Stuck in classrooms where she wasn't learning, Daniella Martinez of San Jose was reading at a first-grade level when she was part way through third grade.
Daniella's mother, Karen Martinez, says that's because California's education system traps students and families with ineffective teachers.
On Monday that argument will get its day in court. In a potentially landmark case, a Silicon Valley-based group, Students Matter, is challenging the state's tenure, dismissal and layoff laws for teachers.
While the lawsuit is based on California's constitutional protections, it has drawn attention across the country as interest has grown in upending age-old ways of public education. Reformers says practices such as tenure, developed to protect teachers from politically motivated firing and retribution, have grown into lifetime job guarantees that stymie improvements in teaching and learning.
Students Matter has hired a high-powered legal team, which includes Theodore Olson, former U.S. solicitor general and considered one of the most influential lawyers in the country.
The case, Vergara vs. California, is filed on behalf of nine schoolchildren, including Daniella, Brandon Debose Jr., of Oakland, and Kate Elliott, of San Carlos. The lead plaintiff, Beatriz Vergara, and five others live in Southern California.
"This is our chance for change," said Karen Martinez, who with her husband has moved five times seeking quality schools for their seven children.
The suit argues that California's laws protecting teachers deny students, particularly those in poor communities, equal access to quality education.
Schools serving poor students have more teachers with less seniority, the plaintiffs argue, and therefore are more likely to lose teachers when schools impose layoffs based on seniority. Those schools ensure a higher turnover in teachers, often of inexperienced and less effective ones.
The suit also argues that the state requirement to decide whether to extend a teacher's tenure after about 18 months on the job doesn't allow for enough time to determine a teacher's competence.
Because of cumbersome dismissal procedures, Students Matter says, in 10 years only 91 of California's teachers, who now number 285,000, have been fired, most for inappropriate conduct. And, the group notes, only 19 were dismissed for unsatisfactory performance.
"Children deserve to have a passionate, effective teacher in every classroom," said Dave Welch, who founded and bankrolled Students Matter. Welch, a father of three who lives in Atherton, cofounded optical telecommunications system firm Infinera and has become active in school reform.
For Welch, the issue isn't just that some children get stuck with bad teachers. The issue is that California's once-admired schools have fallen to the bottom in the nation in achievement, and schools have been slow to adopt reforms.
Children in low-income areas face the biggest educational hurdles and need the best teachers, he said.
"You certainly can't have a system that makes it impossible for that to happen," Welch said.
But California's two large teacher unions, which are helping the state defend the litigation, argue that teachers aren't to blame.
"This is a just a red herring, and it distracts us from real problems," said Eric Heins, vice president of the California Teachers Association and a third-grade teacher in Pittsburg.
Contrary to the suit's claims, he said, the tenure and dismissal procedures are working well. He said that many underperforming teachers are "counseled out" of the profession, or quit partway through the dismissal process.
Heins said the suit risks hurting the very children it purports to benefit, by triggering more turnover in schools serving poor children. "Any teacher a principal doesn't like, or disagrees with on pedagogical issues -- they'll be gone," he said.
The union says the way to do that is to work within the system and that it has its own proposals for improving teacher evaluations.
Welch disagrees, saying legislative reform has been ineffective and that the courts are the appropriate recourse when rights are being denied. Teachers unions are among the most powerful lobbies and largest campaign donors in Sacramento, so they hold tremendous sway over lawmaking.
Students Matter says the group is not aiming to deny teachers employment protections. Instead, the goal is to improve the teaching force by allowing schools to keep promising young teachers and get rid of incompetent ones.
"The current system is designed to help adults, not kids," former Oakland Unified Superintendent Tony Smith testified in a deposition on the case. He called the limits placed on administrators "immoral, unconscionable and unfair."
His district, as well as Alum Rock in San Jose and Oakland Unified, had been named as defendants in the lawsuit, but since have been dropped.
Los Angeles Unified Superintendent John Deasy, scheduled to testify on opening day Monday in Los Angeles County Superior Court, said in a deposition that it can cost $350,000 and even millions of dollars to dismiss a teacher.
And even after going through all the steps, sometimes teachers end up back in the classroom, said Troy Christmas, Oakland Unified's director of labor relations.
Students Matter attorneys said districts unable to fire incompetent teachers instead orchestrate "the dance of the lemons," transferring them from one school to another.
The effect, they said, is students lose years of education.
Kate Elliott, the San Carlos student in the Sequoia Union High School District who is among the plaintiffs, said that she has benefited by having mostly good teachers. But then she ran into a different kind.
"Instead of learning our subject, we sat in class coloring and watching YouTube videos," she said. "It was extremely frustrating to show up to class every day, wanting to learn, and to have a teacher who didn't want to teach."
Smith said the cost of keeping ineffective teachers is high: "If we continue to support these policies at the expense of our children, I think the long-term well-being of California is in jeopardy."
Daniella is now a seventh-grader at a San Jose charter school that her mother says has motivating and engaging teachers. But her mother, who after the suit was filed won a seat on the Alum Rock school board, worries about the future.
Karen Martinez said her daughter can't afford to face ineffective teachers if she doesn't win the lottery for a space in a charter high school.
Not challenging the system, she said, means "we're continuing to let children be failed."
Contact Sharon Noguchi at 408-271-3775. Follow her at Twitter.com/NoguchiOnK12.
(c)2014 the San Jose Mercury News (San Jose, Calif.)
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