After a California court struck down that state's teacher-tenure law in Vergara v. State, were Tennessee's teacher-tenure and dismissal statutes also unconstitutional?

Plain-English summary

In June 2014, a California superior court ruled in Vergara v. State that California's teacher tenure, dismissal, and "last in, first out" (LIFO) statutes violated the California Constitution's guarantee of a basically equal educational opportunity, because they had a real and appreciable impact on the right to equal education and a disproportionate burden on poor and minority students. The decision was on appeal at the time of this opinion.

The question put to the Tennessee AG was whether Tennessee's analogous statutes (then current, and as they had stood before July 1, 2011) would suffer the same fate under the Tennessee Constitution's free-public-schools clause (Art. XI, § 12) or under equal-protection guarantees (Art. I, § 8; Art. XI, § 8; U.S. Const. amend. XIV). The AG said no. The Tennessee statutes differ from California's in three constitutionally significant ways.

First, on tenure, California's Permanent Employment Statute required a tenure decision after two years (with the practical effect of forcing the call months earlier). Tennessee's tenure probation under § 49-5-503(3) is five years, which the Vergara court itself indicated would be a better window for a sound tenure decision.

Second, on dismissal, California's procedure was found to take 2 to 10 years and cost $50,000 to $450,000 per case, deterring school officials from going after grossly ineffective teachers. Tennessee's dismissal statutes (§§ 49-5-511 and -512) are markedly leaner: a director of schools can suspend at any time "as may seem necessary" (§ 49-5-511(a)(3)), the teacher gets notice of charges (§ 49-5-511(a)(4), (5)), has 30 days to request a hearing held within 30 days, and the hearing officer must rule within 10 days (§ 49-5-512). No California-style multi-year notice-and-prove-progress sequence is required.

Third, on layoffs, California's LIFO statute (Cal. Ed. Code § 44955(b)) made seniority controlling, with no effectiveness exception. Tennessee's § 49-5-511(b)(1) expressly allows boards to dismiss based on level of effectiveness as determined by evaluation. That alone would defeat the Vergara theory.

The AG also noted that the pre-2011 versions of the dismissal and layoff statutes did not differ significantly from the then-current versions, and the pre-2011 tenure statute had a three-year probation (still longer than California's two). And, more fundamentally, since those pre-2011 statutes no longer governed teacher employment in Tennessee, they could not infringe students' current constitutional rights.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did Vergara actually hold?
A: A California superior court found that the Permanent Employment Statute, the Dismissal Statutes, and the Last-In-First-Out statute imposed a real and appreciable impact on students' fundamental right to equality of education under the California Constitution, with a disproportionate burden on poor and minority students. Final judgment was entered August 27, 2014. The case was on appeal when this opinion issued.

Q: Does Tennessee guarantee a right to public education?
A: Yes. The Tennessee Supreme Court held in Tenn. Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993), that the Tennessee Constitution guarantees a system of free public schools that affords substantially equal educational opportunities to all students.

Q: Why was Tennessee's five-year probation so important to the analysis?
A: The Vergara court itself relied on testimony that 3-to-5 years would be a better tenure window than California's 2-year rule. A five-year window largely answers the timing-and-information argument that drove Vergara's finding on the Permanent Employment Statute.

Q: Tennessee's dismissal process gives the teacher only 30 days to request a hearing and the officer 10 days to rule. Is that constitutional?
A: The AG concluded yes, because the process still provides specific notice of the charges and a hearing, satisfying due process while not creating the multi-year cost-prohibitive sequence that the Vergara court found constitutionally fatal in California. Whether a federal due-process challenge could prevail would depend on facts not addressed here.

Q: Did this opinion settle the issue for Tennessee?
A: No. AG opinions are persuasive only. The opinion's value is as a roadmap of why the statutes likely would survive a Vergara-style attack.

Background and statutory framework

Tennessee restructured its teacher-employment laws in 2011, extending the tenure probationary period from three to five years and adjusting the dismissal procedure. The dismissal statutes at §§ 49-5-511 and -512 cover both suspension and termination, with a defined notice-and-hearing sequence and tight time limits. The layoff statute, § 49-5-511(b)(1), gives school boards discretion to use effectiveness as a basis for layoffs, breaking from strict seniority.

The Tennessee Constitution's free-public-schools clause (Art. XI, § 12) is the doctrinal hook the AG addresses. The Small Schools Systems decision identifies the substantive standard. The AG's analysis is comparative throughout, matching each California pillar of Vergara against the Tennessee equivalent and concluding the gap is large enough that a Vergara-style theory would not carry.

Citations and references

Constitutional provisions:

• Tenn. Const. art. XI, § 12 (free public schools)
• Tenn. Const. art. I, § 8; art. XI, § 8 (equal protection)
• U.S. Const. amend. XIV (Fourteenth Amendment)

Tennessee statutes:

• Tenn. Code Ann. § 49-5-503(3) (five-year tenure probation)
• Tenn. Code Ann. §§ 49-5-511, -512 (dismissal and hearing procedure)
• Tenn. Code Ann. § 49-5-511(b)(1) (effectiveness-based layoff)

California statutes discussed:

• Cal. Ed. Code § 44955, 44955(b) (Last-In-First-Out layoff statute at issue in Vergara)

Cases:

• Vergara v. State, No. BC484642 (L.A. Cnty., Calif., Super. Ct. June 10, 2014) (memorandum opinion), final judgment Aug. 27, 2014, appeal pending (Cal. Ct. App.) (California superior court)
• Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993) (Tennessee Supreme Court)

Subject

Opinion No. 14-99, Constitutionality of Tennessee Teacher-Employment Statutes, October 30, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-099.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 30, 2014
Opinion No. 14-99
Constitutionality of Tennessee Teacher-Employment Statutes

QUESTION

In light of the California decision in Vergara v. State, do the current Tennessee statutes, or the statutes in effect prior to July 1, 2011, governing permanent employment, layoffs, and dismissal or suspension of teachers violate students' rights to a free education under the Tennessee Constitution, Art. XI, § 12, or the equal-protection provisions of the Tennessee Constitution, Art. I, § 8; Art. XI, § 8, or the Fourteenth Amendment to the United States Constitution?

OPINION

No. The Tennessee teacher-employment statutes do not violate a student's constitutional right to a free education.

ANALYSIS

In Vergara, the plaintiffs, a group of nine public-school students, challenged a set of California statutes relating to the tenure ("Permanent Employment Statute"), dismissal ("Dismissal Statutes"), and layoff ("Last-In-First-Out Statute" or "LIFO Statute") of public-school teachers. The plaintiffs contended that the statutes violated their constitutional rights by creating a system in which minority and low-income schools had a disproportionately high number of incompetent and ineffective teachers and that this affected the quality of their education. The state court observed that the California Constitution "is the ultimate guarantor of a meaningful, basically equal educational opportunity being afforded to the students of [that] state." Vergara at 7. Finding that the statutes imposed "a real and appreciable impact on students' fundamental right to equality of education" and "a disproportionate burden on poor and minority students," the court ruled that the statutes violated the students' rights under the California Constitution. Id. at 8, 15.

The Tennessee Constitution also guarantees "a system of free public schools that affords substantially equal educational opportunities to all students." Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 140-41 (Tenn. 1993). But the comparable Tennessee statutes differ from those in California in materially significant ways. First, the California Permanent Employment Statute provides that employees with the appropriate certification qualifications who have been employed for two consecutive school years become permanent employees if retained by the school district for the third year. The court found that the practical effect of this statute was to require districts to make the decision on whether to retain a teacher for their third year months before the two-year period expired. Noting extensive evidence that "given this statutorily-mandated time frame, the Permanent Employment Statute does not provide nearly enough time for an informed decision to be made regarding the decision of tenure," the court concluded that students were unfairly and unnecessarily disadvantaged by the Permanent Employment Statute. Vergara at 10.

In contrast, Tennessee provides for a five-year probationary period. Tenn. Code Ann. § 49-5-503(3). This is more than double the time provided in California. Absent proof that school districts are still having to make hurried and uninformed decisions about whether to grant tenure after five years, it is unlikely that a Tennessee court would find this statute unconstitutional.

Second, the California Dismissal Statutes set forth a longer, more complicated procedure for dismissing a teacher than do the comparable Tennessee statutes. The California court pointed to evidence that "it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion" and that "given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases." Vergara at 11. The court found "the current system required by the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory." Id. at 13.

The Dismissal Statutes stand in stark contrast to their Tennessee counterparts, Tenn. Code Ann. §§ 49-5-511, 49-5-512, in several respects. While it takes the vote of an entire school board in California to issue a suspension, and while suspension can go into effect only after the teacher is given time to correct his or her behavior, a director of schools in Tennessee can suspend a teacher "at any time that may seem necessary." Tenn. Code Ann. § 49-5-511(a)(3). And Tennessee does not require that the teacher be given time to correct his or her behavior before a suspension or termination is sought. If the conduct warrants termination, the teacher is entitled to notice "specifically stating the offenses that are charged," but this is less than what is required in California. Tenn. Code Ann. § 49-5-511(a)(4), (5). The teacher has 30 days to request a hearing, which must be held within 30 days following receipt of the hearing request. Tenn. Code Ann. § 49-5-512(a). The hearing officer is then required to submit a decision within 10 days of the hearing. Tenn. Code Ann. § 49-5-512(a)(9). In short, while it still ensures fairness, Tennessee's process is much faster and no doubt less expensive than what California provides; a court would be unlikely to find it unconstitutional.

Finally, a court is also unlikely to determine that the Tennessee statute governing teacher layoffs is unconstitutional. California's "Last-In-First-Out" statute prohibits the termination of any permanent employee while "any other employee with less seniority[] is retained to render a service" that the senior employee is qualified to render in the event of a layoff. Cal. Ed. Code § 44955(b). As the California court observed, it "contains no exception or waiver based on teacher effectiveness." Vergara at 13. But the Tennessee statute specifically empowers school boards to dismiss teachers and nonlicensed employees "based on their level of effectiveness determined by [an] evaluation." Tenn. Code Ann. § 49-5-511(b)(1).

The pre-July 2011 versions of Tenn. Code Ann. §§ 49-5-511 and -512 (pertaining to teacher layoffs and dismissals) did not differ significantly from the current versions, and the prior version of § 49-5-503 (pertaining to tenure) provided for a three-year rather than a five-year probationary period, see Tenn. Code Ann. § 49-5-503(3) (2009). In any event, since these statutes no longer govern teacher tenure, suspension, or dismissal in Tennessee, they obviously cannot violate a student's constitutional rights.

HERBERT H. SLATERY III
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

MICHAEL MARKHAM
Senior Counsel

Requested by:
The Honorable Delores Gresham
State Senator
308 War Memorial Building
Nashville, Tennessee 37243