Findings of Fact: Disparate Impact On Low-Income And Minority Students

Finding of Fact

The following “Findings of Fact” were compiled by Plaintiffs to demonstrate the overwhelming evidence presented at trial, by both Plaintiffs and the Defense, supporting the Court’s decision in Vergara v. California to rule unconstitutional the State’s Permanent Employment Statute, Dismissal Statute and “Last In, First Out” Layoff Statute.

Note: The notation “Tr.” refers to a specific place in the trial transcripts. The Court has not yet released the final transcripts to the public; however, when the Court does release the final transcripts to the public, Students Matter will post them to this site and link to them throughout the Findings of Fact.

There are significant achievement gaps between white students and African-American and Latino students in California, as measured by high school graduation rates within four years, high school dropout rates, and proficiency in English-Language Arts and mathematics.

  1. 2/13 Tr. at 1929:18-1933:23 [Ramanathan];
  2. 2/18 Tr. at 2153:1-17 [Johnson] [“[P]erformance of students in high-poverty, high-minority schools is lower on average.”];
  3. 3/10 Tr. at 3001:22-26 [Barrera] [“[T]here is still an achievement gap in the San Diego Unified School District between black and Latino students and white students.”];
  4. 3/11 Tr. at 3107:9-22 [Mills] [there was a gap between API scores of white and Latino students in Riverside Unified School District during the 2012-2013 school year];
  5. 3/12 Tr. at 2350:14-22 [Seymour] [there was a gap in the API scores between white and Latino students, as well as between white and African American students, in El Monte City School District in 2012];
  6. 3/13 Tr. at 3498:26-3499:5 [Davies] [there was a gap in the API scores of white and minority students in the San Juan Unified School District in 2012];
  7. 3/20 Tr. at 4265:2011 [Darling-Hammond] [stated that “California has failed and is failing to provide equal educational opportunities to all of its public school students, primarily failing poor and minority students.”].

There are significant achievement gaps between low-income students and non-low-income students in California, as measured by high school graduation rates within four years, high school dropout rates, and proficiency in English-Language Arts and mathematics.

  1. 2/13 Tr. at 1930:15-23 [Ramanathan];
  2. 2/13 Tr. at 1932:9-21 [Ramanathan];
  3. 2/13 Tr. at 1936:21-28 [Ramanathan] [“This is eighth-grade students deemed proficient or advanced in English-language arts . . . . [W]e have all students at 74 percent on the left-hand side.  The socioeconomically disadvantaged students are on the right-hand side.  There is a 30-point difference between the two groups.”];
  4. 2/18 Tr. at 2153:1-17 [Johnson] [“[P]erformance of students in high-poverty, high-minority schools is lower on average . . . .”];
  5. 3/19 Tr. at 4052:24-27 [Futernick] [agrees that “[t]here is a large and unacceptable achievement gap between rich students on the one hand and poor and minority students on the other.”];
  6. 3/20 Tr. at 4265:2011 [Darling-Hammond] [stated that “California has failed and is failing to provide equal educational opportunities to all of its public school students, primarily failing poor and minority students.”].

Poor and minority students are more vulnerable than non-poor and non-minority students to the harms imposed on them by ineffective and grossly ineffective teachers because they often lack the resources necessary to ameliorate such harms.

  1. 1/30 Tr. at 633:5-633:22 [Adam] [“[M]ost of the parents of our children do not have a high school or college education and don’t have . . . the ability to support their kids with academic work very well at home in terms of direct academic support.  [W]e are in an impoverished community.  They don’t have resources to be able to send their kids to Sylvan or Kumon Learning Center or to summer camps that enhance academic skills in the summer.  And so for the kids who getting an ineffective teacher, there is no other way for them to gain those skills, and so there is a long-term permanent effect.”];
  2. 2/4 Tr. at 1040:19-1041:8 [Kappenhagen] [“[W]hen a student from a low-income family has an ineffective teacher, it actually puts them—it puts their life trajectory on hold or even backwards . . . [L]ower income families’ students don’t have the available resources that other or more affluent families have, they don’t have an opportunity to be nearly as resilient when they have an ineffective teacher, especially when they have a grossly ineffective teacher.”];
  3. 2/7 Tr. at 1456:16-28 [Weaver] [“There is a margin of error issue with students with low-income, lots of risk factors . . . I liken it to standing on a razor’s edge. The fewer these risk factors you [have], the wider your base is, but for many students, especially kids of color . . . especially kids who have low socioeconomic status, education can either prop them up or it can blow them down . . . .”];
  4. 2/18 Tr. at 2194:23-2195:2 [Johnson] [agreeing that “high-minority, high-poverty kids are much more dependent on their teachers than wealthier suburban kids,” and that “the contributions of teachers is especially important for low-income students who tend to have fewer learning supports outside of schools.”];
  5. 3/13 Tr. at 3415:19-28 [S. Brown] [agreeing that ineffective teachers can “compound the challenges that [high-risk kids] face outside the school”].

Effective teachers tend to transfer from less affluent schools to more affluent schools as they gain seniority because there is a perception that they will have relatively better working conditions in more affluent schools.

  1. 1/28 Tr. at 334:26-335:12 [Deasy] [“[I]t does happen . . . that teachers request a transfer from low socioeconomic schools to higher socioeconomic status schools” and “teachers with high seniority decline to go to [low socioeconomic status] schools.”];
  2. 2/4 Tr. at 938:10-939:6 [Raymond] [“[High-poverty, high-minority schools] are very challenging and difficult schools to work in, often in very challenging neighborhoods.  They are often the last positions filled, so they are taken by the least-senior teachers.”];
  3. 2/18 Tr. at 2115:13-25 [Johnson] [“The more affluent schools had . . . more favorable working environments”].

When effective teachers transfer from less affluent schools to more affluent schools, ineffective and grossly ineffective teachers remain behind in the less affluent schools. They “accumulate” in such schools rather than being dismissed because it is costly, time-consuming, and burdensome to dismiss permanent teachers under the Dismissal Statutes.

  1. 2/6 Tr. at 1330:20-1331:22 [Kane] [the California education system “function[s] like a lemon accumulation machine.”];
  2. 2/6 Tr. at 1334:9-27 [Kane] [“[I]n any system where districts have to make tenure[] decisions prematurely and where it is difficult to make dismissal decisions later, [] ineffective teachers will tend to accumulate, sort of an inevitable result of those two factors.  And the regrettable implication of that is that ineffective teachers tend to accumulate then in the schools where there are more vacancies.  And the schools where there are more vacancies are often the schools that where there are large concentration of African-American or Latino students . . . . [I]t’s a machine in the sense that there is a mechanical relationship between premature tenure decisions, difficult dismissal decisions, and the accumulation of ineffective teachers.”].

Because it is so costly, time-consuming, and burdensome to dismiss permanent teachers under the Dismissal Statutes, principals often resort to transferring their ineffective and grossly ineffective teachers to other schools within the school district.  This practice is known colloquially as the “Dance of the Lemons.”

  1. 2/5 Tr. at 1124:20-25, 1127:15-21 [Douglas] [principals “use [the] Dance of the Lemons” to “mov[e] people of less skill, poor performance . . . to other schools . . . to the south of town,” which serves “predominately low-income students.”];
  2. 2/6 Tr. at 1330:20-1331:22 [Kane] [“[L]ess-effective teachers tend to be shifted into those schools where there are more vacancies. And those are the schools where there are disproportionate numbers of African-American and Latino students.”];
  3. 3/12 Tr. at 3219:17-25 [Seymour] [describing the Dance of the Lemons as “simply moving people around”];
  4. Pls. Ex. 289 at P0289-46 [CDE Report] [“[T]ransfers often functioned as a mechanism for teacher removal.  Almost two in five administrators in the Eastern district and one in four in the Western district admitted to encouraging a poorly performing teacher to transfer or to placing one on an excess list . . . . [T]eacher termination data suggest that this is often the most practical course of action at the individual school level.  Not surprisingly, the poorly performing teachers generally are placed in low-income and low-performing schools . . . . [T]he data showed that even when [principals] tried to formally terminate a teacher, they faced a very limited likelihood of success.”].

Minority and low-income schools receive a disproportionately large percentage of ineffective and grossly ineffective teachers through the Dance of the Lemons because, among other reasons, minority and low-income schools frequently have higher numbers of vacancies than white and non-low-income schools.

  1. 1/30 Tr. at 653:19-654:1 [Adam] [“I’ve observed that hill schools [i.e. more affluent schools] get fewer priority placement [i.e. ineffective] teachers and the main reason for that is that the hill schools tend to have a more stable teaching population and therefore fewer vacancies.  Whereas, [in] the flat land schools [i.e., the low-income schools] . . . it’s a very stressful situation to teach in because of the high needs in our community.  Therefore, teacher turnover tends to be higher in our flat land schools.  And, therefore, because of more teacher turnover, there are more vacancies, and because there are more vacancies, then you get more priority placement teachers.”];
  2. 2/5 Tr. at 1128:4-1129:7 [Douglas] [“[F]amilies who aren’t used to the education system, are learning the education system, don’t know what to look for in a great teacher and they give their children to the school district as an honor to raise them and to educate them and so sometimes they won’t complain about a teacher . . . .”];
  3. 2/6 Tr. at 1334:9-27 [Kane].

Minority students in California are more likely to be taught by ineffective and grossly ineffective teachers than white students.

  1. 2/6 Tr. at 1326:3-1328:10 [Kane] [black students in LAUSD are 43% more likely than white students to be taught by a teacher in the bottom 5%];
  2. 2/6 Tr. at 1326:3-1328:10 [Kane] [Hispanic students in LAUSD 68% more likely than white students to be taught by a teacher in the bottom 5%];
  3. 2/13 Tr. at 1909:15-27 [Ramanathan] [“White and Asian students are 50 percent likely to have a high value-added teacher versus only about 24 percent of black and Latino students.  It’s the same thing for low value-added.  They’re much less likely to have access to a low value-added teacher than a black or Latino student for English-language arts, and the same pattern holds true for math on the right-hand side.”];
  4. 3/19 Tr. at 3983:13-22 [Nichols] [“[T]he 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 ineffective teachers.”];
  5. 3/20 Tr. at 4263:12-18 [Darling-Hammond] [stated that “effective teachers are the most unequally distributed educational resource in the United States.”];
  6. Pls. Ex. 289 at P0289-5 [CDE Report] [“Because minority children disproportionately attend [high-poverty, low-performing schools], minority students bear the brunt of staffing inequities”];
  7. Pls. Ex. 289 at P0289-5 [CDE Report] [“Unfortunately, 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 . . . ineffective teachers . . . Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequities.”].

Low-income students in California are more likely to be taught by ineffective and grossly ineffective teachers than non-low-income students.

  1. 2/5 Tr. at 1132:22-27 [Douglas] [“8 out of 10 [grossly ineffective teachers Mr. Douglas identified in his testimony] are in the predominately low-income schools.”];
  2. 2/13 Tr. at 1909:9-27 [Ramanathan] [low income students in LAUSD are twice as likely to have an ineffective English-Language Arts teacher as non-low income students, and they are 1.66 times as likely to have an ineffective math teacher as non-low income students];
  3. 2/18 Tr. at 2197:5-10 [Johnson] [agrees that “low-income students have a disproportionate number of ineffective teachers compared to high-income students.”];
  4. 3/19 Tr. at 3983:13-22 [Nichols] [“[T]he 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 ineffective teachers.”];
  5. 3/20 Tr. at 4263:12-18 [Darling-Hammond];
  6. Pls. Ex. 289 at P0289-5 [CDE Report] [“Unfortunately, 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 . . . ineffective teachers . . . Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequities.”].

Schools serving predominantly high-need communities, including minority and low-income students, generally have higher proportions of teachers with low-seniority relative to schools serving predominately white and non-low-income students.

  1. 1/30 Tr. at 584:15-585:27 [Chetty] [“[I]t’s been well-documented that there are more inexperienced teachers, more rookie teachers, for instance, in schools that have a high fraction of minority and low-income students.”];
  2. 2/11 Tr. at 1799:18-1800:4 [Goldhaber] [“African-American students and minorities in general and high-poverty students tend to be served by teachers who are more junior.”];
  3. 2/18 Tr. at 2193:20-28 [Johnson] [agreeing that “high-poverty schools tend to have high proportions of inexperienced teachers”];
  4. 3/18 Tr. at 3873:27-3874:2 [Berliner] [agreeing that “novice teachers tend[] to work at schools that serve the poor.”];
  5. Pls. Ex. 289 at P0289-5 [CDE Report] [“Unfortunately, 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 . . . inexperienced . . . teachers . . . Because minority children disproportionately attend such schools, minority students bear the brunt of staffing inequities.”].

The LIFO Statute forces school districts to issue layoff notices to and ultimately lay off teachers at schools serving predominantly high-need communities, including minority and low-income students, at a disproportionately high rate relative to schools serving predominantly white and non-low-income student populations.

  1. 1/30 Tr. at 584:15-585:27 [Chetty] [“[A] LIFO policy . . . effectively lays off a lot more teachers in high-minority schools relative to schools that have fewer — that are in more affluent areas or have fewer numbers of minority students.”];
  2. 1/30 Tr. at 644:4-20 [Adam] [“[T]here are numerous schools in the wealthier areas in the hills that had only about 10 percent of their staff receiving preliminary layoff notices . . . . [By contrast,] at a school east of us [in a poorer area], 90 percent of the teachers received the preliminary notices.”];
  3. 2/5 Tr. at 1125:11-20 [Douglas] [the “impact [of layoffs] was higher” in schools that serve predominantly low-income and minority students.”];
  4. 2/11 Tr. at 1799:13-20 [Goldhaber] [“African-American students were disproportionately likely to have their teacher receive a RIF notice.”];
  5. 2/14 Tr. at 2076:18-2088:11 [Ramanathan] [“[My] personal experience in San Diego of the impact of seniority-based layoffs [allowed us to] clearly see that it was a higher level impact in higher poverty areas of the district than in lower poverty areas of the district . . . [I]t’s a pretty well-known fact among superintendents and other folks in our state that these layoffs disproportionately hit high-poverty, high-needs school.”];
  6. 2/19 Tr. at 2193:20-28 [Johnson] [acknowledging that “reverse seniority layoffs tend to affect dysfunctional high-poverty schools more severely than functional low-poverty schools because high-poverty schools tend to have high proportions of inexperienced teachers”];
  7. Pls. Ex. 40 [Revised Findings and Order on Plaintiffs’ Motion for Preliminary Injunction, Reed v. California] [LAUSD sent RIF notices to 60% (47 of 78) of the teachers at Liechty, 48% (38 of 79) at Gompers, and 46% (33 of 72) at Markham—all high-minority, high-poverty schools].

The disproportionate number of layoffs and layoff notices that occur at schools serving high-need communities, including minority and low-income students, creates an increased churn of the teaching staff that is disruptive to student learning and staff morale.

  1. 1/28 Tr. at 236:14-237:1 [Deasy] [“[T]eachers have been laid off as a result of this [LIFO] Statute that have had a track record of providing learning gains for students who are language learners, who are students who live in circumstances of poverty, where those learning gains are not the same as other teachers who have been retained. As a result of teachers being laid off, teachers, other teachers in the system, have had to take classes for which they did not have the previous experience of teaching, so that the student and the teachers . . . are no longer able to work with a teacher who has built the relationship with them.”];
  2. 1/31 Tr. at 760:12-761:18 [Christmas] [“[T]he other thing we lose [as a result of LIFO layoffs] is school cultures.  So you could have a positive school culture with a highly effective staff and if a critical mass of that staff gets layoff notices, the mere seeking of other employment, let alone the need to get other employment, changes the environment in that school and that impacts student learning.”];
  3. 2/4 Tr. at 938:10-939:6 [Raymond] [“[T]he disproportionately large number of layoffs in Sacramento’s high-poverty, high-minority schools caused “constant churn of the faculty and staff from year to year with no synergy and no real concept of a collected efficacy amongst adults trying to teach children that are often significantly behind their peers.”];
  4. 2/5 Tr. at 1225:23-1226:15 [Douglas] [“Part of [the result of LIFO layoffs is what] I call a morale issue.  Another part is — and I’m not sure how to define it, so I’m going to give a picture of it rather than a definition of it.  Someone who has had a very bad rear-end accident, for years they will tend to look in their rearview mirror all the time when they’re driving for fear that they’re going to get rear-ended again.  I still have teachers who went through that process, hurt that they went through the process because they felt they were quality teachers and they were going through a process that didn’t relate to their quality, but also it constantly reminds them they’re sort of walking on eggshells that it could happen again.”];
  5. 2/11 Tr. at 1767:23-1769:3 [Melvoin] [“When I came back to Markham in that fall of my second year, I realized that our school staff had been decimated.  I realized my students had a vast majority of their teachers who were substitutes, teachers who were there one day and not there the next.  I observed these flex periods that there was no student learning happening in a number of these classrooms . . . . [RIF notices] just permeated the entire school culture.”];
  6. 2/13 Tr. at 1905:1-28 [Ramanathan] [“The findings of the report are not only that students in high-poverty schools are more likely to be disproportionately impacted by the layoff process than students in low-poverty schools but also that through the layoff bumping process that that would add an additional destabilization into these school systems and potentially into these schools because seniority essentially allows folks to bump folks who are less senior than them resulting in an ongoing destabilization that can cascade through a system.  So even if folks don’t necessarily lose their jobs, they can — one RIF can result in multiple destabilizations in multiple schools.”].

School districts implementing RIFs are generally unable to use LIFO Statute subdivisions (d)(1) or (d)(2) to “skip” laying off teachers serving high-need communities, including minority and low-income students.

  1. 1/28 Tr. at 244:12-246:10 [Deasy] [LAUSD unsuccessfully attempted to use the LIFO Statute  subdivision (d)(2) exception to avoid laying off effective teachers in schools where youth of greater poverty reside];
  2. 2/3 Tr. at 918:10-28 [Raymond] [“[T]hese subsections, (d)(1) and (d)(2), [did not] enable the Sacramento City Unified School District to avoid laying off all of its effective teachers [nor] did these subsections enable the Sacramento City Unified School District to lay off all of its grossly ineffective teachers.”];
  3. 2/5 Tr. at 1218:3-1221:2 [Douglas] [Fullerton did not attempt to use LIFO Statute subdivisions (d)(1) or (d)(2) during RIFs because it would be too difficult, if not impossible];
  4. 2/13 Tr. at 1965:14-1971:15 [Ramanathan] [testifying that the Court of Appeal overturned a consent decree designed to protect teachers at high-need schools using
    LIFO Statute subdivision (d)(2); LAUSD, Sacramento, and San Francisco each attempted to use the LIFO Statute skipping provisions, but courts rejected their efforts; in Sacramento, the Superior Court overturned an ALJ decision authorizing the district to protect teachers at high-need schools; and in San Francisco, an ALJ found that the district could not skip teachers in the high-need Superintendent Zone].

As a practical matter, school districts are not always able to induce or force effective teachers to teach in high-need schools, rather than other schools in the districts.

  1. 1/29 Tr. at 385:5-23 [Deasy] [although LAUSD has attempted to require teachers to transfer schools, it “has been aggressively grieved in the past,” meaning that “a grievance has been filed when [LAUSD] force[d] a teacher to go where a teacher [did] not wish to go.”];
  2. 3/24 Tr. at 4478:16-19 [Smith] [administrators cannot “in all instances avoid a concentration of grossly ineffective teachers at low-income minority schools” by transferring teachers involuntarily];
  3. 2/14 Tr. at 2081:3-11 [Ramanathan] [it is a “terrible situation” when teachers are “bumped or placed into []school[s]” and they “don’t want to be there.”].