Findings of Fact: The Dismissal Statutes

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.

If a school district intends to dismiss a permanent teacher for unsatisfactory performance, the school district must first provide the teacher with a “written notice of unsatisfactory performance,” specifying the nature of the teacher’s unsatisfactory performance and “specific instances of behavior” with “particularity [so] as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge.”  In practice, however, the school district’s dismissal process must begin long before the notice is provided to the teacher.

  1. Education Code section 44938, subd. (b)(1);
  2. 2/19 Tr. at 2336:6-26 [Fekete] [“[I]n the statute there is also this 90-day notice requirement before the initial — the initiation of charges, but that usually comes after a year or two of . . . other observation.”];
  3. 2/19 Tr. at 2337:8-22 [Fekete] [“[I]f you are going to file something, you better put everything in their including the kitchen sink.  In other words, you better have all of the evidence that you can accumulate and so you will take as much time with observations, evaluations, and remediation before initiating the process.”].

If the school district intends to proceed with the dismissal of the permanent teacher, the school district must provide the permanent teacher with at least 90 calendar days to correct her performance deficiencies, regardless of whether the district believes the teacher to be capable of remediation.

  1. Education Code section 44938, subd. (b)(1);
  2. 2/4 at 925:10-22 [Raymond] [“In order to comply with the statutes and the process, you have to build a record and oftentimes you also have to follow a 45- and a 90-day improvement process, which means they have to be in the classroom so they can be observed and they can work on that improvement plan, which, again, takes months and months and months, sometimes years.”];
  3. 2/5 Tr. at 1104:18-1105:11 [Douglas] [Fullerton [is] currently attempting to dismiss [two] tenured teachers for unsatisfactory performance pursuant to the dismissal statutes[.]  One of them has gone through two or is in the process of going through the second 90-day notice.  That individual has been through PAR three times and their 90-day notice should come to completion, their second one that is, sometime in early April.  The other candidate has received one 90-day notice, however, she has not returned to work since receiving that 90-day notice.  And so the filling of the process, I believe, will have to wait until she does return to work.  And she’s been gone for two months at this point in time.];
  4. 2/19 Tr. at 2336:6-2337:22 [Fekete] [“The basis for [my] opinion that the length of time that it takes school districts to ultimately secure dismissals of tenured teachers pursuant to the dismissal statutes is particularly challenging for districts [is, in part, that] in the statute there is . . . this 90-day notice requirement before . . . the initiation of charges, but that usually comes after a year or two of all this other observation.”].

Next, the school district must file a written statement of charges and “give notice to the permanent employee of its intention to dismiss” her.  For a dismissal based on “unsatisfactory performance,” the notice must specify instances of the teacher’s behavior and conduct constituting the charge, the statute or rule allegedly violated (where applicable), and the “facts relevant to each occasion of alleged . . . unsatisfactory performance.”  In practice, this is a highly burdensome process for school districts.

  1. Education Code section 44934;
  2. 2/6 Tr. at 1434:4-27 [Weaver] [“[T]he next step would be to gather all documentation related to . . . children learning or not learning . . . . I [] had to organize it, dig it up, make phone calls, get statements from parents, teachers, et cetera, and verify what they had did.  So that was the process I did.”];
  3. 2/19 at 2343:10-2343:27 [Fekete] [“[I]t takes two or three years for a district to even issue a statement of charges to a poor performing teacher . . . [b]ecause of the need to document and take advantage of as much of that evidentiary period as possible while at the same time doing everything possible to remediate the teacher’s performance.”].

If the permanent teacher against whom a written statement of charges has been filed requests a hearing, a dismissal hearing is conducted by an ad-hoc three-member panel called the Commission on Professional Competence (“CPC”).

  1. Education Code Section 44944, subd. (b)(1);
  2. 2/19 Tr. at 2327:25-2328:10 [Fekete] [“A commission is created ad hoc at the time a teacher who has receive a notice of intention to dismiss requests a hearing.  It doesn’t exist before that time, and when the hearing is over it ceases to exist.”].

One member of the CPC is an Administrative Law Judge from the Office of Administrative Hearings, one member of the CPC is appointed by the school district, and one member of the CPC is appointed by the permanent teacher against whom dismissal proceedings are pending.  The members of the CPC appointed by the school district and the teacher must hold credentials (typically teaching credentials) and must have at least five years’ teaching experience in the teacher’s discipline within the past ten years.  These statutory requirements hinder school districts’ efforts to dismiss grossly ineffective teachers.

  1. Education Code section 44944(b)(2);
  2. 2/3 Tr. at 769:20-27 [Christmas] [explaining that CPC panel member “must be someone who has taught as a classroom teacher within the last five years.”];
  3. 2/3 Tr. at 770:23-27 [Christmas] [“[I]t’s just another hurdle that slows down the process.”];
  4. 2/19 Tr. at 2328:14-28 [Fekete] [“There are two members who are required to be credentialed individuals, holders of credentials, one appointed by the school district that seeks to dismiss the teacher, the other appointed by the teacher.  Each of those people must have five years’ experience in the last ten years in the discipline of the person being charged with dismissal.  The third member of the commission who chairs the commission is an administrative law judge appointed by the office of administrative hearings.”];
  5. 2/19 Tr. at 2328:24-2329:17 [Fekete] [stating that the panel members who are “credential holders” are “almost always” teachers, and that the requirement that at least two members have at least five years’ experience in practice means that two of the three panel members are usually teachers].

The Dismissal Statutes afford permanent teachers expansive civil discovery rights at CPC hearings.

  1. California Education Code Section 44944, subd. (a);
  2. 1/31 Tr. at 724:160726:11 [Christmas] [noting that districts and teachers engage in “full discovery” at CPC hearings];
  3. 3/10 Tr. at 2930:5-23 [Tuttle] [acknowledging that, prior to CPC hearings, district conduct written discovery].

Permanent teachers may appeal decisions from the CPC to the California Superior Court and the California Court of Appeal.

  1. Education Code Section 44945;
  2. 1/27 Tr. at 155:3-10 [Deasy] [stating that the decision to fire a teacher is made by “an outside panel under the direction of an administrative law judge,” and that after “panel makes the decision . . . there are appeal rights”];
  3. 1/31 Tr. at 717:16-718:2 [Christmas] [“There is always the potential to appeal.”].

If the CPC (or the California Superior Court or the California Court of Appeal) determines that the permanent teacher should not be dismissed, the school district is automatically required to pay, inter alia, the expenses for the dismissal hearing, expenses incurred by CPC members, and the teacher’s reasonable attorney’s fees.

  1. Education Code section 44944, subd. (e)(2);
  2. 1/28 Tr. at 210:9-13 [Deasy] [LAUSD has been ordered to pay attorney’s fees in unsuccessful dismissal action under the Dismissal Statutes];
  3. 1/31 Tr. at 731:9-17 [Christmas] [“[I]f you lose, you are paying the attorneys’ costs of the other side . . . . [I]’ve seen our costs be from [$]50- to – all the way up to [$]200,000, but if you lose, that [$]200,000 could be [$]400,000.”];
  4. 2/3 Tr. at 912:10-25 [Raymond] [stating potential dismissal costs of pursuing dismissal include teacher’s attorney’s fees].

It takes multiple years—typically from two to ten years—to dismiss grossly ineffective teachers for unsatisfactory performance under the Dismissal Statutes.

  1. 1/27 Tr. at 159:5-8 [Deasy] [testifying that some dismissal “cases have taken slightly less than ten years.”];
  2. 1/31 Tr. at 728:2-18 [Christmas] [the average time to dismiss a tenured teacher for poor performance is “three, four years”];
  3. 2/3 Tr. at 907:27-908:24 [Raymond] [dismissal action took “over four years”];
  4. 2/4 Tr. at 1075:6-1076:7 [Kappenhagen] [“Simply getting the process started takes two years.”];
  5. 2/18 Tr. at 2189:3-16 [Johnson] [agreeing that dismissing teachers is ordinarily a “time-consuming process”];
  6. 3/12 Tr. at 3304:17-25 [Olson-Jones] [admitting that in some cases, when dismissal charges are issued, “the C.P.C’s decision is not issued until years later”];
  7. 3/21 Tr. at 4325:10-20 [Ekchian] [LAUSD has never completed a performance-based teacher dismissal hearing in less than two years].

Due to the amount of time that it takes for school districts to dismiss grossly ineffective teachers under the Dismissal Statutes, school districts experience various evidentiary difficulties in teacher dismissal actions, including but not limited to the fading of witness’ memories and the unavailability of witnesses.

  1. 1/31 Tr. at 728:19-729:6 [Christmas] [“[T]he time in and of itself impacts success. We have kids who would have been great witnesses when we first identified ineffective teaching who are no longer with us. They have graduated. They have left. They have moved from the District. That is true of teachers. That is true of administrators.”].

Ineffective and grossly ineffective teachers typically remain in the classroom during the pendency of dismissal proceedings because, among other things, school districts are required to create extensive documentation of the teachers’ unsatisfactory performance under the Dismissal Statutes.

  1. 1/28 Tr. at 196:5-26 [Deasy] [“[W]e have already judged one year there is a problem but you wait for a second year of additional evidence.  That is an example as to why the person would be in the classroom.”];
  2. 1/30 Tr. at 696:02-696:13 [Adam] [“[E]ven when teachers were recommended for dismissal, they still stayed at the school for four or five years.”];
  3. 1/31 Tr. at 722:24-723:20 [Christmas] [agreeing that grossly ineffective teachers remain in the classroom during the dismissal process because “the only way to witness poor performance is actually to allow people to perform”];
  4. 2/3 Tr. at 912:10-25 [Raymond] [in order to dismiss a teacher, it is necessary “to leave [the] teacher in the classroom while [the district] [tries] to build a track record . . . .”];
  5. 2/4 Tr. at 922:10-22 [Raymond] [“[T]o build a record . . . [it] takes months
    and months and months, sometimes years.”];
  6. 2/19 Tr. at 2343:10 [Fekete] [agreeing that it takes “two or three years for a district to even issue a statement of charges to a poor performing teacher” because districts “need to document” a teacher’s ineffectiveness before initiating dismissal].

The cost to dismiss a permanent teacher is exceptionally high, often costing school districts hundreds of thousands (and even millions) of dollars.

  1. 1/28 Tr. at 191:1-13 [Deasy] [noting that some dismissal actions cost LAUSD “many millions of dollars”];
  2. 1/29 Tr. at 412:26-413:3, 416:24-417:3 [Deasy] [LAUSD spends an average of $250,000 to $450,000 per performance-based dismissal];
  3. 1/30 Tr. at 641:04-641:21 [Adam] [“[I]n the cases where [dismissal] was successful, it took . . . thousands and thousands of dollars . . . .”];
  4. 1/31 Tr. at 731:1-20 [Christmas] [OUSD typically spends approximately $50,000 to $400,000 per dismissal action];
  5. 2/5 Tr. at 1104:11-17, 1229:21-1230:8 [Douglas] [Fullerton spends approximately $250,000 per dismissal action];
  6. 2/4 Tr. at 928:16-929:4 [Raymond] [the dismissal of a permanent teacher in Sacramento costs “hundreds and hundreds and thousands, perhaps millions”];
  7. 2/18 Tr. at 2189:3-16 [Johnson] [agreeing that dismissing teachers is ordinarily a “very expensive” process];
  8. 2/19 Tr. at 2350:10-2351:7 [Fekete] [noting that the range of legal costs alone is between $100,000 and $200,000, not including administrative costs, opportunity costs, teachers’ attorney’s fees if the district loses, and back pay if teachers are reinstated];
  9. 3/10 Tr. at 2929:5-9 [Tuttle] [discovery propounded under the Dismissal Statutes is a “waste of money”].

The evidentiary burden associated with the dismissal of a permanent teacher is exceptionally high.  For example, the CPC does not rule in favor of dismissal unless a school district can show that a teacher is “incapable of remediation.”

  1. 1/27 Tr. at 161:14-15 [Deasy] [“The documentation process is extensive prior to recommendation and quite extensive post-recommendation.”];
  2. 1/31 Tr. at 721:15-26 [Christmas] [in practice, the CPC requires districts to meet an “incapable of remediation” standard];
  3. 1/31 Tr. at 722:3-16 [Christmas] [the CPC sometimes refuses to order the dismissal of a teacher even though the CPC decision contains “an acknowledgement of the poor performance of the teacher, acknowledgment of the ineffectiveness of the teaching, [and] an acknowledgement of efforts at remediation.”];
  4. 2/29 Tr. at 2337:23-2341:12 [Fekete] [dismissal is only viable when “nothing more can possibly be done” to remediate the teacher, so districts sometimes “send teachers through a PAR Program more than once” to show that they cannot be remediated].

Because school districts possess limited budgets and the Dismissal Statutes require school districts to expend significant time, cost, and effort to even attempt to dismiss a permanent teacher for unsatisfactory performance, the Dismissal Statutes directly prevent school districts from dismissing all of their ineffective and grossly ineffective teachers.  Indeed, the Dismissal Statutes deter and discourage school district administrators from even attempting to dismiss ineffective and grossly ineffective teachers under the Dismissal Statutes.

  1. 1/27 Tr. at 164:3-7 [Deasy] [agreeing that the “length of time that it takes LAUSD to dismiss these tenured teachers using the full dismissal process impact[s] LAUSD’s ability to dismiss all of the grossly ineffective teachers it employs”];
  2. 1/28 Tr. at 187:6-16 [Deasy] [“Districts have finite budgets.  We don’t have an infinite budget.  And the decision . . . to invest in the expense of an appeals process is one of a number of decisions that’s in front of the Board of Education.  Boards have to approve the expenditure of funds during the appeal process, and in LA’s case, some of those appeals have been in the millions.  That’s a decision – when you have little or no money or actually we’re going backwards in the state of California.  Millions means you could actually hire a teacher or an aid or a police or a principal and instead you are appealing this process.  So it unquestionable has a weight and effect on that taking place.”];
  3. 1/28 Tr. at 210:22-211:2 [Deasy] [“[T]he entirety of the potential layout of money that could otherwise have been used to help students is part of the calculus”];
  4. 1/28 Tr. at 219:7-13 [Deasy] [The Dismissal Statutes do “not provide for the timely dismissal of teachers who are incompetent, who are unable to teach, and that is fundamentally what protects the quality of public schools as having highly competent and highly effective teachers in front of students every single day.”];
  5. 1/30 Tr. at 641:04-641:21 [Adam] [“I viewed [dismissal] as not a realistic option . . . .”];
  6. 1/31 Tr. at 735:24-736:10 [Christmas] [there are grossly ineffective teachers who fail to achieve satisfactory gains of student learning that OUSD does not seek to dismiss because “the bar is sufficiently high and the cost sufficiently large”];
  7. 1/31 Tr. at 736:19-737:5 [Christmas] [the Dismissal Statutes contribute to OUSD’s retention of tenured teachers whose failure to achieve gains in student learning makes them grossly ineffective];
  8. 2/3 Tr. at 904:11-23 [Raymond] [“[I]t’s very difficult to dismiss a teacher once they have tenure . . . because of the time that it takes to build a record, the numerous opportunities that an individual has to either delay the process, to have numerous appeals of the process, and, of course, the exorbitant costs that it takes both in terms of legal resources and legal counsel as well as the time that it takes the site administrator to build that record and other district staff to help support that record.”];
  9. 2/4 Tr. at 931:15-932:21 [Raymond] [there were at least “two dozen” teachers that were “considered for termination but [were] not [terminated] because of the constraints and . . . time and effort” required to dismiss them];
  10. 2/4 Tr. at 1051:16-1053:9 [Kappenhagen] [has never followed the dismissal process through to completion because “[t]he process is quite cumbersome and very time-consuming.  It is prohibitive in order to run a school district, interface with teachers, parents and students, and do the appropriate guidance that I need to do with my organization to make it go where I need it to go for the benefit of all of our students and do the documentation that’s necessary in order to fulfill the requirements that the statute requires.”];
  11. 2/18 Tr. at 2189:3-16 [Johnson] [agreeing that “dismissals are extremely rare in most districts because administrators believe it is impossible to dismiss a tenured teacher”];
  12. 2/19 Tr. at 2326:14-20 [Fekete] [“[T]he procedural complexities, the time frame required within the statute, the resources of time, opportunity costs, and attorney’s fees, and the evidentiary burden required, all result in districts being extremely reluctant . . . to use this process to fire grossly ineffective teachers.”];
  13. 2/19 Tr. at 2363:13-2364:28 [Fekete] [school districts’ low success rate at CPC hearings “discourage[s]” school districts from initiating dismissal cases under the Dismissal Statutes];
  14. 3/5 Tr. at 2580:10-2581:1 [Fraisse] [agreeing that it should be “easier to fire bad teachers”];
  15. 3/24 Tr. at 4467:17-4468:16 [Smith] [“The statutes themselves . . . make it unlikely that we would be successful in the dismissal process for the number of teachers that we would have to carry forward, and also the weighing of the costs.  I don’t have the capacity in the system to actually carry each one of those conversations forward . . . [Y]ou have to weigh the cost of that entire endeavor against the money you have to serve the kids”].

Over the past ten years, the CPC has issued only 147 total permanent teacher dismissal decisions, or 14.7 decisions per year.  Annually, these dismissal decisions correspond to 0.005% of the approximately 275,000 teachers who are employed in the State of California.  Over the past ten years, the CPC has authorized the dismissal of permanent teachers for unsatisfactory performance just 22 times, or 2.2 times per year.  Annually, this corresponds to approximately 0.0008% of the 275,000 teachers who are employed in the State of California.

  1. 1/28 Tr. at 224:20-225:11 [Deasy] [“Although [LAUSD] issued 57 permanent teachers with written notices of unsatisfactory performance . . .  the [CPC] ordered the dismissal of only 3 teachers in the 2010-2011 school year or 0.01 percent of the approximately 28,497 teachers employed by the school district.  During the 2010-2011 school year, significantly more than 0.01 percent of teachers that district employed were ineffective or grossly ineffective.”];
  2. 2/19 Tr. at 2357:24-2360:28 [Fekete] [discussing the CPC decisions from 2003-2013];
  3. 3/18 Tr. at 3907:19-22 [Nichols] [stating there are approximately 277,000 K-12 public school teachers in California].

California school districts would dismiss more ineffective and grossly ineffective teachers if the dismissal process took less time, money, and documentation.

  1. 1/27 Tr. at 158:7-19 [Deasy] [agreeing that LAUSD “is currently unable to dismiss all of the ineffective and gross ineffective permanent certificated teachers that it employs because of the cost and burden imposed on the district by [the Dismissal Statutes]”];
  2. 1/28 Tr. at 216:1-8 [Deasy] [LAUSD “would be both more successful [in its dismissal actions] and would attempt to dismiss other[]” grossly ineffective teachers if the process to dismiss a permanent teacher were more “streamlined”];
  3. 2/4 Tr. at 932:15-932:21 [Raymond] [Sacramento would have dismissed “at least two dozen” grossly ineffective teachers, but for the challenges associated with the Dismissal Statutes];
  4. 2/5 Tr. at 1110:27-1111:15 [Douglas] [Fullerton would attempt to dismiss “all” of its grossly ineffective teachers if dismissal cost less and took less time];
  5. 2/7 Tr. at 1444:27-1445:14 [Weaver] [would have sought the dismissal of grossly ineffective teachers at his school if the process took “less time, cost, and burden”];
  6. 3/21 Tr. at 4322:12-22 [Ekchian] [LAUSD would immediately dismiss 350 ineffective and grossly ineffective teachers if the process were streamlined];
  7. 3/25 Tr. at 4467:18-4468:18 [Smith] [OUSD “would have sought to dismiss more tenured teachers whose performance was unsatisfactory using the dismissal statutes if the process required fewer resources.”].

Even purportedly “well-run” school districts are required to expend significant time, cost, and effort to dismiss grossly ineffective teachers under the Dismissal Statutes, which prevents them from proceeding with the dismissal of all of the grossly ineffective teachers that they employ.

  1. 1/27 Tr. at 142:26-143:11 [Deasy] [“LAUSD schools are not poorly managed.”];
  2. 2/4 Tr. at 928:16-929:4 [Raymond] [it would not be “possible or practical” to dismiss all grossly ineffective teachers for performance via the Dismissal Statues “by simply allocating its resources toward that goal”];
  3. 2/5 Tr. at 1099:21-1100:12 [Douglas] [“It’s not a management problem as far as being better managed . . . . [T]he process itself would have to change];
  4. 2/7 Tr. at 1446:6-18 [Weaver] [“I wish it was the case that my efficiency as a manager or my capacity to do the things I’m supposed to do would allow me to address certain issues related to personnel in an efficient way.  I wish that was the case . . . .”]
  5. 2/19 Tr. at 2327:4-24 [Fekete] [the operation of the Dismissal Statutes does not depend “in any way on whether the school district is well managed” because the “various requirements of the statute are not related to the subject of management or to the quality of management . . . You have the same time frames.  You have the same evidentiary burdens.  You have the same procedural hoops to jump through whether you are well managed or not.”];
  6. Pls. Ex. 20 at P0020-547 to 562 [according to CPC findings, it took Vallejo City more than five years to dismiss permanent teacher for excessive absences, unpreparedness, disorganization, failure to maintain files, and failure to instruct students professionally];
  7. Pls. Ex. 20 at P0020-1094 to 1134 [according to CPC findings, it took Riverside nearly four years to dismiss permanent teacher for failure to develop lesson plans; teacher was prone to “procrastination, forgetfulness, inefficiency, blaming others for her shortcomings, and an unwillingness or inability to meet reasonable performance standards . . . .”];
  8. Pls. Ex. 20 at P0020-1708 to 1721 [according to CPC findings, it took Long Beach over three years to dismiss permanent teacher for giving “confusing” directions to students, keeping “inconsistent, confusing, and difficult” records, letting her classroom devolve “in chaos,” and “yell[ing] at students,” despite receiving 60 hours of PAR training].

School districts are sometimes able to persuade some grossly ineffective teachers to enter into settlement agreements or resign from their teaching positions.  However, it is not possible for school districts to remove all of their grossly ineffective teachers through settlements and resignations because some grossly ineffective teachers refuse to settle or resign.

  1. 2/3 Tr. at 911:3-28 [Raymond] [Sacramento was unable “to remove all grossly ineffective teachers for poor performance” because “[t]here were simply more than [the district was] either able to transfer, get to retire, and [the district has] a number still that are on improvement plans.”];
  2. 2/3 Tr. 727:18-728:1 [Christmas] [“For a variety of different reasons we would not be able to settle, but principally among them, the cost of settling might be too high. We might have a teacher who basically tells their counsel I’m not interested in settling, you know, we’re going to go the whole way.”];
  3. 3/10 Tr. at 2932:7-14 [Tuttle] [agreeing that “a dismissal hearing may be the only way a district can remove a poorly performing teacher who refuses to resign after failing to improve” if a “teacher has permanent status and doesn’t retire and doesn’t resign.”];
  4. 3/11 Tr. at 3099:1-14 [Mills] [agreeing that “in some cases the dismissal hearing might be the only means by which Riverside Unified can dismiss an ineffective tenure teacher who refuses to voluntarily leave his position after failing to improve.”];
  5. 3/11 Tr. at 3133:17-27 [Boyd] [agreeing that “in some cases the dismissal hearing might be the only means by which Riverside Unified can dismiss an ineffective tenure teacher who refuses to voluntarily leave his position after failing to improve.”].

It is also not possible for school districts to remove all of their grossly ineffective teachers through settlements and/or resignations because settlements and resignations are costly and time-consuming.  In fact, the time, cost, and effort associated with dismissal under the Dismissal Statutes drives up the cost of settlement agreements.

  1. 2/3 Tr. at 872:20-873:9 [Christmas] [“It is the lesser of evils to pay money to not have someone who is ineffective working with students, to not be working with those students . . . .”];
  2. 2/3 Tr. at 874:8-19 [Christmas] [“[T]he cost . . . with respect to dismissal efforts under the Dismissal Statutes impact[s] the costs of the settlements that the district pays to teachers in performance cases”];
  3. 2/3 Tr. at 913:3-10 [Raymond] [the cost of settlements ranges from $15,000 to $70,000 per teacher];
  4. 2/4 Tr. at 929:5-16 [Raymond] [“[Resignations and settlements] are simply workarounds. They are simply ways that we can minimize what I would call the damage that ineffective and grossly ineffective teachers impart on students. They take a lot of time. They take energy, but they are simply that, they are workarounds.”];
  5. 2/4 Tr. at 932:22-933:2 [Raymond] [the settlement process entails costs in addition to “the monetary payout” itself, including “[s]taff time and opportunity costs lost by that staff time, as well as attorneys’ fees”];
  6. 3/10 Tr. at 2930:5-23 [Tuttle] [agreeing that before settlements, discovery, document production, and depositions can occur, and that school districts incur a “greater amount of attorneys’ fees before settlement is reached than in other performance cases”];
  7. 3/21 Tr. at 4307:21-4308:14 [Ekchian] [LAUSD paid more than $5 million in settlement payments in a 5 year span].

Many school districts, including LAUSD and OUSD, attempt to address the problem of grossly ineffective teachers by providing such teachers with intensive support, enrolling them in PAR programs, and trying to remediate them.  However, not all grossly ineffective teachers are able or willing to remediate, regardless of the amount of support that school districts provide to them.

  1. 1/28 Tr. at 202:7-20 [Deasy] [LAUSD has a PAR program];
  2. 1/31 Tr. at 735:8-23 [Christmas] [some teachers “believe[] that they can stick around till retirement without remediating.”];
  3. 2/7 Tr. at 1438:21-1442:9 [Weaver] [describing unsuccessful efforts to remediate an ineffective teacher];
  4. 2/18 Tr. at 2205:12-18 [Johnson] [agreeing that “even a well run PAR program must contemplate that some poorly performing teachers may still have to be dismissed . . . under state law.”];
  5. 3/5 Tr. at 2587:2-16 [Fraisse] [“[N]ot every teacher who [is] recommended to PAR for intervention ultimately emerges as an effective teacher” because “some teachers are unable to meet the requirements of their PAR improvement plans.”];
  6. 3/11 Tr. at 3097:6-3098:9, 3099:9-14 [Mills] [conceding that a dismissal hearing may be the only means by which Riverside can dismiss an ineffective tenured teacher who refuses to voluntarily resign and fails to improve her performance];
  7. 3/13 Tr. at 3381:18-23 [S. Brown] [“[N]o matter how much support I provided and no matter how much feedback I gave and no matter how much modeling I did, she was unable to meet the needs of the students in the classroom.”], 3394:10-14, 3420:7-12;
  8. 3/13 Tr. at 3516:15-17, 3517:6-3518:6, 3518:20-23, 3519:15-17, 3519:28-3520:18 [Raun-Linde] [describing multiple unsuccessful efforts to remediate teachers who exhibited unsatisfactory performance].

Teacher assistance programs, such as PAR programs, are costly for school districts and limited in scope, even when they are well-run.

  1. 1/28 Tr. at 204:10-17 [Deasy] [LAUSD cannot use PAR to “ensure that all of its grossly ineffective teachers become effective teachers,” because of, in part, “the absolute resource constraint . . . [W]e cannot fund PAR to work with every single solitary teacher who is struggling and every single solitary teacher who is demonstrating incompetence.”];
  2. 2/18 Tr. at 2210:19-2211:6 [Johnson] [PAR programs cost between $250,000 and $2 million annually];
  3. 2/18 Tr. at 2211:27-2212:5 [Johnson] [Dr. Johnson’s study acknowledged that “administrators and teachers in most districts said that despite a well-established PAR program, some weak teachers still were granted tenure and failing veteran teachers still remained on the job”];
  4. 3/12 Tr. at 3305:6-10 [Olson-Jones] [agreeing that “PAR program[s] do[] not eliminate the need for a process to dismiss ineffective teachers”];
  5. 3/14 Tr. at 3430:14-20 [S. Brown] [only two teachers complete PAR per year in the San Juan Unified School District, a school district with over 2,000 certified staff];
  6. 3/19 Tr. at 4092:28-4093:2, 4094:23-4095:1 [Webb] [less than two teachers complete PAR per year in the Hart Union High School District, a school district that employs over 1,000 teachers].

Grossly ineffective teachers harm the morale of other teachers with whom they work and make it more difficult for the teachers with whom they work to achieve student learning gains.

  1. 1/28 Tr. at 198:17-28 [Deasy] [teachers are “uncomfortable with having an incompetent teacher next door to them” and “do not wish to work with an individual who is either on dismissal track or who has been remanded back to the school after an acknowledgment of a problem but not enough to fire them.”];
  2. 1/28 Tr. 200:19-201:5 [Deasy] [“[Teachers] are incredibly proud of their profession and proud of what this profession does and don’t want publicly that to be diminished by either incompetence or malfeasance by a colleague.”];
  3. 1/30 Tr. at 639:26-640:14 [Adam] [partner teachers of poorly performing teachers were “demoralized because all of the work fell on them”];
  4. 2/6 Tr. at 1417:19-1419:13 [Weaver] [“I was . . . a fourth- and fifth-grade teacher.  Next to me was a third-grade classroom . . . that had several, you know, highly ineffective, grossly ineffective . . . people . . . . And I was the receiving teacher for those students.  So that means each year I would get – I would move up my fourth-graders to fifth grade, and then those were in third grade would come to me from that classroom, and they would invariably be behind.  Many of them would be angry . . . .];
  5. 2/7 Tr. at 1495:5-24 [Moss] [it was “demoralizing” to teach alongside grossly ineffective teachers];
  6. 2/10 Tr. at 1542:9-20 [Pulley] [testifying that she left a public school because grossly teachers affected the teaching environment].

The dismissal of more ineffective and grossly ineffective teachers would have a real and appreciably positive impact on students.

  1. See generally supra § IV.C; infra § V.C.2.

Classified employees refer to non-certificated school district employees.  Some examples of classified employees include custodians, secretaries, school security officers, school police officers, and certain administrators.

  1. 1/28 Tr. at 211:18-27 [Deasy];
  2. 1/31 Tr. at 740:24-741:9 [Christmas] [classified employees are “noncertificated employee[s]” such as “custodians, secretaries, school security officers, school police officers, directors of labor strategy”].

It costs significantly less money for school districts to dismiss classified employees than permanent teachers.

  1. 2/5 Tr. at 1223:1-11 [Douglas] [costs to dismiss a classified employee are “minimal”];
  2. 2/3 Tr. at 915:8-916:2 [Raymond] [agreeing that dismissing classified employees typically costs less than dismissing tenured teachers];
  3. 3/21 Tr. at 4327:10-21 [Ekchian] [LAUSD spends $3,400 on average to dismiss classified employees]; cf. 1/29 Tr. at 412:26-413:3 [Deasy] [LAUSD spends $250,000 to $450,000 on average to dismiss tenured teachers].

It takes significantly less time for school districts to dismiss classified employees than permanent teachers.

  1. 1/28 Tr. at 215:10-14 [Deasy];
  2. 2/3 Tr. at 878:3-16 [Christmas] [the “time and burden associated with separating from a classified employee is typically significantly less than separating” from a permanent teacher];
  3. 2/5 Tr. at 1221:8-1222:9, 1222:24-28 [Douglas] [it takes “not much more than a month, month and a half” to complete a dismissal of a classified employee once the employee has been notified of his or her performance deficiency].