teacher's performance is "grossly ineffective" or does not wish to seek that teacher's
3
dismissal,the procedural requirements of the dismissal statutes cannot affect any district decision
4
regarding that teacher's employment. Next, when presented with the district's dismissal decision, the
5
teacher must decide to contest that decision rather than to resign voluntarily. See SUF No. 16. Then,the
6
district must choose to leave that teacher in the classroom and assign the Plaintiff to that teacher because .
of the procedural requirements of the dismissal statutes, even though the vast majority of dismissal cases
8
result in the teacher's voluntary resignation and even though the dismissal statutes permit districts to
9
remove teachers from classrooms and relieve them of all teaching responsibilities.'-3~ The Plaintiff also
10 .must choose to forego all of the options by which he or she can change teachers or choose to attend a
Il
different school.14~
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
'?~ As noted above, many school districts voluntarily provide teachers whose performance is
unsatisfactory with multiple years of assistance and coaching before seeking dismissal. See supra at 6.
13~ See, e.g., SUF Nos. 16-18; Pitts Decl. Exh. E, at 47:1-49:1 ~ Pitts Decl. Exh. M (122 certificated
employees resigned to avoid dismissal during the 2011-12 school year); Niehaus Decl. Exh. C, at 12
(LAUSD filed dismissal charges against 168 employees between July 1,.2010 and May 1, 2013, but only
15 LAUSD cases proceeded all the way through to a Commission on Professional Competence decision
between July 1, 2008 and May 1, 2013); Pitts Decl. Exh. G; at 407:13-408:3; Pitts Decl. Exh. J, at
138.:11-16, 145:4-146:21 (LAUSD removes teachers from the classroom as soon as the school board
initiates dismissal proceedings,.and does not return teachers to classrooms if the Commission on
Professional Competence finds no basis for dismissal); Pitts Decl. Exh. E, at 165:12-166:5(OUSD
assigns teachers to non-classroom assignments if the Commission on Professional Competence finds no
basis for their dismissal).
Plaintiffs may argue that the dismissal statutes are subject to strict scrutiny because districts
would pursue even more dismissal cases if those statutes were not in effect. 'Such speculation does not
establish that strict scrutiny is appropriate, however, because the impact of the challenged statutes on any
student's assignment to a particular teacher would remain highly attenuated at best, and it is undisputed
that districts can and do dismiss permanent teachers using the procedures established by the dismissal
statutes. Even assuming that some districts would dismiss additional teachers absent the dismissal
statutes, there is no evidence that those additional dismissals would involve "grossly ineffective"
teachers rather than teachers whose performance is inadequate but does not amount to "gross
ineffectiveness." And if the mere fact that districts might pursue additional dismissal proceedings in the
absence of the dismissal statutes were enough to trigger strict scrutiny, then every decision that affects
the resources available to pursue dismissal cases in a particular district, from intra-district budgeting
decisions to statewide school financing, is subject to strict scrutiny because any resource constraints may
influence the number of dismissal proceedings a district pursues.
Iai See, e.g., Pitts Decl. Exli. Z, at 293:19-294:12-(describing students' options for changing schools or
teachers in OUSD); Pitts Decl. Exli. G,at 479:25-482:21 (describing options available to students in
LAUSD).
23
1
The relationship between the probationary period statute, §44929.21(b), and the assignment of
2
any particular Plaintiff to a "grossly ineffective" teacher is even more attenuated. For the two-year.
3
probationary period to cause a "grossly ineffective" teacher to instruct a particular Flaintiff, a school
4
district must hire that teacher, fail to identify and correct the teacher's gross performance deficiencies
5
during the first two years of service, choose to grant the teacher permanent status, identify the teacher's
6
gross ineffectiveness at some point soon thereafter, and choose not to seek the teacher's dismissal solely
7
because the teacher has already earned permanent status. And even then, the two-year probationary
8
period contributes to a particular Plaintiff's assignment to a "grossly ineffective" teacher only if the
9. school district fails to remove that teacher from the classroom after identifying his or her gross
10
performance deficiencies and assigns the Plaintiff to that teacher, and the Plaintiff then chooses to forego
11
options for changing schools or teachers. Again, multiple indepencYent decisions intervene between the
12
statute and any alleged harm to Plaintiffs, severing any direct relationship between them.
The relationship between the RIF statute, §44955, and the assignment of any particular Plaintiff
14
to a "grossly ineffective" teacher is the most attenuated of all. As noted above, §44955 does not in any
15
way regulate the dismissal of teachers for cause, but instead provides a separate and- distinct means of
16
laying offteachers for reasons unrelated to performance or misconduct. Before the seniority requirement
17
of §44955 could possibly cause a Plaintiff to be assigned to a "grossly ineffective" teacher, the district
18
must have identified the teacher's gross performance deficiencies but failed to remove the teacher from
19
the classroom; the district must have chosen to implement budget-based layoffs impacting the services
20
provided by that teacher; the "grossly ineffective" teacher must possess the credentials and competency
21
defined by the district as necessary to provide those services; the "grossly ineffective" teacher must
22
possess the seniority necessary to avoid being laid off; the district must choose not to apply "skipping"
23
criteria under §44955(d)in favor of a less senior teacher
24
possesses the credentials and competency necessary to provide the required services; the district must
25
assign the "grossly ineffective" teacher to a particular Plaintiff; and the Plaintiff must choose to forego
26
all options for changing schools and/or teachers.
who
13
is not "grossly ineffective" and who
27
With each of the challenged statutes, multiple independent- decisions intervene.between.the
28
statute and the alleged harm to Plaintiffs. The California Constitution does not require heightened
24
constitutional scrutiny of laws whose impact on fundamental interests, if any, is so insubstantial,
indirect, unintended, attenuated, and dependent upon contingencies. Because strict scrutiny does not
apply to Plaintiffs' "fundamental interest" claims, Claims 1, 2, and 3 should be dismissed.'s~
IV.
Claims 3 And 6 Are Not Ripe
"[A] basic prerequisite to judicial review ... is the existence of a ripe.controversy." Pacific Legal
.Foundation v. Cal. Coastal Comm'n (1982)33 Cal.3d 158, 169. This is because "judicial decision7
making is best conducted in the context of an actual set of facts so that the issues will be framed with
8
sufficient definiteness to enable the court to make a decree finally disposing of the controversy." Id. at
9 ,170. To determine whether a controversy is ripe, the courts ask "(1) whether the dispute is sufficiently
10
concrete ... and (2) whether the parties will suffer hardship ifjudicial consideration is withheld." City of
11' Santa Monica v. Stewart(2005) 126 Ca1.App.4th 43, 64. A case is insufficiently concrete under the first
12
prong if"the posture of[theJ case .:. require[s] [the] court to speculate about unpredictable future events
13
in order to evaluate the parties' claims.." PG&E -Corp. v. P.U.G. (2004) 118 Ca1.App.4th 1174, 1217. A
14
case is unripe under the second prong where no "imminent and significant hardship" will result if the
15
parties' "difference of opinion" is not resolved-immediately. City ofSanta Monica, 126 Ca1.App.4th at
l6
64. It is Plaintiffs' burden to satisfy both prongs. PG&E Corp., 118 Cal.App.4th at 1222. Claims 3 and.
17
6, challenging the RIF statute, satisfy neither prong.
18
First, claims 3 and 6 do not arise from a concrete controversy involving the actual
19
implementation of a RIF governed by §44955. There is no evidence that any school district attended by
20
any Plaintiff intends to implement a RIF in the reasonably foreseeable future, or that any school district
21
has taken ariy actions to implement such a RIF. SUF Nos. 28-31, 38.16 And even if it were foreseeable
22
in the abstract that.a RIF might occur at some undetermined future time, any dispute about such a RIF's
23
effects is insufficiently concrete because it is currently unknown which school or schools will be
24
25
26
27
28
i5i Claim 7 seeks declaratory relief regarding the legal issues in Claims 1 through 6. Pitts Decl. Exh. CC
¶¶106-08. Because Claim 7 is entirely derivative of Plaintiffs' other claims, it must be dismissed for the
same reasons.
16i Because Plaintiffs seek only declaratory and injunctive relief, and do not ask that any prior RIFs be
reversed, the fact that their school districts may have implemented RIFs in-the past does not make their
claims ripe.
25.
11 involved, which teachers will be subject to layoff, or how the RIF will be structured in terms of the
2
actual competency, credentialing, and "skipping" criteria to be used in selecting the teachers who will be
3' laid off. Without a school board resolution setting forth that information, it is impossible for this Court
4
to determine how or whether any future RIF will impact the teachers to whom Plaintiffs are assigned.
5
As such, the facts needed to resolve Plaintiffs' constitutional challenge to §44955 have not "sufficiently
6
congealed to permit an intelligent and useful decision to be made." Pacific Legal Foundation, 33 Ca1.3d
7
at 171 (internal quotations omitted). Any decision would instead be a "purely advisory opinion[ ]"
8
resolving "abstract differences of legal opinion." Id. at 170. This Court should not address such
9
speculative and hypothetical claims. See id. at 172(claims requiring court to speculate regarding future
10
enactments and "express an opinion on the validity and proper scope of such hypothetical [enactments]"
11
were unripe); Wilson &Wilson v. City Council ofRedwood City(2011) 191 Cal,App.4th 1559, 1583
12 (claims depending upon "entirely hypothetical" future decisions by local government "too uncertain to
13
constitute a justiciable controversy").
14
Plaintiffs also face no "imminent and significant risk of hardship" should this Court decline to
15
address the constitutionality of §44955. Because no school district attended by any Plaintiff currently
16
intends to implement a RIF iri the reasonably foreseeable future, Plaintiffs face no imminent risk that the
17
provisions of §44955 will affect the identities of the teachers to whom they will be assigned. Should any
18
school district choose to implement a RIF, any affected Plaintiffs can bring a lawsuit at that time and
19
seek preliminary injunctive relief; if appropriate. See Wilson &Wilson, 191 Cal.App.4th at 1585 (claims
20
unripe where plaintiff"may pursue appropriate legal remedies" when concrete dispute arises)..
21
~.
22
AB 37S Renders Plaintiffs' Challenges To The Dismissal Statutes Moot And Unripe
On September 12, 2013,the California Legislature enacted Assembly Bill 375("AB 375"). SUF
23
No. 45. AB 375 significantly amends the Education Code provisions governing teacher discipline and
24
dismissal proceedings, including §§44934 and 44944. SUF No. 46. The bill's express purpose is to
25
"revise existing statutes in a manner that will update and streamline the procedures for teacher discipline
26
and dismissal, making it more cost effective and reducing the time necessary to complete the teacher
27
dismissal process." IRJN Exh. C, at 4.
28
AB 375 will take effect on January 1, 2014, if signed by the Governor on or before October 12,
26
Memo. of Ps. and Auths, in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication
1
2013, or if the Governor does not veto the bill by that date. Cal. Const. art. IV, §10(b)(1); Cal. Const.
2
art. IV, §8(c)(1); SUF No. 47. If it takes effect, AB 375 will moot Plaintiffs' claims regarding the
3
existing dismissal statutes (Claims 2 and 5), and any claims against the new dismissal statutes will not
4
yet be ripe.
The amendment of a challenged statute or ordinance. prior to judgment moots any challenge to
5
6~ the pre-amendment version ofthe statute or ordinance. Fisher v. CityofBerkeley (1984)37 Ca1.3d 644,
7
694.'—'~ Thus, unless the Governor vetoes AB 375, Plaintiffs' facial and as-applied challenges to the
8
existing dismissal statutes will become moot on January 1, 2014. Furthermore, any as-applied challenge
9
to the post-AB 375 dismissal statutes is not yet ripe, as the amended statutes have never been applied to
10
Plaintiffs and cannot possibly have caused them any harm. See discussion supNa Section IV. And
11
finally, if Plaintiffs wish to pursue a facial challenge to the post-AB 375 dismissal statutes based
12
exclusively on issues of law presented by the text of the amended statutes, they should be required to
13
amend their complaint to include those new legal theories. See Fisher, 37 Ca1.3d at 654,694 & n.2
14 (Supreme Court could address challenge to statute amended while appeal was pending and consider
15
amended version of statute solely because challenge was strictly facial and presented only issues of law).
16
VI.
Plaintiffs Do Not Have Standing To Pursue Their Claims
17
Summary judgment is also appropriate because none ofthe Plaintiffs has standing to challenge
18
the statutes at issue.lg~ A lawsuit challenging the validity of a statute cannot simply "be brought by any
19
individual or entity that disagrees with it." CoNal Constr., Inc. v: City &County ofSan Francisco (2004)
20
116 Ca1.App.4th 6, 15. Rather, the plaintiff must have "some special interest to be served or some
21
particular right to be preserved or protected over and above the interest held in common with the public
22
at large." Tobe,9 Cal.4th at 1085-86. "[T]o challenge the constitutionality of a statute on the ground
23
that it is discriminatory, the party complaining must show that he is a party aggrieved or a member of the
24
25
26
—'~ Although AB 375 amends only two of the three dismissal statutes challenged by Plaintiffs, §§44934
and 44944, Plaintiffs' First Amended Complaint recognizes that the dismissal statutes constitute an
integrated system governing the dismissal of teachers, see Pitts Decl. Exh. CC ¶¶5-60, 83-86, 96-1 Q0,
and AB 375 must therefore be understood to amend that system as a whole.
27 '
-8~ If some Plaintiffs are found to have standing,.summary adjudication is nonetheless warranted as to the
others. See, e.g.,. Hatchwell v. Blue Shield ofCal.(1988) 198 Ca1.App.3d 1027 (affirming summary
28 adjudication of one of two plaintiffs' claims on standing grounds).
27
Memo. of Ps. and Auths. in Support of CTA's & CFT's Motion'for Summary Judgment or Summary Adjudication
1
class discriminated against." Estate ofNorman(1971) 5 Ca1.3d 62,77-78; see also County ofSan Diego
2
v. San Diego NORML (2008) 165 Ca1.App.4th 798, 814 (plaintiff"must show that he personally has
3
suffered some actual or threatened injury as a result ofthe putatively illegal conduct of the defendant").
4
The standing requirements are yet more stringent here because Plaintiffs seek only injunctive and
5
declaratory relief, not damages: See Pitts Decl. Exh. CC, at 26. To enjoin future, allegedly
6
impermissible, applications of the challenged statutes, Plaintiffs must not only "have a sufficient
7
beneficial interest to have standing to prosecute the action" and show "that such application is occurring
8
or has occurred in the past," Tobe, 9 Ca1.4th at 1084-85, but they must also show that they are subject to
9
a real and immediate threat that they will be assigned to "grossly ineffective" teachers in California
10
public schools in the future, and that any such assignment will result from the operation of the
11
challenged statutes. "Past exposure to illegal conduct does not itself establish a right to injunctive relief;
12 the prospect of future injury is gauged by the continuing nature of the past illegal conduct or the
13
likelihood it will be repeated." Cleaves v: Waters(1985) 175 Ca1.App.3d 413; 417. Similarly, to obtain
14
declaratory relief Plaintiffs must establish that they suffer some "existing or imminent invasion of[their]
15
rights by the defendants] which would result in injury to [them]." ZetterbeNg v. State Dept. ofPublic
16
Health (1974)43 Ca1.App.3d 657, 663; see also San Diego NORML, 165 Cal.App.4th at 817-18.
17 "M]ere dissatisfaction with ... or disagreement with [state] policies does not constitute a justiciable
18
19
controversy." San Diego NORML, 165 Cal.App.4th at 817.
Under these standards and the undisputed facts, Plaintiffs plainly lack standing to pursue their
20
claims. Plaintiffs Elliott and Debose are high school seniors in the 2013-2014 school year; are on track
21
to graduate in 20.14; do not plan to change schools before the end ofthis school year; know all of the
22 teachers to whom they are assigned in this school year; and have no reason to believe that any of those
23
teachers are grossly ineffective. SUF Nos. 59-62, 68-72. As graduating seniors whose current teachers
24
are known and are not even alleged to be "grossly ineffective," they face no risk of being assigned to
25
grossly ineffective teachers in a California public school in the future, and therefore have no standing to
26
pursue any claims for injunctive or declaratory relief —the only claims in this case.
27
28
Plaintiff Liss similarly lacks standing because he has never been assigned to a grossly ineffective
teacher. SUF Nos. 76-77. This alone forecloses all of his claims for injunctive or declaratory relief.
2s
1
Tobe, 9 Ca1.4th at 1084; San Diego NORML, 165 Ca1.App.4th at 81'7-18,19
2
Plaintiffs Monterroza and Martinez likewise face no risk of being assigned to any grossly
3
ineffective teachers in the future as a result of the challenged statutes, because both attend charter
4
schools that are not subject to the challenged statutes. Plaintiff Monterroza is in the 1 lth grade in the
5
School of Extended Educational Options("SEEO")in the Pomona Unified School District. SUF No.
6
92. SEEO is a charter school that is not subject to the challenged statutes. SUF Nos. 93-94; IRJN Exh.
7
G, at at 31-33; Educ. Code §47610 (with cerCain limited exceptions not including the challenged statutes,
charter schools are "exempt from the laws governing school districts"); Pitts Decl. Exh. Z;at 292:14-
9
293:3 (same). She is on track to graduate from high school, and does not plan to depart SEED in order
10
to attend a public high school subject to the challenged statutes. SUF Nos. 95-96. Similarly, Alpha:
11
Blanca Alvarado Middle School, which Plaintiff Martinez currently attends and intends to attend next
12
year, is a charter school that is not subject to the challenged statutes. SUF Nos. 84-87; IRJN Exh. I, at
13
50-54; Educ. Code §47610; Pitts Decl. Exh. Z, at 292:14-293:3. Plaintiff Martinez attended Alpha:
14
Blanca Alvarado Middle School during the prior school year, and she attended a charter elementary
15 ~I school for more than two years before that. SUF Nos. 88-89. Plaintiff Martinez has no concrete plans to
16
attend a public, non-charter school in the future. SUF No. 90. Because Plaintiffs Monterroza and
1.7
Martinez both attend schools whose employment practices are riot.governed by the challenged statutes
18
and have no concrete plans to attend a school subject to the challenged statutes in the future, neither
19
faces any imminent injury from the statutes, foreclosing their claims for injunctive or declaratory relief.
20
Finally, Plaintiffs Campbell, Macias, Beatriz Vergara, and Elizabeth Vergara lack standing
21
because, like all Plaintiffs, they have no evidence that, because of the challenged statutes, they are likely
22
to be assigned to grossly ineffective teachers in California public schools in the future or have been so
23
assigned in the past.- SUF 52-57, 81, 83, 101-102..105-06. Without evidence that the statutes have
24
caused- them harm or are likely to do so in the future, they lack standing to obtain any injunctive or
25
26 '
-9~ plaintiffs Campbell, Elliott, Liss, and Macias lack standing to pursue their equal protection suspect
class claims based on race or wealth (Claims 1, 2, and 3)for the separate reason that they are not
27 minorities and are not economically disadvantaged, while Plaintiff Debose lacks standing to pursue any
equal protection suspect class claims based on wealth (Claims 1, 2, and 3) because he is not
28 economically disadvantaged. SUF Nos. 48-49, 51,65-67, 74-75, 79-80; Norman, 5 Ca1.3d at 77-78.
29
1
declaratory relief regarding the challenged statutes, even if they (or any of the other plaintiffs) could
2
prove that they suffered injury in the past after being assigned to an allegedly "grossly ineffective"
3
teacher by their school district. Tobe,9 Ca1.4th at 1084; San Diego NORML, 165 Ca1.App.4th at 817-18.
4I
5
6
CONCLUSION
For the foregoing reasons, the Court should grant summary judgment dismissing Plaintiffs'
claims in their entirety or, in the alternative, grant summary adjudication:
7
8
9
10
11
12
13
14
15
Dated: September 27, 2013
Respectfully submitted,
JEFFREY B. DEMAIN
JONATHAN WEISSGLASS
EILEEN B. GOLDSMITH
P. CASEY PITTS
Altshuler Berzon LLP
GLENN ROTHNER
Rottener Segall & Greenstone
GgBy: _~~
P. C~xs~y Pitts
Attorneys for California Teachers Association and
California ~'edexation of Teachers
16
17
18
19
20
21
22
23
24
25
26
27
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30
4
Memo, of Ps. and Auths. in Support of CTA's & CFT's Motion for Summary Judgment or Summary Adjudication

superior court of the state of california for the

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