Job Security v. Civil Rights
California Lawyer

Job Security v. Civil Rights

November 2013

Despite decades of litigation over California public school funding and facilities, sharp disparities persist. Now, a quiet Silicon Valley nonprofit backed mainly by a fiber-optics entrepreneur is targeting teacher job protections embedded in the state Education Code.

Students Matter filed a civil rights lawsuit in 2012 on behalf of nine students in five districts, claiming state law "entrenches" bad teachers and pushes them into districts that serve lower-income people of color. Chiefly, the suit challenges grants of tenure after 18 months; a cumbersome review and dismissal process; and seniority-based layoffs. (Vergara v. California, No. BC 484642 (Los Angeles Super. Ct.).)

David N. Plank, executive director of Policy Analysis for California Education (PACE), agrees that whiter, wealthier communities tend to have better and more experienced teachers; they also tend to pay better and be easier places to work. But he says subpar teachers aren't any more to blame for low student achievement than "no breakfast, aching teeth, no glasses or the wrong prescription glasses."

"Poverty tends to be very closely correlated to school performance," Plank says. "To say ... [that], if not for ineffective teachers, [lower-income students] would perform more closely to their peers in privileged districts is a highly contestable proposition."

Students Matter, founded in 2010 by David F. Welch, first hired Quinn Emanuel Urquhart & Sullivan to pursue education reform. Partner Kathleen Sullivan says the firm developed key theories for the action. The nonprofit also hired Griffin Schein, a Democratic-aligned campaign and communications firm. In 2011 Welch covered 82 percent of Students Matter's $515,919 bill from Quinn Emanuel and its $451,058 payment to Griffin Schein with a donation and an interest-free loan. No 2012 figures were available.

In 2012, Griffin Schein moved the lawsuit to Gibson, Dunn & Crutcher and a team led by Theodore J. Boutrous and Theodore B. Olson , who went on to argue the U.S. Supreme Court case that effectively struck California's same-sex marriage ban in 2013.

Welch - cofounder of Sunnyvale fiber-optics maker Infinera - declined to speak to California Lawyer. But Gibson Dunn associate Joshua S. Lipshutz said Welch's goal is to force a restructuring of public education in California through litigation. Lipshutz said Students Matter's advisory board includes top education reformers. But a list of advisers disappeared from its website in August, after which a spokeswoman at Griffin Schein said the group has no advisory board. It also has no staff.

Plank says Welch's lawsuit will hurt unions rather than improve education for poor children, and two major teachers unions chimed in as defendants. At the California Teachers Association, legal director Laura Juran says that for Students Matter's equal protection claim to hold water, it would have to prove the state deliberately discriminates against minority and low-income students. The unions and the state made that argument in moving for summary judgment in September and noted that districts "can and do" dismiss teachers. (School district defendants in Los Angeles and the San Jose area have settled, while Oakland was reportedly in talks.)

Griffin Schein countered the motion with a press release focused on the defendants' support of AB 375, which tweaks teacher dismissal procedures. A formal response is due this month and a hearing on the motion is set in December as the case moves toward a January trial date.

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