Feb 26, 2014 - Plaintiffs Have Standing To Pursue Their Claims. ... App.4th 339 . ...... Tr. at 2326:14-20 (Fekete) [tim
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TABLE OF CONTENTS
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Page
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I.
INTRODUCTION .................................................................................................................... 1
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II.
STANDARD OF REVIEW ...................................................................................................... 2
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III.
ARGUMENT ............................................................................................................................ 2 A.
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Plaintiffs’ Evidence Proves That The Challenged Statutes Are Facially Unconstitutional. ........................................................................................................... 2 1.
Claims 1-3: The Challenged Statutes Violate Equal Protection Because They Infringe Students’ Fundamental Right to Education. .............................. 2
2.
Claims 4-6: The Challenged Statutes Violate Equal Protection Because They Impose A Disparate Burden On Poor And Minority Students. ............. 11
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B.
The Challenged Statutes Are Unconstitutional As Applied To Plaintiffs................... 13
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C.
Plaintiffs Have Standing To Pursue Their Claims. ..................................................... 14
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IV.
CONCLUSION ....................................................................................................................... 17
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i MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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TABLE OF AUTHORITIES Cases
Page(s)
Alch v. Super. Ct. (2004) 122 Cal.App.4th 339 ......................................................................................................... 16 American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 ..................................................................................................................... 8 B.C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929 ........................................................................................................... 15 Brown v. Merlo (1973) 8 Cal.3d 855 ........................................................................................................................ 3 Bullock v. Carter (1972) 405 U.S. 134 ........................................................................................................................ 4 Butt v. California (1992) 4 Cal.4th 668 ............................................................................................................. 2, 7, 11 City of Cleburne v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432 ........................................................................................................................ 9 Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16 ............................................................................................................. 10 County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 79 ....................................................................................................... 9, 15 DeRonde v. Regents of the Univ. of Cal. (1981) 28 Cal.3d 875 .................................................................................................................... 17 Dibona v. Matthews (1990) 220 Cal.App.3d 1329......................................................................................................... 16 Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668 ......................................................................................................... 14 Erika K. v. Brett D. (2008) 161 Cal.App.4th 1259 ......................................................................................................... 2 Fair Political Pracs. Com. v. Super. Ct. of L.A. County (1979) 25 Cal.3d 33 ........................................................................................................................ 2 Gould v. Grubb (1975) 14 Cal.3d 661 .......................................................................................................... 3, 5, 7, 9 Holmes v. Cal. Nat’l Guard (2001) 90 Cal.App.4th 297 ..................................................................................................... 14, 15 In re Marriage Cases (2008) 43 Cal.4th 757 ..................................................................................................................... 3 ii MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 .................................................................................................................... 11 Jazayeri v. Mao (2009) 174 Cal.App.4th 301 ........................................................................................................... 2 Joseph v. Drew (1950) 36 Cal.2d 575 ...................................................................................................................... 2 Mulkey v. Reitman (1966) 64 Cal.2d 529 .................................................................................................................... 12 Plaza Home Mortgage, Inc. v. North American Title Co., Inc. (2010) 184 Cal.App.4th 130 ........................................................................................................... 2 Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322 ....................................................................................................... 15 Romer v. Evans (1996) 517 U.S. 620 ...................................................................................................................... 11 S.F. Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 ...................................................................................................................... 11 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 ..................................................................................................................... 8 Serrano v. Priest (1971) 5 Cal.3d 584 ................................................................................................ 2, 3, 5, 6, 11, 12 Serrano v. Priest (1976) 18 Cal.3d 728 .................................................................................................... 5, 6, 7, 9, 16 Somers v. Super. Ct. (2009) 172 Cal.App.4th 1407 ......................................................................................................... 3 Strauss v. Horton (2009) 46 Cal.4th 364 ................................................................................................................... 17 Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 ..................................................................................................................... 8 Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289 ......................................................................................................... 16 Statutes Code Civ. Proc. § 631.8(a) .................................................................................................................... 2
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iii MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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I.
INTRODUCTION
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Over the past four weeks, more than 20 witnesses testified in Plaintiffs’ case-in-chief,
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including superintendents, human resources officials, principals, teachers, parents, and students from
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school districts across California.
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experiences in the California public education system.
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incontrovertible importance to students of hardworking, effective teachers. They explained the
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severe and long-lasting harms imposed on students by grossly ineffective teachers. And they testified
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to the senseless and harmful requirements of the Challenged Statutes: the inadequate timeframe for
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making tenure decisions, the insurmountable roadblocks they have encountered when attempting to
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dismiss grossly ineffective teachers, and the devastation they have felt when laying off dynamic “all-
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star” teachers during district-wide layoffs.
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unjustifiable harms these statutes impose on children—the very people who are supposed to be
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served by public education.
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These varied witnesses all shared their remarkably similar They described, for example, the
All of these witnesses described the severe and
Six of the nation’s leading education experts corroborated this evidence using a variety of
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quantitative and qualitative methods.
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concrete harms that students suffer when tenure decisions are made too quickly, a comprehensive
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study of all the teacher dismissal actions throughout California over the past ten years, simulations of
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the effects flowing from teacher layoffs and the harms that could be avoided using alternate layoff
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criteria, and statistical studies pinpointing the disparate harm imposed by grossly ineffective teachers
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on many of California’s most vulnerable students.
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confirmed two undeniable facts: First, the Challenged Statutes unquestionably impose a “real and
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appreciable impact” on California’s students, triggering strict scrutiny. Second, the Challenged
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Statutes are not even a rational—let alone narrowly tailored—means of serving any purported state
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interests, thereby dooming the statutes under any constitutional analysis.
They provided, for example, detailed calculations of the
The breadth and depth of this testimony
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In the face of Plaintiffs’ powerful evidentiary showing, Movants continue to label the
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constitutional infirmities of the Challenged Statutes as “hypothetical” (IMJ at pp. 1, 5)1 and seek to
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State Defendants’ memorandum will be cited herein as “SDMJ” and Intervenors’ memorandum will be cited herein as “IMJ.” MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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avoid presenting any evidence at all by re-litigating the same legal arguments this Court has
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considered and rejected several times before. But Movants’ stale arguments remain unchanged since
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the last time this Court disagreed with them. Accordingly, Plaintiffs respectfully request that the
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Court deny Movants’ motions for judgment and permit the parties to conclude the trial.
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II.
STANDARD OF REVIEW
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A court may only “enter judgment in favor of the defendant if the court concludes that the
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plaintiff failed to sustain its burden of proof.” (Plaza Home Mortgage, Inc. v. North American Title
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Co., Inc. (2010) 184 Cal.App.4th 130, 135 [citations omitted]; see also Jazayeri v. Mao (2009) 174
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Cal.App.4th 301, 314 fn. 23.) The court must “weigh the evidence” (Code Civ. Proc. § 631.8(a)), but
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“the uncontradicted testimony of a witness to a particular fact . . . should be accepted as proof of the
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fact.” (Joseph v. Drew (1950) 36 Cal.2d 575, 579.) The court “is never required under any
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conceivable set of circumstances to grant a motion under section 631.8 . . . regardless of the state of
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the evidence.” (Erika K. v. Brett D. (2008) 161 Cal.App.4th 1259, 1271 [quotation omitted].)
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Instead, the Court may deny the motion or “decline to render any judgment until the close of all the
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evidence.” (Code Civ. Proc. § 631.8(a).)
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III. A.
ARGUMENT
Plaintiffs’ Evidence Proves That The Challenged Statutes Are Facially Unconstitutional. 1.
Claims 1-3: The Challenged Statutes Violate Equal Protection Because They Infringe Students’ Fundamental Right to Education.
The California Supreme Court has recognized that “the unique importance of public education . . . requires careful scrutiny of state interference with basic educational rights.” (Butt v. California (1992) 4 Cal.4th 668, 683.) When a statute inflicts “a real and appreciable impact on . . . [a] fundamental right . . . the strict scrutiny doctrine will be applied.” (Fair Political Pracs. Com. v. Super. Ct. of L.A. County (1979) 25 Cal.3d 33, 47.) Because “education is the lifeline of both the individual and society” (Serrano v. Priest (1971) 5 Cal.3d 584, 605 [“Serrano I”]), laws that inflict a “real and appreciable impact” on the fundamental right to education are unconstitutional unless they are narrowly tailored to serve a compelling state interest. (Butt, supra, 4 Cal.4th at pp. 685-686.) Plaintiffs have demonstrated with abundant evidence that the Challenged Statutes impose such a “real 2 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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and appreciable impact” on students. And Movants do not even argue that the Challenged Statutes
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survive strict scrutiny. For that reason alone, this Court should deny the motions and allow Plaintiffs’
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facial challenge to proceed.
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a.
Plaintiffs’ Claims Do Not Turn On The Supposed Neutrality Of The Text Of The Challenged Statutes.
Movants contend—as they argued in their demurrers, motions for summary judgment, and petitions for extraordinary relief—that Plaintiffs’ facial “fundamental right” claims fail because, according to Movants, the text of the Challenged Statutes is “facially neutral” and does not classify students. (IMJ at pp. 12-13; see also SDMJ at pp. 1, 3, 12-13.) But, as this Court previously held, Movants’ argument “misapplies the facial challenge standard,” which requires “consideration of the actual procedural scheme” of the challenged laws.
(Order Overruling Motions for Summary
Judgment or in the Alternative Summary Adjudication [“Order”] at p. 7 [citation omitted].) California courts do not confine themselves to the text of a statute when determining whether a statute violates equal protection. Rather, as the name of the Supreme Court’s test implies, it is the statute’s “real and appreciable impact” that matters. The Court therefore may consider evidence beyond the statutory text to determine whether the statute in fact results in an unconstitutional deprivation of rights. (See, e.g., Serrano I, supra, 5 Cal.3d at p. 598; In re Marriage Cases (2008) 43 Cal.4th 757, 839 [holding law unconstitutional because “realistically viewed, [it] operate[d] . . . to impose different treatment on gay individuals”]; Gould v. Grubb (1975) 14 Cal.3d 661, 669 fn. 9 [“It is the unequal effect flowing from the [law] that gives rise to the equal protection issue”]; Brown v. Merlo (1973) 8 Cal.3d 855, 862 [“The question of constitutional validity is not to be determined by artificial standards confining review ‘within the four corners’ of the statute.”] [citations omitted].) As a result, and as this Court recognized when it denied Movants’ motions for summary judgment, the Court should consider Plaintiffs’ evidence—not just the text of the statutes—to determine whether the Challenged Statutes in fact produce “classifications based on the inequality among those students who are assigned grossly ineffective teachers and those who are not.” (Order at p. 7; see also Somers v. Super. Ct. (2009) 172 Cal.App.4th 1407, 1414-1415 [holding that law “effectively” denied equal
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3 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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protection even though, “on its face [it did] not appear to create a class of petitioners that [was]
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treated differently”].)
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Plaintiffs’ evidence satisfies this threshold, demonstrating that the Challenged Statutes in fact
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subject a subset of students to substantially unequal treatment and therefore classify students based
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on the effectiveness of their teachers. (See, e.g., 1/29/14 R. Tr. at 468:27-469:6 (Chetty) [“Being
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assigned to a highly effective teacher generates substantial long-term gains for students; and,
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conversely, being assigned to a highly ineffective teacher generates significant harm for students in
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the long-term.”]; id. at 471:18-472:3 (Chetty) [showing large differences across students in their
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outcomes depending on their teachers’ effectiveness]; 2/6/14 R. Tr. at 1316:22-25 (Kane) [student
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assigned to ineffective teacher loses months of learning]; 2/18/14 R. Tr. at 2174:27-2175:4 (Johnson)
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[admitting that grossly ineffective teachers harm students]; see also Pls.’ Ex. 236 [“[T]he difference
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between an effective and non-effective teacher can be one full level of achievement in a single school
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year.”].) Plaintiffs’ evidence also shows that the Challenged Statutes act to classify students based on
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race and wealth. (See, e.g., 2/6/14 R. Tr. at 1314:2-15 (Kane) [grossly ineffective teachers are
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disproportionately assigned to black and Latino students]; see also infra § III(A)(2)(b).)2
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b.
Plaintiffs’ Evidence Proves That The Challenged Statutes Harm Students.
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Just as they argued in their motions for summary judgment, Movants again contend that the
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impact the Challenged Statutes have on students’ right to equal educational opportunity is
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“unintended, indirect, and . . . attenuated” because it is school district administrators who allegedly
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make “discretionary decisions” regarding teacher employment. (IMJ at p. 6.) Movants claim that the
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Challenged Statutes “do not directly regulate the assignment of particular teachers,” and therefore
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that they “cannot be the direct cause” of the harms that students endure. (Ibid.) Once again,
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State Defendants resurrect a related argument from their motion for summary judgment, alleging that an “ex post discriminatory ‘classification’” is insufficient. (SDMJ at pp. 12-13.) But statutes can be facially unconstitutional even when it is not possible to identify in advance which individuals will have their fundamental rights violated. (See Gould, supra, 14 Cal.3d at p. 670; see also Bullock v. Carter (1972) 405 U.S. 134, 144 [invaliding law creating disparities that could not “be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause”].) 4 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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however, Movants misstate the governing “real and appreciable impact” standard. As the California
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Supreme Court explained in Gould:
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The city asserts that because its ballot placement procedure does not cause or encourage voters to cast their ballots haphazardly, it cannot be held constitutionally responsible for any resulting inequality in the voting procedure. This argument simply misconceives the nature of the equal protection guarantee. . . . It is the unequal effect flowing from the city’s decision to reserve the top ballot position for incumbents that gives rise to the equal protection issue in question in this case.
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(Gould, supra, 14 Cal.3d at p. 669 fn. 9 [italics added].) In Serrano v. Priest (1976) 18 Cal.3d 728, 742 [“Serrano II”], for example, the school financing laws at issue did not require districts to tax themselves at rates that produced educational disparities, yet the court recognized that “the system itself” imposed practical “limitations” on districts’ ability to provide students with equal educational opportunities.
(Id. at p. 761; see also id. at p. 740 [the “source of the[] disparities [was]
unmistakable”] [quoting Serrano I, supra, 5 Cal.3d at p. 594].) As these cases make clear, it is the unequal effect flowing from the Challenged Statutes that gives rise to Plaintiffs’ claims. In any event, Plaintiffs’ evidence proves that there is nothing indirect or attenuated about the relationship between the Challenged Statutes and the harms they inflict on students. To the contrary, the evidence demonstrates that the Challenged Statutes directly cause school administrators to make vastly different teacher employment decisions than they would otherwise make if they were permitted to act in the best interests of students. For example, without the Permanent Employment Statute, administrators would take more time and make more informed tenure decisions—reducing the number of grossly ineffective teachers who obtain permanent employment. (See, e.g., 2/3/14 R. Tr. at 906:3-17 (Raymond) [Permanent Employment Statute causes SCUSD to grant tenure to grossly ineffective teachers3]; 1/29/14 R. Tr. at 430:14-27 (Deasy) [agreeing that Permanent Employment Statute adversely impacts the quality of LAUSD’s teacher pool]; 2/4/14 R. Tr. at 1046:5-1047:23 (Kappenhagen) [identifying an ineffective teacher who would not have received tenure if the tenure 3
According to Intervenors, SCUSD Superintendent Raymond testified that administrators can identify grossly ineffective teachers in “5 to 15 or so minutes.” (IMJ at p. 11.) That is a distortion of Superintendent Raymond’s testimony, in which he explained that certain ineffective teachers can be identified after “regular” five to 15 minute visits to classrooms and talking to students. (2/4/14 R. Tr. at 924:23-925:5 (Raymond).) As Raymond explained, many grossly ineffective teachers cannot be identified in the allotted 16-month probationary period. (2/3/14 R. Tr. at 902:11-903:19 (Raymond).) 5 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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decision had been one year further into the teacher’s career]; see also 1/30/14 R. Tr. at 566:7-567:3
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(Chetty) [forcing tenure decision after 16 months instead of 3 years reduces students’ income by
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$163,000 per classroom].) School administrators would also dismiss far more grossly ineffective
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teachers if they were not hindered by the Dismissal Statutes. (See, e.g., 2/4/14 R. Tr. at 931:28-
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932:21 (Raymond) [Dismissal Statutes cause SCUSD not to dismiss grossly ineffective teachers];
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2/5/14 R. Tr. at 1093:19-26, 1099:21-1104:17 (Douglas) [Fullerton School District would dismiss
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more grossly ineffective teachers, including ten teachers that Douglas could identify by memory from
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the witness stand]; 1/28/14 R. Tr. at 216:1-8 (Deasy) [LAUSD would dismiss more grossly
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ineffective teachers if dismissal were streamlined4]; 1/31/14 R. Tr. at 736:19-737:5 (Christmas)
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[OUSD retains grossly ineffective teachers because of Dismissal Statutes]; 2/19/14 R. Tr. at 2326:11-
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10, 2351:12-22 (Fekete) [school districts often decide not to proceed or cannot afford to proceed with
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dismissal process because of Dismissal Statutes].) And school administrators would make different
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teacher layoff decisions as well, selecting teachers based on effectiveness, if the statutes permitted
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them to do so.
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effectiveness because it was “precluded by the statute”]; 1/28/14 R. Tr. at 236:5-7 (Deasy)
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[“[E]ffectiveness is not a factor for which you can sustain a layoff in California, L.A. or otherwise.”];
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2/5/14 R. Tr. 1120:6-1121:11 (Douglas) [LIFO Statute forced him to lay off “very talented teachers”
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and to retain grossly ineffective teachers he would have preferred to lay off].)
(See, e.g., 2/3/14 R. Tr. at 918:10-28 (Raymond) [SCUSD did not consider
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As in Serrano, the evidence shows that districts’ ability to make so-called “discretionary
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decisions” is a “cruel illusion” (Serrano I, supra, 5 Cal.3d at p. 611), constrained by “the system
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itself.” (Serrano II, supra, 18 Cal.3d at p. 740.) There is nothing indirect or attenuated about it.
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Intervenors cite Dr. Deasy for the proposition that the cost of dismissal has not affected LAUSD’s decision to initiate dismissal proceedings. (IMJ at pp. 6-7.) But they distort his testimony. Dr. Deasy testified repeatedly that the costs associated with the dismissal process unquestionably constrain LAUSD’s ability to actually dismiss all of its grossly ineffective teachers, regardless of whether Dr. Deasy recommends that the LAUSD board “initiate” such dismissals. (1/27/14 R. Tr. at 172:16-173:3 (Deasy) [explaining that not all dismissal recommendations are pursued to completion]; id. at 162:22-26 (Deasy) [the “costs” are “a real factor” in determining whether “the District is able or willing to spend” through the dismissal process]; id. at 163:3-16, 171:17-172:7 (Deasy) [it is “unquestionable” that the costs of the dismissal process, coupled with LAUSD’s “finite” budget, makes it impossible for LAUSD to dismiss all of its grossly ineffective teachers].) 6 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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c.
Plaintiffs Need Not Prove That All, Or Even Most, California Teachers Are Grossly Ineffective.
Invoking yet another argument previously raised in their demurrer and motions for summary judgment, Movants argue that Plaintiffs can prevail on their facial challenge “only if [the Challenged Statutes] result in the vast majority of California’s 275,000 ‘permanent’ teachers being ineffective.” (SDMJ at p. 4; see also id. at p. 1.) According to Movants, Plaintiffs have not made such a showing because they admit that the “majority of California teachers” are effective. (IMJ at p. 5; see also SDMJ at p. 4.) But the Court has already rejected that erroneous standard, holding that Plaintiffs can prevail on their facial claims if they prove that “the Challenged Statutes . . . result[] in an equal protection violation in every instance that a student is assigned such a teacher.” (Order at p. 7; see also Demurrer Tr. at 26:21-22, 27:18-23 [“The Court doesn’t understand the importance of the discussion regarding number . . . .
Are you suggesting the constitutionality is affected by
numerosity?”].) Indeed, in the education context, the California Supreme Court has held that the State and its officers and agents violate the equal protection clause whenever some students are provided with educational opportunities that fall “below prevailing statewide standards”—which, by definition, can happen only in a minority of circumstances. (Butt, supra, 4 Cal.4th at pp. 686-687; see also Serrano II, supra, 18 Cal.3d at pp. 741-744.) Movants make a related argument that Plaintiffs cannot prevail on their facial challenge because, according to Movants, Plaintiffs’ witnesses represented “just five of 1,052 school districts” and there is “no evidence that the remaining 1,047 school districts have hired and/or retained grossly ineffective teachers at all.” (SDMJ at pp. 4-5.) But the suggestion that Plaintiffs must produce live witnesses from 1,052 school districts runs contrary to California’s governing law. Courts evaluating facial challenges routinely draw inferences regarding the existence of an event or condition in one location based on the existence of that event or condition elsewhere. (See Gould, supra, 14 Cal.3d at pp. 667-668 [affirming order invalidating ordinance based on studies of other jurisdictions because “nothing in the record suggest[ed] that Santa Monica voters differ[ed] significantly from the voters who participated in the numerous elections that were studied.”]; see also American Academy of
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7 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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Pediatrics v. Lungren (1997) 16 Cal.4th 307, 356 [law was facially invalid, in part, based on
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testimony regarding witnesses’ “experiences in other jurisdictions”].)
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Moreover, as a factual matter, it simply is not true that Plaintiffs’ witnesses provided
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testimony involving only five California districts. In fact, Plaintiffs elicited evidence from witnesses
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with relevant experience in 20 school districts across the State—districts containing over 20 percent
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of California’s entire student population.5 In addition, Plaintiffs’ evidence shows that the harms
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imposed by the Challenged Statutes are not confined even to these 20 geographically and
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demographically diverse districts, but rather afflict districts statewide.
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[statewide CPC decisions over the past 10 years]; 2/19/14 R. Tr. at 2306:20-28, 2326:11-20 (Fekete)
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[expert opinion regarding dismissal process based on work in approximately 100 California school
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districts]; 1/29/14 R. Tr. at 469:19-470:2 (Chetty) [seniority-based layoffs are detrimental to student
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learning across California]; 2/11/14 R. Tr. at 1807:18-1808:6 (Goldhaber) [same].)
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d.
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Plaintiffs Need Not Prove That The Challenged Statutes Have Inflicted Harm On Them Personally To Prevail On Their Facial Challenge.
Intervenors also contend that Plaintiffs “must establish that the challenged statutes have
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(See, e.g., Pls.’ Ex. 20
caused them harm and will necessarily do so in the future” to prevail on their facial claims. (IMJ at pp. 4-5.)6
Intervenors’ argument, however, fundamentally misconceives the nature of a facial
challenge, which examines whether a law “inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions,” “not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [emphasis added]; see also
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These districts, from largest to smallest, include: Los Angeles (Deasy, Pulley, Melvoin, Chetty, B. Vergara, E. Vergara, Macias); San Diego (Ramanathan); Long Beach (Ramanathan); San Francisco (Kappenhagen, Ramanathan); Sacramento City (Raymond); Oakland (Christmas, Adam, Weaver, Debose, Jr.); Kern (Fekete); Bakersfield (Fekete); Chino Valley (Douglas); Pomona (Monterroza); Compton (Moss); Pasadena (Monterroza); West Covina (Pulley); Fullerton Elementary (Douglas); Evergreen (K. Martinez Depo. Tr. at 31:11-25); Alum Rock Elementary (K. Martinez Depo. Tr. at 111:8-13:22); Berryessa (K. Martinez Depo Tr. at 23:1424:20); Arcadia (Bhakta); Santa Monica-Malibu (Deasy); and Monrovia (Bhakta).
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Relatedly, Intervenors argue that Plaintiffs may not rely on “the application of the statutes in circumstances involving other teachers and other students,” citing Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776. But Saelzler is inapposite, as it involved a negligence cause of action and not a facial constitutional challenge. (Id. at p. 766.)
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8 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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Gould, supra, 14 Cal.3d at p. 670 [holding that ordinance “impose[d] a very ‘real and appreciable
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impact’ on the equality, fairness and integrity of the electoral process,” not on the particular plaintiff];
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Serrano II, supra, 18 Cal.3d at pp. 775-777 [holding statutes facially unconstitutional without
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analyzing harms imposed on any particular plaintiff].) The only plaintiff-specific requirement for
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bringing a facial challenge is that Plaintiffs must have standing to assert their claims—which
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Plaintiffs in this case plainly do. (See infra § II(C).)7
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e.
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Because Plaintiffs have shown that the Challenged Statutes have a real and appreciable impact
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on students’ fundamental right to education, strict scrutiny analysis applies. Movants’ motions for judgment should be denied on that basis alone, as they do not even attempt to defend the statutes under strict scrutiny. But even if the Court were to apply the rational basis test, Plaintiffs’ evidence shows that the relationship between the Challenged Statutes and the goals they allegedly serve is so attenuated as to render the statutes arbitrary, irrational, and unconstitutional. (City of Cleburne v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432, 446.) Indeed, the alleged state interests that are supposedly served by the Challenged Statutes are
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The Challenged Statutes Are Not Rationally Related To The Attainment Of Any Legitimate State Interest.
absurd, finding no support in the evidence. For example, Intervenors assert that the Permanent Employment Statute serves the purpose of providing teachers with “sufficient time” to gain professional expertise and districts with an “opportunity” to evaluate teachers’ abilities before granting permanent employment. (IMJ at p. 11.) The evidence, however, underscores the sheer irrationality of the Permanent Employment Statute with respect to those purported interests. (See, e.g. 2/5/14 R. Tr. at 1197:18-22 (Douglas) [18 months not enough time]; 1/27/14 R. Tr. at 133:28134:24 (Deasy) [explaining that there is “no way that [18 months] is a sufficient amount of time,” in part because teachers “don’t even have . . . a reasonable period of time to show growth”]; 1/30/14 R. 7
In arguing that Plaintiffs’ facial challenge must be driven by evidence specific to the Plaintiffs themselves, Intervenors (IMJ at pp. 5-6) rely primarily on County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798. But that was a standing decision. (Id. at p. 818 [plaintiffs did “not have standing to challenge” the provisions at issue].) Intervenors do not cite a single case requiring Plaintiffs to make a particularized showing of past harm in order to prevail on their facial claims. 9 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
1
Tr. at 652:01-652:20 (Adam) [probationary period gives insufficient time to make informed
2
reelection decision]; Nichols Depo. Tr. at 243:8-13 [admitting that State Defendants do not know
3
whether Permanent Employment Statute provides teachers sufficient time to gain expertise].)
4
Intervenors assert that the purpose of the Dismissal Statutes is to “reduc[e] the burden and costs of
5
litigating [teacher] dismissal proceedings.” (IMJ at pp. 11-12.) But again the evidence shows the
6
contrary—dismissal proceedings cost hundreds of thousands (sometimes millions) of dollars and
7
consume precious school district resources. (See, e.g. 2/5/14 R. Tr. at 1104:11-17 (Douglas) [it
8
would cost $2.5 million for Fullerton to remove some of its ineffective teachers]; 1/28/14 R. Tr. at
9
187:20-25 (Deasy) [money spent on dismissal could have gone to reducing class size or hiring
10
counselors]; 1/31/14 R. Tr. at 724:16-726:11 (Christmas) [discussing opportunity costs]; 2/19/14 R.
11
Tr. at 2326:14-20 (Fekete) [time and cost make districts “extremely reluctant” to use dismissal
12
process].) And Intervenors assert that the LIFO Statute reflects the “common-sense understanding
13
that experience matters,” but the evidence does not support Intervenors’ assertion. (See, e.g. 1/28/14
14
R. Tr. at 230:2-24 (Deasy) [“[S]eniority is based on the date of hire. It’s not the date how long
15
you’ve worked.”]; id. at 229:20-230:1 (Deasy) [“Seniority in the system is not reflective of a person’s
16
ability to teach effectively. It represents how long they have been in the job and only how long they
17
have been in the job.”]; 2/4/14 R. Tr. at 996:11-14, 1000:6-27 (Bhakta) [teacher of the year with
18
many years of experience became “least senior” teacher when she transferred districts and then
19
received layoff notices]; 1/29/14 R. Tr. at 469:19-470:2 (Chetty) [“Seniority-based reductions in
20
force impose significant harm on students.”]; Nichols Depo. Tr. at 205:1-3 [admitting that experience
21
does not guarantee ability to provide a better learning environment]; 2/18/14 R. Tr. at 2194:1-8
22
(Johnson) [admitting that less senior teachers can be more effective than more senior teachers].)8
23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP
8
Intervenors argue that the LIFO Statue does not result in harm to students because the average teacher laid off in a reduction in force is less effective than the average teacher retained. (IMJ at p. 10.) But that is not the proper comparison. (2/13/14 R. Tr. at 1874:12-1875:7 (Goldhaber) [“[T]he right question is not . . . how effective are the teachers that are laid off versus the workforce as a whole”].) When layoffs are necessary, school districts must decide who should be laid off. Thus, the proper analysis compares the effectiveness of teachers laid off under a seniority-based system to those who would be laid off under an alternative system, such as an effectiveness-based system. (See Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 37 [“The availability of . . . alternatives—or the failure of the legislative body to consider such (Cont’d on next page) 10 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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Thus, even under rational basis review, Plaintiffs’ evidence shows that the Challenged Statutes do not
2
“bear[] a rational relation to [a] legitimate end” and are unconstitutional. (Romer v. Evans (1996)
3
517 U.S. 620, 631).
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
2.
Claims 4-6: The Challenged Statutes Violate Equal Protection Because They Impose A Disparate Burden On Poor And Minority Students. a.
Plaintiffs Need Not Prove Discriminatory Intent Or Purpose.
Movants claim that Plaintiffs’ facial “disparate impact” claims fail to trigger strict scrutiny because the text of the Challenged Statutes does not expressly draw distinctions between students on the basis of race or wealth, and because there is purportedly no evidence that the statutes were enacted (or are being applied) with the purpose or intent of harming minority or low-income students. (IMJ at pp. 8-9; SDMJ at pp. 8-9.) Again, however, this Court has already heard and rejected Movants’ argument. As the Court noted in its order denying the motions for summary judgment, “classifications based on suspect classes have been invalidated in the absence of discriminatory motivation even when the laws were neutral on their face,” where—as here—the “suspect class claims ha[ve] important rights at stake.” (Order at p. 8 [citing Serrano I, supra, 5 Cal.3d at pp.601603; Butt, supra, 4 Cal.4th at p. 681]; see also Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 881; S.F. Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 957].) Movants offer no new analysis or legal authority to support their argument. b.
Plaintiffs Have Shown That The Challenged Statutes Impose A Disparate Adverse Impact On Minority And Low-Income Students
20
Movants also argue that Plaintiffs’ “suspect class” claims should be dismissed because the
21
Challenged Statutes do not “require the uneven distribution of ineffective teachers” among schools.
22
(SDMJ at p. 9 [italics added]; see also IMJ at pp. 9-10.) They suggest that the Challenged Statutes do
23
not “cause grossly ineffective teachers to be assigned to low-income or minority students more
24 25 26 27 28 Gibson, Dunn & Crutcher LLP
(Cont’d from previous page) alternatives—will be fatal” to the challenged law].) That analysis powerfully demonstrates the substantial harm that the LIFO Statute imposes on students. (Ibid.; 1/30/14 R. Tr. at 569:23570:1, 571:16-572:4 (Chetty) [LIFO layoffs “significantly harm students” compared to effectiveness-based layoffs, reducing students’ lifetime income by $2.1 million per classroom]; 2/14/14 R. Tr. at 2078:9-27 (Ramanathan).) 11 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
1
frequently than to other students” because assignments are “made by school districts.” (IMJ at p. 9.)
2
But Movants’ arguments treat the statutes as if they operate in a vacuum, even though California law
3
requires this Court to consider the statutes’ real-world impact in determining their facial
4
constitutionality. (See, e.g., Serrano I, supra, 5 Cal.3d at p. 598 [“[A]s a practical matter districts
5
with small tax bases simply cannot levy taxes at a rate sufficient to produce the revenue that more
6
affluent districts reap with minimal tax efforts.”] [italics added]; see also id. at pp. 599-600 [“[A]s a
7
statistical matter, the poorer districts are financially unable to raise their taxes high enough . . . .”];
8
Mulkey v. Reitman (1966) 64 Cal.2d 529, 533-534, affd. sub nom. Reitman v. Mulkey (1967) 387 U.S.
9
369 [“A state enactment cannot be construed for purposes of constitutional analysis without concern
10
for its . . . ultimate effect.”].)
11
Plaintiffs have introduced substantial evidence demonstrating that the practical effect of the
12
Challenged Statutes is the disproportionate assignment of grossly ineffective teachers to poor and
13
minority students. For example, Plaintiffs’ evidence shows that because dismissal of all grossly
14
ineffective teachers is not a viable option under the Dismissal Statutes, such teachers are inevitably
15
shuffled to low-income and minority schools, where there are greater numbers of teacher vacancies.
16
(See, e.g. 2/5/14 R. Tr. at 1128:4-1129:7 (Douglas) [lemons transferred to low-income schools];
17
2/4/14 R. Tr. at 1066:2-1068:15 (Kappenhagen) [grossly ineffective teachers shuffled in a “dance of
18
the lemons”].) Additionally, because effective teachers typically seek to transfer to more affluent
19
schools, less affluent schools are inevitably left with an ever-increasing accumulation of grossly
20
ineffective teachers who simply cannot be dismissed under the Dismissal Statutes. (See, e.g., 2/6/14
21
R. Tr. at 1331:1-20 (Kane) [discussing “lemon accumulation machine”]; 1/30/14 R. Tr. at 653:19-
22
654:1 (Adam) [low-income, minority schools end up with more ineffective teachers].) And because
23
teachers in low-income and minority schools are, on average, less senior than teachers elsewhere,
24
seniority-based layoffs inevitably devastate those schools the most. (1/29/14 R. Tr. at 470:3-11
25
(Chetty); 2/11/14 R. Tr. at 1799:13-20 (Goldhaber) [African American students are
26
disproportionately likely to have a teacher receive a layoff notice]; 2/13/14 R. Tr. at 1904:12-1905:28
27
(Ramanathan) [students in high-poverty school are 65% more likely to have a teacher laid off than
28
students in low-poverty school].) Thus, the unavoidable byproduct of the Challenged Statutes—as
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12 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
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they operate in the real world—is that poor and minority students are disproportionately harmed by
2
the Challenged Statutes.
3
American and Latino students are 43% and 68% more likely to be taught by grossly ineffective
4
teachers, respectively, than white students]; 2/13/14 R. Tr. at 1909:2-1910:13 (Ramanathan) [low-
5
income and minority students do not have equitable access to effective teachers]; Pls.’ Ex. 289 at pp.
6
18-19, 33 (CDE Report) [admitting that low-income and minority students are more likely to be
7
assigned to ineffective teachers].)
(See, e.g., 2/6/14 R. Tr. at 1314:2-15, 1326:15-23 (Kane) [African
8
Moreover, irrespective of the distribution of grossly ineffective teachers, Plaintiffs introduced
9
evidence demonstrating that low-income and minority students are especially vulnerable to the harms
10
inflicted on them by ineffective teaching—itself a disparate burden caused by the Challenged
11
Statutes. (See, e.g., 2/7/14 R. Tr. at 1456:8-1457:17 (Weaver) [it is “critical” to have effective
12
teachers in front of low-income students because teachers have a “huge” impact on their life
13
trajectories]; 2/11/14 R. Tr. at 1751:27-1752:16 (Melvoin) [poor and minority students do not have
14
the “opportunities” to offset the harm cause by ineffective teachers]; 2/4/14 R. Tr. at 1040:18-1041:8
15
(Kappenhagen) [low-income families do not have “an opportunity to be nearly as resilient when they
16
have an ineffective teacher”]; 2/13/14 R. Tr. at 1938:17-1939:18 (Ramanathan) [highly effective
17
teachers needed to close the achievement gap]; 2/20/14 R. Tr. at 2416:5-2417:22 (State Defendants’
18
counsel) [admitting that effective teachers are a critical factor for closing the achievement gap and
19
agreeing “that students are entitled to effective teachers”].) Finally, Movants ignore Plaintiffs’
20
evidence showing that the churn created by seniority-based layoffs is itself destabilizing,
21
disproportionately harming low-income and minority students. (2/13/14 R. Tr. at 1938:17-1939:18,
22
1965:14-1967:2 (Ramanathan) [churn destabilizes high-poverty and minority schools]; 2/4/14 R. Tr.
23
at 938:10-939:6 (Raymond) [churn affects collective efficacy of teachers].)
24
B.
The Challenged Statutes Are Unconstitutional As Applied To Plaintiffs.
25
Plaintiffs’ evidentiary showing also proves that the Challenged Statutes are unconstitutional
26
as applied to Plaintiffs because of the manner in which they affect Plaintiffs’ particular school
27
districts. (See Stip. [identifying Plaintiffs’ school districts].) Abundant evidence has demonstrated
28
that students in LAUSD and OUSD, for example, are at substantial risk of being assigned to grossly
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13 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
1
ineffective teachers because of the constraints imposed on those districts by the Challenged Statutes,
2
and that the grossly ineffective teachers in those school districts impart substantial harm on their
3
students. (See, e.g., 1/31/14 R. Tr. at 722:24-723:20 (Christmas) [there are grossly ineffective
4
teachers in OUSD]; 1/29/04 R. Tr. at 426:2-12 (Deasy) [there are grossly ineffective teachers in
5
LAUSD]; 2/6/14 R. Tr. at 1316:15-25 (Kane) [students assigned to LAUSD teacher in bottom fifth
6
percentile lose 9.5 months of learning in a single year compared to students assigned to average
7
teacher].) Thus, at a minimum, Plaintiffs are entitled to relief preventing the enforcement of the
8
Challenged Statutes in their particular school districts.9
9
C.
Plaintiffs Have Standing To Pursue Their Claims.
10
Finally, Movants once again contend that Plaintiffs lack standing to challenge the statutes at
11
issue. (IMJ at pp. 3-5, 7.) But Plaintiffs—all nine of whom are California schoolchildren (Stip.)—
12
unquestionably possess a concrete and “beneficial interest” in the outcome of this action because they
13
have a unique interest in the quality of their education. (Holmes v. Cal. Nat’l Guard (2001) 90
14
Cal.App.4th 297, 315; see also Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668, 684-
15
685.) All of them have experienced firsthand the significant impact—both positive and negative—
16
that teachers have on students’ lives. (See, e.g., 2/11/14 R. Tr. at 1719:19-1720:9 (Monterroza);
17
2/10/14 R. Tr. at 1648:4-26 (DeBose, Jr.); 2/11/14 R. Tr. at 1671:5-25, 1674:14-1675:9 (B. Vergara);
18
2/11/14 R. Tr. at 1694:13-1695:3 (E. Vergara).) And all of them reasonably fear the substantial risk
19
that they will be assigned to grossly ineffective teachers in the future, derailing their educational
20
opportunities and threatening their hopes and dreams. (See Pls.’ Ex. 318 at RFA No. 3 [Intervenors
21
admit there are ineffective teachers in California]; Pls.’ Ex. 319 at RFA No. 3 [State Defendants
22
admit same].) In addition, six Plaintiffs are ethnic minorities and/or economically disadvantaged,
23
giving them standing to complain about the disproportionate burden that the Challenged Statutes
24 25 26 27 28 Gibson, Dunn & Crutcher LLP
9
State Defendants contend that Plaintiffs’ as-applied challenge fails unless Plaintiffs can “prove that: (1) they were taught by grossly ineffective teachers; (2) those grossly ineffective teachers were ‘permanent’ employees . . . ; and (3) those permanently employed teachers were known to their school districts as grossly ineffective yet they were not dismissed . . . because of the Dismissal Statutes’ procedural requirements.” (SDMJ at p. 6.) But the origin of this backwardlooking standard is a mystery. Plaintiffs seek relief from threatened future harm, not past injury. Thus, Plaintiffs need not prove that their past teachers were, in fact, grossly ineffective. 14 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
1
place on those groups. (2/11/14 R. Tr. at 1712:10-18 (Monterroza); 2/10/14 R. Tr. at 1640:6-21
2
(Debose); 2/11/14 R. Tr. at 1668:10-20 (B. Vergara); 2/11/14 R. Tr. at 1692:11-15 (E. Vergara);
3
2/10/14 R. Tr. at 1573:5-8 (Macias); K. Martinez Depo. Tr. at 11:19-12:19.)
4
Movants nevertheless argue that, in order to have standing, Plaintiffs must “establish that the
5
challenged statutes have caused them harm [in the past] and will necessarily do so in the future.”
6
(IMJ at p. 4 [emphases altered] [citing San Diego NORML, supra, 165 Cal.App.4th at p. 814]; see
7
also id. at p. 7 [same].) But that is not the appropriate legal standard. The very case on which
8
Movants rely—in the very phrase that Movants quote—explains that standing can be based on
9
“actual or threatened injury.” (IMJ at p. 7 [quoting San Diego NORML, supra, 165 Cal.App.4th at p.
10
814] [emphasis added]; see also San Diego NORML, supra, 165 Cal.App.4th at p. 816 [“[A] public
11
entity threatened with injury . . . may have standing” [italics added]]; B.C. Cotton, Inc. v. Voss (1995)
12
33 Cal.App.4th 929, 948; Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, 1349.)
13
Movants’ proposed test—which they appear to have invented out of whole cloth—also contravenes
14
this Court’s order denying Movants’ motions for summary judgment, in which the Court set forth
15
three independent bases on which standing may be satisfied. (Order at p. 5 [standing can be shown if
16
Plaintiffs “have been assigned a grossly ineffective teacher [citation], are in substantial danger of
17
being assigned a grossly ineffective teacher [citation], and/or decided not to attend traditional public
18
schools because of the risk of being assigned a grossly ineffective teacher [citation].”] [emphasis
19
added].) Thus, Plaintiffs have standing irrespective of whether they have been harmed in the past by
20
the Challenged Statutes.10
21
Movants also argue that Plaintiffs must demonstrate that they “necessarily” will be harmed in
22
the future. (IMJ at p. 4.) Again, however, that is not the standard; to seek declaratory and injunctive
23
relief, Plaintiffs need only “demonstrate[] . . . that the [statutes] could have the effect of infringing
24
[their] rights under the California Constitution.” (Holmes, supra, 90 Cal.App.4th at p. 318 [italics
25 26 27 28 Gibson, Dunn & Crutcher LLP
10
Intervenors also rely on a statement in San Diego NORML—that a party must be “injuriously affected” by a law—to argue that Plaintiffs lack standing unless they have been harmed in the past. But that statement does not support Intervenors’ conclusion. Plaintiffs are “injuriously affected” by the Challenged Statutes because the statutes place them at substantial risk of being taught by grossly ineffective teachers in the future. 15 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
1
added]; see also Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 300.) In Serrano, for
2
example, the California Supreme Court did not examine whether the named plaintiffs would
3
“necessarily” be harmed by the amount of funding in their districts; there was no evidence
4
whatsoever about how those particular plaintiffs’ school districts were spending the money available
5
to them vis-à-vis the plaintiffs, or whether the districts would have spent more money in ways that
6
specifically benefitted the named plaintiffs. (See Serrano II, supra, 18 Cal.3d at p. 760 [declining to
7
compare relative costs required to offer substantially equivalent school programs in different school
8
districts].)
9
Finally, Movants’ standing arguments with respect to particular Plaintiffs are unavailing:
10
11
ineffective teachers “baseless” because they currently attend charter schools. (IMJ at p. 4 fn. 2.) But
12
the evidence demonstrates that those two Plaintiffs would attend traditional district schools if they
13
were not at risk of being taught by grossly ineffective teachers. (2/11/14 R. Tr. at 1713:18-1714:2
14
(Monterroza); K. Martinez Depo. Tr. at 116:21-117:8 [“[We] are looking at everything for her.”].)
15
Movants ignore this point. (See DiBona v. Matthews (1990) 220 Cal.App.3d 1329, 1338-1339
16
[“Defendants assert [student] lacks standing because he was never officially enrolled in the class.
17
The facts are at least susceptible of the interpretation, however, that [student] would have been
18
enrolled but for the allegedly unconstitutional acts by the defendants.”]; see also Alch v. Super. Ct.
19
(2004) 122 Cal.App.4th 339, 388 [deterred applicants have standing].)
20
21
purportedly attend “pilot schools” that “may easily remove” grossly ineffective teachers. (IMJ at p. 4
22
fn. 2.) But there is no evidence showing that the Vergaras attend “pilot schools,” nor evidence that
23
they will be permitted to attend “pilot schools” in the future. At most, there is evidence that some of
24
the schools on the Vergaras’ current campus might be described as “pilot schools.” (Ibid.) There is
25
also no evidence that the Vergaras’ school “may easily remove” grossly ineffective teachers.11 In
Intervenors label Daniella Martinez’s and Raylene Monterroza’s fears regarding grossly
Intervenors describe Beatriz and Elizabeth Vergara’s fears as “baseless” because they
26 27 28 Gibson, Dunn & Crutcher LLP
11
Dr. Deasy testified that LAUSD’s governing board makes certain “decisions” regarding pilot school staffing. (1/28/14 R. Tr. at 321:10-13, 321:26-322:4.) But such decision-making authority says nothing about the ease with which grossly ineffective teachers can be removed. 16 MEMO. OF POINTS AND AUTHORITIES IN OPPOSITION TO STATE DEFENDANTS’ AND INTERVENORS’ MOTIONS FOR JUDGMENT; CASE NO. BC484642
l
fact, the teachers at the Vergaras' school come from the same LAUSD pool, which includes many
2
grossly ineffective teachers. Moreover, there can be no dispute that LAUSD "pilot schools" are still
3
subject to the mandates ofthe Challenged Statutes.
4
•
5
grossly ineffective teacher because he is in 12th grade. (IMJ at p. 4 fn. 2.) But Brandon currently
6
attends a traditional district school and is assigned to teachers who could turn out to be grossly
7
ineffective. (Stip.; 2/10/14 R. Tr. at 1649:2-23 (Debose).) In addition, Brandon's current teachers
8
could be replaced mid-year by grossly ineffective teachers. (2/10/14 R. Tr. at 1649:2-23 (Debose).)
9
If and when Brandon graduates from high school (which has not yet happened), it would still be
10
appropriate for this Court to consider his claims, which present "important issues of substantial and
11
continuing public interest." (DeRonde v. Regents of the Univ. of Cal. (1981) 28 Cal3d 875, 880
12 '
[finding that plaintiff could challenge the constitutionality of law school admissions policy even
13
though he "ha[d] graduated from another law school and ha[d] been admitted to the State Bar"],
14
superseded by constitutional amendment on another ground, as recognized in Strauss v. Horton
15
(2009)46 Cal.4th 364,447 fn. 25.)
Intervenors proclaim that Brandon Debose, Jr. does not face a "meaningful threat" of a
IV.
16 17 18
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court deny Movants' motions for judgment and permit the parties to conclude their trial.
19 20
Respectfully submitted,
21
Dated: February 26, 2014
GIBSON,DL1NN & CRUTCHER LLP
22 23
By:
~ Theo
e J. Boutrous, Jr.
24 25
Attorneys for Plaintiffs Beatriz Vergara, et al.
26 27 28 Gibson, Dunn 8 Crutcher LLP
17 MEMO.OF POINTS AND AUTHORITIES TN OPPOSITION TO STATE DEFENDANTS'AND INTERVENORS' MOTIONS FOR JUDGMENT;CASE NO.BC484642
