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Vergara trial ends, with CA teacher laws hanging in the balance

Mark Harris | March 27, 2014



3-27-2014_VergaraTrialLastDay_Ted Boutrous

Plaintiffs’ lawyer Ted Boutrous

Lawyers from both sides in Vergara v California — the state’s most significant teacher rights case in two decades — unleashed their final arguments today, in a last attempt to amplify their own case and destroy their opponent’s.

The case is now in the hands of state Superior Court Judge Rolf Treu, who gave the sides until April 10 to submit any final briefs, after which he has 90 days to issue his ruling. He has the option of striking down all the laws, some of them or none of them.

“I’m not saying it’ll take all 90 days,” he told them inside a downtown courtroom larger than the one used for the trial, so as to accommodate a big audience on the final day of proceedings. “The court has much to consider, and it will consider it deliberately and thoroughly.”

Ted Boutrous and Marcellus McRae, lawyers for the nine student-plaintiffs went first, offering dramatic and emotional rationales for striking down five laws that govern teacher seniority, dismissal and tenure.

3-27-2014_VergaraTrialLastDay_Jim Finberg

Jim Finberg

They were followed by Supervising State Attorney Susan Carson and Jim Finberg, who was representing the California Teachers Association and the California Federation of Teachers. Together, they argued that the plaintiffs came nowhere close to proving their case.

For two hours, Boutrous and McRae laid out their vision, arguing that the statutes handcuff school districts, thus leaving ineffective teachers in the classroom and denying students their constitutional right to a quality education.

Boutrous underscored the impact ineffective teachers have on students. Recalling testimony from Harvard economist Raj Chetty, he told the court that if as few as 3 percent of California teachers were ineffective, the academic impact on their students would be the equivalent of $11.6 billion in lost lifetime earnings.

“If that’s not real and appreciable harm caused by theses statutes,” Boutrous said, “I don’t know what is.”

McRae followed, and his presentation was the most animated and emotional of all the lawyers.

“You can’t make sense out of non-sense,” he intoned more than once, insisting that the challenged statutes are the prime reason why so many ineffective teachers remain in California classrooms.

He indicated the evidence supports the plaintiffs’ position that the two-year tenure statute provides insufficient time to make an informed decision on a teacher’s effectivess; the dismissal rules are too costly and lengthy; and, the seniority law requires district to layoff top teachers.

He called the dismissal process “a monstrosity” that requires “17 arduous and byzantine” steps before a teacher challenging a dismissal would have the final decision. He likened it to driving down an unfamiliar freeway, and “You don’t know if your getting off at exit 2, exit 10 or you have the E ticket ride to the Court of Appeal.”

McRae also repeated the familiar theme in the case, that the students most impacted by these statutes are the most vulnerable, generally from minority and low income families.

“Have we not had enough in this country’s history of short-shrifting poor people?” he asked. “This is an abomination. This has to stop.”

Both Boutrous and McRae reminded the court that the five statutes undermine students’ rights, and that the state must show that there is a compelling state interest that could not be satisfied with any other approach, and they argued it hasn’t done so.

The lawyers for the state and teacher unions mounted strong counter arguments, that the challenged statutes are not the problem. Rather, the pervasiveness of ineffective teachers can be laid at the feet of poorly managed school districts, as they said their evidence has shown.

The defense maintained that the contested laws serve legitimate governmental interests – academic freedom, attracting and retaining quality teachers, and providing employment protections for teachers to insure that they are not unfairly dismissed.

“The best way to help students,” said Carson, the state’s lawyer, “is not to take away teachers’ rights. Put more resources into schools so they can do the best job they can.”

Finberg argued that the plaintiffs failed to prove that the challenged rules had a direct impact on the nine-student plaintiffs, especially because only four of them and the father of a fifth actually testified in the case.

“None of the plaintiffs suffered real and appreciable harm,” he said.

He reminded Judge Treu that each accusation a plaintiff  made, of suffering from the ineffectiveness of a teacher, was a misrepresentation of the facts, as he described the teachers they named as exemplary.

“The reality was very different,” he said, adding that none of them had ever been assigned an ineffective teacher or been given one as a result of the statutes.

Finberg also made a strong defense of the two-year tenure statutes. To counter McRae’s argument that three years or more would give school districts more time to make critical judgements, Finberg asked rhetorically, “How useful is that additional information? And what is the cost of waiting?”

He concluded by telling the court that the statutes “are doing the good job we want them to do, educating California children.”

As is customary, plaintiffs got one last chance to make their case in rebuttal. Boutrous responded to the defense’s closing arguments by saying he felt as if he “had entered an alternative universe  where rules that govern behavior don’t apply.”

He said the laws violate students’ constitutional rights and harm “kids every day creating an inequity wave across the state.”

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