Findings of Fact: The LIFO Statute

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.

The LIFO Statute governs the process by which teachers are laid off during RIFs. School districts enact RIFs for a variety of reasons, including budget shortfalls, declines in student populations, and cancellations of or modifications to existing educational programs.

  1. Education Code section 44955(b);
  2. 2/13 Tr. at 1978:27-1980:4 [Ramanathan] [“[T]he budget cycle, that’s one thing . . . The second big thing, you know, the layoff process also happens as a result of other factors.  Declining enrollment is one of the most fundamental factors . . . And then the last one is really the — there [are] a thousand school districts in the state of California, and school districts make decisions all the time about programs to eliminate and programs to increase whether those are good or down budget times . . . .”];
  3. 2/4 Tr. at 990:25-991:7 [Bhakta] [stating that her layoff was due to declining enrollment].

California school districts have implemented RIFs each and every year for at least the past six years.

  1. 2/13 Tr. at 1983:26-1984:24 [Ramanathan] [“[T]here have been reductions in force every single school year from 2009/’10 to 2013/2014.”];
  2. 3/17 Tr. at 3685:8-11 [Oropeza] [“[L]ayoff notices have been announced in certain California school districts this year.”].

Even purportedly “well-run” school districts have implemented RIFs in recent years, despite their best efforts to avoid them.

  1. 3/10 Tr. at 2995:27-2996:2 [Barrera] [“San Diego Unified School District has not always been able to avoid layoffs.”];
  2. 3/11 Tr. at 3102:24-3103:6 [Mills] [despite “Riverside Unified’s best efforts, layoffs have occurred in the district in recent years.”];
  3. 3/11 Tr. at 3181:19-25 [D. Brown] [“La Habra City Elementary School District has laid off teachers in the last five years.”];
  4. 3/13 Tr. at 3441:17-20 [S. Brown] [agreeing that San Juan Unified School District has issued preliminary layoff notices to certificated staff every year since 2009].

California school districts have already announced RIFs for the 2014-2015 school year.

  1. 2/14 Tr. at 1976:27-1977:12 [Ramanathan] [one or more school districts “have already started to announce” layoffs];
  2. 3/5 Tr. at 2541:22-25 [Fraisse] [“California has not been good to schools in terms of providing good evidence of what your next year’s budget is going to be.”];
  3. 3/17 Tr. at 3685:8-11 [Oropeza] [“[L]ayoff notices have been announced in certain California school districts this year.”].

California school districts must provide teachers with preliminary layoff notices on or before March 15th in order to implement RIFs for the following school year.

  1. Education Code section 44949(a).

California school districts must provide teachers with final layoff notices before May 15th in order to implement RIFs for the following school year.

  1. Education Code section 44955(c);
  2. 2/5 Tr. at 1134:1-5 [Douglas] [final layoff notice process ends May 15].

When California school districts implement RIFs, they lay off teachers on the basis of reverse seniority, subject to certain limited statutory exceptions.

  1. Education Code section 44955, subds. (b), (d);
  2. 2/7 Tr. at 1500:12-20 [Moss] [stating he received a RIF notice “because [he] was low on the seniority list”];
  3. 2/11 Tr. at 1754:25-1755:9 [Melvoin] [stating his RIF notice said the layoff was based on a seniority-based RIF];
  4. 3/10 Tr. at 2922:6-9 [Tuttle] [“RIF’s are primarily about procedure, seniority, and credentials”];
  5. Pls. Ex. 494 [CDE PowerPoint] [“Reduction in Workforce (RIF) layoff is based on seniority . . . Last hired first fired.”].

A teacher’s seniority level is not an accurate predictor of her effectiveness at achieving student learning gains.

  1. 1/27 Tr. at 120:25-27 [Deasy] [“A teacher’s seniority is not necessarily reflective of a teacher’s ability to help students with their learning gains.”];
  2. 1/28 Tr. at 229:15-230:1 [Deasy] [“Seniority in the system is not reflective of a person’s ability to teach effectively.  It represents how long they have been in the job and only how long they have been in the job. . . The fact that I have being driving for 25 years does not make me an effective driver.”];
  3. 2/3 Tr. at 900:16-24 [Raymond] [stating that a “teacher’s seniority [does not] guarantee that a teacher is an effective teacher in terms of achieving learning gains” because “you have some teachers who are less senior who are highly effective and you have more senior teachers that in my opinion are ineffective . . . . [T]here is no correlation.”];
  4. 2/11 Tr. at 1757:28-1758:16 [Melvoin] [testifying that a “teacher’s seniority level ha[s] no bearing in and of itself on student achievement”];
  5. 2/11 Tr. at 1802:2-20 [Goldhaber] [concluding there is “not a lot of overlap between the effectiveness-based layoff pool and the seniority-based layoff pool”].

Seniority is calculated based on the duration of a teacher’s employment with a particular school district.  Seniority is not affected by the amount of teaching experience that a teacher has in California or elsewhere.  Accordingly, a teacher with a significant amount of teaching experience can have relatively low seniority level if she has been employed with a particular school district for a short duration of time.

  1. 1/28 Tr. at 230:28-231:3 [Deasy] [“Teachers who come to us from Nevada may have worked ten years in Nevada.  In their first year they have a seniority number based on years of teaching in L.A.”];
  2. 2/4 Tr. at  at  992:12-15, 993:6-994:3, 995:27-996:21 [Bhakta] [stating that she had multiple years of teaching, but did not have a high seniority level because she switched school districts];
  3. 2/5 Tr. at 1120:6-1121:7 [Douglas] [“I am able to hire a lot of experienced teachers that come in.  So they may come into my school district and not have maintained permanent status yet or they may have gotten permanent status but they haven’t been with us for a long period of time . . . So I’m letting go potentially [of] some very experienced, very talented teachers in that process.”];
  4. 3/17 Tr. at 3640:18-24, 3656:6-9 [Tolladay] [teacher with 30 years of experience had “no seniority” every time she switched school districts].

The reverse-seniority RIF criterion set forth in the LIFO Statute does not permit school districts to consider teacher effectiveness when determining which teacher(s) will be laid off.

  1. 1/28 Tr. at 233:3-18 [Deasy] [“It’s not permissible to use [effectiveness] as a factor” to determine whether a teacher should be laid off];
  2. 1/30 Tr. at 759:11-22 [Christmas] [OUSD does not consider teacher effectiveness when making layoff determinations under the LIFO Statute];
  3. 2/4 Tr. at 991:26-992:5 [Bhakta] [received a pink slip that had “nothing to do with the work [she had] done or the services [she had] rendered”];
  4. 2/4 Tr. at 929:17-21 [Raymond] [“[T]here were [no] provisions of the LIFO [S]tatute that allowed the Sacramento City Unified School District to avoid laying off teachers based on their ability to achieve gains in learning.”].

School districts may deviate from reverse-seniority RIFs pursuant to LIFO Statute subdivision (d)(1), which permits school districts implementing RIFs to “skip” laying off junior teachers who possess specific credentials or specialized training that other teachers with more seniority do not possess.  However, there is no credible evidence that teachers who possess specific credentials or specialized training are necessarily more effective than other teachers at achieving gains in student learning.  LIFO Statute subdivision (d)(1) does not permit school districts to “skip” laying off junior teachers on the basis that they are more effective at achieving gains in student learning.

  1. Education Code section 44955, subd. (d)(1);
  2. 1/28 Tr. at 240:15-241:27 [Deasy] [the ability of a school district to skip under LIFO Statute subdivision (d)(1), the “special training clause,” depends on whether the teacher has “this credential and that credential,” not effectiveness];
  3. 2/3 Tr. 918:10-28 [Raymond] [subdivision (d)(1) did not “enable Sacramento City Unified School District to avoid laying off all of its effective teachers”];
  4. 2/6 Tr. at 1267:16-20 [Kane] [a teacher’s credential status “has not been [found to be] related to teacher’s subsequent effectiveness.”];
  5. 2/14 Tr. at 2066:27-2067:11 [Ramanathan] [skipping under the LIFO Statute is not a “credible alternative” for school districts to retain all of their effective teachers];
  6. 3/19 4033:18-4034:25 [Futernick] [“Credentials don’t guarantee that someone will be effective no more than a license to practice law or practice medicine guarantees that one will be an effective lawyer or physician.”];
  7. 3/20 Tr. at 4260:12-15 [Darling-Hammond] [agreeing that “holding a credential does not guarantee that a teacher will be effective”].

LIFO Statute subdivision (d)(2) ostensibly permits school districts implementing RIFs to “skip” laying off junior teachers for “purposes of maintain or achieving compliance with constitutional requirements related to equal protection of the laws.”  However, LIFO Statute subdivision (d)(2) is so ambiguous that school districts cannot—and do not—assume the risk of invoking it.  In fact, there is no evidence that a school district has ever successfully “skipped” laying off a junior teacher pursuant to LIFO Statute subdivision (d)(2).

  1. Education Code section 44955, subd. (d)(2);
  2. 2/3 Tr. 918:10-28 [Raymond] [subdivision (d)(2) did not “enable Sacramento Unified School District to avoid laying off all of its effective teachers”];
  3. 2/5 Tr. at 1219:14-1220:4 [Douglas] [Fullerton “couldn’t define clearly” what criterion would satisfy subdivision (d)(2) and was unable to risk “throw[ing] the entire hearing off” by attempting to invoke subdivision (d)(2)];
  4. 2/13 Tr. at 1965:14-1967:2 [Ramanathan] [stating “the efforts to deviate from seniority-based layoffs in the case of effectiveness have been nonexistent”);
  5. 2/14 Tr. at 2067:15-23 [Ramanathan] [it is not a viable option to “invoke subdivision (d)(2) under the LIFO statute to effect an equal protection deviation from reverse seniority.”];
  6. 3/19 Tr. at 3979:23-3981:4 [Nichols] [skipping under LIFO Statute subdivision (d)(2) is so impractical that districts do not ask the CDE about it];
  7. Pls. Ex. 145 [Proposed Decision, In the Matter of San Francisco Unified School District, OAH No. 2012020343, dated May 7, 2012] [ALJ Melissa Crowell rejected SFUSD’s attempt to skip 65 teachers who were working at a “Superintendent’s Zone” school as part of its RIF in the 2011-2012 school year] [“A district may not create skipping justifications other than those authorized by statute in order to avoid the seniority protection afforded to certificated employees with earlier dates of hire.  This is true even if the district believes that skipping junior certificated employees is in the best interests of the district and of its students.”];
  8. Pls. Ex. 147 [Proposed Decision, In the Matter of the Reduction in Force of Certain Certificated Personnel Employed by the Sacramento City Unified School District, OAH No. 2012020744, dated May 8, 2012] [ALJ Ann Elizabeth Sarli rejected Sacramento’s attempt to skip 100 teachers who were working at a “Priority Schools” as part of its RIF in the 2012-2013 school year];
  9. Pls. Ex. 375 at P0375-31 [Reed v. Los Angeles Unified School Dist., Petition for Writ of Supersedeas by Appellant and Defendant United Teachers Los Angeles, Memorandum of Points and Authorities, 2011 WL 884580] [an affiliate of Intervenors recently argued that “subsection (d)(2) . . . was intended to permit school districts to accommodate constitutional concerns regarding the race and ethnicity of teachers, not to address minimal educational standards for students.”];
  10. Reed v. UTLA (2012) 208 Cal.App.4th 322 [LAUSD’s efforts to use LIFO Statute subdivision (d)(2) were overturned and a full-blown trial on the merits was ordered to determine whether the exception justifies violating a teacher’s statutory “seniority rights.”].

The LIFO Statute forces California school districts implementing RIFs to issue layoff notices to and ultimately lay off teachers who are effective at achieving student learning gains.  In some cases, the LIFO Statute forces California school districts implementing RIFs to issue layoff notices to and ultimately lay off teachers who have been named “Teacher of the Year” in their respective school districts.

  1. 1/28 Tr. at 237:16-19 [Deasy] [agreeing that LAUSD has had to “lay off teachers who were effective in achieving gains in student learning” under the LIFO Statute];
  2. 2/3 Tr. at 775:26-776:2 [Christmas] [agreeing that OUSD laid off teachers who were effective in achieving learning gains using the reverse seniority provisions of LIFO.”];
  3. 2/3 Tr. at 917:22-27 [Raymond] [agreeing that Sacramento had to “lay off teachers who were effective in achieving gains in student learning” when it conducted “reductions in force pursuant to the LIFO Statute.”];
  4. 2/4 Tr. at 994:14-26, 1000:6-27 [Bhakta] [received multiple layoff notices and was laid off multiple times despite being named the “Golden Apple Teacher of the Year” in the Monrovia Unified School District];
  5. 2/5 Tr. at 1120:6-1121:7 [Douglas] [Fullerton had to “ultimately layoff effective teachers” during seniority-based layoffs];
  6. 3/5 Tr. at 2610:14-24, 2632:1-12 [McLaughlin] [has received four layoff notices since 2008, despite being named Pasadena Unified School District’s Teacher of the Year];
  7. Pls. Ex. 327 at P0327-16 [CDE Publication] [“[A] significant state problem [is] extensive layoffs of excellent teachers who may be lost to the profession if they cannot soon return.”].

The LIFO Statute forces California school districts implementing RIFs to retain teachers who are ineffective and grossly ineffective at achieving student learning gains, based on the fact that they have more seniority than other teachers.

  1. 1/28 Tr. at 237:24-28 [Deasy] [LAUSD has retained teachers who were not successful in achieving student learning gains during reductions in force pursuant to the LIFO statute];
  2. 1/30 Tr. at 648:23-648:28 [Adam] [“[T]here were a couple of teachers who were more senior but were less effective in a variety of measures, including student learning outcomes and evaluation ratings, who were . . . too tenured to receive a preliminary layoff notice . . . .”];
  3. 2/3 Tr. at 776:3-777:8 [Christmas] [agreeing OUSD has “retained teachers who were grossly ineffective in terms of their — relative to their ability to achieve learning gains” using the reverse seniority provisions of the LIFO Statute];
  4. 2/4 Tr. at 929:22-26 [Raymond] [agreeing that Sacramento “retain[ed ] poorly performing, grossly ineffective teachers when conducting layoffs due to LIFO’s reverse seniority”];
  5. 2/5 Tr. at 1021:8-11 [Douglas] [agreeing that “Fullerton [] had to ultimately retain grossly ineffective teachers” during layoffs].

The implementation of RIFs and the issuance of RIF notices destabilize school communities and impose substantial harms on teachers and students alike.

  1. 1/28 Tr. at 279:18-280:1 [Deasy] [due to RIFs and RIF notices, certain schools develop “a reputation of destabilization, and thus it becomes more and more difficult to recruit faculty to come to [those] . . . . And so it becomes very difficult to make the school an attractive place to recruit and retain staff.  When you have fractured a faculty who have begun to work together, that is not the best environment—certainly not a healthy environment whatsoever for either the adult or the child.”];
  2. 2/13 Tr. at 1904:12-1905:28 [Ramanathan] [“[N]ot only [are] students in high-poverty schools [] more likely to be disproportionately impacted by the layoff process than students in low-poverty schools but also [] through the layoff bumping process [] 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.”];
  3. 2/13 Tr. at 1938:17-1939:18 [Ramanathan] [“[S]eniority-based teacher layoffs exacerbate the achievement gap . . . by disproportionately destabilizing high-poverty schools and schools with large percentages of Latino and African-American students partly because those schools tend to have less senior teachers in them.  So that destabilization has an impact on the academic progress of students in those schools.”].

RIFs conducted on the basis of reverse-seniority impose a significant and measurable harm on students relative to teacher layoffs conducted on the basis of effectiveness.

  1. 1/30 Tr. at 569:23-570:1 [Chetty] [“[P]er teacher laid off, students would gain $2.1 million over their lifetime if you used effectiveness-based layoffs instead of experienced-based layoffs.”];
  2. 1/30 Tr. at 574:25-575:12 [Chetty] [“48 percent of the teachers who are laid off under a LIFO policy are more effective than the average teacher in the L.A. School District. So 48 percent of the time you are laying off someone who’s actually better than average when you use a LIFO policy.”];
  3. 1/30 Tr. at 579:8-21 [Chetty] [the LIFO Statute “reduces student learning relative to a feasible alternative policy and it dismisses highly effective teachers who you absolutely would want to keep in the school system, and that impedes student learning as measured by test scores.  And, more importantly, in my view, it has measurable important long-term impacts on students in terms of earnings, as well as college attendance rates and myriad other outcomes.”];
  4. 2/11 Tr. at 1806:3-21 [Goldhaber] [“[U]nder the seniority-based criterion, we are not laying off the least-effective teacher . . . .”]
  5. 2/13 Tr. at 1874:12-1875:7 [Goldhaber] [“The right question is how effective are the teachers laid off under one criterion versus a different criterion.  And, to my mind, if your interest is in promoting student achievement, then laying off teachers based on a seniority criterion that doesn’t consider quality doesn’t make a lot of sense, because that’s the right counterfactual, is two different ways or multiple ways of considering teacher layoffs.”];
  6. 2/14 Tr. at 2079:10-18 [Ramanathan] [the average teacher retained under an effectiveness-based layoff system achieves “nine months” more in student learning compared to the average teacher laid off under an effectiveness-based layoff system];
  7. 3/24 Tr. at 4477:4-4478:3 [Smith] [“[The seniority based layoff system is] deeply unfair first and foremost to children, and then I think it’s unfair to families and communities, and I think ultimately it’s unfair to the State of California that we are organized in ways that value and protect roughly 300,000 jobs at the expense and opportunity for roughly 6 million children, that this way of enacting a choice-making system that depends on the fairness about how long somebody has been there as to how well they meet the needs of children sets the conditions for us to be perpetually not serving whole groups of children while certain adults have their jobs protected.  I think that that fundamentally undermines all of our right in this state to expect quality education.”].

Teachers who receive preliminary layoff notices often transfer school districts or leave the teaching profession altogether because of the possibility that they will receive final layoffs.  Accordingly, RIF notices cause many teachers to terminate their employment with the school districts in which they are employed, regardless of whether those school districts ultimately issue final layoff notices under the LIFO Statute.

  1. 1/31 Tr. at 760:12-761:18 [Christmas] [“In some of the cases where [teachers] get preliminary notices, they have to go look for a job because they don’t know whether they’re going to be laid off or not, and so we lose them in certain cases whether they would have in fact ultimately been laid off or not, because we can rescind the preliminary notice, but they’ve already found another job and so we lose them that way.”];
  2. 2/4 Tr. at 1001:28-1002:7 [Bhakta] [stating she began a job search every February because of the likelihood that she would receive a layoff notice in March];
  3. 2/7 Tr. at 1501:1-26 [Moss] [stating that he received a RIF Notice that was rescinded, but did not continue teaching because he was “looking for some more job stability”].

Teachers who are laid off under the LIFO Statute often challenge the legal bases for their layoffs by filing lawsuits to contest the seniority dates assigned to them by their school districts and/or the criteria that their school districts used to determine layoff order.

  1. 2/14 Tr. at 2062:25-2063:25 [Ramanathan] [describing legal challenge to RIF criteria that “dragged out for quite a long period of time”];
  2. 3/12 Tr. at 3308:10-17 [Olson-Jones] [conceding that teachers in OUSD have “challenged the seniority list used by the district to implement teacher layoff notices.”];
  3. Pls. Ex. 145 [Proposed Decision, In the Matter of San Francisco Unified School District, OAH No. 2012020343, dated May 7, 2012 at Pages P0145-12-13] [adjudicating challenges to San Francisco’s layoff lists based on allegedly improper seniority dates];
  4. Pls. Ex. 147 [Proposed Decision, In the Matter of the Reduction in Force of Certain Certificated Personnel Employed by the Sacramento City Unified School District, OAH No. 2012020744, dated May 8, 2012 at Page P0147-8] [adjudicating challenges to Sacramento’s layoff lists based on allegedly improper seniority dates];
  5. Pls. Ex. 147 [Proposed Decision, In the Matter of the Reduction in Force of Certain Certificated Personnel Employed by the Sacramento City Unified School District, OAH No. 2012020744, dated May 8, 2012 at Pages P0147-8-12] [adjudicating challenges to Sacramento’s layoff lists based on failure to properly skip for certain credentials].

There has been no credible evidence presented that the layoff criteria set forth in the LIFO Statute induces potential teachers to enter the teaching profession.  To the contrary, there is credible evidence that the layoff criteria set forth in the LIFO Statute dissuade potential teachers from entering the teaching profession.

  1. 2/10 Tr. at 1548:8-24 [Pulley] [stating that the LIFO Statute did not play any role in her decision to become a teacher];
  2. 2/7 Tr. at 1490:5-7 [Moss] [stating that the LIFO Statute did not play “any role in [his] decision to become a teacher”];
  3. 2/4 Tr. at 999:7-27 [Bhakta] [stating that the LIFO Statute did not influence her decision to become a teacher because she had “no idea” what it was before becoming a teacher];
  4. 3/7 Tr. at 2840:22-2841:2 [Rothstein] [admitting that the LIFO Statute “might actually deter prospective teachers from joining the teaching profession.”].

There has been no credible evidence presented that the layoff criteria set forth in the LIFO Statute induces teachers to remain in the teaching profession.  To the contrary, there is credible evidence that the layoff criteria set forth in the LIFO Statute dissuade teachers from remaining in the teaching profession.

  1. 2/4 Tr. at 1001:17-27 [Bhakta] [testifying the layoff notices received pursuant to the LIFO Statute caused her to “look[] elsewhere for jobs” because she “didn’t want to be a number and [] wanted to be valued for [her] work”];
  2. 2/11 Tr. at 1771:7-1772:2 [Melvoin] [stating that seniority-based layoffs did not give him an incentive to remain a teacher, but rather incentivized him to “seek employment elsewhere”];
  3. 3/11 Tr. at 3106:23-3107:8 [Mills] [agreeing that “reverse seniority can have an adverse impact on the morale of more junior teachers”];
  4. Pls. Ex. 327 at P0327-16 [CDE Publication] [“[A] significant state problem [is] extensive layoffs of excellent teachers who may be lost to the profession if they cannot soon return.”].

Many California school districts desire to use teacher effectiveness as the basis for determining which teachers to lay off during RIFs and would do so in the absence of the LIFO Statute.

  1. 1/28 Tr. at 250:1-9 [Deasy] [stating that if LAUSD were allowed to considering teacher effectiveness when making layoff determinations, “we would do a much better job” protecting the quality of public schools];
  2. 1/31 Tr. at 759:11-22 [Christmas] [testifying that OUSD has not used teacher effectiveness when making teacher layoff determinations because “the law . . . [does] not permit it.”];
  3. 2/3 Tr. at 918:22-28 [Raymond] [testifying that Sacramento has not used teacher effectiveness when making teacher layoff determinations because it is “precluded by the [LIFO] statute” from doing so];
  4. 2/5 Tr. at 1121:8-1122:11 [Douglas] [“If I could trade this teacher who got laid off with this teacher who maintained their status, I would have loved to be able to do that, but that’s not the process.”].

Eighteen states require school districts to consider teacher performance when determining which teachers to lay off during RIFs.

  1. 2/19 Tr. at 2275:25-2276:16 [Jacobs].

There was no evidence presented that school districts in any of the eighteen states that require teacher performance to be considered when determining which teachers to lay off during RIFs have experienced any difficulties recruiting teachers, retaining teachers, or ensuring teacher collaboration.

California is one of only ten states that require teacher seniority to be considered when school districts make teacher layoff decisions.  Twenty-two states ban or limit the use of teacher seniority when school districts make teacher layoff decisions.  Nineteen states provide school districts with discretion to determine which teachers to lay off during RIFs.

  1. 2/19 Tr. at 2276:4-2277:7 [Jacobs].

There was no evidence presented that school districts in any of the forty-one states that do not require teacher seniority to be considered when determining which teachers to lay off during RIFs have experienced any difficulties recruiting teachers, retaining teachers, or ensuring teacher collaboration.