Analysis: Legal positions in Vergara trial a universe apart

images-1With Vergara v California at the halfway point, and court in recess until next week, it’s a good time to see where things stand and where they might be going, if they’re going anywhere at all.

The trial has enormous consequences for the state, and maybe beyond, calling into account five California laws that govern tenure, dismissal and layoffs. The plaintiffs — Elizabeth Vergara and eight other students — are asking Judge Rolf Treu of the State Superior Court to strike them down, saying they combine to deny California students the fundamental right to a quality education.

As defendants, the state and its two largest teachers unions filed a motion last week, arguing that that it’s not the laws that should be dumped; it’s the case. They are urging Judge Treu to throw out the case out because of insufficient evidence. The plaintiffs are expected to respond to the motion in a day or so.

Maybe Judge Treu will toss the case. Maybe not.

It all depends on the prism through which he interprets the matter before him.

It boils down to this: Both sides agree that there are ineffective teachers in California public schools whose incompetence undermines student academic achievement. But one side (plaintiffs) thinks that it’s a systemic problem and, therefore, a constitutional issue while the other side (defendants) says the problems of a handful of students may be sad and unfortunate but don’t rise to the level of blowing up state law.

For Judge Treu, the challenge is deciding whether these particular laws represent the government’s best approach to guaranteeing every California kid a quality public education.

In their motion for judgement, the defendants argue: “Plaintiffs have not shown that the Challenged Statutes are unconstitutional on their face, nor that these laws have been unconstitutionally applied to them.” And if the plaintiffs can’t show how these laws have hurt these particular plaintiffs, how in the world can the court connect the dots with a strong enough line to strike down state laws? After all, not even all the plaintiffs testified. One who did said she had a teacher who once called her a “whore.” So there’s that.

The defendants also argue that the plaintiffs failed to prove they are members of a “suspect class,” which basically means plaintiffs didn’t prove that school districts harmed a specific group — in this case, minority kids from low-income families — by moving ineffective teachers into schools populated by members of the group.

But plaintiffs say that’s not how to apply the facts to the law, and cause is less the argument for striking down the laws than effect.

Their argument is that their evidence has exposed a systemic problem, that if one kid’s academic progress has been impeded by an ineffective teacher, a constitutional right has been violated. In other words, if one child is harmed by the state statutes, all children are at risk of harm.

While elements of both sides might be persuasive, the case likely turns on how Judge Treu applies the evidence based on precedents and what level of proof he will require.

Taking the second point first, the judge has options. One is “strict scrutiny,” which is a higher burden for the state to meet. It effectively assumes that children have a fundamental right to educational equality, and any law that abridges that right is unconstitutional under California’s equal protectional clause, which, unlike the federal version, includes education.

Under that level of review, the plaintiffs have a better chance, and in their response to the request for judgement, they intend to argue that the evidence thus far has shown a “real and appreciable impact” that threatens equal educational opportunities.

His other option is “rational-based scrutiny,” in which the government needs only show that the challenged laws are rationally related to serving a legitimate state interest. Under this level of review, the court gives greater deference to the legislative branch, and defendants stand a better chance, based on his interpretation of evidence that it failed to rise to a constitution-level challenge.

“If he uses strict scrutiny, plaintiffs almost always win,” said Erwin Chemerinsky, a constitutional law professor at UC Irvine. “If it’s rational-based, the government almost always wins.”

There is also an “intermediate scrutiny,” which falls in between.

In effect, the Vergara case echoes the ancient argument over which is the center of the universe, the earth or the sun. Judge Treu must decide whether the case revolves around nine California kids and their ineffective teachers or a series of laws that protect the ineffective teachers who may threaten any California kid.

When lawyers are back in court on March 4, the orbit of the case might come into clearer view.