California court strikes down LA middle school cuts

Citing civil rights law and the California constitution, a California court (not a federal court) in Los Angeles has struck down cuts layoffs at Los Angeles middle schools, issuing a preliminary injunction against the layoffs. “'Today's landmark decision carries on the ideals of Brown v. Board of Education that no child may be deprived of the right to learn,” said Mark Rosenbaum, chief counsel for the ACLU of Southern California, in an ACLU press release. “The injunction granted by a conscientious and courageous judge establishes the principle that government may not deny children their right to equal educational opportunity by disproportionately laying off teachers in communities such as Watts and Pico-Union. The children of Linda Brown are smiling.” [https://www.aclu- /view/103025].

“Today’s decision gives hope back to Watts and East Los Angeles that their kids count every bit as much as students everywhere else,” said Catherine Lhamon, director of impact litigation at Public Counsel Law Center, in a related press release. “We celebrate this historic victory for equal rights and look forward to beginning the work to ensure that no students will suffer in future.”

The complete text of the May 13, 2010 decision follows here:

Case Number: BC432420


Filing Date: 02/24/2010

Order Date: 05/13/2010

Case Type: Civil Rights (General Jurisdiction)

Superior Court of the State of California

County of Los Angeles

Class Action

Revised Findings and Order on Plaintiffs’ Motion for Preliminary Injunction

Plaintiffs, students at three Los Angeles Unified School District (“LAUSD”) middle schools, seek a preliminary injunction to prevent an alleged violation of their constitutional rights to equal educational opportunity. Plaintiffs allege that theft right to educational equality was impaired by a Reduction in Force (RIF) implemented in 2009 that devastated the teaching corps (and thus the delivery of education) at Plaintiffs’ schools but left other LAUSD schools relatively untouched. Plaintiffs now seek to enjoin further teacher layoffs at their schools pursuant to a RIF implemented in 2010, which Plaintiffs allege will again have a disproportionate impact on Plaintiffs’ schools. Both RIFs were precipitated by the State’s budget crisis.

I. The Constitutional Right to Equal Educational Opportunity

The California Constitution guarantees to all California public school students a fundamental right to “basic equality of educational opportunity.” (Butt v. State (1992)4 Cal.4th 668, 685.) Under the State Equal Protection guarantees, strict scrutiny “applies to State-maintained discrimination whenever the disfavored class is suspect or the disparate treatment has a real and appreciable impact on a fundamental right or interest.” (Id. at p. 685-86.) Thus, although Plaintiffs’ motion is not based on discrimination against a suspect class, if the evidence shows an impairment of the Plaintiffs’ fundamental interest in education, the challenged conduct can only be justified if necessary to further a compelling state interest. (Id. at p. 688; Serrano v. Priest (1971) 5 Cal.3d 584, 597 [“Serrano I”].

In cases finding a violation of the right to equal educational opportunity, the California Supreme Court and the Court of Appeal have relied on evidence regarding the impact of disparate treatment on the delivery of education in the classroom. In Butt v. State (1992)4 Cal.4th 668, the Supreme Court upheld a finding that closing schools in one district six weeks earlier than schools in other districts would likely deprive students of basic educational equality. (Id. at p. 673.) Although the Court recognized that a reduction in the “overall term length might be compensated by other means, such as extended daily hours, more intensive lesson plans, summer sessions, volunteer programs, and the like” (id. at p. 686), the Court affirmed the trial court’s finding of a likely constitutional violation based on the declarations of “[s]everal District teachers” who “outlined in detail how the proposed early closure would prevent them from completing instruction and grading essential for academic promotion, high school graduation, and college entrance.” (Id. at p. 687.)

Those declarations focused on the effects of the closure in the classrooms: the closure would prevent high school seniors from receiving “intended lessons covering the State’s executive and judicial branches”; “Algebra I students would miss essential instruction in quadratic equations”; first graders would miss instruction in “phonies, reading comprehension, creative writing, handwriting skills,” etc. (Id.atp.687n.16.)

In Serrano v. Priest (1976) 18 CaL3d 728 (“Serrano Ii”), the Supreme Court found a denial of equal educational opportunity based on evidence that substantial disparities in available resources “cause and perpetuate substantial disparities in the quality and extent of availability of educational opportunities.” (Id. at p. 747.) Specifically, the Court relied on evidence that disparate expenditures gave some districts a “substantial advantage in obtaining higher quality staff, program expansion and variety, beneficial teacher-pupil ratios and class sizes, modem equipment and materials, and high-quality buildings.” (Id. at p.748.) These disparities mattered because “[t]here is a distinct relationship between cost and the quality of educational opportunities afforded.” (Ibid.) -

In O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, the plaintiffs alleged an equal protection violation because some of the State’s students “have not been provided with the educational resources necessary to enable them to pass” a State mandated test for high school graduation. (Id. at 1464.) Based on evidence that “students in economically challenged communities have not had an equal opportunity to learn the materials tested” on the graduation test, the Court of Appeal affirmed a finding that the “plaintiffs established a likelihood of success on the merits as to the denial of their fundamental right to equal educational opportunity.” (Id. at 1465.)

Although the factual circumstances in this case are not identical to those presented in Butt, Serrano II, or O‘Connell, the evidence shows that the impact on Plaintiffs’ right to equal education is similar to the impacts in those cases.

II. Plaintiffs Have Shown a Likely Denial of Equal Educational Opportunity

The undisputed evidence shows that Plaintiffs’ schools were already struggling prior to the RIFs. According to LAUSD data, each of Plaintiffs’ schools (Gompers, Markham, and Liechty) was ranked in the bottom 10% of schools statewide in terms of academic performance. (Declaration of Sean Gates (“Gates Decl.”) Ex. I, J, H [listing API scores].) Moreover, a comparison of California Standardized Test scores shows that Plaintiffs’ schools fell far below both LAUSD and statewide averages. For example, the average percentage of students’ scores at the Proficient or Advanced level in English-Language Arts in 2008-09 in LAUSD was 38% and statewide 50%. (Id.) At Gompers, the number was 16%, at Markham 12%, and at Liechty 25%. (Id.) In Mathematics, the LAUSD average was 37% and the statewide average was 46%. (Id.) At Gompers, the number was 13%, at Markham8%, and at Liechty 3l%. (Id.)

Despite the demonstrated need for greater assistance and support, the LAUSD RIFs have had and will have a disparate negative impact on Plaintiffs’ schools. According to LAUSD‘s data, it sent RIF notices to 60% (47 of 78) of the teachers at Liechty, 48% (38 of 79) at Gompers, and 46% (33 of 72) at Markham. (Declaration of Joel Jordan (“Jordan Decl.”) Ex. A.) On a district-wide basis, however, LAUSD sent notices to only 17.9% of its teachers. (See id.) Plaintiffs’ schools were the hardest hit LAUSD middle schools in 2009; a large number of other LAUSD middle schools had less than 15% of their teachers laid off (e.g., Columbus, Frost, Hale, Henry, Holmes, Mulholland, Reed, Mark Twain, Portola, Revere, Woodland Hills Academy, Dana, etc.). (Jordan Decl. Ex. A.) The 2009 RIF resulted in a large number of teacher vacancies at Plaintiffs’ schools. Even after some laid-off teachers agreed to return as long-term substitutes, Markham had 18 vacancies as a direct result of the layoffs (23% of its teaching corps), Liechty had (33%), and Gompers had 16 (22%) (Gates Decl. Ex. A ¶ 18, Ex. B ¶ 12, Ex. W ¶ 14.) Many of the laid-off teachers were department heads and committee chairs. (Id. Ex. A ¶ 20, Ex. V ¶ 14, Ex. W ¶ 19.) When Markham tried to fill its RIP-created vacancies for the 2009-10 school year, 9 of 12 replacement teachers quit within only three days, leaving the school to find other bodies to fill those classes. (Id. Ex. A ¶ 23.) Other LAUSD middle schools with no or fewer vacancies to fill were not in a position to risk such extreme and disruptive turnover caused by the RIP.

In 2010, Plaintiffs’ schools were again the hardest hit middle schools. The estimated district-wide RIF rate in LAUSD is less than 6.6%. (Gates Decl. ¶ 34.) At Markham, 30% of its teachers will be laid off, at Gompers 21%, and at Liechty 49%. (Avila Decl. Ex. 1.) Because df the RIF, only11 teachers who currently teach core academic subjects at Liechty are likely to be able to return next year as permanent teachers. (Gates Decl. Ex. T ¶ 9.) At the same time, over 30 of the 69 LAUSD middle schools will lose less than 10% of their teachers. (Avila Decl. Ex. 1)[1]

The disparities matter because the evidence shows there is a distinct relationship between high teacher turnover and the quality of educational opportunities afforded: High teacher turnover devastates educational opportunity. The current State Superintendent of Public Instruction has admitted to the debilitating effects of high teacher turnover, for which “students pay dearly.”[2] (Gates Decl. Exs. C at I, D.) Plaintiffs’ expert, Dr. Linda Darling-Hammond, testified that highteacher turnover creates “serious problems that negatively affect educational opportunity,” including that “little learning goes on in classrooms with substitute teachers” and “the very fabric of the educational institution and learning environment” is undermined. (Darling-Hammond Decl. ¶ ¶ 12-17). Plaintiffs’ other expert, Dr. Michelle Fine, explained that high teacher turnover “is a significant cause of educational disruption for students.” (Fine Decl. ¶ 18.) Defendants do not dispute this evidence.

The 2009 RIF caused total teacher misassignments (TMA) — teachers assigned to courses in which they do not have the requisite certification or training — and misassignments for English Learners (ELMA) to skyrocket at Plaintiffs’ schools while dropping at other LAUSD middle schools:


2008 THA

2009 TMA

2008 ELMA

2009 ELMA






Markham MS





Gompers Ms





Lawrence MS





Madison MS










Burroughs MS





Palms MS





Revere MS






[1] Even after LAUSD managed to reduce the overall size of the 2010 RIF through furloughs, its tentative estimate still shows dramatic discrimination: Liechty will still lose 41% of is teachers, Markham 27%, and Gompers 12%. (Avila Deol. Ex. 2 at 1,2.) Over 30 of the 69 other middle schools will lose less than 5% of their teachers. (Avila Decl. Ex. 2.)

[2] See also ClevelandBd. of Ethic. v. LaFleur (1974) 414 U.S. 632, 654 (important “to avoid teacher turnover in the middle of a semester, since continuity in teaching approach, as well as teacher-pupil relationships, is otherwise impaired”); U.S. v. Missouri (RD. Mo. 1973) 363 P. Supp; 739, 744 (“stability of the faculty... [has] a significant effect on the quality of the educational program that can be offered.”); Santa Barbara Fed ‘ii of Teachers v. Santa Barbara High Sch. Dist. (1977)76 Cal.App.3d 223, 232-33 (when “school districts ... resort to filling temporary vacancies on a day-to-day basis with various substitute teachers; such practice would be harmful to students”).

(Gates Decl. Exs. H-J, DD; Pls.’ RJN Exs. O-Q.) The overall proportion of correctly assigned teachers is “the most significant predictor of state-level average student achievement in mathematics and reading.” (Darling-Hanimond Decl. Ex. A at 33.)

These statistics show a severe disparity in the educational resources provided to Plaintiffs compared to students at other LAUSD schools. The disparities in Serrano II allowed some districts to obtain higher quality teacher staff and better facilities. (Serrano v. Priest, supra, 18 Cal.3d at p. 748.) Here, Plaintiffs were denied a much more — a stable, consistent teacher corps — which was afforded other students in LAUSD and the State.

Beyond the statistics, the undisputed evidence shows that the disparities have severely affected the delivery of education at Plaintiffs’ schools. In fact, the impact, though similar in nature to that in Butt and O’Connell, is more severe. The evidence shows that in many of Plaintiffs’ classes, little to no instruction took place. In numerous core classes, Plaintiffs were forced to endure rotating short-term substitutes, up to ten short-term substitutes in a single semester. (Gates Decl. Ex. A at ¶ 22; Ex. N ¶ 6; Ex. P ¶ 4; Ex. Q ¶ 5; Ex. R ¶ 3; Ex. S ¶ 4.) Even as of March 2010, four classes at Liechty were still staffed by a series of short-term substitutes. (Id. Ex. T ¶ 9.) The rotation of substitute teachers made maintenance of coherent lesson plans and student records impossible. Some substitute teachers did not follow the pacing guides and repeated the same material day after day. (Id. Ex. P ¶ 8; Ex. S ¶ 5.) Others simply provided no lesson at all, telling students to read the materials themselves. (Id. Ex. P ¶ 5; Ex. S ¶ 5.) Some failed to test the students. (Id. Ex. S. ¶ 7.) Others tested material that had not been covered. (Id. Ex. Q ¶ 10; Ex. P ¶ 12.) Some gave tests but never graded them. (Id. Lx. Y ¶ 3.) Some substitutes did not return graded homework. (Id. Ex. P¶10; Ex. S ¶ 5.) Others showed movies during class but did not explain the significance or relevance of the movies. (Id. Ex. P ¶ 14.) Some replacement permanent teachers failed as well. (Id. Ex. B ¶ 27; Ex. N ¶13; Ex. O ¶l6; Ex.

The RIF-induced teacher turnover resulted in students missing instruction on key topics in core academic subjects. For example, in a U.S. History class, students did not learn about the Articles of Confederation until December, by which time the pacing guide recommends the class should be covering events in the following century. (Id. Ex. Q ¶ 14; Lx. V ¶ 22.) Another teacher, in order to catch up, had to skip roughly sixty years of U.S. history. (Id. Lx. V ¶ 22.) In some science classes, the teachers skipped lab experiments, a key component to learning these subjects. (Id. Ex. U ¶ 15.) In a sixth grade math class taught by substitutes, the students were learning materials far behind a math class taught by a permanent teacher. (Id. Ex. 0 ¶ 13.) Students were left to guess answers on standardized tests, which covered materials they had never been taught. (Id. Lx. P ¶ 12.)

Based on his first hand observations and over 20 years of experience as an educator, Tim Sullivan, Markham’s principal, testified, “There is no waythat the rigorous educational standards that California requires can be taught in such environments.” (Id. Lx. A ¶ 22.) Similarly, Sonia Miller, Gompers’ principal (who has 25 years of experience as an educator), testified how the 2009 RIF “makes it impossible to properly educate all of our children.” (Id. Ex. B ¶~ 8, 12, 16,28-32.) This testimony was corroborated by that of LAUSD teachers and administrators at Plaintiffs’ schools. (Id. 12 Ex. K ¶¶ 25-27; L ¶¶ 10-11, 17; Ex. O ¶¶ 12,16; Ex. T ¶ 7; Ex.U¶ 15; Ex. V ¶ 17; Ex.W ¶ 20;Decl. of Sean Gates in Support of Reply Ex. A ¶ 9; see also id. Ex. B ¶¶ 36-45.)

Plaintiffs’ experts corroborate this evidence. Dr. Pine concluded that “the RIP undermines teaching the required content in much of the Plaintiffs’ schools, resulting in severe academic disruption” and that the students “require compensatory education to catch them up as far as possible.” (Fine Decl. ¶If 74-75.) Dr. Darling-Hammond concluded that the RIP created a situation in which “it simply is not possible that the teachers are effectively delivering to their students the knowledge and skills required by State-mandated content standards.” (Darling-Hammond Decl. ¶ 20 57.) In addition, Plaintiffs’ experts testified of evidence that the RIP-induced teacher turnover is having adverse social and psychological impact on the students. (Fine Decl. ¶¶ 24-28.

LAUSD does not contend that the conditions at Plaintiffs’ schools are typical for LAUSD schools. In fact, LAUSD submitted no evidence rebutting Plaintiffs’ showing of the horrible experiences of certain students at Plaintiffs’ schools in recent months. The declarations from principals, teachers, administrators, and students at Plaintiffs’ schools present the very same type of evidence relied on by the Court in Butt — evidence that students have missed and will miss critical instruction in core academic subjects. The evidence is sufficient to show a real and appreciable impact on Plaintiffs’ fundamental right to equal educational opportunity and a reasonable likelihood that Plaintiffs will prevail on the merits.

III. There is No Compelling Interest Justifying Defendants’ Conduct

LAUSD argues that the teacher layoffs are justified by a compelling state interest because the layoffs followed the seniority system put in place by state law and LAUSD’s collective bargaining agreement with United Teachers Los Angeles. LAUSD points out that permanent teachers have a “property interest” in their jobs and a vested interest in the seniority system. (See Bledsoe v. Biggs (2008) 170 Cal.App.4th 127.)

The Court is cognizant of the fact that if LAUSD were not allowed to layoff teachers at Plaintiffs’ schools (some of whom are non-permanent), LAUSD will layoff other LAUSD teachers (who may be permanent teachers). The Court is also mindful of the Legislature’s policy choice of adopting a seniority based layoff system. But the Lducation Code expressly qualifies these seniority rights, allowing deviations for pedagogical needs and constitutional interests. (See, e.g., Cal. Lduc. Cede §~ 44955(d)(1), 35036.) Most important for this case, the Lducation Code expressly allows a school district to “deviate from terminating a certificated employee in order of seniority for purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws.” Id. § 44955(d)(2). The plain language of this statute clearly applies to a situation in which layoffs would result in a violation of students’ equal protection rights.

While LAUSD argues that deviating from the seniority provisions is discretionary, tha irrelevant to the issue of whether protecting seniority rights is a compelling state interest justifying a violation of students’ right to equal educational opportunity. The Legislature clearly qualified teachers’ interests in seniority-based layoffs to accommodate constitutional equal protection interests. This principle is implicitly incorporated in the CBA; LAUSD could not bargain away students’ constitutional rights. In other words, teachers do not have a vested interested in the application of seniority in a layoff that will result in an equal protection violation and a school district does not have discretion to violate students’ fundamental right to equal educational opportunity.

IV. Remedy and Balance of Harms

Having found that Plaintiffs are likely to succeed are the merits and that there is no compelling state interest justifying the equal protection violation, the Court must turn to the difficult issue of remedy. Plaintiffs seek a preliminary injunction precluding layoffs of teachers (permanent, probationary, and long-term substitutes) at their schools. As the Court noted above, it is mindful that this remedy may force LAUSD to layoff teachers at other schools. Moreover, the Court is mindful of the fact that it cannot simply order Defendants to produce additional funds to prevent further layoffs. (Butt v. State, supra, 4 Cal.4th at p. 674.) The Court has thus proposed alternative remedies to the parties and invited comments. After hearing argument from the parties, the Court concludes that by enjoining further layoffs at Plaintiffs’ schools, the remedy is tailored to address the cause of the constitutional harm — disparate layoffs resulting in high teacher turnover at Plaintiffs’ schools. Moreover, although this may result in layoffs of other LAUSD teachers, those teachers’ seniority rights are qualified, as the Legislature expressly contemplated, by the need to “skip” teachers to prevent an equal protection violation. Cal. Lduc. Code § 44955(d)(2). In any event, the Court has the power to override both statutory and contractual seniority rights to remedy the violation of Plaintiffs’ constitutional rights. (See Arthur v. Nyquist (2d Cir. 1983) 712 F.2d 816, 822-23 [affirming injunction overriding statutory seniority layoff rights to protect students’ constitutional rights]; Oliver v. Kalamazoo Bd. of Educ. (6th Cir. 1983) 706 F.2d 757, 763-64 [court may hold statutory seniority rights unenforceable to vindicate students’ constitutional rights]; Morgan v. O’Bryant (1st Cir. 1982) 671 F.2d 23, 27-29 [affirming injunction to protect students’ constitutional rights by precluding use of seniority-based layoff system in collective bargaining agreement]; Bolin v. San Bernardino City Un~fledSch. Din. (1984) 155 Cal.App.3d 759, 767 [“The expectation of being assigned to a particular school on the basis of seniority is not a protected right. Seniority is merely an economic right which can be bargained away.”].)

The balance of harms thus tilts in Plaintiffs’ favor— Plaintiffs cannot get a “do over” of lost educational opportunity. LAUSD, on the other hand, must (at most) reallocate its layoffs; it is only a matter of where to make cuts. The Court is entirely cognizant that these potential layoffs will fall on other teachers, but that is precisely the result contemplated by the Legislature in Education Code section 4495 5(d)(2) and compelled by the California Constitution. Notably, the Governor and the State Board of Education agree the injunction should issue.

Accordingly, the Court will order as follows:

1. Notwithstanding any contractual or statutory seniority-based layoff provisions, including California Education Code Section 44956, Defendant Los Angeles Unified School District is hereby restrained and enjoined, during the pendency of this action and pending further order of the Court, from implementing any budget-based layoffs of classroom teachers at Samuel Gompers Middle School, John H. Liechty Middle School, and Edwin Markham Middle School;

2. The classroom teachers (permanent, probationary, and long-term substitutes) currently assigned at the three schools, and only the classroom teachers at these schools, must be skipped in the current layoff proceeding as permitted by California Education Code Section 44955(d)(2), which the Court specifically finds is applicable to these skips, and shall not be subject to bumping by more senior employees pursuant to Education Code Section 44955(b), nor be subject to displacement by more senior employees exercising their rights to substitute assignments pursuant to Education Code Section 44956;

3. Nothing in this Order shall have the effect of changing the status of any teacher at the three schools from long term substitute to permanent or probationary;

4. Notwithstanding Paragraph 3, long-term classroom substitute at the schools who are skipped shall be retained for the 2010-11 school year.

5. Nothing in this Order shall preclude the District from rescinding the layoff schools if the District is able to do so;

6. This Order shall not be construed to prohibit the termination of any individual teacher’s employment, provided that such termination is for cause or other reasons, and not a district wide budget-based layoff.

7. Nothing in this Order shall be construed to affect the right of LAUSD to proceed with the layoff of teachers at other schools in LAUSD in accordance with Education Code Section 44955(b), pursuant to the resolution adopted by the Board of Education.

8. Plaintiffs shall post a bond with this Court in the amount of $1,000.00 by 4:00p.m. on May 13, 2010.

9. This order supersedes both the “Order Granting Preliminary Injunction,” filed May 12, 2010, and the “Findings and order on Plaintiffs Motion for Preliminary Injunction,” filed May 12, 2010.


Date: 5/13/10


The Honorable William F. Highberger

Judge of the Superior Court

Case Number: BC432420


REED SHARAIL - Minor Plaintiff

REYNOLDS AYANA - Minor Plaintiff

JONES KENYATTA - Minor Plaintiff


LOGRONO CESAR - Minor Plaintiff


RIVAS YAMILETT - Minor Plaintiff

SANCHEZ VICTOR - Minor Plaintiff








PUBLIC COUNSEL - Attorney for Plaintiff/Petitioner

MORRISON & FOERSTER LLP - Attorney for Plaintiff/Petitioner

ACLU FOUNDATION OF S.C. - Attorney for Plaintiff/Petitioner

ACLU FOUNDATION OF SOUTHERN CALIFORNIA - Attorney for Plaintiff/Petitioner


STATE OF CALIFORNIA - Defendant/Respondent





MENNEMEIER GLASSMAN & STROUD LLP - Attorney for Defendant/Respondent

LIEBERT CASSIDY WHITMORE APLC - Attorney for Defendant/Respondent

LAUSD (IN HOUSE COUNSEL) - Attorney for Defendant/Respondent

HOLGUIN GARFIELD MARTINEZ & QUINONEZ APLC - Attorney for Defendant/Respondent

BEST BEST & KRIEGER LLP - Attorney for Defendant/Respondent

ATTORNEY GENERAL OF CALIFORNIA - Attorney for Defendant/Respondent



Add your own comment (all fields are necessary)

Substance readers:

You must give your first name and last name under "Name" when you post a comment at We are not operating a blog and do not allow anonymous or pseudonymous comments. Our readers deserve to know who is commenting, just as they deserve to know the source of our news reports and analysis.

Please respect this, and also provide us with an accurate e-mail address.

Thank you,

The Editors of Substance

Your Name

Your Email

What's your comment about?

Your Comment

Please answer this to prove you're not a robot:

3 + 4 =