United Public Workers for Action

The Key to Ensuring Unconstitutionality-Strict Scrutiny
A Key That Doesn’t Fit in the Vergara Case

By Kathleen Carroll

Reading the Vergara decision was like being on an old rickety roller coaster where each twist and turn seemed like the tracks would give way any second, or at any moment I was going to be ejected from my seat- I just wanted off this crazy contraption. I had to re-read the decision a number of times before I could wrap my head around the bizarre legal hoops that Judge True seem to be flying through to come to his legal conclusions.

After my head stopped spinning, I attempted to make sense of the seemingly tenuous arguments appearing on almost every page of the decision.  Astoundingly the decision begins on page one with an announcement of the anniversary of Brown v. Board of Education. You know the case, the groundbreaking U.S. Supreme Court case that held school segregation based on race was unconstitutional. There is even a lengthy quote from the Brown v. Board of Education decision running down another quarter of a page on page two of the Vergara decision. Yes, I say, great decision, really impressive to cite this one.  But I wonder why the judge is citing this case.  

Thinking he must have been at home sipping the strong stuff or smoking mellow yellow when writing this decision, I am certain he will wake up soon realizing he must stick to the case at hand. This judge must determine whether these employment statutes in the California education code are unconstitutional as violating equal protection, since this is the claim the plaintiffs are making.

Taking a deep breath, I read on, hoping beyond hope that a glimmer of light will emerge, that I will be struck with enlightenment and miraculously this decision will all make sense to me. Continuing on page two, I see that Serrano v. Priest is cited, another groundbreaking case where the California Supreme court has stated that education is a fundamental right, that the school funding system at the time was a violation of equal protection. These big warm fuzzy cases (Brown, Serrano, Butt) are painted on the pages of this decision like window dressing carefully placed to achieve some effect. However, as no mention of relevant law has appeared up to this point, I have serious concerns that the judge was on a drinking binge when he wrote this decision.

With eyes strained, I continue, thinking some resemblance of legal clarity will eventually unfold.  Down page two I go, then up to page three where again the judge cites irrelevant case law (Brown, Serrano and Butt) involving unequal education opportunity discrimination based on race. Then wham, like he just took a large gulp of a triple shot espresso, the judges states he is compelled to apply the same constitutional principles used in these irrelevant cases he just cited to the quality of the educational experience.  And before you can say abra- ca- dabra with your magic wand, he is off and running like a spooked horse.  How this judge begins with clearly race based discrimination cases (Brown, Serrano, Butt) to evaluating neutrally written, neutrally applied, nondiscriminatory employment statutes is beyond comprehension. Only a magic wand could create such a result.  

On page three for the first time, a magic ingredient appears. The term “grossly ineffective teacher” jumps off the page like Superman to the rescue. What exactly is a grossly ineffective teacher? What do these teachers look like? Who are they? None of that seems to matter in magic land. The only thing that matters for purposes of this charade is that they exist and they are disproportionately situated in schools serving minorities and low income students. Wow, I say, not even Houdini could pull this off!  For the rest of the legal analysis, the judge appears to perform complicated gymnastic moves that even a trained contortionist would be afraid to attempt.

Now a little legalese is in order.  If the judge, hypothetically of course, wanted to actually follow the law in evaluating whether these statutes were in fact unconstitutional, there would be hurdles to climb for those of us without magic wands.  First you need to look at the challenged statute; you look at the actual words and ask whether the words themselves discriminate against race, gender, alienage, illegitimacy or interference with a fundamental right. If the answer is no, which is the case for these employment education code statutes at issue, then you move to your next hurdle. You then ask whether these statutes, even though neutrally written are being applied discriminatorily against race, ethnicity, gender etc. The statutes at issue in this case are dismissal laws and requirements school districts must follow in noticing educators before layoffs- they apply equally to all teachers and they apply equally to all school districts. It is amazing and quite bizarre that the actual language of any of these challenged statutes is simply absent from the decision. The actual words of the laws being challenged don’t appear. Additionally strange is the fact that the school districts (Los Angeles Unified, Oakland Unified and Alum Rock Union school district) were all removed from this case when it is the school districts that actually enforce these statutes. With no apparent logic in sight, I just continue.

For equal protection analysis, if the laws being challenged as unconstitutional are neutrally written and are neutrally applied, then the proper standard of review by a court is the rational basis test. Under this test, the burden is on the plaintiff (Vergara et al) to show that these laws were written with a discriminatory intent or purpose. Only if the laws were facially discriminatory (a ban on interracial marriage for example) or even though neutrally written were being applied discriminatorily (only white people get exemptions to the neutral rule that all laundry mats must be in brick buildings to prevent fires) does a higher standard of review come into play, a standard called strict scrutiny, to challenge the constitutionality of laws under equal protection analysis.

Why does this matter? Under rational basis review challenged laws are presumed constitutional. Under Strict scrutiny laws are not presumed constitutional. Also the burden of proof shifts- for rational basis the burden is on the plaintiffs to prove discriminatory intent or purpose by the government for enacting the laws, for strict scrutiny the burden shifts to the defendants (government and teacher unions (intervenors) in this case) to prove the challenged law, which is now not presumed to be constitutional, has a compelling state interest in allowing the presumed discriminatory laws to stand. Under strict scrutiny there is a huge mountain to climb to overcome a constitutional challenge, a mountain that just should not have been present in this matter at all.

In the Vergara case the magic term of grossly ineffective teachers kept rearing its ugly head, over and over again like a desperate stalker. “Yeah, I’m here, make me go away. I’m lined with Edvoice money- take that- I don’t need to be defined, I just exist in all the right places” Thinking I walked into someone else’s nightmare; I rub my eyes and continue to read. Jarred by another jolt, now I’m not reading about the judge’s magical insertions, but the intervenor’s and the defendant’s magical assertions, the teacher unions and the government, all referencing the desperate stalker- the grossly ineffective teacher appearing in all the right places. All sides agree (yes even the teacher unions- see page 7 of the decision) that the grossly ineffective teachers, and apparently there are thousands of them still in the classroom (don’t ask who counted them- just know they exist, are numerous and remember we are in magic land) “substantially undermine” the ability of a child to succeed in school.  This magically superimposed fact (like a really bad cut and paste job) gave this judge the impetus to state that plaintiffs had proven their burden and hence strict scrutiny will now apply to these challenged statutes. The magic wand strikes again!

At this point, I literally look up the judge at the state bar site because I did not believe he actually went to law school, let alone passed the bar exam. He was there, went to Loyola law School (A Jesuit school), and to University of the Redlands for his undergraduate work. I hesitantly proceed. Page after page the grossly ineffective teacher term appears and how these grossly ineffective teachers disproportionately affect low income and minority students. I wanted to scream- wait, stop, what about the U.S. Supreme Court case of Washington V. Davis 426 U.S. 229 (1976)?? Please someone give him a copy! In the Washington case, the court held that if the claim brought by the plaintiffs is disproportionate impact on race, minorities, the proper standard of review is rational basis, not strict scrutiny.  The city of Washington D.C had a general intelligence test for hiring police officers. For whatever reason (and I’m sure there were many), Blacks were failing this test in higher percentages than White applicants. So the Black applicants challenged the law requiring this test as violation of equal protection and desired to have strict scrutiny apply to the law. But, the court said no, rational basis applies in this matter and the plaintiffs were required to show a discriminatory intent or purpose for administering the test. You can imagine if laws were easily challenged as unconstitutional by applying strict scrutiny willy nilly, the courts would be extremely busy and many laws would bite the dust. Again, in strict scrutiny review the burden is not on the plaintiffs but shifts to the defendants (government and teachers unions (intervenors) in this case) to show there is a compelling state interest for allowing this presumed discriminatory law to stand. So these employment statutes were magically presumed to discriminate by this judge via the magic wand, and everything else went downhill thereafter.

In viewing the internet buzz about the crazy statistics being cited about bad teachers, the so-called expert witnesses go on and on and on, it seems clear to me, folks have been successfully distracted from the fact that the wrong standard of review was applied in this case. Had the right standard of review been applied, the laws would’ve been upheld as constitutional. Laws do discriminate against people all the time. You have to be a certain age to drive for example, or to drink alcohol. But, if the legislature enacted laws for economic, general welfare or social reasons, the laws are neutral on their face (don’t discriminate on one of the illicit basis that invokes strict scrutiny- race, gender, ethnicity, alienage, illegitimacy or interference of a fundamental right within the words of the law), and are neutrally applied- the correct standard of review is rational basis, not strict scrutiny. This case was a colossal waste of public resources, and quite frankly a serious abuse of the judicial system.

I eventually had to put the case down (and take off my helmet), but not before seeing the last paragraph of Judge Treu’s decision- a quotation from Alexander Hamilton’s federalist Paper 78.  If you think I thought this last touch was weird, I would tell you that is a severe understatement. We will leave it at that. Next day, I see a dismissal bill is heading towards Governor Brown’s desk.  Coincidence, I think not.


Kathleen Carroll is an attorney who was fired at the Califronia Commission For Teacher Credentialing for exposing corrupt practices, financial conflicts of interests and a privatization agenda of the commissioners and staff. Her case is presently moving  through the California courts with expenses being paid by Attorney General Kamala Harris and California taxpayers.
For more information
CA State Whistleblower’s Lawsuit Exposes Web of Corruption and Deceit At The Commission On Teacher Credentialing (CTC)
January 29, 2013