KA.lY.lALA mAN RICH ANDREA - Students Matterstudentsmatter.org/wp-content/uploads/2012/10/SM_Memorandum-of...KA.lY.lALA D. HARRIs ... MEMORANDUM OF POINTS AND ... Bakersfield Elementary

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KA.lY.lALA D. HARRIs Attorney General of California JE1'fN]FER M. KIM (SBN 178364) Supervising Deputy Attorney General J ONA mAN E. RICH (SBN 187386) ANDREA VENTURA tSBN 249568) Deputy Attorneys General

300 South Spring Street, Suite 1702 . Los Angeles, CA 90013 Telephone: (213) 897-2439 Fax: (213) 897-2805 E-mail: [email protected]

Attorneys for Defendants State of California; Edmund G. Brown Jr., in his official capacity as Governor of California; Tom Torlakson, in his official capacity as State Superintendent of Public Instruction; California Department of Education; and State Board of Education

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CENTRAL JUSTICE CENTER

BEATRIZ VERGARA, a minor, et a!., Case No. BC484642

v.

Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER TO

-PLAINTIFFS' FIRST AMENDED COMPLAINT

STATE OF CALIFORNIA; EDMUND G. BROWN JR., in his official capacity as Governor of California; TOM TORLAKSON, in his official capacity as State Superintendent of Public Instruction; CALIFORNIA DEPARTMENT OF EDUCATION; STATE BOARD OF EDUCATION; LOS ANGELES UNIFIED SCHOOL DISTRICT; OAKLAND UNIFIED SCHOOL DISTRICT; and ALUM ROCK UNION SCHOOL DISTRICT,

Defendants.

[Filed Concurrently with State Defendants' Notice of Demurrer and Demurrer; Request for Judicial Notice; and Appendix of NonCalifornia Authorities]

Date: Time: Dept: Judge:

November 14,2012 8:30 a.m. 10 The Honorable Michael Linfield

Action Filed: May 14, 2012

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT (BC484642)

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TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF RELEVANT FACTS ......................................................•................................ 2

I. THE CHALLENGED STATUTES .................................................................................. 2

II.

III.

THE CHALLENGED STATUTES ARE PART OF A BROAD LEGISLATIVE SCHErvtE DESIGNED TO PROTECT TEACHERS' CONSTITUTIONALLy-MANDA TED RIGHT TO DUE PROCESS WHILE FlRML Y PLACING TEACHER DISCIPLINE IN THE HANDS OF LOCAL SCHOOL DIS1RICTS ..................................................................... 4

A. The Challenged Statutes Place Teacher Discipline Squarely Within Local School District Control While Balancing the Due Process Rights of Teachers ........................................................................................ 5

B. The Due Process Rights of Teachers Are Constitutionally Mandated ........ 6

PLAINTIFFS' FIRST ArvrnNDED Cm.1PLAINT .............................................................. 7

STANDARD OF REVIEW .......................................................................................................... 10

I. . STANDARD FOR DEMURRER ............................. : .................... : ................................ 10

II. STANDARD FOR DECLARATORY RELIEF ................................................. ; ............... 11

III. STANDARD FOR INJUNCTIVE RELIEF ......................... '" .......................................... 11

ARGUMENT ................................................................................................................................ 12

I. PLAINTIFFS FAIL TO STATE AN EQUAL PROTECTION CLAIM .................................. 12

A. The Challenged Statutes Are Facially Constitutional ............................... 12

1. The Statutes are Presumed to be Constitutional.. .......................... 12

2. The Challenged Statutes Do Not Facially Conflict with Equal Protection ............................................................................ 14

(a) Education eode-section 4492921 (The Tenure Statute) ....................................................... 15

(b) Education Code sections 44934, 44938, . 44944 (The Due-Process Statutes) ........................ 15

(c) Education Code section 44955 (The Seniority-Based Layoff Statute) ............................ 15

B. Plaintiffs Have Failed to State a Claim That the Challenged Statutes are Unconstitutional asApplied ................................................................ 17

II. THEGOVERNORlsNoTAPROPERPARTY ............................................................. 19

III. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION AGAINST THE STATE EDUCAPON DEFENDANTS .......................................... , ........................................... 21

IV. PLAINTIFFS' CLAIMS AGAINST THE GOVERNOR AND THE STATE OF CALIFORNIA ARE NON-JUSTICIABLE ....... : .............................................................. 22

V. PLAINTIFFS FAIL TO PROPERLY ASSERT STANDING ............................................... 23

VI. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO ArvrnND ................. 24

CONCLUSION ........................................................................................................... : ................. 24


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TABLE OF AUTHORITIES

CASES

Alfaro v. Community Housing Improvement System & Planning Associ~tion, Inc. (2009) 171 Cal.App.4th 1356 ................................................................................................... 8

Alviso v. Sonoma County Sheriff's Department (2010) 186 Cal.App.4th 198 .................................................... : ......... : .................................... 15

American Civil Rights Foundation v. Berkeley Unified School District (2009) 172 Cal.App.4th 207 ....................................................................................... 13, 14, 16

Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251 ............................................................................................................... 12

Baker v. Carr (1962) 369 U.S. 186 ................................................................................................................ 22

Bakersfield Elementary Teachers Association v. Bakersfield City School District (2006) 145 Cal.App.4th 1260 ....................................... : ................................................. 6; 7, 15

Balen v. Peralta Junior College District. (1974) 11 Ca1.3d 821 ............................................................................................................. 5, 7

Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798 ................................................................................................... 23

Butt v. State of California El992)·4 Cal. 4th 668 ............. ; ................................ -.......................... -.............................. 11, .18, 23

California Association of Private Special Education Schools v. State Department of Education (2006) 141 Cal.App.4tJJ. 360 ....................................................................................... 12, 17, 19

California State Employees Assn. v. State (1973) 32 Cal.App.3d 103 ....................................................................................................... 22

California Teachers Assn. v. State of California (1999) 20 Ca1.4th 327 ............................................................................................... 6, 7, 15, 16

California Teachers Assn. v. Vallejo City Unified School District (2007) 149 Cal.App.4th 135 ............................................ ~ .................................................. 5, 16

Common Cause v. Board of Supervisors (1989) 49 Ca1.3d 432 .............................................................................................................. 13

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TABLE OF AUTHORITIES (continued)

Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739 ................................................................................................... j 1

Cooley v. Superior Court of Los Angeles County (2002) 29 Ca1.4th 228 ......... : .............................. ; ...................................................................... 14.

Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Ca1.App.3d 593 ..................................................................................................... 10

Faulkner v. California Toll Bridge Authority (1953) 40 Ca1.2d 317 .................... ~ ............................................................................................ 8

Fine v. Los Angeles Unified School District (2004) 116 Ca1.AppAth 1070 ................................... ; .... ;-.......................................................... 6 .

Fontana Unified School District v. Burman (1988) 45 Ca1.3d 208 ............ ~ ............................................................................................. 5, 15

Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Ca1.App.3d 951 ................................................................. ; ................................... 10

Hernandez v. City of Pomona (1996) 49 Ca1.App.4th 1492 ................................. , ................................................................. 10

Holmes v. California Nat. Guard (2001) 90.Ca1.App.4th 297 ...................................................................................................... 23

In re Marriage Cases . (2008) 43 Ca1.4th 757 ............................................................................................................. 12

Jenkins v. Knight (1956) 46 Ca1.2d 220 .......................................................................... , ........... : ....................... 22

Johnson v. County of Los Angeles (1983) 143 Ca1.App.3d 298 .......................................•............................................................... 24

Kavanaugh v. West Sonoma County Union High School District (2003) 29 Ca1.4th 911 ................................................................................................................ 5

Marshall v. Gibson, Dunn & Crutcher (1995) 37 Ca1.App.4th 1397 ................................................................................................... 10

McIntyre v. Sonoma Valley Unified School District (2012)206 Cal.App.4th 170 .......................................................................................... ~ .......... 5

iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER

TO PLAINTIFFS' FIRST AMENDED COMPLAINT (BC484642)

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Motevalli v. Los Angeles Unified School District (2004) 122 Cal.App.4th.97 .............................................................. ~ ..... ~ .................................. 5

O'Connell v. Superior Court of Alameda County (2006) 141 Cal.App.4th 1452 .................................................................................................. 11

Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 ................................................................................................... 12-13, 16

People v. Green (2000) 79 Cal.App.4th 921 ...................... ; .............................................................................. 14

Safety v. Schwarzenegger (2009) 172 CaLApp.4th 749 ............................................. : ..................................................... 11

Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1 .......................................................................................................... 10

San Francisco NAACP v. San Francisco Unified School Dist. (9th Cir. 1990) 896 F.2d 412 ............................ , ...................................................................... 20

San Francisco NAACP v. San Francisco Unified School District (N.D. Cal. 1979) 484 F.Supp. 657 .......................................................................................... 20

Serrano v. Priest (1971) 5 Ca1.3d 584 ............................................................................................................ 8, 10

18 . Serrano v. Priest

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(1976).18 Cal.3d 728 ................................................................................................... 18,20-23

Serrano v. Priest (1977) 20 Cal.3d 25 .................................................. , .......................................................... : ... 18

Tobe v. City of Santa Ana -(1995) 9 Ca1.4th 1069 ..................................................................................... : ............ 12, 14, 17·

Tovar v. S. Cal. Edison Co. (1988) 201 Cal.App.3d 606 ....................................................................................................... 8

Vasquez v. Happy Valley Union School District 25 (2008) 159 Ca1.App.4th 969 ......................................................................................... 6, 15, 16

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Watson v. Los Altos School Dist. (1957) 149 Ca1.App.2d 768· ..................................................................................................... 10 .

IV

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT (BC484642) .

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Wolfe v. City of Fremont


(2006) 144 Cal.App.4th 533 ............................................................................................. 20,21

Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554 ..................................................................................................... 11

Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 ....................................................................................................... 8,10.

STATUTES

Government Code 11500 et seq . ............................................................................................................................. 3

Cal Code Civ. Proc. § 430. 1 O(a)(d)(e) .~ .................................................................................................................... 10 § 430.30(a) .............................................................................................................................. 10 § 430~10, subd .......................................................................................................................... 19 § 2016.010·et seq . ...................................................................................................................... 3

Education Code § 44929.21 ............................................................. ; ....................................... , ................. .' .. passim § 44932 ..................................................................................................................................... , 3 § 44934 ................................................... ; .................................................... ; .................... passim § 44938 .................. , ........................................................................................................... passim § 44944 .............................................................................................................................. passim § 4495:; ................................ , ............................................... : .............................................. passim

CONSTITUTIONAL PROVISIONS

Cal. Const., Article III, § 3 ............................................................................................................ 23

OTHER AUTHORITIES

5 Witkin, Cal. Procedure (5th ed. 2008) Pleading

§ 822 ......................................................................................................................................... 11

Senate Bill1059 ................................................ ; ............................... ; ................................. -............ ~ 6

v MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER


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1 INTRODUCTION

2 Plaintiffs' first amended complaint (FAC) seeks to invalidate an entire statutory scheme

3 designed to protect the rights of teachers and students, by alleging that the statutes breed "grossly

4 -ineffective" teachers, notwithstanding plaintiffs' admission that "the majority of teachers in

5 California are providing students with a quality education" and that the number of allegedly

6 "grossly ineffective" teachers "may be small." (F AC at tjf 9.) Indeed, the F AC fails to define

7 what constitutes a "~ossly ineffective" teacher and how many such teachers exist, let alone

8· inform the Court on how these allegations demonstrate a constitutional violation. Plaintiffs' FAC

9 is fatally replete with contradictory, unfounded, vague and conclusory allegations that fail to state

10 a cause of action against the Governor, the State of California, the Superintendent of Public

11 Instruction, the Department of Education or the Board of Education (collectively, the State.

12 Defendants).

13 The Education Code sections at issue in this case (the Challenged Statutes) are part of a

14 complex statutory scheme enacted by the Legislature to protect the due process rights of public

15 school teachers and the rights of students to be educated by teachers whose employments are not

16 subject to the unreasonable whims of locally-elected governing school board members. The

17 Challenged Statutes are facially constitutional, and the F AC fails to allege any facts to support

18 .. plaintiffs' facially defective claim that theChalIenged Statutes liavEpbeen applied in a way thiit-

19 violates public school students' rights under the Equal Protection provisions of the California

20 Constitution. Plaintiffs' FAC improperly attempts to insert this Court into a policy-making

21 function invading the plenary authority of the Legislature to determine education policy.

22 Plaintiffs also have improperly joined the Governor and the State of California as parties to

23 this action when California law is clear that only state agencies are proper parties to actions

24 seeking declaratory and injunctive relief arising from a challenge to the constitutionality of a state

25 statute. Even so, in this case, plaintiffs cannot state any cause of action against the named state

26 agencies - the Superintendent of Public Instruction, the Department of Education or the Board of

27 Education - because teachers are the direct employees of the local school governing boards that

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1 hire them. The decisions to hire, discipline and dismiss teachers are entirely matters within the

2 . authority of those local school districts. The Legislature has enacted a uniform system by which

3 the governing school boards are to exercise their authority. If plaintiffs have a claim against any

4 specific school district arising from its hiring or discipline of a specific teacher, or arising from a

5 disproportionate staffing of schools within the district, then any such claim is entirely against that . . . .

.6 school district's governing board, and cannot as a matter oflaw demonstrate a constitutional

7 defect in the Challenged Statutes.

8 Respectfully, the State Defendants' demurrer to the F AC should be sustained without leave

9 to amend.

10 STATEMENT OF RELEVANT FACTS

11 I.

12

THE CHALLENGED STATUTES

Plaintiffs ask this CoUrt to declare unconstitutional five sections·ofthe Education Code,

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namely, s~ction 44929.21, subdivision (b), section 44934, section 44938, subdivisions (b)(1) and

(2), ·section 44944, and section 44955. (See FAC at p. 3, fn.l.)l The first Challenged Statute

concerns teacher tenure. Section 44929.21 provides in relevant part that:

Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position or positions requiring. ~ert:ifigf!ti911qu~lificatiQIls, is. r~electe(l for the~next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.

(Ed. Code, § 44929.21, subd. (b).)

The term, "permanent employee" is something of a misnomer, since the Education Code

plainly provides that these "permanent" employees may be dismissed for a number of causes,

including in part "immoral or unprofessional conduct," "dishonesty," "unsatisfactory

performance," "evident unfitness for service," "physical or mental condition unfitting him or her

to instruct or associate with children," or "persistent violation of or refusal to obey the school

laws of the state or reasonable regulations prescribed for the government of the public schools by

1 True and correct copies of the Challenged Statutes are attached to the State Defendants' concurrently filed Request for Judicial Notice (RJN), Exhibits. 1-5.

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the State Board of Education or by the governing board ofthe school district employing him or

her." (See RJN, Ex. 6 [Ed. Code, § 44932,subd. (a)].) There is no statutory classification of

"grossly ineffective." This term is apparently a creation of the plaintiffs for purposes of their

PAC.

The next three statutes govern due process procedures in disciplining or dismissing

teachers. Section 44934 provides in relevant part that no governing school board may dismiss or

suspend a permanent employee if the employee demands a hearing on the charges, and that "[a]ny

written statement of charges of unprofessional conduct or unsatisfactory performance shall

specify instances of behavior and the acts or omissions constituting the charge so that the teacher

will be able to prepare his or her defense."

Section 44938, concerning specific charges of unprofessional conduct or unsatisfactory

performance, requires governing school boards to give written notice of such charges "specifying

the nature thereof with such specific instances of behavior and with such particularity as to

furnish the employee an opportunity to correct his or her faults and overcome the grounds for the

charge." (Ed. Code, § 44938, subds. (a) and (b).) Notice by the governing school board before

acting on any such charges must be 45 days if the charges involve unprofessional conduct, and 90

days if the charge is for unsatisfactory performance. (Ibid.)

- Sedion-44944 go-verris-the coriduct ofthe heaiingsto ascertain\.vhether the-peimanenC

employee should be dismissed or suspended. Such hearings are to be conducted in accordance

with the. Administrative Procedure Act, Government Code section 11500 et seq., except that the

parties' right to discovery is governed by the Discovery Act, as codified in Code of Civil

Procedure section 2016.010 et seq. (Ed. Code, § 44944, subd. (a).) The hearings are held before

an ad hoc school district commission on professional competence (commission) -- a three

member administrative tribunal consisting of one credentialed teacher chosen by the school

board, a second credentialed teacher chosen by the teacher facing dismissal or suspension, and

"an administrative law judge of the Office of Administrative Hearings who shall be chairperson

and a voting member of the commission and shall be responsible for assuring that the legal rights

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER


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of the parties are protected at·the hearing." (Ed. Code, § 44944, subd. (b).) The commission's

decision is deemed to be the final decision of the district's governing board. (Ed. Code, § 44944,

subd. (c).)

The fifth and final statute concerns the seniority-based layoff system. Section 44955

authorizes governing school boards to terminate employment of permanent employees to reduce

their number when there has been a reduction in the number of students or when necessary to

reduce or discontinue a particular kind of service, and to provide the procedures by which this

reduction may be effected. Once the governing board has determined a need to reduce the

number of permanent employees, it must comply with the procedures set forth in secti.on 44955,

which requires (among other things) that such termination be effected in order of seniority.

However, a school district may deviate from the seniority system for either of the following

reasons:

(1) The district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the certificated employee has special training and experience necessary to teach that course or course of study or to provide those services, which others with more seniority do not possess. .

(2) For purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws.

18- - --(Ed. Code,§ 44955, subds:(d){1)& (d}(2):) .

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II. THE CHALLENGED STATUTES ARE PART OF A BROAD LEGISLATIVE SCHEME DESIGNED TO PROTECT TEACHERS' CONSTITUTIONALLy-MANDATED RIGHT TO DUE PROCESS WmLE FIRMLY PLACING TEACHER DISCIPLINE IN THE IlANDs OF LOCAL SCHOOL DISTRICTS

22 The Challenged Statutes are only five of dozens of statutes that together encompass a broad

23 legislative framework governing the employment, disciplining and dismissal of teachers by local

24 school districts codified in the Education Code at Title 2, Division 3 (Local Administration), Part

25 25 (Employees), Chapter 4 (Employment-Certificated Employees), Article 3 (Resignations,

26 Dismissal and Leaves of Absence). This legislative framework advances an important

27 constitutional purpose of providing due process. As discussed below, California courts have

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPQRT OF STATE DEFENDANTS' DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT (BC484642)

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repeatedly found that the legislative framework strikes the appropriate balance of competing

rights and interests.

A. The Challenged Statutes Place Teacher Discipline Squarely Within Local School District Control While Balancing the Due Process Rights of Teachers

California courts have repeatedly recognized that the Challenged Statutes place the

discipline of teachers firmly with the school districts while balancing the due process rights of

teachers.

In Fontana Unified School District v. Burman (1988) 45 Ca1.3d 208, the Supreme Court

held that the Education Code allows a local school district "substantial leeway in determining

when to take disciplinary action against a permanent employee and what action to take.': (Id. at p.

215.) Nevertheless, a school district's discretion is limited by the requirement that the ground for

taking disciplinary action be authorized by statute and that its decision be reviewable by a

commission on professional competence ifthe employee requests a hearing. (Id. at p. 216.) After

an exhaustive ·analysis of the statutory scheme encompassing in part the Challenged Statutes, the

Supreme Court recognized "the balance struck by the Legislature between the discretion given

districts to select the degree of discipline and limit the options available to the commission, and

the protection from arbitrary action accorded their permanent employees.'; (Fontana Unified

... School DistriCt v. Buffndn,sitpfa, -45TalJd -at p.222 [emphasis aaded]; see also Ealen v. Peralta

Junior College District (1974) 11 Ca1.3d 821 [the discretion afforded local districts "cannot be

adapted as a shield for arbitrary dismissal practices"].)

In Kavanaugh v. West Sonoma County Union High School District (2003) 29 Ca1.4th 911, . . .

917, the Supreme Court held that the Education Code "authorizes the governing boards of school

districts to hire, classify, prom9te and dismiss certificated employees (i.e., teachers) ... , but

establishes a complex and somewhat rigid scheme to govern a board's exercise of its

decisionmaking power." (Accord McIntyre v. Sonoma Valley Unified School District (2012) 206

Ca1.App.4th 170; California Teachers Assn. v. Vallejo City Unified School District (2007) 149

CaLApp.4th 135; Motevalli v. Los Angeles Unified School District (2004) 122 CaLApp.4th 97;

5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER


1 Fine v. Los Angeles Unified School District (2004) 116 Cal.App.4th 1070.) The "overall scheme

2 the Legislature has created in the Education-Code is thus specific as to the rights and

. 3 responsibilities of certificated teachers and their employers, the governing boards." (Id. at p. 918;

4 see also Vasquez v: Happy Valley Union School District (2008) 159 Cal.App.4th 969,985 [the

5 statutory scheme "represents the delicate balancing necessary to accommodate students' need for

6 education, teachers' need for job security, and school boards' need for flexibility in evaluating

7 and hiring employees".)

8 "The statutory provisions in the Education Code, governing the rights of teachers, are an

9 expression of public policy." (Bakersfield Elementary Teachers Association v. Bakersfield City

10 School District (2006) 145 Cal.App.4th 1260, 1275.) "The purpose of a statute giving tenure to

11 teachers is to insure an efficient permanent staff of teachers whose members are not dependent on

12 - caprice for their positions as long as they conduct themselves properly and perform their duties

13 efficiently and well." (Id. at p. 1293, fn. 20.)

14 In the context of these constitutionally mandated legislative goals, which have been

15 repeatedly recognized and affirmed by California courts, plaintiffs' constitutional challenge to the

16 Challenged Statutes fails as a matter of law to state a cause of action upon which relief by this

17 Court may be granted?

"18 B. The Due Process Rights of Teachers Are-Constitutionally Mandated- -"

19 In California Teachers Assn. v. State of California (1999) 20 Ca1.4th 327, the Supreme

20 Court unequivocally held that "[t]he state has a constitutional obligation to provide a hearing to

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2 Indeed, the Legislature recently considered and rejected the very revisions to the Challenged Statutes proposed by plaintiffs in their FAC. (See RJN, Exs. 7-8.) Senate Bi1l1059 (SB 1059), which was introduced on February 13, 2012, sought to eliminate the 45 and 90-day notice requirements in section 44938 (attacked by plaintiffs in their FAC at ~ 53); replace the current adjudicative body deciding teacher suspension and dismissal hearings provided in section 44944 - the three-member administrative tribunal consisting of one credentialed teacher chosen by the school board, a second credentialed teacher chosen by the teacher facing dismissal or suspension, and an administrative law judge (criticized in the F AC at ~ 51) - and replace it with one administrative law judge whose decision would be advisory only, leaving the final decision regarding the discipline ofthe employee to the school district; and eliininate many other

-protections that exist in the Challenged Statutes. (RJN, Ex. 7.) SB 1059 failed passage in committee on April 19, 2012, less than one month before plaintiffs filed their initial complaint on May 14, 2012. (See RJN, Ex 8.)



1 decide whether dismissal or suspension is appropriate," and that a teacher "also has a right to an

2 opportunity to respond to the particular charges asserted by the district and to clear his or her

3 name ... before an impartial and disinterested decision maker." (Id. at p. 344.) These hallmarks

4 of procedural due process reflected in the Education Code are intended to prevent the "unjustified

5 or mistaken deprivations and the promotion of participation and dialogue by affected individuals

6 in the decisionmaking process." (Ibid.) "To discourage the exercise ofthe right to a hearing in a

7 case in which the ultimate administrative or appellate decision may result' in the dismissal or .

8 suspension of a teacher is to discourage the exercise of that right in every case." (Ibid.)3

9 "The essence of the statutory classification system is that continuity of service restricts the

. 10 power to terminate employment which the institution's governing body would normally possess.

11 Thus, the Legislature has prevented the arbitrary dismissal of employees with positions of a

12 settled and continuing nature, i.e., permanent and probationary teachers, by requiring notice and

13 hearing before termination." (Balen v. Peralta Junior College District, supra, 11 Ca1.3d at p.

14 826; accord Bakersfield Elementary Teachers Association v. Bakersfield City School District,

15 supra, 145 Ca1.App.4th at p. 1281.)

16 III. PLAINTIFFS' FIRST AMENDED COMPLAINT

17 The facial deficiencies in the F ACreflect the fatal defects of plaintiffs' claims. The

._- 18- -gravameri-oTthe-FAGis thafa ''handfulofoutdafedTaws''are-deliyirig sfudents their-fundamenfal-

19 right to an education by permitting "grossly ineffective" teachers to remain in the classroom.

20· (See, e.g., FAC at ~~ 1-3.) Removing these impediments, according to plaintiffs, would provide

21 "an effective education" to California's public ~chool students. (Id. at ~ 4l 22

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3 The Supreme Court in California Teachers Assn. v. State of California, supra, held that subdivision ( e) of section 44944 was unconstitutional to the extent the statute imposed costs on teachers who ultimately prove unsuccessful at such proceedings, because that provision had a chilling effect on teachers' constitutional due process rights.

4 Plaintiffs filed theirFAC on August 15, 2012, only three court days before the State Defendants' demurrer to plaintiffs' initial complaint was due by agreement of the parties, on August 20, 2012. For reasons known only to plaintiffs, they filed their amended pleading even

26 . though the F AC and the initial complaint are identical, with the exception of one additional plaintiff and defendant in the F AC. None of plaintiffs' substantive allegations have changed. Because of this, the State Defendants have proceeded with their demurrer, albeit to the F AC, in 27

28 accordance with the previously-agreed schedule. .



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Even a cursory reading of the F AC, however, reveals the defects in plaintiff s claims. First,

plaintiffs concede that the "the majority of teachers in California are providing students with a ('

quality education" and that the number of allegedly "grossly ineffective" teachers "may be

small." (F AC at ~ 9.) Plaintiffs do not specifically define what constitutes "grossly ineffective

teachers," but instead describe them amorphously as teachers "who fail to provide their students

with the most basic tools necessary to compete in the economic marketplace or to participate as a

citizen in our democracy." (Ibidl Nor is there any support given by plaintiffs for their

conclusory allegation that "grossly ineffective" teachers are "disproportionately assigned to

schools serving predominantly minority and economically disadvantaged students." (F AC at ~

13.) (See, e.g., Zelig v. County o/Los Angeles (2002) 27 Ca1.4th 1112, 1126 [in ruling on a

demurrer "a court will not assume the truth of contentions, deductions, or conclusions of fact or

law"]')

The purported factual allegations in the F AC are also facially contradictory. Though at first

acknowledging that the number of "grossly ineffective" teachers is small (F AC at ~ 9), plaintiffs

later allege that California governing boards hire and retain such teachers "at an alaiming rate,"

though once again making such broad allegation with no specific factual· support. (FAC at p. 10,

line 15.) (See Faulkner v. California Toll Bridge Authority (1953) 40 Ca1.2d 317,328 [holding

- tnat;although ~Cplairitiffmay pleadinconsistelifcbuIits orcaifses ofactlonihthe--complaint, he bC .

she may not plead inconsistent facts; "[i]n short, the rule does not permit the pleader to blow both

. hot and cold in the same complaint on the subject of facts of which he purports to speak with

knowledge under oath"]; accord Alfaro v. Community Housing Improvement System & Planning

. Association, Inc. (2009) 171 Ca1.App.4th 1356, 1381; Tovar v. S. Cal. Edison Co. (1988) 201

Ca1.App.3d 606, 613.)

Plaintiffs also fail to assert how each of them has been specifically harmed. Although each

of the plaintiffs purports to be a student at a public school (one plaintiff is alleged to be a student

5 Plaintiffs have simply lifted this conc1usory language from Serrano v. Priest (1971) 5 Cal.3d 584, 609 (Serrano 1) ["education is essential in maintaining what several commentators have termed 'free enterprise democracy' -- that is, preserving an individual's opportunity to compete successfully in the economic marketplace"].)

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at a public charter school), their allegations ofhann are reduced to the same cookie-cutter

allegation: that they "have been assigned to, andlor are at substantial risk of being assigned to, a .

grossly ineffective teacher who impedes [his/her]· access to the opportunity to receive a

meaningful education." (FAC at ~~ 15-23.) No specific allegation of actual hann is made by any

of these plaintiffs.

Importantly, even if any of these conclusory allegations were supported, and they are not,

plaintiffs fail to provide any specific factual support for the gravamen of their FAC, that there is a

causal connection between the due process protections ofthe Challenged Statutes and the

existence of the allegedly "grossly ineffective" teachers in the classroom, let alone any violation

of students' constitutional rights. (See, e.g. FAC at ~ 43, in which plaintiffs assert, without

support, that "[t]he hiring and continued employment of grossly ineffective teachers in

California's public schools are a direct result ofthe Challenged Statutes and cause grave hann to

California's students.")

Plaintiffs' claim that Los Angeles Unified School District (LAUSD) attempted to dismiss

seven teachers pursuant to the Challenged Statutes (F AC at ~ 54) is belied by plaintiffs

admission that, as a result of the procedures in those statutes, four of the seven were, in fact

dismissed. (Ibid.) That the remaining three were not dismissed begs the question as to whether

-tne),were "grosslyineffective,"·of,·perliaps, wefenotineff ective-atalt-rfldeecl~theptbcedutal··

requirements of the Challenged Statutes confirm their constitutionality, since the essence of due

process is to ensure that any such discipline ori dismissal is only accomplished after an informed,

deliberative factual finding during which all sides have an opportunity to be heard by Ii fair and

unbiased arbiter.6

6 Plaintiffs' reference to Judge Highberger's conclusions in Reed v. California, BC 432420 (F AC at ~ 72) is misleading. The disputes in Reed are entirely inapposite to plaintiffs' claims here. Judge Highberger entered a preliminary injunction against LAUSD in the Reed case based on the fact that LAUSD fired teachers en masse in certain schools with high percentages of underprivileged students and replaced those teachers with a large number of substitute and other temporarily-assigned teachers. Judge Highberger did not rule that any ofthe Challenged Statutes was unconstitutional, or that LAUSD had hired "grossly ineffective teachers," but rather that LAUSD - not any of the State Defendants - violated Education Code section 44955 by not taking into account the equal protection provisions in subsection (d) ofthat section. (See RJN, Ex. 9.) Indeed, Judge Highberger's decision confirms that the problem, if any, of teacher assignments is a

(continued ... ) 9



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STANDARD OF REVIEW

I. STANDARD FOR DEMURRER

A demurrer is proper when: (1) "[t]he court has no jurisdiction of the subject of the cause of

action alleged in the pleading"; (2) "[t]here is a defect or misjoinder of parties"; or (3) [t]he

. pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., §

430.10, subds. (a), (d) & (e).) A demurrer tests "the legal sufficiency of the complaint."

(Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) The court deems as true all

material facts properly pled (Serrano I,supra, 5 Cal.3d at 591) and those facts that maybe

implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995)

37 Cal.App.4th 1397, 1403.)

However, a court will not assume the truth of contentions, deductions, or conclusions of

fact or law, and the court may disregard allegations that are contrary to law, or are contrary to a

fact of which judicial notice may be taken. ~(Zelig v. County of Los Angeles, supra, 27 Cal.4th at

1126.) Thus, "where an allegation is contrary to law or to a fact of which a court may take

judicial notice, it is to be treated as a nullity." (Fundin v.· Chicago Pneumatic Tool Co. (1984)

152 Cal.App.3d 951,955.) The court ''will not close [its] eyes to situations where a complaint

contains ... allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v.

---Structun:dMaterialsCo~-(1981 }123CatApp-.3d-593,-604;) --- -

Consistent with the fundamental principle oftruthful pleading, a complaint otherwise good

on its face can be rendered defective by judicially noticed facts. (Watson v. Los Altos School

Dist. (1957) 149 Cal.App.2d 768, 771-772; see Code Civ. Proc., § 430.30, subd. (a).) Thus, a

demurrer may be sustained on the ground that matters properly subject to judicial notice show

that the complaint fails to state facts sufficient to constit}lte a cause of action. (See Saltarelli &

Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.)

( ... continued) local school board issue best handled on a c-ase-by-case basis, and not by declaring the entire statutory scheme to be unconstitutional.

10


1 II. STANDARD FOR DECLARATORY RELIEF

2 "Declaratory relief is not available unless there is a real dispute between parties, 'involving

3 justiciable questions relating to their rights and obligations. '" (Taxpayers for Improving Public

4 Safety v. Schwdrzenegger (2009) 172 Cal.AppAth 749, 768 [citation omitted].) "The

5 fundamental basis of declaratory relief is an actual, present controversy." (Ibid.) An actual

6 controversy is "one which admits of definitive and conclusive relief by judgment within the field

7 of judicial administration, as distinguished from an advisory opinion upon a particular or

8 hypothetical state of facts. The judgment must decree, not suggest, what the parties mayor may

9 not do." (Ibid., quoting In re Claudia E. (2008) 163 Cal.AppAth 627, 638.)

10 III. STANDARD FOR INJUNCTIVE RELIEF

11 An "[i]njunction is an equitable remedy available to a person aggrieved by certain torts or

12 other wrongful acts." (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 822, pp. 238-39.) To

.13 obtain an injunction, a party must show injury as to himself. "To have standing, a party must be

14 beneficially interested in the controversy; that is, he or she must have 'some special interest to be

15 served or some particular right to be preserved or protected over and above the interest held in

16 common with the public at large.'" (Connerly v. Schwarzenegger (2007) 146 Cai.AppAth 739,

17 748 [citations omitted].)

... --18 -- .. - --WheniiljUilctive reTieriEf soughf,consideratlonofpublic policy is-nor 6ruypermlssible but

19 mandatory. (0 'Connell v. Superior Court of Alameda County (2006) 141 Cal.AppAth 1452,

20 1471.) "Where, as here, the plaintiff seeks to enjoin public officers and agencies in the

21 performance of their duties[,] the public interest must be considered." (Ibid.) A court should

22 always strive for the least disruptive remedy adequate to its legitimate task. (Id. at 1476, citing

23 Butt v. State of California (1992) 4 Cal. 4th 668,.695, 696 and Wolfe v. State Farm fire &

24 .. Casualty Ins. Co. (1996) 46 Cal.AppAth 554,568 [where the Legislature "has enacted statutes

25 expressly intended to address issues of public policy raised in litigation, judicial restraint is called

26 for, and courts should 'decline the invitation to undo what the Legislature has done' by issuing.

27 injunctive relief'].).

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ARGUMENT

I. PLAINTIFFS FAIL TO STATE AN EQUAL PROTECTION CLAIM

Plaintiffs' generic allegation that the Challenged Statutes are unconstitutional "on their

face and as applied" because they violate the equal protection clauses of the California

Constitution, article I, section 7 and article IV, section 6 is facially defective. (See, e.g., F AC at~

12.) "A statute does not violate equal protection when it recognizes real distinctions that are

pertinent to the law's legitimate aims." (In re Marriage Cases (2008) 43 Cal.4th 757,873.) "In

such cases, judicial deference to legislative choices is consistent with 'our respect for the

separation of powers.'" (Ibid. [internal citation omitted].)

A. The Challenged Statutes Are Facially Constitutional

1. The Statutes are Presumed to be 'Constitutional

Plaintiffs have "a heavy burden" of demonstrating that sections of the Education Code are

unconstitutional on their face. (California Association of Private Special Education Schools v.

State Department of Education (2006) 141 Cal.App.4th 360,372.) A facial challenge to the

constitutional validity of a statute or ordinance considers only the text of the measure itself, not its

application to the particular circumstances of an individual. (Tobe v. City of Santa Ana (1995) 9

Cal.4th 1069, 1084, citing Dillon v. Municipal Court (1971) 4 CaL3d 860,865.) To support a

-deterihinaff6iCof faciaruric6iistifuti6n.ality~]Jlain:tiffs canrtotprevail"by suggesting that in SOme ~

future hypothetical situation constitutional problems may possibly arise as to the particular

application of the statute." (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2

Cal.4th 251,267, quoting Pacific Legal Foundation v. Brown, (1981) 29 Ca1.3d 168, 180-181.)

Rather, plaintiffs must demonstrate that the Challenged Statute's proviSions "inevitably pose a

present total and fatal conflict with applicable constitutional prohibitions." (Arcadia Unified

School Dist. v. State Dept. of Education, supra, 2 Cal.4th at p. 267.) "Unless conflict with a

provision of the state or federal Constitution is clear and unquestionable" the Challenged Statutes

must be upheld. (Jd., at p. 260 [emphasis added].) Thus, wherever possible, the Court must

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interpret the Challenged Statutes "as consistent with applicable constitutional provisions, seeking

to hannonize Constitution and statute." (Ibid.)

Applying these principles to an equal protection challenge; the Supreme Court in Pacific.

Legal Foundation v. Brown, supra, explained that, "[u]nlike the federal Constitution, which is a

grant of power to Congress, the California Constitution is a limitation or restriction on the powers

. of the Legislature." (Id. 29 Cal.3d at p. 180.) Consequently, "the entire law-making authority of

the state, except the people's right of initiative and referendum, is vested in the Legislature, and

that body may exercise any and all legislative powers which are not expressly, or by necessary

implication denied to it by the Constitution." (Ibid.) Moreover, "all intendments favor the

exercise of the Legislature's plenary authority: 'If there is any doubt as to the Legislature's power

to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such

restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not

to be extended to include matters not covered by the language used." (Ibid., citing Methodist

Hasp. of Sacramento v. Saylor (1971) 5 Cal.3d 685,691.) "[T]he presumption of

constitutionality accorded to legislative acts is particularly appropriate when the Legislature has

enacted a statute with the relevant constitutional prescriptions clearly in mind [because] the

statute represents a considered legislative judgment as to the appropriate reach of the

--constifutiofialpf6visi6ri. -(Pacific LegcilFoundcifiOn v.-Bl-oWn, supra-; 29 Cal.3cl at ·180; :citing San

Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279.) Hence, "a focused legislative

judgment on the question enjoys significant weight and deference by the courts." (Id.; see also

Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432,445 ["The courts may not order

the Legislature or its members to enact or not to enact, or the Governor to sign or not to sign,

specific legislation."].)

A facial challenge, therefore, is "the most difficult challenge to mount successfully, since

the challenger must establish that no set of circumstances exists under which the [law] would be

valid." (See American Civil Rights Foundation v. Berkeley Unified School District (2009) 172

Cal.App.4th 207,211 [quotations omitted].) Plaintiffs must show that the Challenged Statutes

13



1 "inevitably pose a present total and fatal conflict with applicable prohibitions." (Ibid.) The

2 Court's task, therefore, "is to determine whether the challenged [legislation] can be applied in any

3 set of circumstances." (Id. at p. 217.)

4 To successfully challenge the facial validity of the Challenged Statutes, plaintiffs must

5 demonstrate the inevitable conflict of the statutory provisions with the appropriate constitutional

6 mandate." (People v. Gre·en (2000) 79 Cal.App.4th 921,924-925 [citing Tobe v. City a/Santa

7 Ana, supra, 9 Cal.4th at p. 1084].) "All presumptions favor the validity of a statute." (Tobe v.

8 City 0/ Santa Ana, supra, 9 CaL4th at p. 1102.) "The court may not declare it invalid unless it is /

9 clearly so." (Ibid.)

10

11 2. The Challenged Statutes Do Not Facially Conflict with Equal

Protection

12 Plaintiffs' PAC fails to demonstrate an inevitable "total and fatal conflict" ofthe

13 Challenged Statutes with the equal protection provisions of the State's Constitution.

14 The "concept of the equal protection of the laws compels recognition of the proposition that

15 persons similarly situated with respect to the legitimate purpose of the law receive like

16 treatment." (Cooley v. Superior Court o/Los Angeles County (2002) 29·Cal.4th 228,253.) "The

17 first prerequisite to a meritorious claim UIIder the equal protection clause is a showing that the

- .. 19-."statelias-adopfed aclassificationtnaf affeCts-tWo6ffuore siliiiUrrly sifuated-groupsirfan llnequal- ...

19 manner." (Ibid.) The initial inquiry is not whether persons are similarly situated for all purposes,

20 but whether they are similarly situated for the purposes ofthe law challenged." (Ibid.)

21 Here, the Challenged StatUtes do not use racial, ethnic or wealth classifications of teachers,

22 let alone students, on their face. (See American Civil Rights Foundation v. Berkeley Unified

23 School District, supra, 172 Cal.App.4th at 211.) And, the Challenged Statutes "do not show

24 partiality, prejudice or preference to any student on the basis of that student's ra~e" or wealth.

25 (Id. at 217-218.) None of the Challenged Statutes even mentions race, economic status, or any

26 other protected class. Indeed, the only classifications in the Challenged Statutes are among

27 permanent, probationary and temporary teachers, which distinctions are not at issue in this

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litigation. Otherwise, the Challenged Statutes are entirely neutral on their face. Thus each statute

must be upheld "if there is any reasonably conceivable state of facts that could provide a rational

basis for the classification." (Alviso v. Sonoma County Sheriff's Department (2010) 186

Cal.App.4th 198, 205.)

ill Education Code section 44929.21 (Tenure Statute)

Section 44929.2 Ldirects how local school boards may classify "probationary employees" and

"pernlanent employees." Courts have found many circumstances that provide a reasonable or

rational basis for the classifications in section 44929.21. (See Bakersfield Elementary Teachers

Association, supra, 145 Cal.App.4th at pp. 1279, 1293, fn. 20 [to give new teachers time to gain

expertise, to provide district with tilIle to evaluate its employee, and to ensure a stable staff not

subject to caprice]; Vasquez v. Happy Valley Union School District, supra, 159 Cal.App.4th at p.

974 [same].) Thus, the Court's inquiry should end here.

Education Code sections 44934, 44938, 44944 (Due-Process Statutes) \

14 These statutes establish due process procedures for pernlanent and probationary teachers who

15 are the subject of a local school district's suspension or dismissal action. The Legislature enacted

16 these statutes to strike a balance "be1v,reen the discretion given districts to select the degree of

17 discipline and limit the options available to the commission, and the protection from arbitrary

-18~ ~ acfioii."TFontCinCi, sitpra~-45~Ca1.3d -af223,J1lIailitiffs allege the -E<lhcafionCodepfes-efltslllCfte ~-- ~

19 than a dozen costly hurdles for a district before it can dismiss an underperforming teacher,

20 ensuring "that a certain number of grossly ineffective teachers ... retain their employment in the

21 California school system." (PAC at ~ ~ 50,57.) But the reverse is true. In the 1970's, the

22 Legislature enacted these procedural statutes, in part, to reduce the litigation costs of teacher

23 dismissal actions. (See California Teachers Association, supra, 20 Ca1.4th at p. 350 [analyzing

24 section 44944 and its legislative history].) Thus, plaintiffs fail to mount a viable facial challenge

25 to the Due Process Statutes.

26 Education Code section 44955 (Seniority-Based Layoff Statute)

27 Section 44955 requires that teacher layoffs be based on seniority for both perma~ent and

28 15


1 probationary employees. Subdivision (d)(2) of this statute expressly pennits a school district to

2 ignore or deviate from its provisions "[f]or purposes of maintaining or achieving compliance with.

3 constitutionalrequirements related to equal protection ofthe laws." (Ed. Code, § 44955, subd.

4 (d)(2).) Because the Seniority-Based Layoff Statute expressly allows non-compliance if

5 necessary to comply with constitutional equal protection, this statute on its face could not violate

6 the equal protection provisions of the California Constitution. Moreover, courts have once again

7 found plausible reasons for the classification in section 44955. (See, e.g., Caltfornia Teachers

8 Association v. Vallejo City Unified School District, supra, 149 Cal.AppAth 135 at 156-158 [need

9 to limit a board's discretion in laying offpennanent and probationary employees]; Pacific Legal

10 Foundation, supra, 29 CaL3dat p. 180 ["the presumption of constitutionality ... particularly

11 appropriate when the Legislature has enacted a statute with the relevant constitutional

12 prescriptions clearly in mind"].)

13 Since none of the Challenged Statutes, on their face, reflects a discriminatory purpose and

14 all of them are within the Legislature's power to enact, their validity must be sustained unless

15 they cannot be applied without trenching upon constitutionally protected rights." (American Civil

16 Rights Foundation v. Berkeley Unified School District, supra, 172 CaLApp.4th at p. 211.) In this

17 regard, the provisions of the Challenged Statutes do not inevitably conflict with the equal

-18- --pfote-ctioIi clause: To the" contrary; ealifOftlJa-courts have-repeatedly-heldthatthe Challenged-· - -- -- - -

19 Statutes were enacted to comply with the State's "constitutional obligation to provide a hearing to

20 decide whether dismissal or suspension is appropriate." (See California Teachers Assn. v. State

21 of California, supra, 20 CaL4th 327 at p. 344.) In repeatedly re-affinning the constitutionality of

22 this statutory scheme, California courts have recognized that it "represents the delicate balancing

23 necessary to accommodate students' need for education, teachers' need for job security, and

24 school boards' need for flexibility in evaluating and hiring employees." (Vasquez v. Happy

25 Valley Union School District, supra, 159 CaL App. 4th at p. 985.)

26 III

27 III

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1 Plaintiffs' attempt to eviscerate this careful~y crafted statutory framework therefore not only

2 conflicts with the will of the Legislature, but also with decades of judicial precedent; and should

3 be rej ected.

4 B. Plaintiffs Have Failed to State a Claim That the Challenged Statutes are

5 Unconstitutional as Applied

6 "An as applied challenge may seek (1) relief from a specific application of a facially valid

7 statute or ordinance to an individual or class of individuals who are under allegedly impermissible

8 present restraint or disabiFty as a result of the manner or circumstances in which the statute or .

9 ordinance has been applied, or (2) an injunction against future, application of the statute or

10 ordinance in the allegedly impermissible manner it is shown to have been applied in the past."

11 (Tobe v. City of Santa Ana, supra, 9 Ca1.4th at p. 1084.) It contemplates analysis of the facts of a

12 particular case or cases to determine the circumstances in which the statute or ordinance has been

13 applied and to consider whether in those particular circumstances the application deprived the

14 individual to whom it was applied of a protected right. (Ibid., citing Broadrick v. Oklahoma

15 (1973) 413 U.S. 601, 615-616.)

16 Plaintiffs' as-applied allegations are predicated on undefined terms, unfounded assumptions

17 and unsupported conclusions. (See, e.g., California Association of Private Special Education

T8- -Schools·v~State-DepdrtmenrofEaucatio1ipOU6}T4rCa1.App.4tli 300, 377 (hblOinglliarthe- -_.

19 requirement that an actual, present controversy must be pleaded specifically "cannot be met in

20 such a bootstrapping manner"].) Plaintiffs do not specifically define what constitutes a "grossly

21 ineffective teacher," though they admit that the number is small. Indeed, by admitting that "the

22 majority of teachers in California are providing students with a quality education" (PAC at ~ 9),

23 plaintiffs tacitly concede that the Challenged Statutes are being applied in a constitutional manner

24 state-wide.

25 The right that plaintiffs claim has been violated, "a meaningful education," is equally

26 amorphous, and does not exist as a distinct constitutional right. (See PAC at ~~ 15-23.) The

27 Supreme Court has already held that there is no "constitutional mandate for the State to provide

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1 funds for each child in the State at some magic level to produce either an adequate-quality

2 educational program or a high-quality educational program." (Serrano v. Priest (1976) 18 Ca1.3d

3 728, 754, fn. 28 (Serrano 11).) Because the Constitution guarantees only "equality of educational

4 opportunity, but no minimum level," plaintiffs cannot graft their notion of a certain level of " ~

5 adequacy onto the State constitution's equal protection clause. (Serrano v: Priest (1977) 20

6 Ca1.3d 25,40, fn. 12 (Serrano II!).) The fundamental right to an education does not mean a right

7 to funding to achieve mastery of educational standards. Rather, the California Constitution

8 "prohibits the maintenance and operation ofthe common public school system in a way which

9 denies basic educational equality to the students of particular districts." (Butt v. State of

10 California, supra, 4 Ca1.4th 668 at p. 685 [emphasis added].)

11 Compounding the inherent ambiguity in what constitutes a "meaningful" education, andlor

12 whether such a constitutional right exists, plaintiffs fail to allege how the exposure of some

13 students to a small number of qualified and credentialed, yet allegedly "grossly ineffective"

14 teachers deprives them of an overall "meaningful" education, especially when plaintiffs admit "

15 that the majority of teachers in California are providing students with a quality education.

16 Plaintiffs also fail to assert how each of them has been specifically harmed. Plaintiffs'

17 allegations of harm are based on the same conclusory allegation: that each of them "have been

I8-assignea to,- artdlorlsatsuDstantialrlsk ofbeing-assignedto-;,-a grossly ineffective teacher who"

19 impedes [his/her] access to the opportunity to receive a meaningful education." (F AC at ~~ 15-

20 23.) No specific allegation of actual harm is made by any of these plaintiffs.

21 But even ifthey could define what constitutes a "grossly ineffective teacher," and identify a

22' constitutional right that has been violated, plaintiffs nonetheless have not sufficiently pled, nor

23 . can they, that the application of the Challenged Statutes is the cause of the problem they allege-

24 the allegedly inadequate education of some students in some public schools. Even assuming,

25 only for the sake of this demurrer, that school administrators have had difficulty removing a small

"26 number of allegedly "grossly ineffective teachers," plaintiffs make extraordinary leaps in

27 attempting to causally connect such difficulty with the specific due process requirements ofthe

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1 Challenged Statutes, and from there to try to link the small number of allegedly ineffective

2 teachers with an alleged violation of a questionable constitutional right to a "meaningful

3 education." These repeated layers of conchisory allegations are facially too tenuous and dubious . .

4 to merit the wholesale invalidation of important rights that have been codified by the Legislature

5 and repeatedly recognized by California courts. (See e.g., California Association of Private

6 Special Education Schools v. State Department of Education, supra, 141 Cal.AppAth at p. 377

7 . [holding that an as-applied challenge "must be pleaded specifically, arld the facts of the respective

8 claims concerning the underlying subj ect must be given ... [and] cannot be met in such a .

9 bootstrapping manner"].)

1 0 Simply put, rolling back the due process protections of teachers against their arbitrary and

11 capricious dismissal, as plaintiffs seek in their F AC, is not the answer to what plaintiffs allege is

12 the problem of students' academic performance. Unfortunately, what ails California's

13 ed~cational system is ripe with complexity and not susceptible to sloganistic solutions. Plaintiffs

14 nevertheless seek to have this Court inject itself into the fray with an overly simplistic,

15 unwarranted and, most significantly, unconstitutional intrusion into educational reform, which is

16 and has always been recognized as distinctly within the plenary authority of the Legislature.

17 II. THE GOVERNOR Is NOT A PROPER PARTY

19 (d).) The Governor has no constitutional or statutory duty ove~ the gravamen of plaintiffs'

20 complaint: i.e., the authority to grant tenure, layoff, dismiss or assign individual teachers within a

21 local school district.

22 In their F AC, plaintiffs allege that the Challenged Statutes somehow cause "grossly

23 ineffective" teachers to be "disproportionately assigned to educate students in schools that serve

24· the largest number of minority and economically disadvantaged students." (FAC ~ 73 [emphasis

25 added]; see also FAC ~~ 3, 12-13, 15-23, 71-72, 75, 77.) The Governor does not assign teachers

26 to students. The Governor does not have a constitutional or statutory duty to decide whether to

27 offer tenure to a particular teacher under Education Code section 44929.21. The Governor does

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1 not have constitutional or statutory duty to choose which teachers to layoffunder section 44955;

2 The Governor does not have a constitutional or statutory duty to dismiss an individual teacher if

3 that teacher is "grossly ineffective," even if such a standard exists under sections 44934,44938,

4 and 44944, and it does not. All of these duties fall squarely on the shoulders oflocal school

5 governing board officials. 7

6 If such duties exist state-wide, and in this case they do not, it would be an administrative,

7 supervisory duty for state officers an4 agencies that, by statute, have a duty to oversee local

8 school districts in general. (See, e.g., San Francisco NAACP v. San Francisco Unified School

9 District (N.D. Cal. 1979) 484 F.Supp. 657, 665 [reversed on other grounds by San Francisco

10 NAACP v. San Francisco Unified School Dist. (9th Cir. 1990) 896 F.2d 412].) As the Supreme

11 . Court has explained, "it is the general and long-established rule that in actions for declaratory and

12 injunctive relief challenging the constitutionality of state statutes, state officers with statewide

13 administrative functions under the challenged statute are the proper parties dejendant.,,8

14 (Serrano II, supra, 18 Cal.3d at p. 752 [emphasis added]; accord, Wolfe v. City of Fremont (2006)

15 144 Cal.AppAth 533, 551.) "[A]dministrative officers possess the requisite governmental interest

16 to enable them adequately to advance the position of the State." (San Francisco NAACP, supra,

. 17 484 F.Supp. at p. 665.) "[T]he Legislature an~ the Governor lack any similar interest:' (Serrano

..... ----18--II,supra;18Cal:3d-atp.IS2.j-- ---- --- -- -- --- - .. ----------- --. -- ---

19 Here, plaintiffs bring a constitutional challenge to five statutes seeking declaratory and

20 injunctive relief. Governor Brown does not exercise administrative functions pertaining to these

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7 The Challenged Statutes place all authority with the governing boards of local school districts. Specifically, the challenged statutes direct the governing board of the school district to determine whether: (1) a teacher receives permanent employee status pursuant Education Code section 44929.21; (2) to give notice to a teacher of his or her intended dismissal or suspension . pursuant section 44934; (3) to give notice to a teacher of his or her unprofessional conduct pursuant section 44938; (4) to provide a hearing to a teacher before dismissing or suspending the teacher pursuant section 44944; and (5) to terminate the services of teachers based on seniority during a reduction in force pursuant to section 44955.

8 This, of course, assumes that a cause of action can be stated against such state agencies. For the reasons articulated in the next section, plaintiffs here fail to state a cause of action against the state officers and agencies named in this case - Tom Torlakson, the State Superintendent of Public Instruction, the California Department of Education, or the State Board of Education.

.20


1 statutes. He does not exercise administrative functions with regard to tenure, dismissal or layoffs

2 of individual teachers within a local school district. Nor does he exercise administrative functions

3 pertaining to the assignment of individual teachers within a local school district. In fact, in

4 . Serrano 11, for similar reasons. the Supreme Court expressly held that the Governor was not a

5 proper defendant in a constitutional equal protection challenge to California's prior public school

6 finance system. (Serrano 11, 18 Ca1.3d at p. 751.) The Court should hold the same here.

7 Accordingly, the Govern:or is an improper party and the demurrer should be sustained without

8 leave to amend, dismissing Governor Brown with prejudice.

9 III. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION AGAINST THE STATE EDUCATION

10 DEFENDANTS

11 Plaintiffs fail to state a cause of action against the state agencies or entities which plaintiffs

12 have brought into this suit - Tom Torlakson~ in his capacity as the State Superintendent of Public

13 Instruction, the California Department of Education, or the State Board of Education (hereinafter

14 State Education Defendants).

15 "The surest justification for joining a particular governmental official, body, or agency is

16 that the putative defendant's conduct violated a statutory duty, whether owed to the plaintiff

17 personally or more generally to the public, as an incident ofthe defendant's public duties."

. 18-· . ·CWiTlfe--;siipra,T44 Ca1:A:pp:4tharp-:--SSl: r·H:ere~· none ofthe·State·EducationDefendantshas--

19 violated any statutory duty personally or generally as an incident to their public administrative

20 duties. Though the F AC is replete with purported acts or omissions of local school districts, it is

21 tellinglysilent as to the State Education Defendants. There is no allegation anywhere in the F AC

22 that any of the State Education Defendants has done anything wrong, let alone violated any of the

23 plaintiffs' constitutional rights.

24 The Challenged Statutes place all authority for the hiring, suspension and dismissal or

25 public school teachers with the governing boards of local school districts. Specifically, the

26 challenged statutes direct the governing board of the school district to determine whether: (1) a

27 teacher receives permanent employee status pursuant Education Code section 44929.21; (2) to

28 21



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give notice to a teacher of his or her intended dismissal or suspension pursuant section 44934; (3) .

to give notice to a teacher of his or her unprofessional conduct pursuant section 44938; (4) to

provide a hearing to a teacher before dismissing or suspending the teacher pursuant section

44944; and (5) to layoff teachers based on seniority during a reduction in force pursuant to

section 44955.9

Because all authority under the Challenged Statutes is vested with the local school boards

alone, there is no cause of action against the State Education Defendants in this case.

IV. PLAINTIFFS' CLAIMS AGAINST THE GOVERNOR AND THE STATE OF CALIFORNIA ARE NON-JUSTICIABLE

To the extent that Plai11:tiffs have asked this Court to enter a permanent injunction against

the Governor and the State of California, and thereby prohibit them "from implementing at any

time in the future, by law or contract, any system of teacher employment, retention and dismissal

that is substantially similar to the framework implemented by the Challenged Statutes," (F AC at

p. 26, ~ 3), the F AC presents a non justiciable political question. As the United States Supreme.

Court has held, the "non justiciability of a political question is primarily a function of the

separation of powers." (Baker v. Carr (1962) 369 U.S. 186,210.)

Courts may not order the Governor to sign or veto legislation, because this would violate

-the separation-of powers-doctrine.- (See Serrano 11, supra,-18 Cal:-3·d· at p. 751; Jenkins·v:Knighr-·- -_.

(1956) 46 Ca1.2d 220,223,226 [courts will not interfere with discretionary acts of the Governor,

such as signing or vetoing bills, which are inherently executive or political in nature]; California

State Employees Assn. v. State (1973) 32 Ca1.App.3d 103, 107-110 [same].) Any injunction

seeking to prohibit the Governor from his constitutional duty to independently review and

thereafter sign or veto legislation would patently violate the separation of powers doctrine.

Accordingly, the Governor is not a proper defendant here and should be dismissed.

9 In fact, the Legislature created and organized the challenged statutes under "Division 3 -Local Administration" not under "Division 2 - State Administration" of the Education Code.



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The separation of powers doctrine is also violated by naming the State of California as a

defendant in this case. When defining the "State of California" in their F AC, plaintiffs describe it

as "the legal and political entity required by the California Constitution to maintain and oversee

the system of public education in California" which "has plenary responsibility for educating all

California public school students .... " (FAC at ~ 25.) According to the Constitution, the

Legislature, not the State, is the political entity that has "plenary power" over public education

subject only to constitutional restrictions. (See Butt v: State of California, supra, 4 CaL4th at

681.) Therefore, plaintiffs implicitly define the State of California as the Legislature. The

Legislature is not a party here; nor would it be a proper one. (Serrano II, supra, 18 Cal.3d at p.

751 [recognizing the "well-established principle, rooted in the doctrine of separation of powers

(Cal. Const., art III, § 3), that the courts may not order the Legislature or its members to. enact or

not to enact ... specific legi~lation"].)

Thus, there is no lawful reason or basis to name the Governor or the State as defendants in

this case.

v. PLAINTIFFS FAIL TO PROPERLY ASSERT STANDING

Plaintiffs fail to state a calise of action against the State Defendants because, absent any

specific allegations of concrete harm, plaintiffs have no standing to bring their F AC. (See

-·Buckldnav.TfifesholdBnterprises~I;td. -(2007}tSSea:1::A.ppAth/98,-813-["[b ] ecause·standirrg---:

goes to the existence of a cause of action, lack of standing may be raised by demurrer or at any

time in the proceeding, including at trial or in an appeal"].) As a general principle, standing

''requires an actual justiciable controversy as to which the complainant has a real interest in the

ultimate adjudication because he or she has either suffered or is about to suffer an injury of

sufficient magnitude reasonably to assure that all of the relevant facts and issues will be

adequately presented to the adjudicator ... The party must be able to demonstrate that he or she

has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.

(Holmes v. CaliforniaNat. Guard (2001) 90 Cal.AppAth297, 314-315 [emphasis added].)

23

MEMORANDUM OF POlNTS AND AUTHORITIES IN SUPPORT OF STATE DEFENDANTS' DEMURRER

TO PLAlNTIFFS' FIRST AMENDED COMPLAlNT (BC484642)

1 Here, the allegations of the F AC fail to confer standing on the individually named plaintiffs.

2 Their allegations of harm are reduced to the same cookie-cutter assertion: that each of them "have

3 been assigned to, "and/or is at substantial risk of being assigned to, a grossly ineffective teacher

4 who impedes [his/her] access to the opportunity to receive a meaningful education." (F AC, ~~

5 15-23.) No specific allegation of actual harm is made by any of these plairitiffs. (See discussion

6 "on Plaintiffs' First Amended Complaint, supra, at pp. 7-9.)

7 Absent any specific allegations of concrete harm, plaintiffs have no standing to bring their

8 . FAC.

9 VI. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO AMEND

10 Ordinarily, "[ u ]nless it is clear that a complaint does not state a cause of action and cannot

11 be so amended as to obviate the objections thereto it is error to refuse permission to amend."

12 (Johnson v. County a/Los Angeles (1983) 143 Ca1.App.3d 298,306.) However, "[l]eave to

13 amend is properly denied when the facts are not in dispute, the nature of the claim is clear but

14 there is no liability under substantive law." (Ibid.) Here, even if plaintiffs could somehow cure

15 their contradictory and conc1usory allegations, there can be no liability under substantive law.

16 Their F ACfails to plead a cause of action, and the State Defendants' demurrer should be

17 sustained without leave to amend.

19 The State Defendants therefore respectfully request that their demurrer to the F AC be

20 sustained without leave to amend.

21 III

22 III

23 III

24 III

25 III

26 III

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Dated: August 20,2012

LA2012506839 51149234.docx

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Respectfully Submitted,

KAMALA D. HARRIS Attorney General of California JENNIFER M. KIM Supervising Deputy Attorney General ANDREA VENTURA Deputy Attorney General

JONA1HAN E. RICH Deputy Attorney General

Attorneys for Defendants State of California; Edmund G. Brown Jr., in his official capacity as Governor of California; Tom Torlakson, in his official capacity as State Superintendent of Public Instruction; California Department of Education; and State Board of Education


DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Vergara; Beatriz v. Department of Education Superior Court of California, County of Los Angeles, Case No. BC484642

I declare:

. I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 300 South Spring Street, Suite 1702, Los Angeles, CA 90013. .

On August 20,2012, I served the attached MEMORANDUM OF POINTS AND AUTHOIUTIESIN SUPPORT OF STATE DEFENDANTS' DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Los Angeles, California, addressed as follows:

PLEASE SEE ATTACHED SERVICE LIST

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed onAugust 20,2012, at :Los Angeles, California.

LA2012506839 51151682.doc

NonnaL. Herrera-Orr ~ / ~ -- - ~-Declarant- -~ ------~ ---- ---------- ~---Signature--

Gibson, Dunn & Crutcher LLP Theodore J. Boutrous, Jr. Theane Evangelis Kapur 333 South Grand Avenue Los Angeles, CA 90071

Gibson, Dunn & Crutcher LLP Theodore B. Olson 1050 Connecticut Avenue, N.W. Washington, DC 20036

Alum Rock Union School District Jose L. Manzo, Superintendent of the Alum Rock Union School District Office of Superintendent 2930 Gay Avenue San Jose, CA 95127

SERVICE LIST

Gibson, Dunn & Crutcher LLP Frederick Brown Enrique A. Monagas 555 Mission Street, Suite 3000 San Francisco, CA 94105

Los Angeles Unified School District John Deasy, Superintendent of the Los Angeles Unified School District 333 South Beaudry Avenue Los Angeles, CA 90017

Oakland Unified School District Ms. Jacqueline Minor General Counsel 1025 2nd Avenue Robeson Building, Room 406 Oakland, CA 94606-2212

Documents

KA.lY.lALA mAN RICH ANDREA - Students Matterstudentsmatter.org/wp-content/uploads/2012/10/SM_Memorandum-of...KA.lY.lALA D. HARRIs ... MEMORANDUM OF POINTS AND ... Bakersfield Elementary