Plaintiffs’ lawyer Ted Boutrous

Lawyers from both sides in Vergara v California — the state’s most significant teacher rights case in two decades — unleashed their final arguments today, in a last attempt to amplify their own case and destroy their opponent’s.

The case is now in the hands of state Superior Court Judge Rolf Treu, who gave the sides until April 10 to submit any final briefs, after which he has 90 days to issue his ruling. He has the option of striking down all the laws, some of them or none of them.

“I’m not saying it’ll take all 90 days,” he told them inside a downtown courtroom larger than the one used for the trial, so as to accommodate a big audience on the final day of proceedings. “The court has much to consider, and it will consider it deliberately and thoroughly.”

Ted Boutrous and Marcellus McRae, lawyers for the nine student-plaintiffs went first, offering dramatic and emotional rationales for striking down five laws that govern teacher seniority, dismissal and tenure.

Jim Finberg

They were followed by Supervising State Attorney Susan Carson and Jim Finberg, who was representing the California Teachers Association and the California Federation of Teachers. Together, they argued that the plaintiffs came nowhere close to proving their case.

For two hours, Boutrous and McRae laid out their vision, arguing that the statutes handcuff school districts, thus leaving ineffective teachers in the classroom and denying students their constitutional right to a quality education.

Boutrous underscored the impact ineffective teachers have on students. Recalling testimony from Harvard economist Raj Chetty, he told the court that if as few as 3 percent of California teachers were ineffective, the academic impact on their students would be the equivalent of $11.6 billion in lost lifetime earnings.

“If that’s not real and appreciable harm caused by theses statutes,” Boutrous said, “I don’t know what is.”

McRae followed, and his presentation was the most animated and emotional of all the lawyers.

“You can’t make sense out of non-sense,” he intoned more than once, insisting that the challenged statutes are the prime reason why so many ineffective teachers remain in California classrooms.

He indicated the evidence supports the plaintiffs’ position that the two-year tenure statute provides insufficient time to make an informed decision on a teacher’s effectivess; the dismissal rules are too costly and lengthy; and, the seniority law requires district to layoff top teachers.

He called the dismissal process “a monstrosity” that requires “17 arduous and byzantine” steps before a teacher challenging a dismissal would have the final decision. He likened it to driving down an unfamiliar freeway, and “You don’t know if your getting off at exit 2, exit 10 or you have the E ticket ride to the Court of Appeal.”

McRae also repeated the familiar theme in the case, that the students most impacted by these statutes are the most vulnerable, generally from minority and low income families.

“Have we not had enough in this country’s history of short-shrifting poor people?” he asked. “This is an abomination. This has to stop.”

Both Boutrous and McRae reminded the court that the five statutes undermine students’ rights, and that the state must show that there is a compelling state interest that could not be satisfied with any other approach, and they argued it hasn’t done so.

The lawyers for the state and teacher unions mounted strong counter arguments, that the challenged statutes are not the problem. Rather, the pervasiveness of ineffective teachers can be laid at the feet of poorly managed school districts, as they said their evidence has shown.

The defense maintained that the contested laws serve legitimate governmental interests – academic freedom, attracting and retaining quality teachers, and providing employment protections for teachers to insure that they are not unfairly dismissed.

“The best way to help students,” said Carson, the state’s lawyer, “is not to take away teachers’ rights. Put more resources into schools so they can do the best job they can.”

Finberg argued that the plaintiffs failed to prove that the challenged rules had a direct impact on the nine-student plaintiffs, especially because only four of them and the father of a fifth actually testified in the case.

“None of the plaintiffs suffered real and appreciable harm,” he said.

He reminded Judge Treu that each accusation a plaintiff  made, of suffering from the ineffectiveness of a teacher, was a misrepresentation of the facts, as he described the teachers they named as exemplary.

“The reality was very different,” he said, adding that none of them had ever been assigned an ineffective teacher or been given one as a result of the statutes.

Finberg also made a strong defense of the two-year tenure statutes. To counter McRae’s argument that three years or more would give school districts more time to make critical judgements, Finberg asked rhetorically, “How useful is that additional information? And what is the cost of waiting?”

He concluded by telling the court that the statutes “are doing the good job we want them to do, educating California children.”

As is customary, plaintiffs got one last chance to make their case in rebuttal. Boutrous responded to the defense’s closing arguments by saying he felt as if he “had entered an alternative universe  where rules that govern behavior don’t apply.”

He said the laws violate students’ constitutional rights and harm “kids every day creating an inequity wave across the state.”

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.

Vivian Ekchian

The defense rested its case today in Vergara v. California after an examination of an LA Unified administrator that was designed to show that the state laws under challenge did not impede the district’s effort to get rid of ineffective teachers.

On Monday, court resumes with the plaintiffs’ opening a short rebuttal phase of the trial, leading to closing arguments next Thursday. Marcellus McRae, a plaintiffs lawyer, told the court that his side intends to call as many as four people to dispute “a number of witnesses” who testified for the defense.

Vivian Ekchian, who served as LA Unified’s chief human resources officer until a recent appointment to chief labor negotiator, was today’s only witness, the last of 28 for the defense. She was called as an adversary witness, in a sense, in an effort to show that the district was not overly burdened by state laws governing teacher dismissals.

The plaintiffs have argued that the dismissal laws lead to long and expensive ordeals for districts as they try to eliminate their worst teachers, thus discouraging them from more aggressive efforts to fire them. Those laws, along with statutes on tenure and seniority, are at the heart of the case, with plaintiffs saying the laws deny equal access to quality education.

The state, as the principle defendant and California’s two biggest teacher unions joining as intervenors, say the laws work well and do not interfere with properly-managed school districts.

The questioning of Ekchian devolved into a battle of numbers and lawyers’ spinning them the best way for presentation in the case.

Jonathan Weissglass, representing the unions, elicited responses that appeared to show LA Unified had only minimal difficulties weeding out ineffective teachers. For example, in response to one question, she said the district sent notices of unsatisfactory performance to only 85 teachers between Jan. 1, 2008 and Aug. 2, 2013, and that 64 of them left before the dismissal process began.

Under questioning by McRae, she said LA Unified had about 350 teachers who had received two “below-standard” evaluations in the 2012-2013 school year and the district would have sought to dismissal all of them “if the dismissal process were more streamlined.”

By the end, her testimony was just another piece of an enormously complex case that could reshape laws governing teachers in the state — or not, depending on how Judge Rolf Treu interprets evidence from 50 witnesses over 31 days of testimony.

“We’re very happy with the evidence that went in,” Jim Finberg, the lead lawyer for the unions, told LA School Report, reflecting on the defense case. “The evidence is quite compelling that the statutes serve very important interests for the benefit of students in California. To strike them down as unconstitutional would be a disservice to them.”

Previous Posts: Vergara witness says streets more than teachers shape academics; A witness in Vergara v California urges seniority over ‘effectiveness’; Teachers refute ‘ineffective’ charges by Vergara witnesses.

Ken Futernick

An expert on the the role that teachers play in academic performance today became the latest defense witness in Vergara v California to testify that students in high-poverty area schools face higher challenges to learning.

Ken Futernick, Director of the WestEd School Turnaround Center, a research organization, and a former professor of education at California State University, Sacramento, told the court that such factors as ill-prepared teachers, poor working conditions in the school and high turnover among teachers and administrators make it difficult to attract and retain effective teachers, thus adversely affecting academic achievement.

The testimony supports a major contention of the defendants, that it’s not exclusively the caliber of teachers that affects learning; it is also external conditions that bear on a student’s ability to learn.

Defendants in the case, the state and teacher unions, are trying to prove that these other factors make it difficult for the nine-student plaintiffs to show that state laws governing teacher dismissal, seniority and tenure should be struck down as impediments to a quality education.

Futernick provided several statistics to support his opinions. He testified that 22 percent of new teachers in California leave the profession after four years and that the percentage of teachers who transfer out of high-poverty schools is twice that from low-poverty schools, He said 20 percent of new principals in urban school districts leave after just two years and pointed to the Oakland Unified School District as an extreme: There, he said, 44 percent of new principals leave the field after just two-years.

The effects of this high turnaround, he said, impact both student learning and teacher development and damages a school’s ability to provide a stable learning environment.

Futernick further testified that high-poverty schools have a harder time filling vacant positions, leading to a greater number of teacher mis-assignments — a math teacher assigned to an English class, for example — and these mis-assignments, he told the court, have a negative impact on student learning.

The assistance Futernick provided the defense might have been undercut to a degree during cross examination by Kyle Withers, who solicited an acknowledgement from him that none of his research or opinions related directly to the statutes at issue in the case.

Earlier, the plaintiffs’ wrapped up their cross examination of Lynda Nichols, program consultant with the California Department of Education.

Plaintiffs’ attorney Marcellus McRae attempted to show that a teacher considered by the state as “highly qualified” for having a teaching credential does not always equate with being effective.

Judge Rolf Treu intervened and asked Nichols, “Are all teachers who are credentialed effective?”

“Unlikely,” she said.

Another witness today was James Webb, an English teacher from the William S. Hart Union High School District in Santa Clarita and a consulting teacher for the district’s performance review program for first-year teachers.

He told the court he could decide within three months whether a new teacher would meet program standards — testimony the defense used in support of its claim there is sufficient time to make decision on tenure within the two-year statutory framework.

On cross examination, plaintiffs’ attorney Josh Lipshutz, tried to minimize Webb’s testimony by pointing out his experience is limited to one school district among hundreds in California.

The day ended with the start of testimony by Vivian Ekchian, who was recently named Chief Human Resources Officer for LA Unified.

While the district withdrew as a defendant in the case before the trial started, she was called by the defense in an effort to impeach the testimony of a plaintiffs’ witness, Nicholas Melvoin, a former LA Unified teacher at Markham Middle School in Watts, who had testified last month that teacher layoffs in 2009 resulted in effective teachers being dismissed and morale at the school eroded.

“It was a toxic environment,” he said.

During a rather contentious examination, defense lawyer Jonathan Weissglass tried to show that problems at Markham were created by ineffective school administrators, not the challenged statutes.

Ekchian is scheduled to return to the stand on Friday, so the defense’s final witness, Linda Darling-Hammond, a Stanford professor and expert on education policy, can start and complete her testimony tomorrow.

Previous Posts: Vergara witness says streets more than teachers shape academics; A witness in Vergara v California urges seniority over ‘effectiveness’; Ex-district chief tells Vergara court teacher laws don’t interfere.

David Berliner

An expert in educational psychology testified today that violence in the neighborhood, family income, food insecurity and other out-of-school factors are three times more likely to impact a student’s classroom performance than the effectiveness of the teacher.

The expert, David Berliner, also discounted the reliability of student test scores to judge a teacher’s ability to enhance student achievement. Such models, he said, are “notoriously unreliable and therefore invalid.”

As a widely-published expert and now emeritus professor at Arizona State University, Berliner offered helpful testimony for the defense in the Vergara v. California trial, which is focused on how to minimize the impact and number of ineffective teachers in California public schools — at least until his cross-examination.

One of the major issues in the case is the role teachers play in student achievement, as the plaintiffs contend that the inferior ones block access to a quality education. These teachers, the plaintiffs say, are protected by the current laws governing tenure, seniority and dismissal.

Along with the witness who followed Berliner to the stand, Lynda Nichols, a consultant to the California Department of Education, the defense has now called 24 people to testify in the case, two more than the plaintiffs called.

The defense is expected to call a few more witnesses through the middle of next week, after which the plaintiffs will take a few days to put on a rebuttal case. After that, the case belongs to Judge Rolf Treu for his ruling.

Berliner seemed to shield teachers from much of the responsibility for poor academic performance by students as he testified that conditions beyond the classroom — he mentioned about nine of them — account for 60 percent of what influences a student’s scholastic achievement whereas in-school factors such as class size, curriculum, the quality of the principal and the teacher account for only 20 percent. He further testified that of the teacher impact only accounts for 10 percent.

When asked by Deputy State Attorney Jennifer Bunshoft whether standardized test scores were ever intended to assess teacher effectiveness, he said they were not.

He further testified that standardized test scores don’t provide enough information about what goes on in a classroom and should therefore not be used to assess a teacher’s effectiveness.

During a contentious cross-examination, in which the lawyers talked over each other to make points, Judge Treu appeared more like a referee, asking all the lawyers to be patient and wait their turn.

In an effort to undercut Berliner’s testimony, plaintiffs’ lawyer Josh Lipshutz asked whether regardless of in-school or out-of-school factors, ineffective teachers can have an adverse impact on teachers, and Berliner said, “Of course.”

Plaintiffs then attempted to show that the professor’s statistics could have a significant margin of error, pointing out that teacher impact be higher than 10 percent. He agreed.

Throughout the cross examination, Berliner appeared to agree with a number of other plaintiffs’ points, admitting that “there should be greater accountability of teachers in schools” and that union protections shouldn’t be an obstacle to dismissing ineffective teachers. He further testified that test scores are, indeed, one way to measure student achievement and that value-added models should be able to identify good and bad teachers.

As for the tenure period, another major issue in the case, he said that principals should have more time to make decisions, as long as three-to-five years, which runs counter to a steadfast defense position that the current standard, two years, is sufficient.

Back in front of a defense layer, Berliner qualified his answer, saying principals can make such decisions within the two years, as well.

Nichols, a former teacher, told the court that she believed the dismissal and tenure statutes protected her rights as a teacher.

The defense contends that such statutes serve important governmental interests shielding teachers from being unfairly dismissed or pressured by parents and school boards.

She explained how teaching sensitive subjects like Islam, which she taught in her seventh grade history class, created difficulties for some parents.

Ms. Nichols stated that knowing “that very solid protections were in place allowed me to move comfortably forward.”

Previous Posts: Teachers refute ‘ineffective’ charges by Vergara witnesses; Witnesses in Vergara v. California hail collaboration despite API gaps; Vergara witness says state laws governing teachers work.

Judge Rolf Treu, L.A. Superior Court

After giving lawyers one more chance to make their arguments today, Superior Court Judge Rolf Treu ruled that Vergara v California will proceed, denying the defendants’ request to throw the case out.

As defendants, the state and its two biggest teachers unions tried to persuade the judge that in four weeks of testimony, the plaintiffs — nine students — did not present enough evidence to prove that the five contested statutes governing teacher dismissal, tenure and layoffs deny students right to an effective education.

As a result, Treu invited the defendants to start presenting their own witnesses, the first of whom, Robert Fraisse, a former teacher, principal and superintendent, will take the stand tomorrow morning.

Fraisse,who served as superintendent in three California school districts — Laguna Beach, Conejo Valley and Hueneme Elementary — is the defense’s second witness. Due to a scheduling issue, the first — Susan Moore Johnson, a professor of Education at Harvard — testified several weeks ago.

In the oral arguments, Jim Finberg, a lawyer for the California Federation of Teachers and the California Teachers Association, and Deputy State Attorney Nimrod Elias insisted that plaintiffs have not shown that the statutes are unconstitutional on their face or have caused the plaintiffs any significant harm. They further said the testimony 22 educators, experts and student litigants was not enough to establish a direct link between the contested laws and the individual plaintiffs.

Ted Boutrous, the plaintiffs’ lawyer, responded by telling the court they have provided overwhelming and compelling evidence that demonstrates the challenged statutes impose a “real and appreciable” impact on students’ fundamental right to an education. He said testimony from educators and experts in labor economics and statistical research had shown that the statutes result in students not getting the educational opportunities they deserve.

After Treu’s ruling, Boutrous issued a statement, saying, “We are very pleased with Judge Treu’s ruling and look forward to the rest of the trial.” He added “These arbitrary laws are hurting kids every day. We do not believe the State and the teachers unions will be able to prove otherwise.”

Treu’s ruling was the fifth time defendants were denied in a request to have the case dismissed.

Previous Posts: Vergara plaintiffs file a response, asking that the case continues; Vergara lawyers preview their case, the one they might need.

Judge Rolf Treu, L.A. Superior Court

It could be a monumental day in the Vergara vs. California trial. Or it could just lead to more testimony.

Lawyers are expecting California Superior Court Judge Rolf Treu to decide whether to throw the case out, as the defendants are asking, or keep it going, as the plaintiffs are urging.

The decision turns on whether he believes the plaintiffs, after four weeks of testimony, have failed to show that California public school children have been denied access to quality education because of state laws that protect ineffective teachers. If he agrees, he’ll rule for the defendants — the state and its two big teachers union.

If he believes Elizabeth Vergara and the eight other student plaintiffs have made a case, then the trial goes on.

It all starts at 1:30 p.m.

Plaintiffs’ lawyer Marcellus McRae

After a one-week recess, the court resumes tomorrow in the case of Vergara vs. California. Attorneys for both the defense and the nine student plaintiffs are gearing up for what could turn out to be a critical juncture in this landmark case.

Before Superior Court Judge Rolf Treu is whether to throw the case out or let it proceed with the defense calling its series of witnesses.

As they have before, the defendants — the California Teachers Association, the California Federation of Teachers and the state — are seeking to have the lawsuit dismissed. They filed a Motion for Judgment, claiming the plaintiffs have not proven that five statutes governing teacher dismissals, tenure and layoffs deny California students their fundamental right to a quality education.

The unions and the state maintain that after four weeks of testimony from educators, experts and some of the student litigants, there are still “serious and insurmountable” gaps in the plaintiffs’ case.

As part of their argument, the defendants are claiming that the laws themselves have not caused harm to the student-plaintiffs. They contend poorly managed school districts and inadequate resources are the real problem with California’s public school system. According to the defendants, the statutes provide key safeguards that help to attract and retain quality teachers.

Attorneys for Elizabeth Vergara and the eight other plaintiffs assert that they have met their burden of proof, showing by a preponderance of the evidence that the challenged laws impose a “severe and unjustifiable” harm on children. In a response to the defense motion, plaintiffs claim that the contested statutes result in keeping ineffective teachers in the classroom and have a disproportionate impact on low-income and minority students.

Plaintiffs’ attorney Marcellus McRae told LA School Report he would be “highly surprised” if Judge Treu dismisses the lawsuit. The defense has now argued for dismissal five times, but now, McRae said, there are four weeks of testimony to demonstrate why the case should proceed.

Beginning tomorrow afternoon, Judge Treu is expected to hear oral arguments from both sides. Should he deny the motion to dismiss, the defense will proceed with their case, which is expected to take another two or three weeks.

According to McRae, if plaintiffs ultimately win the lawsuit, and the statutes are struck down, the court cannot mandate that the legislature enact new laws. But the court can maintain an oversight to insure that any new legislation does not countermand the findings of the court.

Previous Posts: Vergara plaintiffs file a response, asking that the case continues; Vergara lawyers preview their case, the one they might need; The Vergara defense team has asked the court to thrown the case out.

Judge Rolf Treu, L.A. Superior Court

Plaintiffs today in Vergara v. California, a case challenging state teacher laws, submitted their opposition to the defendants’ motion for judgment, which was filed with the California Superior Court last week.

Defendants are asking the court to throw out the case for a lack of evidence.

The plaintiffs’ response emphasizes the “compelling and overwhelming evidence” that Plaintiffs presented over four weeks of trial, which included testimony from superintendents, principals, teachers, parents, students and expert witnesses.

The evidence establishes “beyond dispute” that the challenged statutes involving tenure, dismissal and seniority impose a real and appreciable impact on students’ fundamental right to education, the plaintiffs said in a press release. The nine students who are the plaintiffs are trying to prove that the laws fail to guarantee California public school children equal access to quality education.

The plaintiffs argue in their response that the laws are subject to a strict scrutiny standard of review. Under that standard of review, it is the defendants — the state and its two biggest teacher unions — who must demonstrate that these laws are necessary to achieve a compelling state interest.

“Over the last four weeks of trial, we have presented a mountain of evidence that addresses the central question in this case: whether the laws governing the hiring, retention and dismissal of teachers cause harm to students,” said Marcellus McRae, a lawyer for the plaintiffs. “Our evidence has conclusively shown that these laws do not further students’ best interests, unequivocally harm students, and, as a result, students are not getting the educational opportunities they need and deserve.”

This is the fifth time the defendants have attempted to have the case dismissed. All four of their previous attempts were unsuccessful.

The trial resumes on March 4, when Judge Rolf Treu is expected to decide whether he will throw out the case or let it continue with the defense calling witnesses.

Previous Posts: Plaintiffs in Vergara v California rested after two final witnesses; Vergara lawyers preview their case, the one they might need.

The trial has enormous consequences for the state, and maybe beyond, calling into account five California laws that govern tenure, dismissal and layoffs. The plaintiffs — Elizabeth Vergara and eight other students — are asking Judge Rolf Treu of the State Superior Court to strike them down, saying they combine to deny California students the fundamental right to a quality education.

As defendants, the state and its two largest teachers unions filed a motion last week, arguing that that it’s not the laws that should be dumped; it’s the case. They are urging Judge Treu to throw out the case out because of insufficient evidence. The plaintiffs are expected to respond to the motion in a day or so.

Maybe Judge Treu will toss the case. Maybe not.

It all depends on the prism through which he interprets the matter before him.

It boils down to this: Both sides agree that there are ineffective teachers in California public schools whose incompetence undermines student academic achievement. But one side (plaintiffs) thinks that it’s a systemic problem and, therefore, a constitutional issue while the other side (defendants) says the problems of a handful of students may be sad and unfortunate but don’t rise to the level of blowing up state law.

For Judge Treu, the challenge is deciding whether these particular laws represent the government’s best approach to guaranteeing every California kid a quality public education.

In their motion for judgement, the defendants argue: “Plaintiffs have not shown that the Challenged Statutes are unconstitutional on their face, nor that these laws have been unconstitutionally applied to them.” And if the plaintiffs can’t show how these laws have hurt these particular plaintiffs, how in the world can the court connect the dots with a strong enough line to strike down state laws? After all, not even all the plaintiffs testified. One who did said she had a teacher who once called her a “whore.” So there’s that.

The defendants also argue that the plaintiffs failed to prove they are members of a “suspect class,” which basically means plaintiffs didn’t prove that school districts harmed a specific group — in this case, minority kids from low-income families — by moving ineffective teachers into schools populated by members of the group.

But plaintiffs say that’s not how to apply the facts to the law, and cause is less the argument for striking down the laws than effect.

Their argument is that their evidence has exposed a systemic problem, that if one kid’s academic progress has been impeded by an ineffective teacher, a constitutional right has been violated. In other words, if one child is harmed by the state statutes, all children are at risk of harm.

While elements of both sides might be persuasive, the case likely turns on how Judge Treu applies the evidence based on precedents and what level of proof he will require.

Taking the second point first, the judge has options. One is “strict scrutiny,” which is a higher burden for the state to meet. It effectively assumes that children have a fundamental right to educational equality, and any law that abridges that right is unconstitutional under California’s equal protectional clause, which, unlike the federal version, includes education.

Under that level of review, the plaintiffs have a better chance, and in their response to the request for judgement, they intend to argue that the evidence thus far has shown a “real and appreciable impact” that threatens equal educational opportunities.

His other option is “rational-based scrutiny,” in which the government needs only show that the challenged laws are rationally related to serving a legitimate state interest. Under this level of review, the court gives greater deference to the legislative branch, and defendants stand a better chance, based on his interpretation of evidence that it failed to rise to a constitution-level challenge.

“If he uses strict scrutiny, plaintiffs almost always win,” said Erwin Chemerinsky, a constitutional law professor at UC Irvine. “If it’s rational-based, the government almost always wins.”

There is also an “intermediate scrutiny,” which falls in between.

In effect, the Vergara case echoes the ancient argument over which is the center of the universe, the earth or the sun. Judge Treu must decide whether the case revolves around nine California kids and their ineffective teachers or a series of laws that protect the ineffective teachers who may threaten any California kid.

When lawyers are back in court on March 4, the orbit of the case might come into clearer view.

Judge Rolf Treu, L.A. Superior Court

At 10:25 this morning, after they got their final documents entered into evidence, the plaintiffs in Vergara vs. California rested.

That was the signal to Susan Carson, a lawyer for the state, to inform Superior Court Judge Rolf Treu that the state and teachers’ unions would file papers later in the day, asking him to toss the lawsuit, arguing that the plaintiffs have not met their burden of proof and therefore the lawsuit should not proceed.

Marcellus McRae, a lawyer for the plaintiffs, said the state’s request for a motion for judgment is a routine defense tactic. Nonetheless, the request prompted Treu to halt further proceedings until the defense submits the motion, and he has an opportunity to hear arguments from both sides.

It is the fifth time since the case was originally filed in 2012 that the defendants have moved to have the case thrown out. They have been denied each previous time.

For the last three weeks, lawyers for the nine-student plaintiffs have presented testimony from educators, experts and students along with a mountain of exhibits to prove the California teachers’ seniority, tenure and dismissal laws violate the students’ constitutional right to equality of education.

According to McRae, the plaintiffs have met their burden of proof, showing by a “preponderance of the evidence” that the challenged statutes have a real and appreciable impact on the student-plaintiffs’ constitutional rights.

Throughout the trial, the plaintiffs have maintained that the contested laws push effective teachers out of the classroom with devastating consequences for students. McRae also pointed out that plaintiffs’ evidence proves that the statutes have a disproportionate and adverse impact on low-income and minority children.

But in disputing the claims, the California Teachers Association (CTA), California Federation of Teachers (CFT) and the state say the plaintiffs’ evidence doesn’t support striking down state laws and the case should now be thrown out. Throughout the trial, it has been the defense’s position that the challenged statutes don’t infringe on students’ rights and that well managed school districts can work within the contested rules.

Jim Finberg, a lawyer for the teachers’ unions, said the plaintiffs have not met all the elements of their case. He said defense lawyers will argue that that the plaintiffs must prove that each of the nine plaintiff-students not only have suffered real and appreciable harm from the state laws and the harm was caused by the statutes. The defense contends that statutes are not at fault. The real problem rests with school districts that are poorly run.

The case is scheduled to resume on March 4, when Treu will consider arguments on the defendants’ request. The court is not in session next week.

The request for “summary judgment” is routine after plaintiffs conclude their side of a case, which they did today by submitting several documents as part of the case record. Defendants typically argue that the plaintiffs did not build a strong enough case to continue.

In this matter, it’s the fifth time the state and its two biggest teacher unions, as defendants, have sought to end the case before conclusion of trial. Three times Treu ruled against them, and once a state appeal court did.

Lawyers for the defense told Treu they would file their papers this afternoon, after which lawyers for the plaintiffs would have time to respond.

The court was already scheduled to be in recess next week, so rather than asking the defense to proceed, Treu invited the lawyers to return on March 4.

Dan Goldhaber

As plaintiffs come down the home stretch in the landmark trial Vergara vs. California, attorneys for the nine-student litigants are attempting to underscore key points in their case by calling more expert witnesses.

For two of them, at least, defense lawyers made it as challenging for them as they could today, peppering testimony with objections that called into question the validity of evidence and even the credibility of the witness.

The lawsuit centers on five statutes written into the California education code that the students claim protect ineffective teachers, thereby violating their constitutional right to a quality education. The defendants in the case — the California Teachers Association, the California Federation of Teachers and the state — are trying to show that school districts have other means to get rid of ineffective teachers.

The day started with the return of Dan Goldhaber, a labor-economist at the University of Washington. He had testified on Tuesday that seniority based layoffs that do not take classroom effectiveness into account have harmful effects on student achievement and that value added method is preferable.

But on cross examination today, the defense team scored some points, as Jim Finberg, a lawyer for the unions, asked whether a method that just relies upon student test scores tells the whole story. He asked Goldhaber to confirm an observation he made, writing in a 2002 paper, “The Mystery Of Good Teaching,” that out-of-school factors impact student learning.

Goldhaber conceded that 60 percent of differences in student test scores may be explained by individual and family background characteristics. When asked by Finberg whether teachers become more effective after six-years on the job, Goldhaber said “yes, if value-added” method is used.

Deputy State Attorney Susan Carson followed up, asking about his opinion that seniority based layoffs have even more harmful effects on minority students because younger teachers who may be more effective are often employed in low-income schools. Carson tried to drive her point with statistics showing that in several of 15 California school districts for which they had data, the largest number of teachers with two years of experience or less were not employed in the highest poverty schools.

Goldhaber conceded the point. But what he and Carson both failed to note was that in eight of the 15 districts — including Oakland, San Francisco and San Diego — the largest percentage of such teachers were working in the highest-poverty schools

The defense made plaintiffs’ lawyer Marcellus McRae work even harder with the next witness, Arun Ramanathan, Executive Director of The Education Trust–West, an advocacy group that works to help close the opportunity and achievement gaps for minority and lower income students. Previously, he held teaching and administrative positions in Vermont, New Hampshire and California — including San Francisco, Oakland and Los Angeles.

Ramanathan’s time on the stand became a protracted procedural battle, as defense lawyers challenged his credentials, with arguments that they do not qualify him as an expert for the issues in the case. But when Judge Rolf Treu let him answer — which was most of the time — Ramanathan offered opinions that appeared to help the plaintiffs establish their case.

The thrust of Ramanathan’s testimony was that by a series of measures, African American and Latino students perform worse in the classroom than their white and Asian counterparts, a reality that he insisted was ‘“exacerbated” in high-poverty schools.

Layoffs based on seniority rather than teacher effectiveness erode academic performance even further in those schools, he said.

But on another point, Ramanathan gave the defense some help, acknowledging that school districts have used existing state law to deviate from seniority-based layoffs. As one example, he said the Pasadena Unified School District avoided laying off more senior teachers to retain younger ones involved in a partnership program with California State University.

Cross examination of Ramanathan resumes tomorrow.