Filed 4/14/16
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                      DIVISION TWO


BEATRIZ VERGARA, a Minor, etc.,                    B258589
et al.,
                                                   (Los Angeles County
        Plaintiffs and Respondents,                Super. Ct. No. BC484642)

        v.

STATE OF CALIFORNIA et al.,

        Defendants and Appellants;

CALIFORNIA TEACHERS
ASSOCIATION et al.,

        Interveners and Appellants.



        APPEALS from a judgment of the Superior Court of Los Angeles County.
Rolf M. Treu, Judge. Reversed and remanded.
        Kamala D. Harris, Attorney General, Edward C. DuMont, Solicitor General, Julie
Weng-Gutierrez, Assistant Attorney General, Janill L. Richards, Gregory D. Brown and
Aimee Feinberg, Deputy Solicitors General, Susan M. Carson and Nimrod P. Elias,
Deputy Attorneys General, for Defendants and Appellants the State of California;
Edmund G. Brown, Jr., in his official capacity as Governor of California; the California
Department of Education; the State Board of Education; and Tom Torlakson, in his
official capacity as State Superintendent of Public Instruction.
      Rothner Segall & Greenstone, Glenn Rothner; Altshuler Berzon, Michael Rubin,
Stacey M. Leyton, Eileen B. Goldsmith and P. Casey Pitts for Interveners and Appellants
California Teachers Association and California Federation of Teachers.


      Reed Smith, Paul D. Fogel, Raymond A. Cardozo, Thomas A. Evans and
Kevin M. Hara; Jennifer W. Bezoza, Travis Silva and Dana M. Isaac for Lawyers’
Committee for Civil Rights of the San Francisco Bay Area, Education Law Center, Equal
Justice Society, Southern Poverty Law Center and Asian Americans Advancing Justice—
Los Angeles as Amici Curiae on behalf of Appellants.


      Catherine L. Fisk and Erwin Chemerinsky, University of California, Irvine Law
for Constitutional Law Professors as Amicus Curiae on behalf of Appellants.


      Stroock & Stroock & Lavan, Steven D. Atlee, Christine E. Ellice, Charles G.
Moerdler, Alan M. Klinger, Beth A. Norton, Dina Kolker, David J. Kahne and Nathan H.
Stopper; David Strom for American Federation of Teachers, AFL-CIO, as Amicus Curiae
on behalf of Appellants.


      Judith A. Scott, James & Hoffman and Claire P. Prestel for Service Employees
International Union as Amicus on behalf of Appellants; Matthew S. Blumin and Michael
Artz for American Federation of State, County and Municipal Employees as Amicus
Curiae on behalf of Appellants; Michael R. Clancy for California School Employees
Association as Amicus Curiae on behalf of Appellants; Kathryn Sheffield for California
Faculty Association as Amicus Curiae on behalf of Appellants.


      Persyn Law & Policy and Mary Kelly Persyn; Ronald A. Peterson Law Clinic,
Charlotte Garden, Lorraine Bannai and Robert Chang for California Teachers, American-
Arab Anti-Discrimination Committee, Fred T. Korematsu Center for Law & Equality and
American Association of University Professors as Amici Curiae on behalf of Appellants.

                                           2
      Donahue & Goldberg and Sean H. Donahue; Schwartz, Steinsapir, Dohrmann &
Sommers and Henry M. Willis for Kevin Beiser, Joan Buchanan, Ciro C. Calderon, Rob
Collins, Tom Conry, Jennifer Freemon, Matt Haney, Michael Harrelson, Richard Hoy,
Sarah Kirby-Gonzalez, Rob Nunez, Erik Ortega, Cecilia Perez, Annemarie Randle-Trejo,
Claudia Rossi, Ryan Anthony Ruelas, Noelani Sallings, Shamann Walton, Steve
Waterman and Steve Zimmer as Amici Curiae on behalf of Appellants.


      Alice O’Brien, Eric A. Harrington, Kristen Hollar and Derrick Ward for National
Education Association as Amicus Curiae on behalf of Appellants.


      Keker & Van Nest, Steven A. Hirsch and Katherine M. Lloyd-Lovett for
Education Deans, Professors and Scholars as Amicus Curiae on behalf of Appellants.


      Gibson, Dunn & Crutcher, Theodore B. Olson, Joshua S. Lipshutz, Kevin J. Ring-
Dowell, Theodore J. Boutrous, Jr., Marcellus A. McRae, Theane D. Evangelis and
Enrique A. Monagas for Plaintiffs and Respondents.


      Kaufhold Gaskin, Steven S. Kaufhold, Janathan B. Gaskin and Quynh K. Vu for
Students Transforming Education, Jan Bauer, Priscilla Davis, Dan Tick, Paula Tillotson,
Neva Sullaway and, Ann Wellman as Amici Curiae on behalf of Respondents.


      Kronick, Moskovitz, Tiedemann & Girard, Christian M. Keiner and Chelsea Olson
for California County Superintendents Education Services Association as Amicus Curiae
on behalf of Respondents.


      Sidley Austin, Michelle B. Goodman, James D. Arden, Peter D. Kauffman for
National Council on Teacher Quality and The New Teacher Project as Amici Curiae on
behalf of Respondents.

                                           3
      Shook, Hardy & Bacon, Tristan L. Duncan, Laurence H. Tribe, Tammy B. Webb
for Constitutional Scholars; Rachel F. Moran, Michael J. Connell, Dawinder S. Sidhu as
Amici Curiae on behalf of Respondents.


      Lubin Olson & Niewiadomski, Jonathan E. Sommer and Kyle A. Withers for
Betheny Gross, Jane Hannaway, Cory Koedel and Jonah Rockoff as Amici Curiae on
behalf of Respondents.


      Arnold & Porter, Douglas A. Winthrop and Christopher T. Scanlan for Students
First as Amicus Curiae on behalf of Respondents.


      Horvitz & Levy, Jeremy B. Rosen, Robert H. Wright and Emily V. Cuatto for
Silicon Valley Leadership Group, California Business Roundtable, Foundation for
Excellence in Education, Orange County Business Council, California Chamber of
Commerce and Valley Industry & Commerce Association as Amici Curiae on behalf of
Respondents.


      Jenner & Block, Kenneth K. Lee, L. David Russell and Andrew G. Sullivan for
Education Trust—West, Oakland Alliance of Black Educators, Los Angeles Urban
League, Black Alliance for Education Options as Amici Curiae on behalf of Respondents.


      Dannis Woliver Kelley and Sue Ann Salmon Evans; Lozano Smith, Michael
Smith, Dulcinea Grantham, Keith J. Bray and Joshua R. Daniels for Education Legal
Alliance of the California School Boards Association as Amicus Curiae on behalf of
Respondents.




                                           4
      White & Case, Bryan A. Merryman, Elliott E. Dionisio and J. Taylor Akerblom
for Governors Arnold Schwarzenegger and Pete Wilson as Amici Curiae on behalf of
Respondents.


      Chandler & Shechet, Aaron Nathan Shechet and Leigh Anne Chandler for Adam
Kuppersmith, Karen Sykes-Orpe and Katherine Czujko as for Amici Curiae on behalf of
Respondents.


      Fagen Friedman & Fulfrost, Roy A. Combs, David Mishook and Alejandra Leon
for Association of California School Administrators as Amicus Curiae on behalf of
Respondents.


      Proskauer Rose, Lois D. Thompson and Irina Constantin for Current and Former
School Superintendents John White, Hanna Skandera, Paul Pastorek, Kevin S. Huffman
and Cami Anderson as Amici Curiae on behalf of Respondents.




            ___________________________________________________




                                           5
        In this lawsuit, nine students who were attending California public schools sued
the State of California and several state officials, seeking a court order declaring various
provisions of California’s Education Code unconstitutional. According to plaintiffs,
these provisions, which govern how K-12 public school teachers obtain tenure, how they
are dismissed, and how they are laid off on the basis of seniority, violate the California
Constitution’s guarantee that all citizens enjoy the “equal protection of the laws.” (Cal.
Const., art. I, § 7, subd. (a).) The matter went to trial. After hearing eight weeks of
evidence, the trial court issued a ruling declaring five sections of the Education Code—
sections 44929.21, subdivision (b), 44934, 44938, subdivisions (b)(1) and (b)(2), 44944,
and 449551— unconstitutional and void. Defendants have appealed this judgment.
        We reverse the trial court’s decision. Plaintiffs failed to establish that the
challenged statutes violate equal protection, primarily because they did not show that the
statutes inevitably cause a certain group of students to receive an education inferior to the
education received by other students. Although the statutes may lead to the hiring and
retention of more ineffective teachers than a hypothetical alternative system would, the
statutes do not address the assignment of teachers; instead, administrators—not the
statutes—ultimately determine where teachers within a district are assigned to teach.
Critically, plaintiffs failed to show that the statutes themselves make any certain group of
students more likely to be taught by ineffective teachers than any other group of students.
        With no proper showing of a constitutional violation, the court is without power to
strike down the challenged statutes. The court’s job is merely to determine whether the
statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent
Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the
particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a
facial equal protection challenge, meaning they challenged the statutes themselves, not
how the statutes are implemented in particular school districts. Since plaintiffs did not


1       Unless otherwise indicated, all further statutory references are to the Education
Code.


                                               6
demonstrate that the statutes violate equal protection on their face, the judgment cannot
be affirmed.
                                      BACKGROUND
I. California’s educational system
       The California Constitution requires “[t]he Legislature [to] provide for a system of
common schools.” (Cal. Const., art. IX, § 5.) Pursuant to this command, the state is
obligated to provide a free public education. (Los Angeles Unified School Dist. v. Garcia
(2013) 58 Cal.4th 175, 182.) “‘[M]anagement and control of the public schools [is] a
matter of state[, not local,] care and supervision. . . .’” (Butt v. State of California (1992)
4 Cal.4th 668, 681 (Butt).)
       The California Constitution also provides for the incorporation and organization of
school districts by the Legislature. (Cal. Const., art. IX, § 14.) Local school districts, as
agents of the state, are responsible for implementation of educational programs and
activities. (Ibid.; Butt, supra, 4 Cal.4th 668, 681.) “[T]he Legislature has assigned much
of the governance of the public schools to the local districts.” (Butt, at p. 681.)
       School districts are expected to operate as “strong, vigorous, and properly
organized local school administrative units.” (§ 14000.) To this end, the Legislature has
granted each district (through its governing board) the power to hire teachers (§§ 44830-
44834), to dismiss teachers (§§ 44932-44944), to fix teachers’ compensation (§§ 45022,
45032), and to accept their resignations (§ 44930). (See generally C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 871; Kavanaugh v. West Sonoma County
Union High School Dist. (2003) 29 Cal.4th 911, 916-918.)
       The power to assign teachers to specific schools or to transfer teachers between
schools within a district belongs to the district’s superintendent (§ 35035, subds. (e), (f)),
subject to conditions imposed by collective bargaining agreements (see Gov. Code,
§ 3543.2; United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54
Cal.4th 504, 515 [teacher transfer and reassignment policies are proper subjects of
collective bargaining]), and by statute (see § 35036, subd. (a) [prohibiting transfer of a
teacher to a low-performing school when principal objects]).

                                               7
II. The operative complaint
       In their operative first amended complaint against defendants,2 plaintiffs claimed
that the challenged statutes negatively impacted their right to an education by causing
“grossly ineffective” teachers to become employed and retain their employment in the
school system. Specifically, plaintiffs contended that: (1) the “tenure statute”
(§ 44929.21, subd. (b)) forced school districts to decide whether new, probationary
teachers should be granted tenure before the teachers’ effectiveness could be determined;
(2) the “dismissal statutes” (§§ 44934; 44938, subds. (b)(1), (2); 44944) made it nearly
impossible to dismiss poorly performing teachers; and (3) the “reduction-in-force statute”
(§ 44955) required school districts, in the event of layoffs, to terminate teachers based on
seniority alone, regardless of their teaching effectiveness.
       The first amended complaint identified two groups of students who allegedly were
denied equal protection because of the challenged statutes. The first group (Group 1) was
a “subset” of the general student population, whose “fundamental right to education” was
adversely impacted due to being assigned to grossly ineffective teachers. According to
plaintiffs, the students comprising this subset were located throughout the state, in all
sorts of schools, and were of substantially the same age and aptitude as students of the


2        At the time of trial, defendants were: The State of California; Edmund G. Brown,
Jr., in his official capacity as Governor of California; the California Department of
Education (CDE); the State Board of Education; and Tom Torlakson, in his official
capacity as State Superintendent of Public Instruction (the State defendants); as well as
California Teachers Association and the California Federation of Teachers (the intervener
defendants), who were granted leave to intervene as defendants prior to trial. The State
defendants and the intervener defendants filed separate briefs on appeal. Because the
positions taken by the two sets of defendants are, for the most part, essentially identical,
we generally refer to defendants collectively in this opinion. We reject the State
defendants’ contention that the governor is an improper defendant. Because public
education is ultimately a state obligation (Butt, supra, 4 Cal.4th 668, 680) and “[t]he
supreme executive power of this State is vested in the Governor” (Cal. Const., art. V,
§ 1), the Governor is a proper defendant in this lawsuit mounting a facial challenge to
five statutes of state-wide application. (See also In re Marriage Cases (2008) 43 Cal.4th
757 [Governor named as defendant]; White v. Davis (2003) 30 Cal.4th 528 [same].)


                                              8
general population. The Group 1 members were disadvantaged, however, because they
received a lesser education than students not assigned to grossly ineffective teachers.
       The second group (Group 2) allegedly impacted by the challenged statutes was
made up of minority and economically disadvantaged students. Plaintiffs alleged that
schools predominantly serving these students have more than their proportionate share of
grossly ineffective teachers, making assignment to a grossly ineffective teacher more
likely for a poor and/or minority student.
       The operative complaint sought a judgment (i) declaring the challenged statutes
unconstitutional for violating equal protection provisions of the California Constitution
and (ii) enjoining their enforcement.
III. The challenged statutes
       A. Tenure statute
       Under the tenure statute, in districts with more than 250 students, a probationary
teacher becomes a “permanent employee of the district” after finishing “two complete
consecutive school years in a position or positions requiring certification . . . .”
(§ 44929.21, subd. (b).) Each such district must notify a probationary teacher, on or
before March 15 of the teacher’s second consecutive school year, whether he or she will
be reelected as a permanent employee. (Ibid.) If a probationary teacher is not provided
notice by March 15, the teacher is deemed reelected. (Ibid.)
       B. Dismissal statutes
              1. Statutes at time of trial
       At the time of trial,3 the dismissal statutes operated as follows:
       Under section 44938, subdivision (b)(1), a school district that intends to dismiss a
permanent certificated teacher for “unsatisfactory performance” must provide the teacher



3       In 2014, the Legislature enacted Assembly Bill No. 215 (2013-2014 Reg. Sess.)
(Stats. 2014, ch. 55, §§ 3, 15), which made several changes to two of the dismissal
statutes, sections 44934 and 44944. These changes took effect on January 1, 2015, after
judgment was entered in this matter.


                                               9
with a “written notice of the unsatisfactory performance” specifying instances of
unsatisfactory behavior with enough particularity to allow the teacher an opportunity to
correct his or her faults. In order for the district to proceed with the dismissal process in
the same school year, it must issue the written notice prior to the last quarter of the school
year. (§ 44938, subd. (b)(2).) After the written notice is issued, the teacher is provided at
least 90 days to attempt to correct his or her deficient performance and overcome the
grounds for the charge. (§ 44938, subd. (b)(1).)
       Then, after the 90-day period has lapsed, the district must file a written statement
of charges and “give notice to the permanent employee of its intention to dismiss . . . .”
(Former § 44934.) The statement of charges of unsatisfactory performance must specify
instances of the teacher’s behavior and the conduct constituting the charge, the statutes
and rules violated (where applicable), and “the facts relevant to each occasion of alleged
. . . unsatisfactory performance.” (Ibid.)
       The teacher then has another 30 days to request a hearing on the dismissal charges.
(Former § 44934.) The hearing shall commence within 60 days of the teacher’s request.
(Former § 44944, subd. (a)(1).) The dismissal hearing is conducted by a three-member
panel called a “Commission on Professional Competence” (CPC), made up of one
administrative law judge and two teachers, one selected by the teacher subject to the
hearing and the other selected by the district. (Former § 44944, subds. (b)(1), (2).)
Parties to a CPC hearing have discovery rights generally equivalent to those of a party to
a civil action brought in superior court. (Former § 44944, subd. (a)(1).)
       Following the conclusion of the CPC hearing, the CPC must issue “a written
decision containing findings of fact, determination of issues, and a disposition” to either
dismiss the subject teacher, suspend the teacher for a specific period of time, or not
suspend or dismiss the teacher. (Former § 44944, subd. (c)(1).) The written decision is
deemed the “final decision” of the district. (Former § 44944, subd. (c)(4).) If the CPC
determines that the teacher should not be dismissed or suspended, the district is required
to pay the expenses for the dismissal hearing and the teacher’s attorney fees. (Former
§ 44944, subd. (e)(2).) If the teacher is dismissed or suspended, the parties split the

                                              10
expenses of the hearing and pay their own attorney fees. (Former § 44944, subd. (e)(1).)
A party may seek judicial review of the CPC’s decision. (§ 44945.)
              2. 2015 changes
       Aside from altering the order and notation of subdivisions, the 2015 revisions to
the dismissal statutes made several other changes.
       Among other changes, section 44934, subdivision (d), amending former section
44934, now requires a showing of “good cause” to amend written charges less than 90
days before the dismissal hearing. Section 44944, subdivisions (b)(1)(A) and (B),
amending former section 44944, subdivision (a)(1), now require a CPC hearing to
generally be commenced within six months of an employee’s demand for a hearing, and
for the hearing to generally be completed “by a closing of the record” within seven
months of the demand for a hearing, unless these deadlines are extended by the
administrative law judge. Section 44944, subdivision (c)(4), now allows a party to object
to the member of the CPC selected by the opposing party. Alternatively, under the
revised section 44944, subdivision (c)(1), if the parties mutually agree, they may waive
the right to convene a three member CPC and instead have the matter be determined by a
single administrative law judge. Discovery provisions, formerly found in section 44944,
subdivision (a), were also revised. Newly enacted section 44944.05 requires parties to
make initial disclosures of witnesses and documents, restricts parties to five depositions
per side absent good cause, and provides that discovery disputes be resolved by the
administrative law judge. (§ 44944.05, subds. (a), (c), (d).)
       C. Reduction-in-force statute
       When a school district must “decrease the number of permanent employees in the
district” pursuant to section 44955, “the services of no permanent employee may be
terminated . . . while any probationary employee, or any other employee with less
seniority, is retained to render a service which said permanent employee is certificated
and competent to render.” (§ 44955, subd. (b).) This seniority system requires that
permanent teachers be terminated in “the inverse of the order in which they were



                                             11
employed” (§ 44955, subd. (c)), meaning that a permanent teacher generally cannot be
terminated unless all teachers with less seniority have been terminated.
       Two exceptions allow a district to deviate from the seniority system in certain
circumstances: (1) if “[t]he district demonstrates a specific need for personnel to teach a
specific course or course of study” and the junior certificated teacher has special training
and experience that teachers with more seniority do not possess (§ 44955, subd. (d)(1)),
or (2) to maintain or achieve “compliance with constitutional requirements related to
equal protection of the laws” (§ 44955, subd. (d)(2)).
IV. Trial
       Plaintiffs initially sued three school districts (Los Angeles Unified School District,
Oakland Unified School District, and Alum Rock Union) in addition to the State
defendants. Prior to trial, plaintiffs dismissed these districts as defendants, opting to
pursue a facial challenge to the statutes instead of one focusing on implementation.
       The trial court conducted a bench trial. Over 50 lay and expert witnesses testified,
including teachers, principals, superintendents, and CDE employees.
       A. Plaintiffs’ evidence
              1. The importance of effective teachers
       At trial, plaintiffs elicited testimony from numerous witnesses who agreed that
effective teachers are vital to a child’s education. Along these lines, plaintiffs introduced
into evidence a CDE publication stating, “The academic success of California’s diverse
students is inextricably tied to the quality and commitment of our educator workforce.”
       Plaintiffs called expert witnesses who testified that a teacher’s effectiveness can be
assessed and measured, and that ineffective teachers can be identified. Raj Chetty, a
professor of economics at Harvard University, conducted a voluminous analysis of school
and tax records, and concluded that teacher effectiveness has a profound effect on
students’ long-term success, including whether they attend college and how much they
earn as adults. Chetty opined, based on studies he conducted using “VAM”—“value-
added” modeling or methodology—that having a highly effective teacher significantly
improves a child’s outcomes, while having a highly ineffective teacher does substantial

                                              12
harm. According to Chetty, highly ineffective teachers, which he defined as the worst
5 percent of teachers (based on value-added measurements), had long-term negative
impacts. He estimated that the lifetime aggregate earnings of a classroom of students
taught for one year by a highly ineffective teacher was $1.4 million less than a classroom
taught by an average teacher.
       Thomas Kane, a professor of education and economics at the Harvard Graduate
School of Education, conducted a study concluding that effective and ineffective teachers
could be identified by measures including student achievement gains, as well as
classroom observations and student surveys. Based on a study of Los Angeles Unified
School District (LAUSD), which included data on 58,000 teachers and 3.9 million
student test scores (but did not include classroom observations or student surveys), Kane
determined that students assigned to teachers in the lowest 50th percentile of
effectiveness lost an estimated nine and one-half to 11 and one-half months of learning
when compared to students assigned to an average teacher.
       Numerous other witnesses testified that highly ineffective teachers impede a
child’s access to a reasonable education. Furthermore, although a host of factors,
including child poverty and safety, affect student achievement, teachers nevertheless have
a highly important and significant impact on student learning.
              2. Difficulties with the challenged statutes
       Various witnesses testified that the period provided for in the tenure statute is too
short for administrators to make a reasoned determination of a probationary teacher’s
effectiveness when deciding whether to reelect the teacher as a permanent employee.
The statute requires that a probationary teacher be notified of any reelection decision by
March 15 of the teacher’s second year (§ 44929.21, subd. (b)), but, because the process of
evaluating a reelection decision takes time, principals generally must determine before
March whether a teacher should be reelected.4


4      Evidence showed that California was one of five states nationwide with a
probationary period of two years or fewer.


                                             13
       Witnesses familiar with the process estimated that, including summer months,
principals have approximately 16 months to make a reelection decision. One witness,
John Deasy, then-superintendent of LAUSD, testified that there is “no way” the time
provided by the statute is “a sufficient amount of time to make . . . that incredibly
important judgment” of reelection. Another witness, Mark Douglas, assistant
superintendent in the Fullerton School District, stated that most teachers do not “hit full
stride” until three to five years of teaching, and that it could be a “crapshoot” determining
whether a beginning teacher would develop into an effective one. Two expert witnesses
called by defendants testified consistently, both agreeing that a probationary period of
three to five years would be superior to the current timeline for identifying teachers
worthy of reelection. According to several witnesses called by plaintiffs, the tenure
statute’s short probationary period prevented administrators from making adequately
informed reelection decisions, resulting in highly ineffective teachers being retained as
permanent employees.
       Plaintiffs also presented evidence relevant to their assertion that the process of
dismissing a teacher for unsatisfactory performance is time-consuming and expensive.
Performance-based teacher dismissal proceedings lasted anywhere from one to 10 years
before completion, and costs ranged from $50,000 to $450,000. In addition to the
proceeding itself, the process of documenting a teacher’s deficiencies could take years.
Witnesses familiar with the dismissal process testified that the time and cost of the
proceedings were a significant disincentive to initiating dismissal proceedings. Because
of these issues, districts rarely proceeded with formal dismissal proceedings against
highly ineffective teachers. Plaintiffs presented evidence showing that, from 2003 to
2013, approximately two teachers statewide were dismissed on average per year for
unsatisfactory performance by completion of the full formal dismissal process, out of an
approximate total K-12 public school teacher population of 277,000. Meanwhile, the
chief labor negotiator and former chief human resources officer of LAUSD, Vivian
Ekchian, testified that during the 2012-2013 school year alone, LAUSD would have



                                             14
sought to dismiss approximately 350 teachers for unsatisfactory performance if the
dismissal process were streamlined.
       Regarding the reduction-in-force statute, plaintiffs’ witnesses testified that the
seniority system often resulted in highly effective teachers being terminated while grossly
ineffective teachers kept their jobs.5 According to Douglas, this situation occurred
because, “The layoff process is denoted by seniority, not on skills.” A further effect of
the seniority system was that it could lead local administrators to replace a laid-off
teacher with one unfamiliar with the subject matter. Using data on LAUSD student test
scores and teacher assignments, Chetty calculated that 48 percent of teachers terminated
during reductions-in-force were more effective than the average teacher in the district,
while approximately 5 percent of teachers terminated were above the 95th percentile in
terms of effectiveness—meaning that retentions under the seniority system have little if
any correlation with effectiveness.
              3. Low-income and minority students
       Plaintiffs presented evidence that ineffective teachers are often transferred into and
concentrated in schools that predominantly serve minority6 and low-income children.
Douglas testified about a phenomenon, referred to colloquially as the “dance of the
lemons,” in which certain principals, seeking to improve the quality of their own schools’
teacher pool, attempt to transfer poorly performing teachers to other schools within the
district. According to Douglas, the poorly performing teachers often end up at schools
serving poor and minority students because, unlike schools serving more affluent


5      Plaintiffs’ evidence demonstrated California was one of 10 states that mandate
seniority be considered when conducting teacher layoffs.
6      The minority children referred to at trial included Latino and African-American
students. From evidence presented in the case, it appears that Latino students constitute
approximately 50 percent of California public school children, making the term
“minority” a possible misnomer in this context. Nevertheless, for purposes of
consistency with the record and the appellate briefs, our use of the term “minority”
includes reference to Latino students.


                                             15
students, students at schools impacted by the transfers generally have “families who
aren’t used to the education system . . . [and] don’t know what to look for in a great
teacher . . . . And so sometimes they won’t complain about a teacher that [is] at low-end
schools because they are not familiar and [do not] know how to navigate through the
system. And so a teacher can exist without parent pressure at a lower-end school.”7 Bill
Kappenhagen, a principal in the San Francisco Unified School District, also spoke of the
“dance of the lemons” and how grossly ineffective teachers are “shuffled around from
school to school,” often landing in schools serving poor and minority students. A 2007
CDE publication corroborated this testimony, stating: “[T]ransfers often functioned as a
mechanism for teacher removal. . . . Not surprisingly, the poorly performing teachers
generally are removed from higher-income or higher-performing schools and placed in
low-income and low-performing schools.”
       Plaintiffs’ expert witness Kane testified that ineffective teachers in LAUSD are
disproportionately assigned to African-American and Latino students. According to
Kane, Latino and African-American students in LAUSD are, respectively, 68 percent and
43 percent more likely than white students to be taught by a teacher in the lowest
5 percent for effectiveness. Kane testified that this disproportionate distribution “could”
be a result of the requirement of determining teacher effectiveness quickly due to the
short probationary period, and the difficulties of dismissing ineffective teachers under the
dismissal process. Kane further stated that, in a system where tenure decisions are made
prematurely and dismissals are difficult to obtain, ineffective teachers will “tend to”
accumulate in schools with the most teacher vacancies, which often are those serving
Latino and African-American students.
       Plaintiffs also presented evidence that schools in some districts serving low-
income and minority students have higher proportions of inexperienced teachers and
experience more layoffs. Arun Ramanathan, an expert witness retained by plaintiffs and


7      Evidence showed that transfers of poorly performing teachers also had a
disproportionate impact on such schools because they tended to have more vacancies.


                                             16
executive director of an organization called Education Trust-West, testified that his
organization conducted a study of three large California school districts and found that
students attending schools in the highest poverty quartile were 65 percent more likely to
experience a teacher layoff than those in the lowest poverty quartile. And Jonathan
Raymond, former superintendent of the Sacramento City Unified School District,
observed “a constant churn of the faculty and staff” at high-poverty, high-minority
schools due to the seniority-based reduction-in-force statute.
              4. Teacher assignment decisions
       Witnesses called by plaintiffs acknowledged that decisions on how and where to
assign and transfer teachers are made by local administrators, and that such decisions are
often influenced by collective bargaining agreements between the districts and the
teachers. Some collective bargaining agreements allow certain teachers to choose where
they want to teach within a district. Teachers with such an option often choose not to
teach at schools predominantly serving low-income and minority children because the
schools can have challenging working conditions.
       B. Defendants’ evidence
              1. Teacher effectiveness
       David Berliner, an educational psychologist and professor emeritus from Arizona
State University, testified that in-school effects on children’s achievement were generally
overstated when compared to out-of-school effects. Berliner opined that student test
scores were rarely under a teacher’s control, and were more often determined by peer-
group composition of the group tested, including students’ social class and their parents’
educational level. Berliner estimated that teachers account for approximately 10 percent
of variation in aggregate scores, with the remaining 90 percent attributable to other
factors. Berliner further stated that VAM was “notoriously unreliable and therefore
invalid” in assessing educational outcomes. Under cross-examination, however, Berliner
acknowledged that a VAM analysis utilizing four years of data should be able to identify
“very bad” teachers. He agreed that a small percentage of teachers—approximately



                                            17
1 to 3 percent—consistently have strong negative effects on student outcomes, regardless
of the classroom and school composition.
       Linda Darling-Hammond, a professor of education at Stanford University, testified
that there were several problems with using test scores as a definitive indicator of a
teacher’s effectiveness, including that tests often do not measure the material taught by a
teacher, and that test score improvements or declines may be attributable to factors other
than the teacher.
              2. Purpose and implementation of the statutes
       Several witnesses called by defendants testified that, in theory and practice, the
challenged statutes protect teachers from arbitrary discipline and dismissal, and that they
promote academic freedom. Jesse Rothstein, a professor of economics and public policy
at the University of California, Berkeley, conducted a study regarding effects of the
tenure and dismissal statutes, and found that the statutes help districts attract and retain
teachers, because the statutes provide job security. Lynda Nichols, an education program
consultant with the CDE and a former teacher, testified that during her teaching career,
parents complained when she taught about subjects including Islam and Catholicism.
Nichols believed that her status as a permanent employee, because it provided job
protections, insulated her from potential retribution by parents and the local school board.
       With regard to the probationary period provided by the tenure statute, Susan Mills,
assistant superintendent of personnel for the Riverside Unified School District, testified
that the period provided sufficient time to make a permanent employee reelection
decision. Other witnesses called by defendants testified consistently. Deasy and
Douglas, witnesses called by plaintiffs, stated that if administrators had any doubt about
the effectiveness of a teacher prior to reelection, tenure would be refused. Deasy further
acknowledged that when LAUSD moved from a “passive” tenure system to an
“affirmative” one, requiring a more thorough review of a probationary teacher’s abilities,
the rate of tenure dropped from being “virtually automatic” to 50 percent. Darling-
Hammond, defendants’ expert witness, opined that the relatively short probationary
period forced districts to make reelection decisions quickly, and that lengthening the

                                              18
period could result in highly ineffective probationary teachers remaining in the classroom
longer.
       Multiple school administrators called by defendants testified that, under the
dismissal statutory scheme, they are able to remove poorly performing teachers. Robert
Fraisse, former superintendent of Laguna Beach Unified School District, Conejo Valley
Unified School District, and Hueneme Elementary School District, testified that he was
able to use various strategies for resolving dismissals short of the formal dismissal
process. These included: letting poorly performing teachers know that there were
serious concerns, which often led to resignation; paying a small amount of compensation
in return for a resignation; and working with teachers’ associations that could counsel
suspect teachers to resign. Other administrators testified that the majority of potential
teacher dismissals are resolved through resignation, settlement, retirement, or remediation
rather than a CPC hearing.
       Records from LAUSD showed that a larger number of teachers resigned to avoid
the formal dismissal process than those who elected to go through the process. These
records also showed that the number of teachers dismissed or resigning to avoid dismissal
increased from a total of 16 in 2005-2006 to a total of 212 in 2012-2013. This change
was due in part to an LAUSD policy of initiating the dismissal process whenever a
teacher received two below-standard evaluations. From May 2007 through April 2013,
LAUSD negotiated 191 settlements to informally resolve dismissal cases, with a total
payout of slightly more than $5 million, approximately $26,000 per teacher.
       As for the reduction-in-force statute, Fraisse testified that “it is a fair method that
is perceived as fair,” and that he was not aware of “a better, more objective system than
seniority.”8 Defendants’ expert Rothstein agreed, and believed that there were a number
of advantages to a seniority-based system when compared to a performance-based one: it


8      Various witnesses testified that schools had utilized the skipping exception to the
seniority requirement found in section 44955, subdivision (d)(1), to retain certain less-
senior teachers.


                                              19
was easier and less costly to administer, it allowed teachers to focus on teaching rather
than test scores, and it was not subject to dubious evaluations of effectiveness. Other
witnesses testified that incorporating effectiveness rankings into layoff decisions would
deter cooperation among teachers. Susan Moore Johnson, a professor of education at the
Harvard Graduate School of Education, conducted a study of four school districts in other
jurisdictions with policies allowing for performance-based layoffs, and found that the
districts opted to use seniority instead, because ranking for effectiveness was difficult and
contentious.
               3. Teacher distribution
       Witnesses called by both plaintiffs and defendants testified that decisions on how
and where to assign and transfer teachers are determined by local school district
administrators and collective bargaining agreements.
       Defendants also presented evidence that societal circumstances pose challenges to
the retention and assignment of teachers. According to a 2006 study, 22 percent of new
teachers in California leave the profession within their first four years, and according to a
2001 study, the attrition rate nationally is 50 percent greater in high-poverty schools
when compared to more affluent ones. Several witnesses stated that difficult working
conditions impaired districts’ efforts to recruit or retain experienced teachers at
disadvantaged schools. Rothstein testified that, over the past half-century, teacher
salaries had fallen a significant amount when compared to jobs requiring a similar degree
of educational attainment.
       Some districts attempted to address discrepancy between low- and high-income
schools by assigning higher performers to lower income schools. Mills, the Riverside
assistant superintendent, testified that there was no disparity in teacher quality between
schools in her district serving low-income and higher-income students. Part of the reason
was that the district tended to assign its “stronger leaders” to the poorer schools. Fraisse
testified that during his years at Hueneme Elementary School District in the late 1990’s,
the district assigned its “best principals” to the highest-need schools, which encouraged
highly effective teachers to migrate to those schools “because of the leadership.”

                                             20
V. Statement of decision and judgment
       On June 10, 2014, the trial court issued a 16-page tentative decision, finding the
challenged statutes unconstitutional under the equal protection clause of the California
Constitution.
       In its decision, the trial court noted that in Serrano v. Priest (1971) 5 Cal.3d 584
(Serrano I) and Serrano v. Priest (1976) 18 Cal.3d 728 (Serrano II), our Supreme Court
held education to be a fundamental interest and struck down the then-operative school
financing system for violating the equal protection provisions of the California
Constitution (Cal. Const., art. IV, § 16; art. I, § 7). (See Serrano II, supra, 18 Cal.3d 728,
776.) The trial court also discussed Butt, in which the Supreme Court held that students
in the Richmond Unified School District would be deprived of their right to basic
educational equality if the district closed its schools six weeks early due to a budgetary
shortfall. (See Butt, supra, 4 Cal.4th 668, 685, 692.) In light of this legal authority, the
trial court characterized its task as determining whether the challenged statutes “cause the
potential and/or unreasonable exposure of grossly ineffective teachers to all California
students in general and to minority and/or low income students in particular, in violation
of the equal protection clause of the California Constitution.” Answering this question
affirmatively, the court determined that plaintiffs “met their burden of proof on all issues
presented.”
       The trial court found that competent teachers are a critical component of the
success of a child’s educational experience, and that grossly ineffective teachers
substantially undermine the ability of a child to succeed in school. It further found that
evidence presented at trial on the effects of grossly ineffective teachers was compelling
and “shocks the conscience.” The court wrote there was “no dispute” that a significant
number of grossly ineffective teachers are active in California classrooms and, based on
the testimony of defendants’ expert Berliner, estimated this number to comprise 1 to 3
percent of California teachers—or approximately 2,750 to 8,250 teachers. Based on its
determination that the challenged statutes (i) impose a “real and appreciable impact” on
students’ fundamental rights to equality of education, and (ii) “impose a disproportionate

                                              21
burden on poor and minority students,” the court employed a “strict scrutiny”
examination of the challenged statutes.
       With respect to the tenure statute, the trial court found “extensive evidence” that
the probationary period “does not provide nearly enough time for an informed decision to
be made regarding the decision of tenure.” As a result, “teachers are being reelected who
would not have been had more time been provided for the process,” and students “are
unnecessarily, and for no legally cognizable reason (let alone a compelling one),
disadvantaged by the current [tenure statute].” The court determined that defendants had
not met their burden under the strict scrutiny standard and declared the tenure statute
unconstitutional.
       Turning to the dismissal statutes, the trial court found that, based on the evidence
presented, the dismissal process’s time and costs cause districts to be very reluctant to
commence dismissal procedures. Due to this situation, “grossly ineffective teachers are
being left in the classroom because school officials do not wish to go through the time
and expense to investigate and prosecute these cases.” The court further found that due
process for tenured teachers is a legitimate concern, but the dismissal statutes “present the
issue of über due process.” In concluding that defendants failed to meet their burden
under the strict scrutiny standard, the court wrote: “There is no question that teachers
should be afforded reasonable due process when their dismissals are sought. However,
based on the evidence before this Court, it finds the current system . . . to be so complex,
time consuming and expensive as to make an effective, efficient yet fair dismissal of a
grossly ineffective teacher illusory.”
       Regarding the reduction-in-force statute, the trial court noted it contained no
exception based on teacher effectiveness. Therefore, the court found, because the “last-
hired” teacher is statutorily mandated to be “first fired” when layoffs occur, students are
separated from competent junior teachers while incompetent teachers with seniority
remain in the classroom. “The result is classroom disruption on two fronts, a lose-lose
situation.” Again, the court found that defendants did not carry their burden under the
strict scrutiny test, and deemed the reduction-in-force statute unconstitutional.

                                             22
       Finally, the trial court determined that substantial evidence showed the challenged
statutes disproportionately affect poor and/or minority students. Citing to the 2007 CDE
report, it found that students attending high-poverty, low-performing schools were far
more likely than wealthier peers to attend schools with a disproportionately high number
of underqualified, inexperienced, and ineffective teachers. The court further found that
the “dance of the lemons”—where poorly performing teachers are transferred from
school to school—was caused by the lack of effective dismissal statutes and the
reduction-in-force statute, and that it affected high-poverty and minority students
disproportionately.
       After the trial court issued its tentative decision, the parties each requested a
statement of decision pursuant to Code of Civil Procedure section 632. In their request,
defendants sought rulings on a broad set of subjects, including (i) whether plaintiffs, in
bringing an equal protection challenge, were required to prove that the statutes classified
students in an unequal manner; (ii) whether plaintiffs were required to prove that the
statutes inevitably posed a total and fatal conflict with the right to basic educational
equality; and (iii) whether school districts had the authority to decide where teachers
would be assigned to teach. The trial court did not respond to these questions, but instead
ruled that defendants’ requests for statement of decision were improper because they
covered matters going beyond the principal controverted issues at trial. The court
ordered that its tentative decision become the proposed statement of decision and
judgment. Defendants filed objections to the proposed statement of decision and
judgment. The trial court overruled these objections, and issued the final statement of
decision and judgment (the judgment) on August 27, 2014.
       The judgment replicated the earlier-issued tentative decision, concluding that the
challenged statutes are unconstitutional. The trial court ordered the statutes enjoined, and
stayed all injunctions pending appellate review.




                                              23
                                       DISCUSSION
I. Key principles
       A. Review
       The constitutionality of a statute is a question of law, which we review de novo.
(Sanchez v. State of California (2009) 179 Cal.App.4th 467, 486 (Sanchez); Bernardo v.
Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 360.) De novo
review is also the general standard of review when a mixed question of law and fact
implicates constitutional rights. (People v. Cromer (2001) 24 Cal.4th 889, 894; Silicon
Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44
Cal.4th 431, 448-449.) Mixed questions of law and fact arise when “‘“historical facts are
admitted or established, the rule of law is undisputed, and the issue is whether the facts
satisfy the [relevant] statutory [or constitutional] standard, or to put it another way,
whether the rule of law as applied to the established facts is or is not violated.”’” (People
v. Cromer, supra, 24 Cal.4th at p. 894, quoting Ornelas v. United States (1996) 517 U.S.
690, 696-697, Pullman-Standard v. Swint (1982) 456 U.S. 273, 289, fn. 19.) De novo
review is generally appropriate in such circumstances “‘“because usually the application
of law to fact will require the consideration of legal concepts and involve the exercise of
judgment about the values underlying legal principles.”’” (Haworth v. Superior Court
(2010) 50 Cal.4th 372, 385.) To the extent our review requires us to analyze factual
determinations based on evidence presented at trial, we review the trial court’s findings
of fact for substantial evidence. (Serrano II, supra, 18 Cal.3d 728, 776; Board of
Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1127-1130.)
       As with any legislative act, statutes relating to education are provided a
presumption of constitutionality, and doubts are resolved in favor of a finding of validity.
(Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 260
(Arcadia Unified).) Our obligation as the court is to “enforce the limitations that the
California Constitution imposes upon legislative measures” and determine if a statute
violates constitutional protections. (In re Marriage Cases, supra, 43 Cal.4th 757, 849-
850.) Policy judgments underlying a statute are left to the Legislature; the judiciary does

                                              24
not pass on the wisdom of legislation. (Estate of Horman (1971) 5 Cal.3d 62, 77
[“Courts do not sit as super-legislatures to determine the wisdom, desirability or propriety
of statutes enacted by the Legislature”]; Gassman v. Governing Board (1976) 18 Cal.3d
137, 148; Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1219.)9
       B. Facial challenge
       Both plaintiffs and defendants characterize this case—which seeks to enjoin any
enforcement of the tenure, dismissal, and reduction-in-force statutes—as a facial
challenge to the constitutionality of the subject statutes. “A facial challenge to the
constitutional validity of a statute . . . considers only the text of the measure itself, not its
application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1084 (Tobe); see also id. at pp. 1087-1088 [action, which sought
to enjoin “any enforcement” of ordinance, was a facial attack].) In contrast, an “as
applied” constitutional challenge seeks “relief from a specific application of a facially
valid statute or ordinance,” or an injunction against future application of the statute or
ordinance in the manner in which it has previously been applied. (Id. at p. 1084; see also
Sanchez v. Modesto (2006) 145 Cal.App.4th 660, 665.) A plaintiff seeking to void a
statute as a whole for facial unconstitutionality “‘cannot prevail by suggesting that in
some future hypothetical situation constitutional problems may possibly arise as to the
particular application of the statute . . . . Rather, [the plaintiff] must demonstrate that the
act’s provisions inevitably pose a present total and fatal conflict with applicable
constitutional prohibitions.’” (Arcadia Unified, supra, 2 Cal.4th 251, 267.) A person
may bring a facial challenge by showing that “the subject of [the] particular challenge has
the effect of infringing some constitutional or statutory right” (Holmes v. California Nat.
Guard (2001) 90 Cal.App.4th 297, 315), but need not necessarily show that he or she has
personally suffered this infringement (see ibid.; Arcadia Unified, supra, 2 Cal.4th at
p. 267; In re M.S. (1995) 10 Cal.4th 698, 709-710).

9      The intervener defendants’ request for judicial notice, filed on May 1, 2015, is
granted except as to exhibit 3. Plaintiffs’ request for judicial notice, filed on June 24,
2015, is denied except as to exhibits F, K, L, and T.

                                               25
       Plaintiffs did not attempt to establish that the statutes were applied
unconstitutionally to a particular person, the type of challenge made in an as-applied
case. (See Tobe, supra, 9 Cal.4th 1069, 1084.) Instead, plaintiffs’ challenge “sought to
enjoin any application of the [statutes] to any person in any circumstance.” (See id. at p.
1087.) Plaintiffs’ case, therefore, is properly characterized as a facial challenge.10
       C. Equal protection
       The right to equal protection is guaranteed by the California Constitution. (Cal.
Const., arts. I, § 7, subds. (a), (b), IV, § 16, subd. (a);11 Butt, supra, 4 Cal.4th 668, 678.)
       As its name suggests, equal protection of the laws assures that people who are
“‘similarly situated for purposes of [a] law’” are generally treated similarly by the law.
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley).) Thus, “‘[t]he first
prerequisite to a meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner.’” (Ibid., italics omitted.) The equal protection clause applies to laws
that “‘discriminate explicitly between groups of people,’” as well as laws that, “‘though
evenhanded on their face, in operation have a disproportionate impact on certain
groups.’” (Sanchez, supra, 179 Cal.App.4th 467, 487; see also Arcadia Unified, supra, 2


10      Defendants contend that the 2015 amendments to the dismissal statutes render the
plaintiffs’ entire lawsuit moot. A lawsuit does not become moot on appeal when a
statutory amendment leaves “a material portion of the statute” untouched. (Californians
for Political Reform Foundation v. Fair Political Practices Com. (1998) 61 Cal.App.4th
472, 480.) The 2015 amendments to the dismissal statutes do not impact either the tenure
statute or the reduction-in-force statute and do not significantly differ from the dismissal
statutes in effect at the time of trial, at least with respect to the claims at issue here. Thus,
they do not moot plaintiffs’ case.
11     Article I, section 7, subdivision (a), of the California Constitution provides, in
pertinent part, “[a] person may not be . . . denied equal protection of the laws. . . .”
Article I, section 7, subdivision (b), provides “[a] citizen or class of citizens may not be
granted privileges or immunities not granted on the same terms to all citizens. . . .”
Article IV, section 16, subdivision (a), states: “All laws of a general nature have uniform
operation.”


                                               26
Cal.4th 251, 266 [claim that school transportation fees discriminated against poor may
have had merit if not for payment exemption for indigent children]; Hardy v. Stumpf
(1978) 21 Cal.3d 1, 7-8 (Hardy) [examining facially neutral physical agility test under
equal protection inquiry]; Personnel Administrator of Mass. v. Feeney (1979) 442 U.S.
256 [employing equal protection review of a veterans’ preference statute that operated to
the disadvantage of women].)
       When a statute affects similarly situated groups in an unequal manner, the court
examines whether the Legislature has a constitutionally sufficient reason to treat the
groups differently. (In re Marriage Cases, supra, 43 Cal.4th 757, 831.) One of two
standards can apply to this analysis. (Id. at p. 832.) The first, “‘rational relationship’” or
“‘rational basis’” review, is “‘“the basic and conventional standard for reviewing
economic and social welfare legislation in which there is a ‘discrimination’ or
differentiation of treatment between classes or individuals.”’” (Hernandez v. City of
Hanford (2007) 41 Cal.4th 279, 298 (Hernandez)). Under this test, a statutory
classification will be upheld if it “‘bear[s] some rational relationship to a conceivable
legitimate state purpose.’” (California Grocers Assn. v. City of Los Angeles (2011) 52
Cal.4th 177, 209.) The second standard, “‘strict scrutiny’” review, is employed when the
“distinction drawn by a statute rests upon a so-called ‘suspect classification’ or impinges
upon a fundamental right.” (In re Marriage Cases, supra, 43 Cal.4th at p. 783.) When a
statutory classification impinges a fundamental right (and does not involve a suspect
classification), strict scrutiny will apply unless the effect on the fundamental right is
merely “incidental,” “marginal,” or “minimal.” (Fair Political Practices Com. v.
Superior Court (1979) 25 Cal.3d 33, 47; In re Flodihn (1979) 25 Cal.3d 561, 568; Gould
v. Grubb (1975) 14 Cal.3d 661, 670 (Gould).) Under the strict scrutiny standard,
“‘“‘“the state bears the burden of establishing not only that it has a compelling interest
which justifies the law but that the distinctions drawn by the law are necessary to further
its purpose.”’”’” (In re Marriage Cases, supra, 43 Cal.4th at p. 832; Serrano I, supra,
5 Cal.3d 584, 597.)



                                              27
II. Analysis
       As explained above, plaintiffs contend that the challenged statutes create an
oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary
period is too short, preventing the identification of grossly ineffective teachers before the
mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are
identified, it is functionally impossible to terminate them under the overly burdensome
and complicated dismissal statutes; and (iii) when reductions-in-force are required, the
statute requires the termination of junior, competent teachers while more senior, grossly
ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued,
and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky
subset” of students within the population of students at large) and Group 2 (poor and
minority students)—were denied equal protection because the challenged statutes led
members of these groups to be assigned to grossly ineffective teachers.
       We examine whether plaintiffs demonstrated that the challenged statutes cause a
certain class of students to suffer an equal protection violation.
       A. Group 1: No identifiable class under equal protection analysis
       Plaintiffs describe Group 1 as an “unlucky subset” of the general student
population that is denied the fundamental right to basic educational equality because
students within this subset are assigned to grossly ineffective teachers. According to
plaintiffs, the students comprising Group 1 are, in all pertinent respects, similar to the
population of students at large, except for their exposure to grossly ineffective teachers.
In the judgment, the trial court found that the challenged statutes are unconstitutional
because they lead students within Group 1 to be assigned to grossly ineffective teachers
and thereby have a real and appreciable impact on these students’ fundamental right of
education.
       The trial court’s judgment, however, omits analysis of a key preliminary question:
Is the unlucky subset of students comprising Group 1 a sufficiently identifiable group for
purposes of an equal protection action? “In equal protection analysis, the threshold
question is whether the legislation under attack somehow discriminates against an

                                              28
identifiable class of persons. [Citation.] Only then do the courts ask the further question
of whether this identifiable group is a suspect class or is being denied some fundamental
interest, thus requiring the discrimination to be subjected to close scrutiny.” (Altadena
Library Dist. v. Bloodgood (1987) 192 Cal.App.3d 585, 590 (Altadena Library); quoted
approvingly in Santa Clara County Local Transportation Authority v. Guardino (1995)
11 Cal.4th 220, 258 (Guardino).)
       Here, the unlucky subset is not an identifiable class of persons sufficient to
maintain an equal protection challenge. Although a group need not be specifically
identified in a statute12 to claim an equal protection violation (see Butt, supra, 4 Cal.4th
668, 673; Somers v. Superior Court (2009) 172 Cal.App.4th 1407, 1414 (Somers)), group
members must have some pertinent common characteristic other than the fact that they
are assertedly harmed by a statute (see Altadena Library, supra, 192 Cal.App.3d 585,
590-591; Guardino, supra, 11 Cal.4th 220, 258).
       The defining characteristic of the Group 1 students, who are allegedly harmed by
being assigned to grossly ineffective teachers, is that they are assigned to grossly
ineffective teachers. Such a circular premise is an insufficient basis for a proper equal
protection claim. (See Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196, 1205
[dismissing an equal protection claim as “tautological” when the defining characteristic
of the alleged class harmed was that they were allegedly harmed].) To avoid this
circularity, a group must be identifiable by a shared trait other than the violation of a
fundamental right.
       Plaintiffs argue that a class need only be identifiable when the asserted equal
protection violation stems from the differential treatment of a suspect class, rather than
the infringement of a fundamental right. For support, they cite Moreno v. Draper (1999)

12       Plaintiffs’ “subset” of students is not identified in the text of the challenged
statutes. Rather, the subject of the statutes is teachers and, although the text of the
statutes may create classifications on their face, these classifications pertain to teachers:
i.e., (i) the tenure statute classifies between probationary and tenured teachers; (ii) the
dismissal statutes classify teachers by whether they are facing dismissal hearings; and
(iii) the reduction-in-force statute classifies based on teachers’ seniority.

                                              29
70 Cal.App.4th 886, 893 (Moreno). But Moreno does not support their argument. The
statute at issue in Moreno, which the plaintiff claimed infringed the fundamental right to
raise one’s children, “create[d] two classes of parents paying child support—those with
children receiving public assistance and those with children not receiving public
assistance.” (Id. at p. 888.) Indeed, every equal protection case based on the
infringement of a fundamental right has involved a class identified by some characteristic
other than asserted harm. In Butt, the classes were the students of the Richmond Unified
School District, who would be harmed by the closing of schools, and the students outside
that district. (4 Cal.4th 668, 687.) In the Serrano cases, the impairment of the
fundamental right to education was suffered by students living in relatively poor school
districts, which had less taxable wealth and therefore, under the then-existent financing
systems, lower levels of educational expenditures. In other words, students were
impacted by the system based on their residency. (Serrano I, supra, 5 Cal. 3d 584, 592-
595, 614; Serrano II, supra, 18 Cal.3d 728, 756-759, 765-766.) In In re Marriage Cases,
the classes were defined by sexual orientation. (43 Cal.4th 757, 839.) And in Gould,
which examined the constitutionality of an election procedure affording incumbents the
top ballot position, the classes were defined by candidates (and their supporters) listed
first on the ballot and those listed later. (14 Cal.3d 661, 664.)
       In contrast, the unlucky subset constituting Group 1 is definable only by the
characteristic that group members have assertedly suffered constitutional harm. What is
more, the statutes do not assist plaintiffs with their definitional deficiency because they
do not specify which students will be the “unlucky ones.” In Gould, our Supreme Court
held that a system that assigned ballot position randomly would not violate equal
protection because, since all candidates had an equal chance of obtaining the top position,
it would not “continually work a disadvantage upon a fixed class of candidates.” (14
Cal.3d 661, 676.) The claimed effect on students here is analogous. Under plaintiffs’
Group 1 theory, an unlucky subset of students will inevitably be assigned to grossly
ineffective teachers. The chance that this will happen to any individual student, however,
is random, as the challenged statutes do not make any one student more likely to be

                                              30
assigned to a grossly ineffective teacher than any other student. Thus, the unlucky subset
is nothing more than a random assortment of students. Moreover, because (according to
the trial court’s findings) approximately 1 to 3 percent of California teachers are grossly
ineffective, a student in the unlucky subset one year will likely not be the next year,
meaning that the group is subject to constant flux.
       The claimed unlucky subset, therefore, is not an identifiable class sufficient to
maintain an equal protection claim, and the judgment, insofar as it is based on plaintiffs’
Group 1 theory, cannot be affirmed.
       B. Group 2: No inevitable constitutional violation
       The trial court also found that poor and minority students (Group 2) suffered
disproportionate harm from being assigned to grossly ineffective teachers. Race is
generally considered a “suspect classification” under equal protection analysis.13 (See
In re Marriage Cases, supra, 43 Cal.4th 757, 843; Weber v. City Council (1973) 9 Cal.3d
950, 959.) In the context of education, under California law, wealth is considered a
suspect classification as well. (See Serrano I, supra, 5 Cal.3d 584, 617; Serrano II,
supra, 18 Cal.3d 728, 766.) Based on its finding of disproportionate harm, the trial court
determined that strict scrutiny of the challenged statutes was appropriate. In making this
determination, however, the trial court bypassed an initial question of the required
analysis: Did the challenged statutes cause low-income and minority students to be
disproportionately assigned to grossly ineffective teachers?
       A statute is facially unconstitutional when the constitutional violation flows
“inevitably” from the statute, not the actions of the people implementing it. (Pacific



13     Some cases have held that strict scrutiny only applies to a facially neutral statute
that has a disproportionate impact on members of minority groups if discriminatory
purpose or intent is shown. (See Manduley v. Superior Court (2002) 27 Cal.4th 537,
568-569; Sanchez, supra, 179 Cal.App.4th 467, 487.) When such a statute impinges a
fundamental right, however, strict scrutiny will apply, irrespective of motive or intent.
(See Crawford v. Board of Education (1976) 17 Cal.3d 280, 297; Hardy, supra, 21
Cal.3d 1, 7-8.)


                                             31
Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181; Arcadia Unified, supra, 2
Cal.4th 251, 267.) This can occur when (1) the text of the statute mandates the
constitutional violation (see Serrano I, supra, 5 Cal.3d 584, 603 [noting how the unequal
“school funding scheme is mandated in every detail by the California Constitution and
statutes”]); or (2) the constitutional violation, while not mandated by the statute’s text,
“inevitably” flows from the statute regardless of the actions of those administering it (see
Serrano II, supra, 18 Cal.3d 728, 768-769 [noting how, in light of property-tax based
school funding scheme, a poor school district “cannot freely choose to tax itself into an
excellence . . .”]; Serrano I, supra, 5 Cal.3d 584, 611 [same]; Sanchez, supra, 179
Cal.App.4th 467, 487 [equal protection concerns apply to textually neutral law that has
disproportionate impact]).
       It is clear that the challenged statutes here, by only their text, do not inevitably
cause poor and minority students to receive an unequal, deficient education. With respect
to students, the challenged statutes do not differentiate by any distinguishing
characteristic, including race or wealth.
       Plaintiffs still could have demonstrated a facial equal protection violation,
however, by showing that the challenged statutes, regardless of how they are
implemented, inevitably cause poor and minority students to be provided with an
education that is not “basically equivalent to” their more affluent and/or white peers.
(See Butt, supra, 4 Cal.4th 668, 685.) It is possible, though not certain, that plaintiffs
could have made such a showing by proving that any implementation of the statutes
inevitably resulted in the consequential assignment of disproportionately high numbers of
grossly inefficient teachers to schools predominantly serving low-income and minority
students.14



14     We need not determine whether or how plaintiffs would actually meet their
ultimate burden by such a hypothetical showing. The “exacting” standard for a facial
constitutional challenge requires a showing of a constitutional defect “in at least ‘“the
generality”’ [citation] or ‘vast majority’ of cases [citation].” (Today’s Fresh Start, Inc. v.
Los Angeles County Office of Education (2013) 57 Cal.4th 197, 218.) Because plaintiffs

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       No such showing was made. Instead, the evidence at trial firmly demonstrated
that staffing decisions, including teacher assignments, are made by administrators, and
that the process is guided by teacher preference, district policies, and collective
bargaining agreements. This evidence is consistent with the process set forth in the
Education Code, which grants school district superintendents the power to assign teachers
to specific schools or to transfer teachers between schools within a district, subject to
conditions imposed by collective bargaining agreements, district policies, and by statute.
(See § 35035, subds. (a), (e), (f).) Further, the evidence at trial showed what the text of
the challenged statutes makes clear—that the challenged statutes do not in any way
instruct administrators regarding which teachers to assign to which schools. Thus, it is
administrative decisions (in conjunction with other factors), and not the challenged
statutes, that determine where teachers are assigned throughout a district.
       The trial court’s conclusions do not support a contrary finding. In determining
that the challenged statutes disproportionately affect Group 2 students, the trial court
(i) cited to a CDE report stating that students attending high-poverty, low-performing
schools are far more likely than wealthier peers to attend schools with a high number of
underqualified, inexperienced, and ineffective teachers, and (ii) found that the “dance of
the lemons” is caused by the lack of effective dismissal statutes and the reduction-in-
force statute, and that it affects high-poverty and minority students disproportionately.
Neither of these findings supports a conclusion that the challenged statutes determine
where grossly ineffective teachers work. The CDE report relied on by the court does not
suggest that the challenged statutes cause disparities in the assignment of poor or
minority students to grossly ineffective teachers. Instead, it repeatedly documents the
reason for higher concentrations of ineffective teachers in schools serving such
students—the “counterproductive hiring and placement practices” of local administrators.
Nor did the trial evidence show the “dance of the lemons” is inevitably caused by the


did not demonstrate any facial constitutional defect, they certainly did not show that such
a defect existed in the generality or vast majority of cases.


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statutes. Instead, as described at trial, the dance of the lemons is a process driven by local
administrators. According to trial testimony, some principals rid their schools of highly
ineffective teachers by transferring them to other schools, often to low-income schools.
This phenomenon is extremely troubling and should not be allowed to occur, but it does
not inevitably flow from the challenged statutes, and therefore cannot provide the basis
for a facial challenge to the statutes. (See Tobe, supra, 9 Cal.4th 1069, 1102 [ordinance
that did not inevitably conflict with constitutional right was not subject to valid facial
challenge].)
       Plaintiffs contend that the testimony of their expert witnesses supports their
position that the challenged statutes cause grossly ineffective teachers to be
disproportionately assigned to schools with large low-income and minority populations.
These witnesses opined that grossly ineffective teachers “tend to” accumulate in schools
serving minority students, and that the challenged statutes “could” be a cause. We are
not required to defer to expert opinion regarding the ultimate issue in a case, particularly
when the issue is a predominantly legal mixed question of law and fact. (See Summers v.
A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 [“There are limits to expert
testimony, not the least of which is the prohibition against admission of an expert’s
opinion on a question of law”].) In any event, these opinions do not sustain plaintiffs’
burden. The first opinion does not explain why grossly ineffective teachers “tend to”
accumulate at certain schools, and the second opinion only indicates the statutes “could
be” a cause, not that they are or, more importantly, inevitably are.
       Nor have plaintiffs demonstrated that the challenged statutes inevitably lead to
greater disruption at schools serving poor and minority students during reductions-in-
force. Plaintiffs presented evidence that certain schools serving these students have
higher numbers of inexperienced teachers and go through more layoffs than other
schools. Witnesses for plaintiffs testified that this “constant churn” of staff is
destabilizing. Again, while plaintiffs have identified a troubling problem, they have not
properly targeted the cause. The challenged statutes do not inevitably lead to the
assignment of more inexperienced teachers to schools serving poor and minority children.

                                              34
Rather, assignments are made by administrators and are heavily influenced by teacher
preference and collective bargaining agreements.
       It is possible that the challenged statutes—in the way they pertain to teacher tenure
and seniority—lead to a higher number of grossly ineffective teachers being in the
educational system than a hypothetical alternative statutory scheme would. This
possibility may present a problem with policy, but it does not, in itself, give rise to an
equal protection violation, which requires a classification affecting similarly situated
groups in an unequal manner. (Cooley, supra, 29 Cal.4th 228, 253.)
       Assuming that poor and minority students encounter more grossly ineffective
teachers and that this impacts their constitutional right to “basic educational equality”
(Butt, supra, 4 Cal.4th 668, 681), the constitutional infringement is the product of staffing
decisions, not the challenged statutes. Even if the statutes were struck down, the harm at
issue—the disproportionate assignment of inferior teachers to poor and minority
students—could still occur as before. (Any system will have some teachers who are not
as effective as others.) And, since the challenged statutes, on their face and in effect, do
not dictate where teachers are assigned, declaring the statutes facially unconstitutional
would not prevent administrators from assigning the worst teachers to schools serving
poor and minority students.
       In sum, the evidence presented at trial highlighted likely drawbacks to the current
tenure, dismissal, and layoff statutes, but it did not demonstrate a facial constitutional
violation. The evidence also revealed deplorable staffing decisions being made by some
local administrators that have a deleterious impact on poor and minority students in
California’s public schools. The evidence did not show that the challenged statutes
inevitably cause this impact. Plaintiffs elected not to target local administrative decisions
and instead opted to challenge the statutes themselves. This was a heavy burden and one
plaintiffs did not carry. The trial court’s judgment declaring the statutes unconstitutional,
therefore, cannot be affirmed.




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                                      DISPOSITION
       The judgment is reversed. The matter is remanded to the trial court with
directions to enter judgment in favor of defendants on all causes of action. Each party
shall bear its own costs on appeal.
       CERTIFIED FOR PUBLICATION.


                                         BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       HOFFSTADT, J.




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