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Analysis: Vergara approaching time for Treu judgement

Michael Janofsky | March 26, 2014

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Judge Rolf Treu

Judge Rolf Treu

Closing arguments are scheduled for tomorrow in Vergara v California. Lawyers for the nine public school children who are the plaintiffs will speak from 10 to noon, followed by their defense counterparts, from 1:30 to 3:30.

The plaintiffs have the option to get in a last word after that, but, really, is there much new to say by now?

The positions are clear. For two months, the opposing sides have put on AM/FM cases as they try to persuade Superior Court Judge Rolf Treu of their superior wisdom.

Plaintiffs have taken a systemic approach, using the experiences of nine students as a motif for showing why California needs to legislate a more efficient way to get ineffective teachers out of the classroom. The fact that one child’s education could be compromised means all children are at risk.

No, say the defendants — the state, with the California Federation of Teachers and California Teachers Association, as “intervenors.” Their case has been more granular. These kids might have had problems with their teachers, but is that enough to blow up state laws that offer employment protections for public school teachers, whose effectiveness in the classroom is dependent on so many factors outside of it?

The battle ground has been five laws that cover three aspects of teaching in California:

  • The Permanent Employment Statute, which requires school administrators to decide after 18 months whether to hire on a permanent basis or dismiss a teacher. Plaintiffs say it’s too short a time to make a reasonable decision. Defendants say it’s time enough.
  • The three Dismissal Statutes, which provide the protocols for how districts get rid of an ineffective teacher. The plaintiffs say it takes too long and costs too much. The defendants say they provide critical employment protections for an endangered profession.
  • The “LIFO” Statute, or last-in, first-out, which means seniority is the only measure by which teachers are laid off in times of tight budgets. Plaintiffs want student achievement as a determinant. The defendants say seniority is fair, orderly and objective.

Tomorrow is not nearly so critical as what happens next. As a bench trial in which 52 witnesses testified over two months, the case now falls to Judge Treu to contemplate one over-arching question: Are the laws, as they exist, the best and only way for the state to provide California school children access to a quality education, as the state Constitution provides?

Anyone watching Judge Treu over the course of testimony would appreciate his unstinting attention to detail and process. He demonstrated a sponge-like quality to absorb nuances of testimony in navigating the appropriateness of questions, evidence and objections.

At the end of testimony on Monday, lawyers from both sides thanked him. But his task ahead is a daunting one. Striking down state laws is a serious undertaking, and no matter how he decides, the losing side is likely to appeal.

He is not bound to any formula for judgement. He can strike down all the laws, some of them or none of them — although they are so inextricably linked, vacating only some might pose a greater challenge for the legislature than a complete overhaul.

It’s even possible that the legislature might have another look at the laws if the defense prevails on all points. California is one of just five states that provide as little as two years for granting tenure. That would be the easiest law to change, and the case didn’t provide much compelling evidence that keeping the probationary period so short is vital.

Whatever happens, the Vergara case has provided yet another platform for those in public education to divide their universe along the usual union-reform axis. After all, it is a wealthy entrepreneur from Silicon Valley with ties to reform groups, David Welch, who is underwriting the plaintiffs, and the California affiliates of the nation’s largest teacher unions are on the other side.

In that context, the arguments are likely to continue, well beyond whatever Judge Treu decides.


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