Case No. B258589 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO _______________________________________________________ STATE OF CALIFORNIA, ET AL., Defendants CALIFORNIA TEACHERS ASSOCIATION, ET AL., Intervenors, Appellants, v. BEATRIZ VERGARA, ET AL., Plaintiffs Respondents. _________________________________________________________ Appeal from the Los Angeles County Superior Court Case No. BC484642 Honorable Rolf M. Treu, Judge _________________________________________________________ APPLICATION FOR PERMISSION TO FILE AN AMICI CURIAE BRIEF WHITE & CASE LLP BRYAN A. MERRYMAN (SBN 134357) ELLIOTT E. DIONISIO (SBN 294539) J. TAYLOR AKERBLOM (SBN 299042) 555 South Flower Street, Suite 2700 Los Angeles, California 90071-2433 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson APPLICATION FOR PERMISSION TO FILE AN AMICI CURIAE BRIEF In accordance with California Rule of Court 8.200(c), Amici Curiae Governors Arnold Schwarzenegger and Pete Wilson (“Applicants”) apply for permission to file an amici curiae brief. A. Applicants’ Interest and the Amici Brief’s Ability to Assist the Court (CRC 8.200(c)(2)) Applicants are former Governors of California. Both served two consecutive terms: Governor Schwarzenegger from 2003 to 2011, and Governor Wilson from 1991 to 1999. Applicants have a significant interest in the outcome of State v. Vergara, No. B258589. As former governors of California, Applicants were responsible for ensuring that California’s children receive their constitutionally-protected right to a quality education. During their respective terms, Applicants worked to institute policies and reforms in support of this responsibility while overseeing the state’s education system. Applicants have also worked to overturn the statutes at issue here, a previously unsuccessful goal that the judiciary may now accomplish. Applicants’ brief will help this Court understand the negative impacts of California Education Code sections 44929.21(b), 44934, 44938(b)(1) & (2), 44944, and 44955 on all students across the state and on the prosperity of California as a whole. The brief will illustrate other previously failed attempts to remedy the problems with the challenged statutes by other branches of government, and discuss why the judiciary is the most appropriate forum to finally resolve the debate over the challenged statutes. B. Authors (CRC 8.200(c)(3)(A)(i)) No parties or counsel for parties authored the proposed amici brief in whole or in part. 1 C. Contributors (CRC 8.200(c)(3)(A)(ii), (B)) No parties, counsel for parties, entities, or other persons made a monetary contribution toward the preparation and submission of this brief. We respectfully request permission to file an amici brief in support of plaintiffs Beatriz Vergara, Elizabeth Vergara, Clara Grace Campbell, Brandon DeBose, Jr., Kate Elliott, Herschel Liss, Julia Macias, Daniella Martinez, and Raylene Monterroza. WHITE & CASE LLP Dated: September 16, 2015 Bryan A. Merryma Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson 2 Case No. B258589 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO _______________________________________________________ STATE OF CALIFORNIA, ET AL., Defendants CALIFORNIA TEACHERS ASSOCIATION, ET AL., Intervenors, Appellants, v. BEATRIZ VERGARA, ET AL., Plaintiffs Respondents. _________________________________________________________ Appeal from the Los Angeles County Superior Court Case No. BC484642 Honorable Rolf M. Treu, Judge _________________________________________________________ AMICI CURIAE BRIEF IN SUPPORT OF BEATRIZ VERGARA, ET AL. WHITE & CASE LLP BRYAN A. MERRYMAN (SBN 134357) ELLIOTT E. DIONISIO (SBN 294539) J. TAYLOR AKERBLOM (SBN 299042) 555 South Flower Street, Suite 2700 Los Angeles, California 90071-2433 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson TABLE OF CONTENTS Page I. Introduction ........................................................................................ 1 II. The Challenged Statutes Create A Statewide Problem For All Students, and Not Only Those Students From Low-Income And Predominantly Minority Schools .......................... 3 III. California’s Constitutional Guarantee Of A Quality Public Education Is Critical To Our State’s Future Success ............................................................................................... 5 IV. The Challenged Statutes Disproportionately Impact Low Income And Minority Students .................................................. 7 V. The Political Process Has Failed To Remedy These Constitutional Violations.................................................................... 9 A. Failed Amendments to the Permanent Employment Statute .............................................................. 10 B. Failed Amendments to the Last In, First Out Statute .................................................................................... 11 C. Failed Amendments to the Dismissal Statutes ...................... 12 D. Proposition 74 and the 2005 Special Election....................... 14 VI. Judicial Intervention Is Not Only Proper, But Required .................. 16 VI. Conclusion ........................................................................................ 17 i TABLE OF AUTHORITIES Page(s) CASES Cal. Radioactive Materials Management Forum v. Dept. of Health Services (1993) 15 Cal.App.4th 841 .................................................................... 16 Knox v. Service Employees Internat. Union, Local 1000 (2012) 132 S.Ct. 2277 ............................................................................ 15 Schabarum v. Cal. Leg. (1998) 60 Cal.App.4th 1205 .................................................................. 16 Serrano v. Priest (1971) 5 Cal.3d 584 ......................................................................... 16, 17 Vergara v. State of California (Cal. Super. Ct. 2014) No. BC484642 ............................................... 4, 16 LEGISLATIVE PROCEEDINGS Assem. Bill No. 292 (1999-2000 Reg. Sess.).............................................. 10 Assem. Bill No. 723 (1999-2000 Reg. Sess.).............................................. 10 Assem. Bill No. 36 (1999-2000 1st Ex. Sess.) ............................................ 10 Sen. Bill No. 1097 (2001-2002 Reg. Sess.)................................................. 10 Sen. Bill No. 124 (2003-2004 Reg. Sess.)................................................... 10 Assem. Bill No. 1761 (2007-2008 Reg. Sess.)............................................ 10 Sen. Bill No. 955 (2009-2010 Reg. Sess.)................................................... 11 Assem. Bill No. 2028 (2011-2012 Reg. Sess.)...................................... 13, 14 Sen. Bill No. 355 (2011-2012 Reg. Sess.)................................................... 11 Sen. Bill No. 1059 (2011-2012 Reg. Sess.)........................................... 13, 14 Assem. Bill No. 375 (2013-2014 Reg. Sess.).............................................. 12 ii Sen. Rules Com., Hearing on Assem. Bill No. 375, (2013-2014 Reg. Sess.) ................................................................... 12, 13 Assem. Bill No. 375, veto message by Governor, Oct. 10, 2013 (2013-2014 Reg. Sess.) .......................................................................... 13 Assem. Bill No. 947 (2013-2014 Reg. Sess.)........................................ 11, 12 Assem. Bill No. 1221 (2013-2014 Reg. Sess.)...................................... 13, 14 Assem. Bill No. 2240 (2013-2014 Reg. Sess.)...................................... 11, 12 Assem. Com. on Ed., Analysis of Assem. Bill No. 2240 (2013-2014 Reg. Sess.) Apr. 30, 2014 ................................................... 12 Sen. Bill No. 453 (2013-2014 Reg. Sess.)....................................... 11, 12, 13 Sen. Bill No. 531 (2013-2014 Reg. Sess.)............................................. 13, 14 STATE STATUTES Cal. Ed. Code § 44929.21(b) ............................................................. 1, 10, 11 Cal. Ed. Code § 44934............................................................................. 1, 12 Cal. Ed. Code § 44938(b)(1) ................................................................... 1, 13 Cal. Ed. Code § 44938(b)(2) ................................................................... 1, 13 Cal. Ed. Code § 44944............................................................................. 1, 13 Cal. Ed. Code § 44955................................................................... 1, 7, 11, 12 Cal. Ed. Code § 44955(d)(2) ......................................................................... 7 TREATISES Bartik, From Preschool to Prosperity: The Economic Payoff to Early Childhood Education (2014) W.E. Upjohn Institute p. 9-19 [as of Sept. 10, 2015] ........................................................................... 6, 7 Berger & Fisher, A Well-Educated Workforce Is Key to State Prosperity (Aug. 22, 2013) .................................................................................... 5, 6 iii Proposition 74, Institute of Governmental Studies, University of California, Berkeley (2015) [as of Sept. 10, 2015] ...................................................................... 14 Special Statewide Election—Statement of Vote, November 8, 2005, California Secretary of State [as of Sept. 10, 2015).) ................. 15 Tanner, Voters Reject Schwarzenegger Reforms, The Washington Post (Nov. 9, 2005) .................. 15 iv AMICI CURIAE BRIEF TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT I. INTRODUCTION These former Governors of California know that the constitutional guarantee of a quality public education for all of California’s students is a significant right and one that is critically important, not just to our lower income families and underrepresented minorities, but to the future of our state, its continued economic vitality and global competitiveness, and to our citizens who need a quality education to join the workforce. Thus, when the nine student plaintiffs -- Beatriz Vergara, Elizabeth Vergara, Clara Grace Campbell, Brandon DeBose, Jr., Kate Elliott, Herschel Liss, Julia Macias, Daniella Martinez, and Raylene Monterroza -turned to the California courts to repeal statutes that were impairing their right to a quality education, their decision could hardly have been a surprise. The notion that California Education Code sections 44929.21(b) (“Permanent Employment Statute”), 44934, 44938(b)(1) & (2), and 44944 (collectively, “Dismissal Statutes”), and 44955 (“Last In, First Out Statute”) were destructive to the state school system and its students’ education was not novel. The laws governing teacher tenure and dismissal have a history of controversy, in some ways, unparalleled to that of any other state laws. Although the statutes were enacted to strengthen teachers’ job security, they unfortunately also acted to retain grossly ineffective teachers. This was not an insignificant development. Administrators and school officials took notice: California law made it nearly impossible to remove ineffective teachers from classrooms. Researchers and statisticians took notice: they found that learning under grossly ineffective 1 teachers resulted in drastic and potentially life-long harm to students. The legislature took notice: over the last fifteen years, the California State Assembly and Senate attempted unsuccessfully to revise the challenged statutes. The public took notice: citizens learned about the harmful effects of the statutes through highly publicized debates and political advertising prior to California’s 2005 special election. Despite all of this attention and many efforts to amend or repeal the statutes, there has been no meaningful relief for California students. Given this history, the judiciary is the best, most appropriate, forum to remedy the constitutional infirmities of the challenged statutes and improve the educational experience for the nine plaintiffs, and all students in California. Amici, former Governors of California, file this brief to show that, given the failed attempts to repeal or amend the challenged statutes through the legislature and a special election, the judiciary should and must decide whether the challenged statutes are constitutional. First, this brief reviews the impact of the challenged statutes to illustrate that the problems they created are pervasive and widespread throughout California’s schools. (See infra Sec. II.) Each and every student across California is at risk of learning from grossly ineffective teachers—not just students of lower socioeconomic status and students attending predominantly minority schools. (Ibid.) The impact of learning from such teachers extends beyond the prosperity of the individual to the prosperity of the entire state of California. (See infra Sec. III.) Second, this brief reiterates that the statutes result in an unconstitutional injustice on the access of California students to a quality education, resulting in harm to already vulnerable demographics and perpetuating a costly and ineffective teacher dismissal process. (See infra Sec. IV.) 2 Third, we highlight the disheartening history of the governmental bodies and persons that have attempted unsuccessfully to amend or repeal the challenged statutes, further demonstrating that the judiciary must act here to strike them down. Judicial intervention is absolutely necessary to make a significant impact on the school system and California students. (See infra Sec. VI.) The Court should affirm the trial court’s judgment in favor of the nine student plaintiffs. II. THE CHALLENGED STATUTES CREATE A STATEWIDE PROBLEM FOR ALL STUDENTS, AND NOT ONLY THOSE STUDENTS FROM LOW-INCOME AND PREDOMINANTLY MINORITY SCHOOLS The challenged statutes negatively affect all California students, not only a select number of students, classrooms, and districts. A close look at the record reveals that the Permanent Employment Statute, Dismissal Statutes, and Last In, First Out Statute pose problems for all California students, regardless of socioeconomic background or place of learning. Grossly ineffective teachers are ineffective because of their inability to teach—not because of the profile of the students, or the site where the teaching occurs. Many of the measures, statistics, and effects of the challenged statutes that are in the record are class and ethnic-neutral, reflecting the statewide scope of the problem: • All parties in this case agree that the importance of teacher effectiveness toward student success cannot be overstated, especially amidst decades of research confirming the same. (2 AA 367:15-368:6.) • Administrators from school districts across California have testified to their experiences working with and observing grossly 3 ineffective teachers—including verbally abusive teachers who, were it not for the protections of the challenged statutes, would have been removed from California’s education system (notably in Baldwin Park, Corcoran, Cupertino, Emeryville, Gilroy, Los Angeles, Oakland, Oceanside, Sacramento, San Gabriel, San Jose, and Simi Valley). (Id. at 376:18-377:6, 379:1-381:21.) • In the past ten years, the state’s Commission on Professional Competence has allowed California’s 1,052 school districts to dismiss only ninety-one teachers—out of the 275,000 teachers statewide—mostly for egregious conduct, instead of ineffectiveness. (Id. at 382:2-10.) • Students that experience a single year of instruction by a grossly ineffective teacher ranking in the bottom ten percent of effectiveness miss out on at least one-half year of academic growth. (Id. at 383:16-18.) Students assigned to two or more grossly ineffective teachers in a row are unlikely to ever catch up and perform at grade level. (Id. at 383:18-20.) • Students learning under grossly ineffective teachers have lower graduation rates, lower college attendance rates, higher teenage pregnancy rates, and lower lifetime earnings than peers that learn under more effective teachers. (Respondents’ Brief (“RB”) at 2.) • Students taught by grossly ineffective teachers in Los Angeles Unified School District lose nearly ten months of learning per school year compared to students with simply average teachers. (Vergara v. State (Cal. Super. Ct. 2014) No. BC484642 at, 7.) • Grossly ineffective teachers continue to occupy classrooms across the state in part because of the expensive, prolonged dismissal process (notably in Fullerton, Los Angeles, and Sacramento). (RB at 35.) 4 • The Last In, First Out Statute is responsible for the dismissals of extraordinary ‘teachers-of-the-year’ across the state (notably in Arcadia and Pasadena). (Id. at 39.) • District administrators from across the state posit that the current sixteen-month probationary period is too short to make wellinformed tenure decisions (notably in Fullerton, Los Angeles, El Monte, Oakland, and San Jose). (Id. at 26-27, 29-30.) School district personnel across the state have observed the problems grossly ineffective teachers cause, as well as the conditions created by the challenged statutes that perpetuate these problems. All students who attend California public schools face the risk of being assigned to grossly ineffective teachers and the accompanying lifelong effects. The impact of poor teaching does not discriminate among groups of students. All students, statewide, are at risk. This Court should act to preserve the best possible future for California’s students. III. CALIFORNIA’S CONSTITUTIONAL GUARANTEE OF A QUALITY PUBLIC EDUCATION IS CRITICAL TO OUR STATE’S FUTURE SUCCESS At stake in this case is not only the future of California’s students, but also the future of California. As students who learn from grossly ineffective teachers face lifelong setbacks, by extension, California’s future economic and social success is similarly impacted. California’s ability to provide a quality education through effective teaching is critical for the success of students and the state. Research shows a correlation between a strong education system and greater economic prosperity. (Berger & Fisher, A Well-Educated Workforce Is Key to State Prosperity (Aug. 22, 2013) Economic Policy Institute [as of Sept. 10, 2015].) The higher the level of educational attainment in a state, the higher the median wages of that state’s workforce. (Id. at 4-9.) By adopting and enforcing policies that increase the pool of well-educated workers, states can increase the strength of their economies. (Id. at 9-10.) In addition, studies show that early childhood education predicts future economic success. (Bartik, From Preschool to Prosperity: The Economic Payoff to Early Childhood Education (2014) W.E. Upjohn Institute pp. 9-19 [as of Sept. 10, 2015].) In fact, early education programs can increase a student’s future adult earnings by more than 25%. (Id. at 9.) The caliber of instruction is not the only predictive aspect of education. More pointedly, positive student-teacher interaction also correlates to greater earnings. Test scores from classrooms divided by greater and lesser quality of student-teacher interaction predict a 6% variance of future income. (Bartik, From Preschool to Prosperity: The Economic Payoff to Early Childhood Education supra, at 42.) Separate measures show that classrooms of students taught by grossly ineffective teachers lose $1.4 million in lifetime earnings compared to classrooms taught by average teachers. (RB at 2.) Here, too, every little bit counts: “only modest increases in effectiveness are needed for . . . strong teacher credentials to have future earnings benefits[.]” (Bartik, From Preschool to Prosperity: The Economic Payoff to Early Childhood Education supra, at 43.) Students also benefit from gaining interpersonal skills needed to prepare them for achieving in the workforce. (Bartik, From Preschool to Prosperity: The Economic Payoff to Early Childhood Education supra, at 5.) Social skills and character are “as important as cognitive skills in 6 making a worker more employable and more productive.” (Id. at 33.) “[S]kills development from early childhood education will create good jobs,” sustaining and strengthening California’s economic prosperity. (Id. at 77.) To see prosperity tomorrow, California must nurture its students today. The reverberating effects of the challenged statutes have the power to cause problems that last a lifetime for affected students and touch upon the economic wellbeing of the entire state. Research shows this, our former California Governors understand this, and now the Court should act to ensure the best possible future for California. IV. THE CHALLENGED STATUTES DISPROPORTIONATELY IMPACT LOW INCOME AND MINORITY STUDENTS While the challenged statutes detrimentally affect students statewide, the disproportionate impact the statutes have on schools serving low income and minority students cannot be understated. Specifically, the effects of the Last In, First Out Statute are magnified in these schools because the teacher populations serving these schools typically have less experience and seniority. (RB at 48.) The Last In, First Out Statute mandates that reductions in force occur strictly on a reverse seniority basis, minimizing the discretion of school districts to keep teachers based on effectiveness or other considerations. (Cal. Ed. Code § 44955.) While subdivision (d)(2) of this statute allows school districts to “skip” laying off junior teachers to comply with “constitutional requirements related to equal protection of the laws,” as Respondents have noted, the evidence at trial proved that “no school district has ever successfully ‘skipped’ laying off a teacher pursuant to the [Last In, First Out] statute subdivision (d)(2).” (Cal. Ed. Code § 44955(d)(2); RB at 15.) Thus, schools serving low income and minority students are harshly 7 impacted every time layoffs occur because they suffer a disproportionate percentage of layoffs. (RB at 48-50.) The destabilizing effect of consistent layoffs and layoff notices detrimentally affects both student achievement and the morale of the teaching staff. (Id. at 49-50.) Statewide, the Last In, First Out Statute has been shown to reduce student test scores by 11% and diminish lifetime earnings by up to $2.1 million. (RB, supra, at 40.) Thus, the statute’s magnified effects on low income and minority students reduce test scores and lifetime earnings by even greater margins. The detrimental effects of the Last in, First Out Statute on schools serving low income and minority students is compounded by the Permanent Employment Statute and the Dismissal Statutes. Under the Permanent Employment Statute, school districts have only sixteen months to evaluate teachers and make tenure decisions. (RB, supra, at 9.) Plaintiffs presented overwhelming evidence that this unjustifiably short probationary period is insufficient for principals to make informed tenure decisions, and inevitably results in grossly ineffective teachers achieving tenure. (Id. at 25-28.) Under the Dismissal Statutes, it is “virtually impossible for districts to remove” grossly ineffective teachers after they obtain tenure. (RB, supra, at 3.) The convoluted and inefficient dismissal process takes several years, costs between $50,000 and $400,000 per teacher, and often ultimately fails to remove the grossly ineffective teacher. (Id. at 3, 31-37.) These grossly ineffective teachers remain employed by virtue of the failings of the Dismissal Statutes and are shuffled from one school to the next, often teaching at schools that serve low income and minority students because of recent vacancies caused by layoffs under the Last In, First Out Statute, in a process commonly known as “the Dance of the Lemons.” (Id. at 4.) This practice is nothing more than a helter-skelter process that has evolved from California’s overprotective teacher employment laws. 8 Thus, a disproportionate number of teachers from schools serving low income and minority students are terminated by seniority, not effectiveness, when layoffs are conducted under the Last In, First Out Statute. These vacancies are often filled with grossly ineffective teachers who received tenure only because of the unreasonably short sixteen-month evaluation period under the Permanent Employment Statute and who cannot be terminated under the prohibitively expensive and timeconsuming process required by the Dismissal Statutes. The “Dance of the Lemons” exemplifies the cyclical, downward spiral nature of the effects of the challenged statutes on low income and minority students. V. THE POLITICAL PROCESS HAS FAILED TO REMEDY THESE CONSTITUTIONAL VIOLATIONS California state lawmakers have not risen to the occasion to remedy the challenged statutes’ constitutional violations. While the California legislature has recognized the need to amend the statutes, it has repeatedly tried and failed to make amendments that protect California students and enhance their educational experience. In the fifteen-year period from 1999 to 2014, the California State Assembly and Senate combined to draft over thirty bills attempting to modify the challenged statutes. Yet, no meaningful action occurred. Instead, there were years of introduced bills, inaction, second attempts, and failures. Not a single bill proposing significant change became law. The few bills that passed were limited in scope, cosmetic in nature, and did not address the statutes’ inherent failings. In 2005, the legislators even went directly to the voters with a ballot measure meant to improve the tenure and dismissal procedures the statutes addressed. After aggressive campaigning by teachers unions against the proposition—including some tactics later found to be unconstitutional— 9 the measure eventually failed in the special election. All of these instances of business-as-usual infighting and wrangling simply mean that the political process is broken and unfit to remedy the challenged statutes. A. Failed Amendments to the Permanent Employment Statute On six occasions, the legislature attempted to extend the probationary period before tenure described in California Education Code section 44929.21(b) from two years to either three or four years. None of those bills passed into law. During the 1999-2000 legislative term, the legislature first attempted to extend the probationary period to four years. (Assem. Bill No. 292 (1999-2000 Reg. Sess.).) The provision was abandoned in revisions. (Id. (Amend. dated Apr. 5, 1999).) Then, the State Assembly sought a three-year period. (Assem. Bill No. 723 (1999-2000 Reg. Sess.).) That bill died in committee. (Ibid. (failed passage in Com. on Ed.).) In the first extended session of the term, the Assembly again tried to implement a four-year probationary period, including concessionary language allowing the district to grant permanent-teacher status in fewer than four years. (Assem. Bill No. 36 (1999-2000 1st Ex. Sess.).) Still, the bill did not pass. (Assem. Bill No. 36, from Com. without further action (1999-2000 1st Ex. Sess.).) Twice more in the 2001-2002 and 2003-2004 terms, the legislature attempted to secure a four-year probationary period, and twice more the effort was futile. (Sen. Bill No. 1097, failed passage in Com. on Ed. (2001-2002 Reg. Sess.); Sen. Bill No. 124, failed passage in Com. on Ed. (2003-2004 Reg. Sess.).) The legislature’s last attempt came in the 20072008 term, in which it sought a period of not less than two years, but no more than four years before allowing tenure. (Assem. Bill No. 1761 (2007-2008 Reg. Sess.).) Once again, this bill never crossed the Governor’s desk. (Ibid. (from committee without further action).) 10 Across a period of ten years, the California legislature tried unsuccessfully six times to extend the period that teachers would be assessed and observed before granting tenure. Several of these bills were designed to double the probationary period, and others were reconfigured to secure some legislative compromise toward amending Education Code section 44929.21(b). However, all attempts failed, and the statute today continues to rush teachers into tenure. B. Failed Amendments to the Last In, First Out Statute On six occasions, the legislature attempted to expand the circumstances in which school districts would be allowed to deviate from the seniority-based dismissal scheme of California Education Code section 44955. None of those bills passed into law. The legislature even tried to add teacher evaluations as an exception to its Last In, First Out Statute. Its efforts failed. During the 2009-2010 term, the California Senate proposed that teacher effectiveness should be considered in determining transfer, subject matter assignment, and termination decisions. (Sen. Bill No. 955 (2009-2010 Reg. Sess.).) The bill went nowhere. (Ibid. (referred to Com. on Rules without further action).) The next term, the Senate tried again with a bill adding that performance evaluations should be considered, in addition to seniority, to achieve workplace reduction terminations. (Sen. Bill No. 355 (2011-2012 Reg. Sess.).) The bill failed to pass in the Committee on Education and was sent to the Secretary of the Senate, where it disappeared. (Ibid. (failed passage in Com. on Ed.).) Most recently, in the 2013-2014 term, the legislature attempted with three different bills to break from the rigid seniority model to terminate teachers based on performance. (Assem. Bill No. 947 (2013-2014 Reg. Sess.); Assem. Bill No. 2240 (2013-2014 Reg. Sess.); Sen. Bill No. 453 (2013-2014 Reg. Sess.).) The legislative history specifically notes that one 11 of these bills was meant to “achieve compliance with constitutional requirements related to equal protection of the law as it applies to pupils.” (Assem. Com. on Ed., Analysis of Assem. Bill No. 2240 (2013-2014 Reg. Sess.) Apr. 30, 2014.) The Committee on Education passed none of these bills, and took no further action. (Assem. Bill No. 947 (failed passage in Com. on Ed.); Assem. Bill No. 2240 (failed passage in Com. on Ed.); Sen. Bill No. 453 (failed passage in Com. on Ed.).) The California legislature tried to lessen the rigidity of the Last In, First Out dismissal structure of Education Code section 44955, recognizing that teacher evaluations and constitutional protections are at least on equal footing as time on the job when considering the dismissal of teachers. But like the Permanent Employment Statute, teacher seniority remains California’s default for dismissal. C. Failed Amendments to the Dismissal Statutes The Dismissal Statutes have also undergone a tumultuous history of attempted revisions. Efforts to reform the dismissal process were again and again diluted in committee or failed completely. One bill stands out as particularly emblematic of the legislature’s inability to act on the challenged statutes. In the 2013-2014 session, the State Assembly and Senate approved a bill seemingly designed to streamline the dismissal process under statute 44934. (Assem. Bill No. 375 (2013-2014 Reg. Sess.).) Among other revisions, the bill sought to limit the number of depositions in dismissal proceedings to five per side, and restrict a district’s ability to amend charges against teachers—even when new evidence arises—only by motion to an administrative law judge. (Ibid.) However, the California School Boards Association, the Association of California School Administrators, and numerous education policy advocates argued that the bill would actually make the dismissal process even longer. (Sen. Rules Com., Hearing on Assem. Bill No. 375, 12 (2013-2014 Reg. Sess.).) Governor Jerry Brown agreed. In his veto, the Governor noted that some of the bill’s changes made the process “too rigid and could create new problems,” resulting in “more harm than good.” (Assem. Bill No. 375, veto message by Governor, Oct. 10, 2013 (20132014 Reg. Sess.).) The Governor encouraged further work to reform the dismissal statutes, inviting the legislature to “identify changes that are balanced and [that] reduce procedural complexities.” (Ibid.) Other attempts to streamline the process to dismiss grossly ineffective teachers have been similarly unsuccessful. On four separate occasions over two terms, both the Assembly and Senate attempted to expedite the dismissal of teachers charged with unsatisfactory performance by truncating the filing and notification process.1 (Assem. Bill No. 2028 (2011-2012 Reg. Sess.); Sen. Bill No. 453 (2013-2014 Reg. Sess.); Assem. Bill No. 1221 (2013-2014 Reg. Sess.); Sen. Bill No. 531 (2013-2014 Reg. Sess.).) None of the attempts was successful. (Assem. Bill No. 2028 (Amend. dated Mar. 22, 2012); Sen. Bill No. 453 (failed passage in Com. on Ed.); Assem. Bill No. 1221 (failed passage in Com. on Ed.); Sen. Bill No. 531 (failed passage in Com. on Ed.).) The legislature also made four attempts to consolidate the hearing commission to only one administrative judge instead of three appointees selected by the employee, the governing board, and the commission.2 (Assem. Bill No. 2028; Sen. Bill No. 1059 (2011-2012 Reg. Sess.); Assem. Bill No. 1221; Sen. Bill No. 531.) All of The bills attempted to change California Education Code sections 44938(b)(1) and (2) to remove the requirement that teachers charged with unsatisfactory performance receive written notice of the charges ninety days before filing and an opportunity to correct their behavior. 1 The bills attempted to change the makeup of the Commission on Professional Competence noted in California Education Code section 44944 from its current allocation of one member selected by the employee, one member selected by the governing board, and one administrative judge. 2 13 these bills are dead or exist in legislative purgatory, pending in their respective stages of passage as days, months, and years pass without further attention. (Assem. Bill No. 2028 (held under submission in Com. on Appropriations); Sen. Bill No. 1059 (reconsideration granted with no further action); Assem. Bill No. 1221 (returned to Chief Clerk of the Sen. as carryover bill); Sen. Bill No. 531 (failed passage in Com. on Ed.).) The California legislature is not blind to the administrative inefficiencies that hamper the teacher dismissal process. But, like the Permanent Employment Statute and the Last in, First Out Statute, the Dismissal Statutes still maintain the same cumbersome status quo. D. Proposition 74 and the 2005 Special Election Opting for a different plan, the legislature in 2005 went straight to the public to reform teacher tenure and dismissal laws with Proposition 74. The attempt ended unsuccessfully—unsurprisingly—but it was also notable for the sheer political spectacle and the aggressive campaign to sway public opinion that followed. On March 1, 2005, Governor Schwarzenegger endorsed the Put the Kids First Act. (Proposition 74, Institute of Governmental Studies, University of California, Berkeley (2015) [as of Sept. 10, 2015].) The initiative became Proposition 74 and was set for a special election. The proposition was intended to address two of the same core aspects of the challenged statutes that the legislature had struggled unsuccessfully to change since 1999. The probationary period before tenure was granted was to be extended from two years to five years, and school districts would be allowed to dismiss teachers who received two consecutive negative evaluations. (Proposition 74, Institute of Governmental Studies Library, University of California, Berkeley, supra.) 14 In the lead up to the election, teachers unions, interest groups, and the Governor engaged in a contentious battle to persuade voters to support their respective positions. By some measures, the special election was the most expensive in California history, totaling $300 million, including advertising and administrative costs.3 (Tanner, Voters Reject Schwarzenegger Reforms, The Washington Post (Nov. 9, 2005) [as of Sept. 10, 2015].) Proposition 74 was ultimately defeated in the special election. Highlighting the controversial nature of the special election, the political fight was not confined to the borders of California. In 2012, the United States Supreme Court decided that compulsory fundraising methods used by California’s largest labor union during the campaign prior to the election violated the First Amendment rights of certain state employees. (Knox v. Service Employees Internat. Union, Local 1000 (2012) 132 S.Ct. 2277.) This special election demonstrated that use of the political process to change the challenged statutes was not feasible. The $300 million battle over public opinion and the unconstitutional fundraising tactics used to defeat Proposition 74 continue to serve as a cautionary tale for anyone considering another attempt to amend the challenged statutes. What began as Governor Schwarzenegger’s earnest effort to address some of the failings of the teacher tenure and dismissal processes ultimately became another example The special election included a vote on Proposition 74, addressing education reforms, and seven other propositions. (Special Statewide Election—Statement of Vote, November 8, 2005, California Secretary of State [as of Sept. 10, 2015).) 3 15 of the inability of the political process to exact meaningful change for California’s school system and students. VI. JUDICIAL INTERVENTION IS NOT ONLY PROPER, BUT REQUIRED The courts need not rely on the legislative or executive branches to amend or replace the challenged statutes. While the judicial branch “accord[s] appropriate deference to the legislative and executive exercise of political prerogatives . . . deference does not mean forbearance.” (Schabarum v. Cal. Leg. (1998) 60 Cal.App.4th 1205, 1215 (quoting Cal. Radioactive Materials Management Forum v. Dept. of Health Services (1993) 15 Cal.App.4th 841, 869).) A constitutional challenge “is inherently a judicial rather than political question and neither the Legislature, nor the executive branch, or both acting in concert can validate an unconstitutional act or deprive the courts of jurisdiction to decide questions of constitutionality.” (Ibid.) The trial court properly exercised its authority to address the constitutionality of the challenged statutes, especially because neither the California legislature nor the executive branch (by ballot initiative in an attempt to circumvent the legislature) was able to make meaningful changes to the challenged statutes. In holding that the challenged statutes violated the equal protection clause of the California Constitution under Serrano v. Priest (1971) 5 Cal.3d 584, the trial court fulfilled its “duty and function as dictated by the Constitution of the United States, the Constitution of the State of California, and the Common law[] to avoid considering the political aspects of the case and focus on the legal ones.” (Vergara v. State (Cal. Super. Ct. 2014) No. BC484642, at 5.) Here, judicial intervention is not only warranted, but is required to address the constitutional infirmities 16 of the challenged statutes. The Court should affirm the trial court's holding under the well-established precedent of Serrano v. Priest. VII. CONCLUSION Based on the foregoing, Amici Curiae respectfully request that this _Court affirm the trial court's judgment finding the Permanent Employment Statute, the Dismissal Statutes, and the Last In, First Out Statute to be unconstitutional. Dated: September 16, 2015 WHITE & CASE LLP By: Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson 17 WORD COUNT CERTIFICATION Pursuant to California Rule of Court 8.204( c), Counsel for Amici Curiae Governors Arnold Schwarzenegger and Pete Wilson certify that the Amici Curiae Brief in Support of Beatriz Vergara, et al., contains 4606 words. Dated: September 16, 2015 WHITE & CASE LLP By: fu/kk Bryan A. Merryman Attorneys for Amici Curiae Governor Arnold Schwarzenegger and Governor Pete Wilson 18 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 555 South Flower Street, Suite 2700, Los Angeles, California 90071-2433. I am employed by a member of the Bar of this Court at whose direction the service was made. On Wednesday, September 16, 2015, I served the foregoing document(s) described as: • • APPLICATION FOR PERMISSION TO FILE AN AMICI CURIAE BRIEF; and AMICI CURIAE BRIEF IN SUPPORT OF BEATRIZ VERGARA, ET AL. on the person(s) below, as follows: BY U.S. MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) listed below and placed the envelope for collection and mailing at 555 South Flower Street, Suite 2700, Los Angeles, California 90071-2433, following our ordinary business practices. I am readily familiar with White & Case LLP's practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business. Superior Court (Via Messenger) Plaintiffs-Respondents Hon. Rolph M. Treu c/o Clerk ofthe Court Los Angeles County Superior Ct. Stanley Mosk Cowihouse 111 North Hill Street Los Angeles, CA 90012 Kevin Ring-Dowell Gibson, Dunn & Crutcher LLP 555 Mission St., Suite 3000 San Francisco, CA 94105 Defendants-Appellants Intervenors-Appellants Susan M. Carson Office of the Attorney General 455 Golden Gate Ave., 11th Floor San Francisco, CA 94102 Eileen B. Goldsmith Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Executed Wednesday, September 16, 2015, at Los Angeles, California. I declare under penalty of perjury under the laws ofthe State of California and the United States of America that the above is true and correct. Hector M. Cordova