Filed 5/3/16 (unmodified opinion attached) (review denied 8/22/16; reposted to include Supreme Court statements
upon denial of review)
                                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.                                                    ORDER MODIFYING OPINION

STATE OF CALIFORNIA et al.,                                   [No Change in Judgment]

        Defendants and Appellants;

CALIFORNIA TEACHERS
ASSOCIATION et al.,

        Interveners and Appellants.



THE COURT:
        It is ordered that the opinion filed herein on April 14, 2016, be modified as
follows:
Page 8, footnote 2, add the following language to the last sentence of the footnote
immediately preceding the citations to In re Marriage Cases and White v. Davis: that
affect the very fabric of personnel decisions for teachers throughout California.

Footnote 2 now reads in its entirety:

         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 that affect the very fabric of personnel decisions for
teachers throughout California. (See also In re Marriage Cases (2008) 43 Cal.4th 757
[Governor named as defendant]; White v. Davis (2003) 30 Cal.4th 528 [same].)

       This modification does not effect a change in judgment.




                                              2
Filed 4/14/16 (unmodified version) (review denied 8/22/16; reposted to include Supreme Court statements upon
denial of review)
                                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

                                              32
       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.


                                             33
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.




                                              35
                                      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.




                                            36
Filed 8/22/16


          Court of Appeal, Second Appellate District, Division Two - No. B258589
                                        S234741

           IN THE SUPREME COURT OF CALIFORNIA
                                          En Banc
________________________________________________________________________

           BEATRIZ VERGARA, a Minor, etc., et al., Plaintiffs and Respondents,

                                              v.

                STATE OF CALIFORNIA et al., Defendants and Appellants;

    CALIFORNIA TEACHERS ASSOCIATION et al., Interveners and Appellants.
________________________________________________________________________

        The petition for review is denied.

        Chin, Liu and Cuéllar, JJ., are of the opinion the petition should be granted.




                                                   ______________________________
                                                               Chief Justice


                                       STATEMENT

                                  by Cantil-Sakauye, C. J.

       The court, recently having resumed issuing, from time to time, statements by one
or more justices dissenting from the denial of a petition for review, has adopted a policy
that such statements, when they pertain to an appellate court opinion that has been
published in the Official Reports, will also be published, appended to the original
appellate court opinion in the Official Reports. With these policies now in place, separate
statements will afford members of the court an opportunity to express their views
regarding the denial of a petition for review, but of course any separate statement
represents the views solely of the authoring justice or any justice signing the statement.
In addition, it remains the case that an order denying review does not reflect the views of



                                              1
the justices voting to deny review concerning the merits of the decision below. Rather,
an order denying review represents only a determination that, for whatever reason, a
grant of review is not appropriate at the time of the order. (See People v. Davis (1905)
147 Cal. 346, 349-350; see also, e.g., People v. Triggs (1973) 8 Cal.3d 884, 890-891.)
Similarly, that a justice has not prepared, responded to, or joined a separate statement
should not be read as reflecting the views of that justice concerning any separate
statement that has been filed by any other justice.

       Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ., concur.



                               DISSENTING STATEMENT
                                         by Liu, J.

       This case concerns the constitutionality of California‘s statutes on teacher tenure,
retention, and dismissal. The plaintiffs are nine schoolchildren — Beatriz Vergara,
Elizabeth Vergara, Clara Grace Campbell, Brandon Debose, Jr., Kate Elliott, Herschel
Liss, Julia Macias, Daniella Martinez, and Raylene Monterroza — who attend California
public schools. They allege that these statutes lead to the hiring and retention of what
they call ―grossly ineffective teachers‖ (i.e., teachers in the bottom 5 percent of
competence) and that being assigned to a grossly ineffective teacher causes significant
educational harm. Plaintiffs further allege that they have suffered or are at risk of
suffering these harms and that the harms fall disproportionately on minority and low-
income students. After hearing eight weeks of evidence, the trial court ruled that the
challenged statutes violate the equal protection clause of the California Constitution (Cal.
Const., art. I, § 7, subd. (a)), noting that the evidence of detrimental effects that grossly
ineffective teachers have on their students ―is compelling‖ and ―shocks the conscience.‖
The Court of Appeal reversed, holding that plaintiffs failed to establish a viable equal
protection claim. (Vergara v. State of California (2016) 246 Cal.App.4th 619 (Vergara).)

        Plaintiffs now seek this court‘s review. One of our criteria for review is whether
we are being asked ―to settle an important question of law.‖ (Cal. Rules of Court, rule
8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted
in this case. As the trial court observed: ―All sides to this litigation agree that competent
teachers are a critical, if not the most important, component of success of a child‘s in-
school educational experience. All sides also agree that grossly ineffective teachers
substantially undermine the ability of that child to succeed in school.‖ The controversy
here is whether the challenged statutes are to blame for the hiring, retention, and
placement of grossly ineffective teachers. Because the questions presented have obvious
statewide importance, and because they involve a significant legal issue on which the
Court of Appeal likely erred, this court should grant review. The trial court found, and



                                              2
the Court of Appeal did not dispute, that the evidence in this case demonstrates serious
harms. The nine schoolchildren who brought this action, along with the millions of
children whose educational opportunities are affected every day by the challenged
statutes, deserve to have their claims heard by this state‘s highest court.

                                               I.

       As the Court of Appeal explained, this case involves equal protection claims by
two groups of students. ―Group 1‖ is ―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 [are]
located throughout the state, in all sorts of schools, and [are] of substantially the same age
and aptitude as students of the general population. The Group 1 members [are]
disadvantaged, however, because they received a lesser education than students not
assigned to grossly ineffective teachers.‖ (Vergara, supra, 246 Cal.App.4th at p. 629; see
Cal. Const., art. IX, §§ 1, 5; Serrano v. Priest (1971) 5 Cal.3d 584, 607–609 [recognizing
fundamental right to education under the Cal. Const.]; Butt v. California (1992) 4 Cal.4th
668, 685–686 (Butt) [same].) ―Group 2‖ is ―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.‖ (Vergara, at p. 629.)

       For reasons discussed by the Court of Appeal, there appear to be significant
problems in plaintiffs‘ case with respect to Group 2. Quoting a report by the California
Department of Education that was entered into the record, the trial court found that
― ‗[u]nfortunately, the most vulnerable students, those attending high-poverty, low-
performing schools, are far more likely than their wealthier peers to attend schools having
a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective
teachers and administrators. Because minority children disproportionately attend such
schools, minority students bear the brunt of staffing inequalities.‘ ‖ Further, the trial
court found that ―the churning . . . of teachers‖ — that is, the recurring transfer of
ineffective teachers from school to school — ―caused by the lack of effective dismissal
statutes and [the seniority-based reduction in force statute] affect high-poverty and
minority students disproportionately.‖ However, the record does not appear to include
substantial evidence that the concentration of grossly ineffective teachers in poor and
minority schools is caused by the challenged statutes as opposed to teacher preferences,
administrative decisions, or collective bargaining agreements. The Court of Appeal,
finding insufficient evidence of that causal link, held that plaintiffs failed to establish that
the challenged statutes on their face violate equal protection by disadvantaging poor or
minority students. (Vergara, supra, 246 Cal.App.4th at pp. 649–651.)




                                               3
        The Court of Appeal‘s treatment of Group 1 is more problematic. In overturning
the trial court‘s judgment with respect to this group, the Court of Appeal said the group is
not ―an identifiable class of persons sufficient to maintain an equal protection challenge‖
because ―to claim an equal protection violation [citations], group members must have
some pertinent common characteristic other than the fact that they are assertedly harmed
by a statute.‖ (Vergara, supra, 246 Cal.App.4th at p. 646.) On this point, the Court of
Appeal likely erred.

        In Butt, supra, 4 Cal.4th 668, this court made clear that an equal protection
challenge may be brought and will trigger strict scrutiny ―whenever the disfavored class
is suspect or the disparate treatment has a real and appreciable impact on a fundamental
right or interest.‖ (Id. at pp. 685–686.) There, the Richmond Unified School District
decided to shorten its school year by six weeks because it had run out of money, and a
group of parents claimed that this would violate their children‘s fundamental right to
education. We said it is ―well settled that the California Constitution makes public
education uniquely a fundamental concern of the State and prohibits maintenance and
operation of the common public school system in a way which denies basic educational
equality to the students of particular districts. The State itself bears the ultimate authority
and responsibility to ensure that its district-based system of common schools provides
basic equality of educational opportunity.‖ (Id. at p. 685.) Observing that the district‘s
―students faced the sudden loss of the final six weeks, or almost one-fifth, of the standard
school term originally intended by the District and provided everywhere else in
California,‖ we held that this ―extreme and unprecedented disparity in educational service
and progress‖ violated the state equal protection guarantee. (Id. at p. 687; see id. at
p. 685 [―Whatever the requirements of the free school guaranty [(Cal. Const., art. IX,
§ 5)], the equal protection clause precludes the State from maintaining its common school
system in a manner that denies the students of one district an education basically
equivalent to that provided elsewhere throughout the State.‖].)

        The students in Butt suffered a denial of equal protection not because they
belonged to any identifiable class but because they were enrolled in a distressed school
district. Here, as in Butt, students have asserted an equal protection claim on the ground
that they are being denied significant educational opportunities that are afforded to
others. The inequality in Butt arose from the fortuity of attending a school district that,
unlike other districts, ran out of money. The inequality in this case arises from the
fortuity of being assigned to grossly ineffective teachers who, in comparison to
competent teachers, substantially impede their students‘ educational progress. The Court
of Appeal‘s insistence that ―to claim an equal protection violation [citations], group
members must have some pertinent common characteristic other than the fact that they
are assertedly harmed by a statute‖ (Vergara, supra, 246 Cal.App.4th at p. 646) appears
inconsistent with Butt. The claim asserted by students in Group 1 is simply an instance
of a cognizable equal protection claim alleging arbitrary deprivation of fundamental
rights. (See, e.g., People v. McKee (2010) 47 Cal.4th 1172, 1197–1198 [classifications in


                                              4
civil commitment laws are subject to strict scrutiny because the fundamental interest in
liberty is at stake].)

       The Court of Appeal cited Santa Clara County Local Transportation Authority v.
Guardino (1995) 11 Cal.4th 220 and Altadena Library District v. Bloodgood (1987) 192
Cal.App.3d 585 in support of its view. Both of those cases relied on Gordon v. Lance
(1971) 403 U.S. 1. All three cases involved constitutional challenges to supermajority
voting schemes on the ground that voters who were members of a majority but not a
supermajority would have their votes diluted. The plaintiffs in Gordon challenged a state
requirement that any measure to raise taxes or incur bonded indebtedness be approved in
a referendum by 60 percent of voters. The high court observed that it is permissible for
the federal or state governments to constrain ―majoritarian supremacy‖ in any number of
ways. (Gordon, at p. 6.) What is constitutionally objectionable, as past cases had held,
was ―the denial or dilution of voting power because of group characteristics—geographic
location and property ownership—that bore no valid relation to the interest of those
groups in the subject matter of the election; moreover, the dilution or denial was imposed
irrespective of how members of those groups actually voted.‖ (Id. at p. 4.) Guardino and
Altadena, both of which involved supermajority voting requirements on local tax
measures, relied on Gordon in concluding that such requirements do not give rise to an
equal protection claim unless the burdened voters comprise an identifiable class.
(Guardino, at pp. 255–258; Altadena, at pp. 590–591.)

        It is doubtful that the principle established in Gordon can be generalized beyond
the context of voting rights. (See Elmendorf, Structuring Judicial Review of Electoral
Mechanics: Explanations and Opportunities (2007) 156 U.Pa. L.Rev. 313, 327
[explaining that many laws burdening voting rights ―receive light-touch judicial review‖
because ―judicial review of election laws presents a distinctive set of challenges‖].) The
idea that vote dilution through supermajority requirements is constitutionally acceptable
so long as no identifiable class is subject to discrimination has no analog when it comes
to the fundamental right to education. As several leading constitutional law scholars
explained in an amicus curiae letter in support of plaintiffs‘ petition for review, both state
law and federal law have long recognized that plaintiffs asserting an equal protection
claim involving a fundamental right need not be identifiable on a basis other than the
alleged harm: ―There is no basis in law or in logic for the Court of Appeal‘s central
holding in this case that, without a showing that all the students injured by the challenged
state laws share a ‗common characteristic,‘ the Equal Protection claim they make is not
‗meritorious‘ and cannot be ‗maintained.‘ ‖

                                             II.

        There is considerable evidence in the record to support the trial court‘s conclusion
that the hiring and retention of a substantial number of grossly ineffective teachers in
California public schools have an appreciable impact on students‘ fundamental right to


                                              5
education. The trial court credited ―a massive study‖ by Stanford economist Raj Chetty
finding that ―a single year in a classroom with a grossly ineffective teacher costs students
$1.4 million in lifetime earnings per classroom.‖ The trial court also cited a four-year
study by Harvard economist and education professor Thomas Kane finding that ―students
in [the Los Angeles Unified School District] who are taught by a teacher in the bottom
5% of competence lose 9.54 months of learning in a single year compared to students
with average teachers.‖ Moreover, the trial court found ―no dispute that there are a
significant number of grossly ineffective teachers currently active in California
classrooms‖ and cited testimony of the state‘s own expert estimating that 1 to 3 percent
of California teachers are grossly ineffective, which translates to 2,750 to 8,250 teachers
statewide.

         The trial court also found that the challenged statutes substantially contribute to
the hiring and retention of grossly ineffective teachers. The evidence is particularly
suggestive with respect to the dismissal statutes. These statutes provide extensive
procedural protections to teachers subject to dismissal for poor performance. (Ed. Code,
§§ 44934, 44938, subd. (b)(1), (2), 44944, 44945.) At the time of trial, the laws required
a district to first give a teacher a written statement of specific instances of unsatisfactory
behavior, allow the teacher 90 days to improve, and then provide a written statement of
charges and intent to dismiss. The teacher then had 30 days to request a hearing, which
had to begin within 60 days of the request. The hearing was conducted by a three-
member panel comprised of an administrative law judge, one teacher selected by the
district, and one teacher selected by the teacher subject to the hearing. The panel had to
issue a written decision, and the decision was subject to judicial review. If the district
lost, it had to pay the hearing expenses and the teacher‘s attorney‘s fee. If the district
won, the parties split the hearing expenses and paid their own attorney‘s fees. (Vergara,
supra, 246 Cal.App.4th at pp. 630–631; see id. at pp. 631–632 [discussing 2015
amendments to the dismissal statutes].)

        The trial court found that ―it could take anywhere from two to almost ten years
and cost $50,000 to $450,000 or more to bring these cases to conclusion under the
Dismissal Statutes, and that given these facts, 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 trial court did not dispute that providing
teachers with due process before dismissal was a legitimate and even compelling interest.
But it concluded that this interest could be pursued without what it called the ―über due
process‖ that leads to retention of grossly ineffective teachers. The trial court observed
that classified (i.e., nonteacher) school employees, who are afforded due process rights to
notice and a hearing under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, ―had
their discipline cases resolved with much less time and expense than those of teachers.‖

       The trial court also concluded that other features of the challenged statutes
contribute to the hiring and retention of grossly ineffective teachers. California is one of


                                              6
only five states with a two-year probation period before tenure, in contrast to three or
more years in other states. The trial court cited ―extensive evidence presented, including
some from the defense,‖ that two years ―does not provide nearly enough time for an
informed decision to be made regarding the decision of tenure (critical for both students
and teachers).‖ Further, California is one of only 10 states that use seniority as the sole
factor or as a factor that must be considered in laying off teachers. (Ed. Code, § 44955,
subds. (b), (c); see id., § 44955, subd. (d) [narrow exceptions].) The trial court noted that
many other states either treat seniority as one factor that may be considered or leave
layoff criteria to the district‘s discretion. The trial court‘s findings do not suggest that
teacher tenure invariably burdens students‘ fundamental right to education; instead, they
suggest that California‘s particular scheme does.

                                             III.

        Plaintiffs have styled this claim as an equal protection challenge, perhaps because
this approach is supported by Butt and other cases that have applied strict scrutiny to
equal protection claims alleging harms to fundamental rights. With respect to Group 1,
however, this lawsuit at bottom states a claim that the teacher tenure and dismissal
statutes, to the extent they lead to the hiring and retention of grossly ineffective teachers,
violate students‘ fundamental right to education. Plaintiffs locate the source of that right
in sections 1 and 5 of article IX of the California Constitution. These are the same
provisions at issue in Campaign for Quality Education v. State of California (2016) 246
Cal.App.4th 896, an education adequacy case in which this court also denies review
today. The two cases involve different yet complementary claims concerning the
importance of resources and reform to improving the education system. Both cases
ultimately present the same basic issue: whether the education clauses of our state
Constitution guarantee a minimum level of quality below which our public schools
cannot be permitted to fall. This issue is surely one of the most consequential to the
future of California.

        Despite the gravity of the trial court‘s findings, despite the apparent error in the
Court of Appeal‘s equal protection analysis, and despite the undeniable statewide
importance of the issues presented, the court decides that the serious claims raised by
Beatriz Vergara and her eight student peers do not warrant our review. I disagree. As the
state‘s highest court, we owe the plaintiffs in this case, as well as schoolchildren
throughout California, our transparent and reasoned judgment on whether the challenged
statutes deprive a significant subset of students of their fundamental right to education
and violate the constitutional guarantee of equal protection of the laws.

                          I respectfully dissent from the denial of review.




                                               7
                               DISSENTING STATEMENT
                                       by Cuéllar, J.

        What Beatriz Vergara and eight of her fellow public school students allege in this
case is that they, and vast numbers of children in our state‘s public schools, are burdened
by certain statutes governing teacher dismissal, retention, and tenure that create a surplus
of grossly ineffective teachers. After a 10-week bench trial, the trial court found that
these statutes result in the denial of equal protection not only because they assign grossly
ineffective teachers to classrooms where the children are disproportionately minority and
poor, but also because the enduring effects of these statutes disproportionately burden an
arbitrary subset of children. The evidence supporting this conclusion, according to the
trial court, ―shocks the conscience.‖ In a public school system responsible for educating
millions of children, ―a single year in a classroom with a grossly ineffective teacher costs
students $1.4 million in lifetime earnings per classroom.‖ And students in the Los
Angeles Unified School District ―who are taught by a teacher in the bottom 5% of
competence lose 9.54 months of learning in a single year compared to students with
average teachers.‖ Yet the statutes in question make it exceedingly difficult, the trial
court concluded, to remove a grossly ineffective teacher from the classroom or properly
evaluate a teacher before long-term employment is granted.

        Beatriz Vergara and her fellow plaintiffs were part of that arbitrary group of
thousands of children attending California public schools that the trial court found to be
deprived of equal protection. According to the trial court, plaintiffs had ―proven, by a
preponderance of the evidence, that the Challenged Statutes impose a real and
appreciable impact‖ to the detriment of these students‘ fundamental right to equality of
education. At no time did the Court of Appeal dispute this conclusion. What was instead
fatal to the claim advanced on behalf of the arbitrarily burdened children, according to
the appellate court, was plaintiffs‘ failure to prove the existence of an identifiable group
treated differently by the challenged laws, a group separate and apart from the individuals
allegedly harmed by those laws.

        Nothing in California‘s Constitution or any other law supports the Court of
Appeal‘s reasoning. When a fundamental right has been appreciably burdened, we apply
strict scrutiny. (See Butt v. State of California (1992) 4 Cal.4th 668, 685-686 (Butt); Fair
Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 (Fair Political
Practices); Serrano v. Priest (1971) 5 Cal.3d 584, 597 (Serrano I).) The appellate court
did not. Instead it erected a novel barrier –– not only for Beatriz Vergara and her fellow
student plaintiffs, but for all California litigants seeking to raise equal protection claims
based on a fundamental right. Such a right could be unquestionably burdened, the
decision implies, but if that burden is imposed at random rather than on a discrete and
identifiable group, then no relief is available under the equal protection provisions of our
state Constitution. (See Vergara v. State of California (2016) 246 Cal.App.4th 619, 646


                                              8
(Vergara) [―Here, the unlucky subset is not an identifiable class of persons sufficient to
maintain an equal protection challenge. Although a group need not be specifically
identified in a statute to claim an equal protection violation [citations], group members
must have some pertinent common characteristic other than the fact that they are
assertedly harmed by a statute‖ (fn. omitted)].)

       Even if one ignores the appellate court‘s inconsistency with settled law, the
question its approach begs is as simple as it is important: Why? Certainly not because
we have ever held that arbitrarily denying the fundamental rights of schoolchildren –– or
any Californian –– is acceptable when a burden is imposed more or less at random, by the
anodyne machinery of a statutory system‘s gears and pulleys rather than by any person‘s
deliberate choice to target some people instead of others. Would it make sense to treat as
cognizable an equal protection claim to vindicate a fundamental rights violation –– but
only because all the affected children were victimized for wearing purple shirts, or
because they happened to live in rural towns in Southern California –– even as we cast
aside the claims of the children in this case?

        Beatriz Vergara and her fellow plaintiffs raise profound questions with
implications for millions of students across California. They deserve an answer from this
court. Difficult as it is to embrace the logic of the appellate court on this issue, it is even
more difficult to allow that court‘s decision to stay on the books without review in a case
of enormous statewide importance. We grant review where necessary to forestall
infringement of a fundamental right. (See, e.g., In re Marriage Cases (2008) 43 Cal.4th
757, 809 [right to marry]; Fashion Valley Mall, LLC v. National Labor Relations Board
(2007) 42 Cal.4th 850, 865 [right to free speech]; Gould v. Grubb (1975) 14 Cal.3d 661,
670 [right to vote].) This, too, is a case that merits review so we can address the
problems with the Court of Appeal‘s approach in a matter of considerable statewide
importance, and clarify that an equal protection claim under the California Constitution
calls for searching scrutiny where it arises from the imposition of an impermissible
burden on a fundamental right. And if the appellate court had addressed the fundamental
rights issue perfectly against a legal backdrop that was crystal clear, there still would be
compelling reasons to grant review.

                                              I.

        We treat certain rights as fundamental under the California Constitution –– the
right to vote, for example, or to marry, to access our courts, to an expectation of privacy,
and to an education –– because they are foundational to how we choose to define our
personal and civic lives. But it would border on madness to think that because these
rights are fundamental, we can routinely expect perfection when the state protects –– or
through its activities, vindicates –– these rights. The nature of any person‘s actual
relationship to his or her fundamental rights is as much affected by ordinary governance –
– polling place and school locations, routine agency practices, long-past histories, and


                                               9
unexpected emergencies –– as it is by a shared aspiration articulated in constitutional text
or a judicial opinion that government honor such rights. Yet these realities make it even
more important to distinguish routine shortcomings of implementation, or instances
where government legitimately chooses to harmonize competing goals in a given way,
from the infringement of a fundamental right by the imposition of an appreciable burden
thereon.

       The trial court found that such a burden was shown to exist in this case. The
evidence, according to the trial court, established that the quality of education received by
California‘s millions of schoolchildren depends substantially on the quality of instruction.
The evidence further established that the existence of a substantial number of grossly
ineffective teachers in the California school system — about 1 to 3 percent statewide, or
2,750 to 8,250 teachers — ―has a direct, real, appreciable, and negative impact on a
significant number of California students.‖ Yet teacher dismissals ―could take anywhere
from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases
to conclusion under the Dismissal Statutes, and that given these facts, 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.‖ There was also evidence,
which the trial court credited, showing that two years is too short a time to properly
evaluate teacher competence, and that California is one of only 10 states that use
seniority as the sole factor in determining whether to lay off teachers. The Court of
Appeal never disputed these findings.

        These findings instead failed to justify a remedy, according to the Court of
Appeal, because there was no identifiable group explicitly targeted or uniquely burdened
by the statutes. This conclusion is, at best, in stark tension with settled law. We have
long recognized that equal protection challenges may be brought ―whenever the
disfavored class is suspect or the disparate treatment has a real and appreciable impact on
a fundamental right or interest.‖ (Butt, supra, 4 Cal.4th at pp. 685-686.) Strict scrutiny
applies to both types of equal protection claims. (See ibid.; see also Fair Political
Practices, supra, 25 Cal.3d at p. 47 [―It is only when there exists a real and appreciable
impact on, or a significant interference with the exercise of the fundamental right that the
strict scrutiny doctrine will be applied‖].)

       We can understand plaintiffs‘ claims here as involving equal protection grounded
in a fundamental interest, or as ultimately predicated more directly on the argument that a
fundamental interest has been unduly burdened. Under either conception, the Court of
Appeal failed to appreciate the distinction we have drawn between claims involving a
fundamental interest and those centered on a suspect class. To state a fundamental
interest claim sounding in equal protection, the alleged disparate treatment need not be
focused on a suspect class. (See Bd. of Supervisors v. Local Agency Formation Com.
(1992) 3 Cal.4th 903, 914; accord, Bullock v. Carter (1972) 405 U.S. 134, 144 [finding a
denial of equal protection even though the affected group ―cannot be described by


                                             10
reference to discrete and precisely defined segments of the community‖].) When a
fundamental interest is at stake, the sole preliminary inquiry is whether the challenged
law has a real and appreciable impact on the exercise of that interest. (Butt, supra, 4
Cal.4th at p. 686; accord, Bullock, at p. 144; see generally Engquist v. Oregon Dept. of
Agriculture (2008) 553 U.S. 591, 597 [―It is well settled that the Equal Protection Clause
‗protect[s] persons, not groups . . . .‘ ‖].) If it does, the law will be invalidated unless the
state can show it is necessary to achieve a compelling governmental interest. (Serrano I,
supra, 5 Cal.3d at p. 610.) It is no answer under any standard of review — much less
strict scrutiny — that violations of a fundamental right will be tolerated so long as they
are felt at random.

        And even if the law were more opaque, my doubts are grave about whether one
could articulate a reasonable understanding of fundamental rights under the California
Constitution that would countenance the imposition of material burdens on those rights
without strict scrutiny or even the opportunity for judicial review under any standard, so
long as those burdens were imposed largely at random. Invidious classifications deserve
strict scrutiny even where fundamental rights are not at issue, while ordinary instances of
treatment that could arguably be described as unequal do not merit particularly searching
scrutiny where they do not involve fundamental rights. Where fundamental rights are at
issue, however, we have never held that an equal protection challenge may proceed
without the searching scrutiny that fundamental rights merit. We shouldn‘t start now
simply because those rights may have been burdened arbitrarily. True: Arbitrary
selection has at times been considered a means of rendering a governmental decision
legitimate. (See Samaha, Randomization in Adjudication (2009) 51 Wm. & Mary L.Rev.
1, 24-27.) But where an appreciable burden results –– thereby infringing a fundamental
right –– arbitrariness seems a poor foundation on which to buttress the argument that the
resulting situation is one that should not substantially concern us.

          Just as the arbitrariness of the alleged injury is no cause to deny review, neither is
the nature of the fundamental right so injured. That education is the right at issue has
posed no insurmountable bar in the past. (See Butt, supra, 4 Cal.4th at p. 686 [―education
is . . . a fundamental interest for purposes of equal protection analysis under the
California Constitution‖]; Serrano I, supra, 5 Cal.3d at pp. 608-609 [―We are convinced
that the distinctive and priceless function of education in our society warrants, indeed
compels, our treating it as a ‗fundamental interest‘ ‖].) Why should we treat differently
the material interference with a fundamental right arising from the challenged statutes —
interference the trial court found to exist, and the Court of Appeal did not dispute — from
the disruption occasioned by a shorter school year (see Butt, at p. 686), or the drastic
inequities in funding that undermine equal access to an education (see Serrano I, at
pp. 590-591)? The harmful consequences to a child‘s education caused by grossly
ineffective teachers — the evidence for which the trial court found compelling — are no
less grave than those resulting from a shortened period of instruction or financial
shortfalls.


                                               11
        In considering this case, we must respect the role of the representative branches of
government and the public itself in shaping education policy. But our responsibility to
honor the court‘s proper constitutional role makes it as important for us to review a case
that merits our attention as it is for us to avoid a dispute beyond the court‘s purview.
This case is the former. It squarely presents significant questions of state constitutional
jurisprudence that our court, rather than the Legislature or the executive branch, is best
suited to address. Moreover, even in a world where we clarify our fundamental rights
jurisprudence as this case requires –– and address concerns associated with the Court of
Appeal‘s decision — considerable room would remain for the legislative and executive
branches to decide how best to address the important balance between honoring the
fundamental right to education and addressing other goals, such as retaining protections
for public employees from arbitrary dismissal.

        Had we accepted our charge to ensure uniformity of decision on legal issues of
statewide importance (see Cal. Rules of Court, rule 8.500(b)(1)), and had we declined to
adopt the Court of Appeal‘s approach, I am confident we would have appreciated the
practical constraints that sometimes result in different educational inputs or outcomes for
different children. Our track record suggests as much. (See Butt, supra, 4 Cal.4th 668;
Serrano I, supra, 5 Cal.3d 584.) But there is a distinction between such conventional
differences and what the trial court concluded was occurring as a result of these statutes
— namely, that they resulted in ―a direct, real, appreciable, and negative impact on a
significant number of California students.‖ That is a difference we should not ignore.
For it is certainly possible to conclude that the extent of the interference with students‘
fundamental right to education has legal consequences, while at the same time
acknowledging the role of the Legislature and the importance of maintaining flexibility
within the context of the state‘s constitutional responsibility to honor this most
fundamental right.

                                             II.

        The Court of Appeal also failed to apply the standard for facial constitutional
challenges that ordinarily governs cases involving fundamental rights. (See American
Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 343 (American Academy)
[requiring proof of a constitutional conflict in only ―the vast majority of [the law‘s]
applications‖].) What the appellate court did instead is apply the more stringent ―must be
unconstitutional in all its applications‖ standard, without any apparent justification. (See
Vergara, supra, 246 Cal.App.4th at pp. 643, 648.) At a minimum, the court did not
wrestle with the ―uncertainty‖ in our case law surrounding the governing standard for
facial constitutional challenges. (Today’s Fresh Start, Inc. v. Los Angeles County Office
of Educ. (2013) 57 Cal.4th 197, 218.) By granting review, we could have brought much-
needed clarity to this frequently recurring issue of constitutional law.




                                             12
        The court below concluded that a successful facial challenge depends on showing
that the challenged law ― ‗ ―inevitably pose[s] a present total and fatal conflict with
applicable constitutional prohibitions‖ ʼ ‖ in all the law‘s applications. (Vergara, supra,
246 Cal.App.4th at p. 643; accord, Pacific Legal Foundation v. Brown (1981) 29 Cal.3d
168, 181.) Only rarely have we applied the more stringent standard alone (see East Bay
Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 693, 709), and
not when a fundamental right is involved (see American Academy, supra, 16 Cal.4th at
p. 343 [―a facial challenge to a statutory provision that broadly impinges upon
fundamental constitutional rights may not be defeated simply by showing that there may
be some circumstances in which the statute constitutionally could be applied‖]). In
fundamental rights cases, we require a showing of unconstitutionality in only ―the vast
majority of [the law‘s] applications.‖ (Ibid.) Had the Court of Appeal applied this
standard, and properly deferred to the trial court‘s factual findings on causation, it is
difficult to see how it could have rejected the trial court‘s conclusions.

        The Court of Appeal also appears to have confused the question of whether a
facially discriminatory statute exists with the question of what showing is required to
prove that statute is invalid on its face. ―Because plaintiffs did not demonstrate any facial
constitutional defect,‖ the appellate court stated in a footnote, ―they certainly did not
show that such a defect existed in the generality or vast majority of cases.‖ (Vergara,
supra, 246 Cal.App.4th at p. 649, fn. 14.) Not so. Just because a statute does not
discriminate on its face — i.e., does not ―demonstrate any facial constitutional defect‖ —
does not necessarily mean a facial challenge to that statute does not lie. If this were the
case, facial challenges in this day and age would be dead on arrival. Moreover, it cannot
be that because plaintiffs failed to satisfy the more stringent standard for bringing a facial
challenge they, by necessity, failed to satisfy the less stringent one. What determines
instead whether plaintiffs have succeeded in making such a challenge is whether they
must prove a constitutional conflict in all of the statute‘s applications, or in just the great
majority of them. This is precisely the uncertainty we could have clarified by granting
review.

                                             III.

        There is no right without an adequate remedy. And no such remedy exists without
review by a court of last resort when the decision of the appellate court, the importance of
the case, and the question presented so clearly merit review. Denying review in this case
leaves in place a decision that is in considerable tension with existing law and accepts
with little explanation the notion of material interference with the fundamental right to an
education — interference that the trial court here found was caused by the challenged
statutes. The Court of Appeal then concluded that our law permits the wanton imposition
of material burdens on or even deprivations of fundamental rights, as long as such
imposition is sufficiently wanton that the burden does not fall on an ―identifiable group‖
defined by some characteristic other than the burden imposed by the statutes themselves.


                                              13
       No one should doubt that plaintiffs‘ lawsuit raises difficult questions and
implicates a variety of concerns, including the importance of protecting public employees
from arbitrary dismissal. (See California Teachers Assn. v. State of California (1999) 20
Cal.4th 327, 335-336 [explaining that because ―the state not only has monopolized the
process of determining whether permanent public school teachers should be dismissed or
suspended, but it also is the entity seeking to deprive teachers of their constitutionally
protected liberty and property interests,‖ it is therefore ―required by the due process
guarantee to provide the teacher a meaningful hearing‖].) Public institutions must often
reconcile their protection of a fundamental right with the realities of governing, the
resolution of competing priorities, and the imperfections of any system forged and
adapted by human hands. But here, the trial court concluded that a fundamental right was
infringed when it was appreciably burdened by statutes protecting grossly ineffective
teachers –– and the evidence ―shock[ed] the conscience.‖ There is a difference between
the usual blemishes in governance left as institutions implement statutes or engage in
routine trade-offs and those staggering failures that threaten to turn the right to education
for California schoolchildren into an empty promise. Knowing the difference is as
fundamental as education itself. Which is why I would grant review.




                                             14
