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Why Vergara Is a Loser for Both Sides

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By David Menefee-Libey and Charles Taylor Kerchner


The two contending sides wrapped up their cases last week in Vergara vs California, the education lawsuit being tried in Judge Rolf Treu's Los Angeles Superior Courtroom. Treu has ninety days to make his ruling.

But from our perspective this is a case that the plaintiffs can't win and the defendants will lose regardless of the outcome.

Vergara went to trial in January, with Beatriz Vergara and eight other school children suing to overturn the state's teacher tenure and job protection laws.  Represented in court by former U.S. Solicitor General Theodore Olson and a team of star attorneys not accustomed to losing cases, the plaintiffs argue that those laws play out in classrooms and schools in ways that violate students' rights to access equal education under the California constitution.

Olsen and his colleagues are working with "Students Matter," an advocacy organization funded by Silicon Valley millionaire David Welch.  As Louis Freedberg at EdSource has written, Vergara has been accompanied by a plaintiffs' public relations blitz.  The case is getting plenty of attention , and the daily back and forth is being reported well online by the L.A. School Report.
 
Regardless of their representation, the plaintiffs will lose because those who manufactured the case picked the wrong lawsuit.  However much tenure, due process, and seniority laws make school improvement difficult, they are far from the core weaknesses in the state's education system.  And the case, itself, is a heavy lift.  The plaintiffs have to prove that there's a straight line from the tenure and employment laws to the experiences of nine specific kids in specific schools with specific teachers.  Those experiences must have happened only because of the targeted laws, and must so violate the state constitution that the court has to throw out the law to protect those kids.

On the other side, the defendants can't win.  The state and the California Teachers Association and California Federation of Teachers, which worked closely with the defendants, have for many years failed to grasp opportunities to clean up the obvious messes in teacher tenure, dismissal procedures, and seniority.  In doing so, they have opened themselves to a much broader attack on teacher unionism.

California teachers have thus far been spared the kinds of successful frontal attacks seen in Wisconsin and other states.  But the politics of pensions and school reform has put them at odds with Democratic officeholders as well as from Republicans eager to eliminate them as an interest group.  In California, not taking care of business in the relatively friendly legislature will cause them to face battles in other venues.

So it looks to us like the courtroom drama is just a warm-up act.  We think it's entirely likely that the plaintiffs don't expect to win in the trial court, and that's just fine with them.  Arguing the case gives them a chance to speak to national audiences, call press conferences, and tell vivid stories about children suffering at the hands of heartless school bureaucrats and teachers.  It also launches the campaign for a November 2016 ballot initiative (the planned 2014 initiative has been shelved) to wipe away teacher tenure and job protections, an essential part of the corporate school reform agenda of Michelle Rhee and other allies in California.

Los Angeles school board member Steven Zimmer recently compared the case to the brutal board election where he survived a lavishly financed, $63 a vote attempt to unseat him.  "As it turns out, the election isn't really over. It just shifted venues," he wrote.

He likened the trial to last year's popular film in which the CIA establishes a fake movie production, complete with a full script and ads, in order to rescue six Americans stranded in Iran.  "It's Argo," he told us, "people at the trial are reading the script, but the action is elsewhere." 

David Menefee-Libey is professor of politics at Pomona College.

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