Alaska and Vergara v. California: Evaluating the Constitutionality of Teacher Tenure in Alaska

• Publication year: 2015

§ 32 Alaska L. Rev. 395. ALASKA AND VERGARA V. CALIFORNIA: EVALUATING THE CONSTITUTIONALITY OF TEACHER TENURE IN ALASKA

Alaska Law Review
Volume 32, No. 2, December 2015
Cited: 32 Alaska L. Rev. 395

ALASKA AND VERGARA V. CALIFORNIA: EVALUATING THE CONSTITUTIONALITY OF TEACHER TENURE IN ALASKA

M. Rebecca Cooper ^[*]

ABSTRACT

In the summer of 2013, California's teacher tenure statutes were found to violate the equal protection clause of the state's Constitution. The statutes called for tenure to be granted after two years of teaching, contained significant due process protections in case of dismissal, and required that new hires be laid off before teachers with tenure. The group that brought the lawsuit, Students Matter, is considering filing lawsuits in other states. This Note examines Alaska's tenure statutes to assess the state's vulnerability to a copycat lawsuit. While most of Alaska's tenure statutes seem safe from challenge, the state should evaluate its tenure system to determine if it is leading to the best outcome for students.

INTRODUCTION

In June of 2013, Judge Rolf M. Treu of the Superior Court of California in Los Angeles County sent shock waves across the education landscape when he handed down his decision in Vergara v. California, ^[1] finding that the state's teacher tenure statutes violated the equal protection clause of the Constitution of California. The New York Times described the decision as "one that could radically alter how California teachers are hired and fired and prompt challenges to tenure laws in other states." ^[2] The San Francisco Chronicle asked "[i]s this the end of teacher tenure in California?" ^[3]

Although Education Secretary Arne Duncan enthusiastically supported the outcome of the case by saying that all students in California and in the rest of the United States should have the "equal opportunity to be taught by a great teacher," ^[4] teachers unions have condemned the decision. ^[5] The National Education Association denounced the lawsuit as "never [being] about helping students, but [as] yet another attempt by millionaires and corporate special interests to undermine the teaching profession and push their own ideological agenda on public schools and students while working to privatize public education." ^[6] Calling the day the decision was handed down "a sad day for public education," the American Federation of Teachers claimed that the Vergara decision "pitt[ed] students against their teachers." ^[7] Joshua Pechthalt, the president of the California Federation of Teachers, stated that "the judge fell victim to the anti-union, anti-teacher rhetoric and one of America's finest corporate law firms that set out to scapegoat teachers for the real problems that exist in public education." ^[8]

The effects of the Vergara decision do not stop at the California border. Students Matter, the well-heeled organization that brought the lawsuit, is "considering filing lawsuits in New York, Connecticut, Maryland, Oregon, New Mexico, Idaho and Kansas as well as other states with powerful unions where legislatures have defeated attempts to change teacher tenure laws." ^[9] Within months, two lawsuits, later consolidated, were filed in New York challenging the state's tenure laws. ^[10]

In the wake of the Vergara decision, all states that have teacher tenure laws should examine their policies to see if they are in danger of similar litigation. As Alaska has tenure statutes, a detailed comparison and analysis needs to be conducted to determine if Alaska's policies are vulnerable to a similar lawsuit, and the likelihood of success of such legal action.

The Alaska Legislature has already begun evaluating its teacher tenure laws. During the 2013-14 legislative session, the legislature considered in House Bill 278 extending the requirement for tenure from three years of teaching in a district to five years in urban areas, while keeping the requirement at three years in rural districts. ^[11] However, this provision died in the Senate ^[12] because the conference committee "found that three years for tenure is the norm for school districts in other states." ^[13] The final version of House Bill 278 that was signed into law instead compelled the Department of Administration to evaluate and make recommendations regarding teacher tenure by June 15, 2015. ^[14] The Department of Administration partnered with the Center for Alaska Education Policy Research (CAEPR) at the University of Alaska Anchorage to "explor[e] the purpose and value of tenure, alternatives to the current structure in Alaska, and the value of tenure to teachers including how it affects the teacher labor market." ^[15] Yet, according to the Department of Administration's website, this report has been delayed due to "some unexpected challenges related to the technical and original requirements of the project," and has not yet been released. ^[16]

While the State of California is appealing the Vergara decision, ^[17] Alaska should not wait for the final outcome of the appeal to examine its own approaches to teacher hiring and firing. A challenge to Alaska's tenure laws may face an uphill battle, as differences in California's and Alaska's jurisprudence and statutes could limit the probability of a potential lawsuit's success. Nevertheless, the Alaska State Legislature should reexamine its tenure laws to ensure that they will lead to the most positive outcomes for students.

I. THE VERGARA DECISION

The plaintiffs in Vergara, nine students from across the state, ^[18] challenged five California statutes relating to teacher tenure ^[19] : the California Education Code §§ 44929.21(b) ("Permanent EmploymentStatute"), ^[20] 44934, ^[21] 44938(b)(1) and (2), ^[22] 44944 ("Dismissal Statutes"), ^[23] and 44955 ("Last-In-First-Out (LIFO)"). ^[24]

The Permanent Employment Statute states that districts can grant tenure to teachers who have taught in the district for "two complete consecutive school years," with notice of the decision given to the employee by March 15th of the second year. ^[25]

The Dismissal Statutes lay out the due process procedures in place in case of dismissal of a teacher with tenure. ^[26] Section 44934 requires districts to file written charges stating cause for the dismissal to the governing board, which then, upon majority vote, gives the teacher thirty days' notice of the decision, unless the employee demands a hearing. ^[27] The governing board may not act on charges of unsatisfactory performance unless the board or an authorized representative gave written notice of the unsatisfactory performance, with specific instances and particularity at least ninety calendar days before the date of filing, so that the employee has "an opportunity to correct his or her faults and overcome the grounds for the charge." ^[28] If the employee requests a hearing, it must begin within sixty days of the employee's demand and will be conducted by a Commission on Professional Competence. ^[29] Both the governing board and the employee can be represented by counsel, and may conduct discovery and depositions. The final decision of the Commission on Professional Competence can be appealed through the court system. ^[30]

In the case of a staff reduction, the LIFO statute specifies that "the services of no permanent employee may be terminated . . . while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render," and employees are "terminated in the inverse of the order in which they were employed." ^[31]

The Plaintiffs in Vergara challenged these tenure statutes (collectively, "Challenged Statutes") under the California Constitution's equal protection clause. ^[32] Article 1, section 7(a) of the California Constitution reads that "[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws." ^[33] The California Supreme Court has determined that this section is "substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution." ^[34] For that reason, the California courts analyze state equal protection claims using the same tiered levels of scrutiny as the federal courts. ^[35] In cases involving economic regulation, challenged statutes are presumed constitutional, and the distinctions must "bear some rational relationship to a conceivable legitimate state purpose." ^[36] Statutes that involve "suspect classifications" or that touch on "fundamental interests" must survive strict scrutiny, where the state has the burden of establishing that there is a compelling interest for the law and that the distinctions are necessary to further its purpose. ^[37]

The education provisions of the California Constitution were also relevant to the Vergara decision. Article 9, section 1 states that "[a] general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific . . . improvement." ^[38] Article 9, section 5 directs the Legislature to "provide for a system of common schools by which a free school shall be kept up and supported in each district." ^[39]

The California Supreme Court previously tackled educational equality in the Serrano v. Priest cas...