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Raw audio: 7 defining moments in the Vergara appeals arguments

Mike Szymanski | April 14, 2016

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Vergara v. California was reversed today. The landmark lawsuit sought to scuttle teacher tenure laws and “last in, first out” layoff policies, stating they disproportionately harm minority and low-income students.

The plaintiffs – nine students in five California public school districts – argued that five laws governing teacher dismissal deprive them of their right to a quality education, in violation of the state’s constitution.

After a two-month trial in early 2014, Judge Rolf M. Treu ruled in the plaintiffs’ favor, declaring those laws unconstitutional. Treu delayed the portion of the ruling banning the imposition of those laws pending appeals.

The state Court of Appeals arguments were held Feb. 25 in a 77-seat courtroom in downtown Los Angeles, where attorneys stated their cases and were asked questions by a three-judge panel.

Here are audio clip highlights from the appeals arguments.

• Read more on the case: 5 things you need to know about Vergara as CA appeals court hears arguments Feb. 25

• Read previous Vergara coverage from LA School Report, which covered the 2014 trial.

Clip 1: Everyone’s had a bad teacher

In the most quoted moment of the arguments (in the clip above posted on YouTube), Presiding Justice Roger W. Boren says: “There isn’t anybody in this room that probably didn’t have a bad teacher sometime.” The comment brought muted laughter in the room, but his tone was serious.

In this section, Deputy Atty. Gen. Nimrod Elias acknowledges there are bad teachers, but he notes they’re not always in one location. He talks about 277,000 teachers in the state and that some will be fired for underperformance.

As Elias is making the state’s case against the lower court ruling, he points to the high teacher attrition rate, saying California loses 22 percent of the workforce in the first four years of teaching.


Clip 2: Wipe out laws in 1,000 districts

In the clip above, the state is making a case that the ramifications are great for all school districts in California. Elias continues his arguments and says that upholding the judge’s ruling would “wipe out” laws for more than 1,000 school districts in the state. He said that the statutes deal with teacher employment protections.

This was a notable moment as it was the first time Associate Justice Judith Ashmann-Gerst asked a question, and it was about a third of the way through the 90-minute session. The other two judges had been dominating the questioning, often interrupting the lawyers.

She asks whether there is evidence that pervasive discrimination has occurred, revealing the justices’ interest in learning how their decision will impact schools and the ways schools are run in the state.

Elias contends there is no causal link to ways teachers are assigned at a local level.


Clip 3: Grossly ineffective administrators too

This clip shows how involved the judges are in their questioning. In a follow-up question by Associate Justice Brian M. Hoffstadt, he asks about how grossly ineffective teachers are impacting minority students. He goes into a detailed question about how they are able to prove that such teachers are specifically in low-income areas and wants to see how the legal team justifies that.

Attorney Michael Rubin, who is arguing for the California Teachers Association and California Federation of Teachers, points out changes made by former LA Unified Superintendent John Deasy and how certain dismissals are automatic for poor performance.

Rubin says there are also “grossly ineffective administrators.”


Clip 4: Tenure should not be for life

Here Rubin tries to explain how school districts assign teachers to districts. This is a time that the justices all seemed to take note, some of them writing as Rubin speaks.

Rubin, who walked around in front of the justices more than the other two lawyers presenting, talks about how charter schools that are not governed by the statutes do not perform better than some of the schools that are, and he tries to explain why some predominantly minority districts have low-performing teachers.

Rubin points out that in more depressed areas there is more turnover and younger and less experienced teachers. He said the districts try to assign the best principals to schools that need help.

He credits Deasy with changing the system in LA Unified so that tenure was not automatic. He points out, “Deasy is their witness, not ours.” He also talks about charter schools.

And he says: “Tenure is not a lifetime appointment.”


Clip 5: “It’s an outrage”

In this section, the attorney for the students, Theodore J. Boutrous Jr., becomes emotional as he points out there are students wasting their time with teachers who aren’t doing their job.

The audience seemed to stir as he said, “So right now there’s a group of students whose lives are being affected forever.” He argues that minority students get the brunt of the ineffective teachers, saying, “It’s an outrage.”

Judge Hoffstad, who asks the most questions of the three judges, seems like he is trying to justify his own thought process in the arguments. He questions how the rights of minority students are specifically being violated, because there is a group of other students who also have bad teachers, and that the argument “seems to be circular.”


Clip 6: “The judge had it right”

In this clip, the crux of the argument for Vergara and the students is made. This is the first time that a few of the students looked up and watched the proceedings rather than keeping their eyes down.

Boutrous notes that a bad teacher could cost a student nine months of a school year and recounts some of the testimony, such as a teacher who spoke of a colleague who couldn’t spell. Another teacher took students out of a classroom of an ineffective teacher.

“This shocks the conscience,” Boutrous said quoting Judge Treu. “The judge had it right.” Because the issue is so political, the attorney notes that the state legislature is not going to do anything and that it’s up to the judges.

Clip 7: “A tragedy for our students”

In the clip below, Boutrous makes his final summary about the case, and the judges and audience appear to be listening intently. Two of the judges try to challenge him, almost as if they are trying to figure out ways to support their arguments.

Judge Hoffstadt asks more pointed questions of Boutrous. Then Judge Boren brings up some questions that Boutrous seems to support.

The justices try to poke holes in the arguments that were made during the trial and the original ruling. Was there a definition of a “grossly ineffective” teacher after all? Boutrous says the governor knows, the unions know, everyone in the courtroom knows. He points to the audience sitting on three sides of him. Then he quotes Deasy who also expressed his frustration on the stand.

“These statutes are a tragedy for our students,” Boutrous concludes.

• Audio: To listen to the entire appeals arguments, click here.

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