Judge rules against teachers and common sense in Vergara trial
by David Atkins
You may recall my writing a while back about the Vergara trial, which is basically an assault on public education and on teacher protections. My first primer on the case is here, additional context is here, and a further update is here. I talked about it on Netroots radio, and my brother wrote about it on the front page of Daily Kos here. The basic story is that a billionaire front group of faux education "reformers" is claiming that children's civil rights are being violated by teacher protections in California, even though that's patently untrue and California doesn't even have a tenure system for teachers.
Today Judge Treu ruled for the plaintiffs without much in the way of evidence beyond the fact that he agreed with the political agenda of the billionaire "reform" group.
Benjamin Riley, an education attorney who has worked on these issues in the past, gives some good insight into what is wrong with the ruling:
1. Does strict scrutiny apply? Perhaps the most important paragraph in the tentative decision can be found at the bottom of page 8, where Judge Treu decides to apply “strict scrutiny” to the challenged statutes. Strict scrutiny is often described as “strict in theory, fatal in fact” because it requires the defending party to carry an enormous legal burden in justifying a policy. But the legal justification for strict scrutiny offered by Judge Treu here is a bit thin — in a single sentence, he says that based on evidence at trial and prior California Supreme Court education cases, the plaintiffs demonstrated the challenged statutes impacted their fundamental right to education. If the Court of Appeal disagrees with that analysis, and applies a different standard of review, the outcome will look different than it does today.
2. What facts will the final ruling contain? It’s important to understand that the greatest power a trial court has over a case involves the factual record, and not the legal analysis. The Court of Appeal will feel perfectly at ease applying fresh eyes to the legal issues raised in Vergara; what it won’t feel comfortable doing is peering deep into the factual record. In his tentative decision, Judge Treu cleverly relies on evidence offered by defendants in defense of the challenged statutes — which shows that, even by their own admission, these laws have problems. That said, this ruling is a far cry from the meticulously detailed evidentiary record that Judge Vaughn Walker developed in the case that challenged Prop. 8, California’s anti-gay marriage statute. The plaintiffs would be wise to try to add additional citations to the record in their proposed order that will become the final trial court ruling.
3. Will Judge Treu’s rhetoric come back to haunt plaintiffs? The consequences of grossly ineffective teachers on students “shocks the conscience.” The existence of LIFO means that defendants must have an interest in separating students from effective teachers, the logic of which is “unfathomable.” Strong words, and if you happen to think that reform of CA’s teacher-tenure laws are long overdue, they likely stir certain emotions. But when this case goes up on appeal, the reviewing justices may see these statements in a somewhat different light, and indicative of perhaps a not-entirely-neutral interpretation of the evidence.
There is also some question as to the applicability of the case to other states, but be aware that the anti-public-education crowd will waste no time in attempting to port the gist of the argument all across the country.
There is still a long way to go in the fight, however. The ruling will be stayed pending the certainty of an appeal by teachers and public education groups.
Even so, it's another depressing reminder of the power of billionaires and their paid shills in their attempt to dissolve any and all shreds of protection from workers all across America, turning us all into desperate, underpaid at-will wage slaves.
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