2d Civil No. B253282

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION 2

CALIFORNIA TEACHERS ASSOCIATION, ET AL. Petitioners/Intervenors

vs.

SUPERIOR COURT FOR THE COUNTY OF LOS ANGELES Respondent

BEATRIZ VERGARA, ET AL. Real Parties in Interest/Plaintiffs

PETITION FROM THE LOS ANGELES SUPERIOR COURT THE HON. ROLF M. TREU, JUDGE PRESIDING

CASE NO. BC484642

PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE AND/OR OTHER EXTRAORDINARY

RELIEF FROM DENIAL OF SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

[EXHIBITS FILED UNDER SEPARATE COVER]

JOSHUA S. LIPSHUTZ KEVIN J. RING-DOWELL

GIBSON, DUNN & CRUTCHER LLP 555 MISSION STREET

SAN FRANCISCO, CA 94105 (415) 393-8200

THEODORE J. BOUTROUS, JR. MARCELLUS A. MCRAE

THEANE EVANGELIS ENRIQUE A. MONAGAS

GIBSON, DUNN & CRUTCHER LLP 333 SOUTH GRAND AVENUE LOS ANGELES, CA 90071

(213) 229-7804

THEODORE B. OLSON GIBSON, DUNN & CRUTCHER LLP

1050 CONNECTICUT AVENUE, N.W.WASHINGTON, D.C. 20036

(202) 955-8500

ATTORNEYS FOR REAL PARTIES IN INTEREST/PLAINTIFFS, BEATRIZ VERGARA, ET AL.

CERTIFICATE OF INTERESTED PARTIES

The undersigned hereby certifies that no entities or persons have

either (1) an ownership interest of 10 percent or more in the. party or parties

filing this certificate (Cal. Rules of Court, rule 8.208(e)(1)); or (2) a

financial or other interest in the outcome of the proceeding that the justices

should consider in determining whether to disqualify themselves. (Cal.

Rules of Court, rule 8.208(e)(2).)

DATED: December 30, 2013

LC

Theo ore J. Boutrous, Jr.

ii

TABLE OF CONTENTS

Page

i

INTRODUCTION ......................................................................................... 1

STATEMENT OF MATERIAL FACTS ...................................................... 4

A. Plaintiffs’ Allegations and Evidence ....................................... 4

B. Procedural History ................................................................. 10

1. The Demurrers ........................................................... 10

2. The 2012 Writ Petition ............................................... 10

3. Intervention by the Teachers’ Unions ........................ 12

C. The Respondent Court’s Summary Judgment Order ............ 12

LEGAL STANDARD ................................................................................. 15

ARGUMENT .............................................................................................. 17

A. There Are No Extraordinary Circumstances That Warrant Writ Relief. .............................................................. 18

B. The Petitions Mischaracterize Plaintiffs’ Allegations, The Evidence, And The Respondent Court’s Order. ............ 20

1. Plaintiffs’ Evidence Supports A Finding That The Challenged Statutes Classify Students. ............... 21

2. Plaintiffs’ Evidence Supports A Finding That The Challenged Statutes Cause Constitutional Harm. .......................................................................... 28

3. Plaintiffs’ Evidence Supports A Finding That Plaintiffs Have Standing To Assert Their Claims. ....................................................................... 32

C. There Is No Basis For A Stay Of The Trial Court Proceedings. .......................................................................... 35

CONCLUSION ........................................................................................... 38

TABLE OF AUTHORITIES

Page(s)

ii

CASES

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ........................................................................................ 16

Altadena Library Dist. v. Bloodgood (1987) 192 Cal.App.3d 585 ............................................................................... 13

B.C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929 ................................................................................ 15

Baeza v. Super. Ct. (2012) 201 Cal.App.4th 1214 .............................................................................. 1

Boon v. Rivera (2000) 80 Cal.App.4th 1322 .............................................................................. 32

Brown v. Merlo (1973) 8 Cal.3d 855 ........................................................................................... 23

Bullock v. Carter (1972) 405 U.S. 134 ......................................................................................... 26

Butt v. State of Cal. (1992) 4 Cal.4th 668 .............................................................................. 19, 20, 37

Cal. Ass’n of PSES v. Cal. Dept. of Education (2006) 141 Cal.App.4th 360 .............................................................................. 13

Cal. Statewide Communities Development Auth. v. All Persons (2007) 40 Cal.4th 788 ........................................................................................ 19

Ceja v. Dept. of Transportation (2011) 201 Cal.App.4th 1475 ............................................................................ 36

Choudhry v. Free (1976) 17 Cal.3d 660 ......................................................................................... 26

Cooley v. Super. Ct. (2002) 29 Cal.4th 228 ........................................................................................ 13

Crawford v. Bd. of Education (1976) 17 Cal.3d 280 ......................................................................................... 19

Dibona v. Matthews (1990) 220 Cal.App.3d 1329 ............................................................................. 15

Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668 .............................................................................. 33

TABLE OF AUTHORITIES (continued)

Page(s)

iii

Eight Unnamed Physicians v. Medical Executive Com. of Medical Staff of Wash. Township Hospital (2007) 150 Cal.App.4th 503 .......................................................................... 2, 36

Eric M. v. Cajon Valley Union School Dist. (2009) 174 Cal.App.4th 285 .............................................................................. 32

Everett v. Super. Ct. (2002) 104 Cal.App.4th 388 .............................................................................. 17

Fair Political Pracs. Com. v. Super. Ct. of L.A. County (1979) 25 Cal.3d 33 ..................................................................................... 19, 31

Freidman v. Friedman (1993) 20 Cal.App.4th 876 .......................................................................... 18, 36

Global Minerals and Metals Corp. v. Super. Ct. (2003) 113 Cal.App.4th 836 .............................................................................. 33

Gould v. Grubb (1975) 14 Cal.3d 661 .................................................................................. passim

Hartzell v. Connell (1984) 35 Cal.3d 899 ......................................................................................... 19

Holmes v. Cal. Nat’l Guard (2001) 90 Cal.App.4th 297 .................................................................... 15, 33, 34

Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508 ......................................................................................... 32

In re Marriage Cases (2008) 43 Cal.4th 757 .................................................................................. 19, 27

In re Smith (1904) 143 Cal. 368 ........................................................................................... 23

Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 ......................................................................................... 20

Jones v. Super. Ct. (1994) 26 Cal.App.4th 92 ...................................................................... 15, 36, 37

Manjares v. Newton (1966) 64 Cal.2d 365 ......................................................................................... 24

Mulkey v. Reitman (1966) 64 Cal.2d 529 ......................................................................................... 25

Omaha Indemnity Co. v. Super. Ct. (1989) 209 Cal.App.3d 1266 ............................................................................. 16

TABLE OF AUTHORITIES (continued)

Page(s)

iv

Ordway v. Super. Ct. (1988) 198 Cal.App.3d 98 ................................................................................. 18

Parr v. Mun. Ct. for the Monterey-Carmel Jud. Dist. of Monterey County (1971) 3 Cal.3d 861 ........................................................................................... 25

People v. Gonzalez (2001) 87 Cal.App.4th 1 .................................................................................... 22

People v. Romo (1975) 14 Cal.3d 189 ......................................................................................... 22

Provencher v. Municipal Ct. (1978) 83 Cal.App.3d 132 ................................................................................... 1

Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211 .............................................................................. 15

Roger H. Proulx & Co. v. Crest-Liners, Inc. (2002) 98 Cal.App.4th 182 .......................................................................... 16, 17

S.F. Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 ........................................................................................... 20

Sampson v. Murray (1974) 415 U.S. 61 ............................................................................................ 36

Sanchez v. State (2009) 179 Cal.App.4th 467 .............................................................................. 20

Serrano v. Priest (1971) 5 Cal.3d 584 .................................................................................... passim

Serrano v. Priest (1976) 18 Cal.3d 728 .................................................................................. passim

Somers v. Super. Ct. (2009) 172 Cal.App.4th 1407 ...................................................................... 25, 27

Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289 .............................................................................. 34

TABLE OF AUTHORITIES (continued)

Page(s)

v

STATUTES

Civ. Proc. Code § 437c(f)(1) ....................................................................... 17

Education Code § 44929.21 .......................................................................... 4

Education Code § 44934 ............................................................................... 4

Education Code § 44938 ............................................................................... 4

Education Code § 44944 ............................................................................... 4

Education Code § 44955 ............................................................................... 4

Evid. Code § 452 ........................................................................................... 3

RULES

Cal. Rules of Court, rule 8.486(a)(7)(A) ..................................................... 35

1

INTRODUCTION

In their petitions for extraordinary relief and a stay of the trial court

proceedings, Petitioners1 urge this Court to halt a year-and-a-half-old case

on the precipice of trial—even though this Court has already dismissed a

nearly identical petition for extraordinary relief raising precisely the same

legal issues that Petitioners raise again here. There is no reason for this

Court to intervene at this stage of the proceedings.

As an initial matter, the legal issues that Petitioners want this Court

to address (yet again) can be addressed after trial, in the ordinary course,

without any prejudice whatsoever to Petitioners’ arguments. (Provencher

v. Municipal Ct. (1978) 83 Cal.App.3d 132, 134 [“A remedy is not

inadequate merely because more time would be consumed by pursuing it

through the ordinary course of law than would be required in the use of an

extraordinary writ.”]; see also Baeza v. Super. Ct. (2012) 201 Cal.App.4th

1214, 1221.) The Respondent Court has reserved 20 court days for the

trial, beginning on January 27—thus, trial will conclude approximately

eight weeks from the date of this filing. This Court will be in a far better

position to review the Respondent Court’s rulings after both sides have

made a full presentation of the evidence at trial and after the Respondent

Court has issued its final findings of fact and conclusions of law. Indeed, if

1 Petitioners are the California Teachers Association and the California Federation of Teachers (together, “Intervenors”), as well as the State of California, Edmund G. Brown, Jr., in his official capacity as Governor, Tom Torlakson in his official capacity as the Superintendent of Public Instruction, the California Department of Education, and the State Board of Education (collectively, “State Defendants”). State Defendants’ petition for extraordinary relief, Court of Appeal Case Number B253310, was filed and served concurrently with Intervenors’ petition. State Defendants’ Petition is referred to herein as “SDP” and Intervenors’ Petition is referred to herein as “IP.”

2

Petitioners prevail at trial, they will have no need to challenge the

Respondent Court’s summary judgment ruling at all.

Moreover, no purpose would be served by taking this case now—the

standards for deciding summary judgment are well established and need no

further clarification, and this Court cannot be expected to grant immediate

appellate review every time summary judgment is denied. The only harm

Petitioners allege they will suffer by allowing this case to proceed is the

cost of trial. (SDP at pp. 2, 12, 20; IP at pp. 12-13, 16-17.) The mere

desire to avoid trial, however, is not a basis for extraordinary relief—

“litigation expenses, however substantial and nonrecoverable, . . . do not

constitute irreparable injury.” (Eight Unnamed Physicians v. Medical

Executive Com. of Medical Staff of Wash. Township Hospital (2007) 150

Cal.App.4th 503, 515 [citations omitted].) Further, even if litigation

expenses could constitute irreparable injury, the overwhelming share of

those expenses have already been incurred in this case—Plaintiffs filed

their claims 19 months ago, the parties have nearly completed discovery,

and all that remains of this multi-year litigation is the trial itself, which will

be concluded in a matter of weeks.

In any event, there is no need for this Court’s intervention because,

although this case presents important constitutional questions, those

questions have not yet been resolved. In fact, the Respondent Court

repeatedly noted the limited nature of its ruling, which “merely finds

substantial evidence exists to permit the parties herein to proceed to trial,

where all issues will be addressed.” (Exhibit 70 at p. 6323.)2 The Court

2 Exhibits 1-70 refer to the Joint Exhibits filed by Petitioners concurrently with their petitions. Exhibits 71-78 refer to the Exhibits filed concurrently with this Preliminary Opposition, which are paginated consecutively from pages 6332 to 6461. The Court may take judicial

[Footnote continued on next page]

3

“ma[de] no determination . . . of whether the Challenged Statutes are, or are

not, constitutional” (ibid.), “preserving all such issues for trial.” (Id. at p.

6331.) There was nothing unreasonable or unusual about the Respondent

Court’s decision to deny summary judgment in light of the “mountain” of

evidence that Plaintiffs submitted (IP at p. 27), and the fact that Petitioners’

own summary judgment briefs highlighted several of the many material

facts that the parties vigorously dispute, including:

• Whether the Challenged Statutes “treat” students in California uniformly (Exhibit 9 at p. 0167);

• Whether there is a “causal relationship between the statutes and . . . the purported harm” to students’ fundamental right to education (Exhibit 9 at p. 0167; Exhibit 5 at pp. 0053-0054);

• Whether districts have sufficient information about a teacher’s effectiveness prior to the reelection deadline set forth in the Permanent Employment Statute (Exhibit 5 at p. 0057 fn. 7);

• Whether the requirements imposed by the Dismissal Statutes are onerous, time-consuming, and costly enough to result in the retention of grossly ineffective teachers (Exhibit 9 at p. 0184);

• Whether the LIFO Statute has qualifications and exceptions that are “significant” enough to ameliorate the harms posed by reverse-seniority layoffs (Exhibit 9 at p. 0172);

• Whether grossly ineffective teachers are dispersed evenly across schools or are concentrated disproportionately in schools serving poor and minority students (Exhibit 5 at p. 0065); and

• Whether the Challenged Statutes have contributed to Plaintiffs being assigned to grossly ineffective teachers and their risk of being assigned to such teachers in the future (Exhibit 9 at p. 0186).

[Footnote continued from previous page]

notice of Plaintiffs’ Exhibits pursuant to Evidence Code section 452, subdivision (d)(1).

4

For these reasons, Plaintiffs respectfully request that the Court deny

the petitions and permit the Respondent Court to continue its adjudication

of this case in the ordinary course.3

STATEMENT OF MATERIAL FACTS

A. Plaintiffs’ Allegations and Evidence

Plaintiffs are nine California schoolchildren from Los Angeles,

Oakland, Pomona, Redwood City, and San Jose, ranging in age from 7 to

17 years old. Plaintiffs, like other children in California, have been

assigned, and face the very real possibility that they will be assigned, to

grossly ineffective teachers who place them at a significant and

longstanding disadvantage to their more fortunate peers.

The harm that Plaintiffs have suffered and the substantial risk they

face are not “an unavoidable byproduct of living in a complex society,” as

State Defendants contend. (SDP at pp. 11, 17.) Rather, they are the direct

result of five statutes in the California Education Code,4 which force school

districts to ignore teacher quality when making critical teacher employment

decisions. These statutes leave school districts with no choice but to

employ a number of grossly ineffective tenured teachers who harm their

students year after year, contributing to the provision of widely disparate

educational opportunities to similarly situated California students, in

3 Plaintiffs emphasize that this is a preliminary opposition authorized by California Rule of Court 8.487. Should this Court determine that the petitions warrants further consideration, Plaintiffs would welcome the opportunity to formally address the merits of the petitions.

4 The Challenged Statutes are (1) Section 44929.21(b), (the “Permanent Employment Statute”); (2) Sections 44934, 44938(b)(1) and (2), and 44944 (the “Dismissal Statutes”); and (3) Section 44955 (the “Last-in-First-Out Statute” or “LIFO Statute”). All statutory references are to the California Education Code, unless otherwise specified.

5

violation of the California Constitution. In the words of Los Angeles

Unified School District (“LAUSD”) Superintendent Dr. John E. Deasy, the

statutes are “a catastrophe for kids’ lives.” (Exhibit 57 at pp. 4137, 4383.)

Simply put, students who are taught by grossly ineffective

teachers—teachers who would not be employed by the school districts

absent the Challenged Statutes—are denied their fundamental right to equal

educational opportunity. (Serrano v. Priest (1971) 5 Cal.3d 584, 608-609

[“Serrano I”].). Moreover, because the Challenged Statutes saddle schools

serving predominantly low-income and minority communities with a

disproportionate number of grossly ineffective teachers, they impose an

unconstitutional disparate burden on poor and minority students,

perpetuating the very achievement gap that education is supposed to

remedy. (Id. at pp. 597-604.)

In the preceding year of discovery, Plaintiffs have amassed a

“mountain” of evidence supporting their allegations. (IP at p. 27.) For

example, in opposing summary judgment, Plaintiffs submitted declarations

and deposition testimony from ten school district superintendents (whose

students comprise nearly 20% of California’s student population);

deposition testimony from the human resources directors of several

California school districts; declarations and deposition testimony from all

of the Plaintiffs and their guardians ad litem; declarations and studies from

five expert witnesses; documents produced by State Defendants and the

school district defendants; numerous written discovery responses provided

by the parties; and other documents subject to judicial notice. (See

generally Exhibits 17-18, 21-58.) Plaintiffs’ evidentiary showing

demonstrated, among other things, the following facts:

The Importance of Teachers: Teachers are a key determinant of

the quality of education that students receive and of students’ long-term

success. (Exhibit 18 at pp. 1534-1536.) Not only are students more likely

6

to succeed in school when they are taught by effective teachers; teacher

effectiveness “has substantial impacts on a broad range of [student]

outcomes” outside of school, including the likelihood that a child will

attend university, the quality of the university, the child’s future earnings,

the likelihood of her becoming pregnant as a teenager, the quality of the

neighborhood in which she will live, and the amount she will save for

retirement. (Exhibit 51 at pp. 2306, 3324-3326.)

Teacher Effectiveness: The disparity between effective and

ineffective teachers is dramatic. (Exhibit 18 at pp. 1536-1539.) Whereas

the very best teachers are able to achieve a year and a half of student

academic growth in a single school year, grossly ineffective teachers—

those in the bottom five to ten percent of their profession—achieve student

growth of no more than half of a year. (Exhibit 51 at pp. 2296, 2303,

2346.) Thus, students assigned to a grossly ineffective teacher fall

significantly behind their peers, and students assigned to two or more

grossly ineffective teachers in a row are unlikely ever to catch up to their

peers or perform at grade level. (Ibid.) State Defendants and Intervenors

both admit that there are ineffective teachers in California schools. (Exhibit

58 at pp. 4930, 4966, 4980-4981; Exhibit 57 at pp. 4138, 4745-4746.)

Permanent Employment: Under the Permanent Employment

Statute, school districts have less than 18 months to determine whether a

teacher should become tenured. (Exhibit 58 at pp. 4931, 5321; Exhibit 18

at p. 1544.) In such a short amount of time, school districts from across the

State are unable to determine whether probationary teachers are effective

enough to warrant a permanent position. (Exhibit 36 at pp. 1941, 2035;

Exhibit 57 at pp. 4137, 4139, 4346-4348, 4353-4354 [“[W]e don’t have

enough time to determine if a person is effective.”], 4805 [“[I]t is difficult

to know and understand how to evaluate ‘effective[ness]’ in such a short

time period.”]; Exhibit 45 at p. 2178; Exhibit 44 at pp. 2171-2172; Exhibit

7

41 at p. 2152; Exhibit 48 at p. 2196; Exhibit 46 at pp. 2182-2183; Exhibit

47 at p. 2189; Exhibit 42 at pp. 2158-2159.) As a result, school districts are

often forced to grant tenure to ineffective and grossly ineffective teachers.

(Exhibit 38 at p. 1939; Exhibit 57 at pp. 4138-4139, 4589-4591, 4812-

4813.)

The Dismissal Process: The process to dismiss a permanent

certificated teacher under the Dismissal Statutes is “extremely lengthy” and

“extremely expensive,” and involves “many years of documentation” and a

“borderline infinite number of steps.” (Exhibit 57 at pp. 4137-4139, 4367-

4369, 4450-4451, 4459, 4582, 4816; Exhibit 45 at p. 2179; Exhibit 44 at

pp. 2172-2173; Exhibit 41 at p. 2153; Exhibit 48 at p. 2197; Exhibit 46 at

pp. 2183-2184; Exhibit 47 at p. 2190; Exhibit 42 at pp. 2159-2160.)

Indeed, it takes school districts multiple years and hundreds of thousands of

dollars—sometimes “millions” of dollars—to dismiss a single permanent

certificated teacher. (Exhibit 57 at pp. 4137, 4292, 4457-4458, 4461, 4463-

4464; Exhibit 40 at pp. 2080, 2091-2093, 2135-2136; Exhibit 38 at pp.

1941, 1958-1960, 2037; Exhibit 58 at pp. 4930, 5022-5023.) Over the past

10 years, there have been only 91 permanent teachers dismissed for cause

statewide—less than 10 teachers per year out of 275,000 total teachers—

and only 19 of those teachers were dismissed for unsatisfactory

performance. (Exhibit 52 at p. 3487; Exhibit 57 at pp. 4138, 4732; Exhibit

58 at pp. 4933, 5399.)

Due to the time, burden, and cost required to dismiss permanent

certificated teachers—as well as the statutory requirement that school

districts must pay the teachers’ attorneys’ fees if they are unsuccessful for

any reason—school districts are unable to dismiss grossly ineffective

teachers they otherwise would dismiss if the process were simpler, faster,

and less costly. (Exhibit 57 at pp. 4137-4139, 4295-4297, 4362, 4370,

4374, 4376, 4472, 4597-4598, 4602-4603 [“[W]e make difficult and

8

challenging decisions about how to commit [our] resources . . . . [W]e have

to do a cost benefit analysis.”], 4609, 4824 [“[If] it’s going to be too cost-

prohibitive and . . . cost too much time . . . we don’t end up dismissing that

teacher.”], 4826; Exhibit 58 at pp. 4999-5000; Exhibit 45 at p. 2178.)

School district officials across the State agree that there are grossly

ineffective teachers in their schools that they would dismiss if they could.

(See, e.g., Exhibit 57 at pp. 4137-4139, 4462-4463, 4360-4364, 4370, 4374,

4297, 4597-4598, 4609, 4826.)

LIFO Layoffs: The LIFO Statute prevents districts from

considering teacher effectiveness when determining which teachers will be

laid off during district-wide RIFs. Thus, districts are forced to lay off

highly effective teachers they would otherwise retain and to retain

ineffective teachers they would otherwise lay off. (Exhibit 57 at pp. 4136-

4139, 4151-4152 [“[K]ids deserve the most effective, most qualified,

highest quality teachers and the LIFO process doesn’t allow for that

function to occur.”], 4162, 4382-4384, 4392, 4623-4624 [“[T]o make

staffing determinations on the basis of something that has nothing to do

with the best interests of children does not serve children well.”], 4842-

4844 [“[T]here’s no way to protect kids with the current statute.”]; Exhibit

44 at p. 2174; Exhibit 41 at pp. 2154-2155; Exhibit 48 at p. 2199; Exhibit

46 at p. 2185; Exhibit 47 at p. 2192; Exhibit 42 at p. 2161; Exhibit 38 at pp.

1941, 2041-2043.) State Defendants admit that the “layoff of excellent

teachers” under the LIFO Statute is a “significant state problem,” (Exhibit

58 at pp. 4931, 5291), and acknowledge the “[c]ommon sense” that “a

teacher’s seniority does not absolutely guarantee the ability to provide a

better [learning] environment” for students. (Exhibit 57 at p. 4759.)

Disparate Impact: The Challenged Statutes impose a disparate

adverse impact on poor and minority students, who are more likely to be

taught by grossly ineffective teachers than wealthier, non-minority students.

9

(Exhibit 18 at p. 1578; Exhibit 57 at pp. 4138-4139, 4647, 4836 [“[T]he

disproportionate[ly] negative effect of the complex of these statutes [is]

damaging the learning conditions . . . for the most high need kids”], 4871;

Exhibit 53 at p. 3528.) State Defendants and Intervenors admit that poor

and minority students are “far more likely than their [] peers to attend

schools having a disproportionate number of . . . ineffective teachers.”

(Exhibit 58 at pp. 4931, 5100; Exhibit 57 at pp. 4139, 4787-4788.)

Low-income and minority students are also more likely than their

peers to be taught by novice teachers and therefore lose a higher percentage

of their teachers when seniority-based RIFs occur. (Exhibit 53 at pp. 3527-

3528, 3565-3573 [“A school in the highest poverty quartile . . . is 65

percent more likely to have a teacher laid off than a school in the lowest

poverty quartile.”]; Exhibit 38 at pp. 1941, 2044-2046; Exhibit 57 at pp.

4137, 4139, 4384, 4391, 4830-4831 [“[L]ast in/first out, with no regard for

impact or effect or effectiveness . . . disproportionately damages the

education environment for our most high-need kids.”], 4842-4844.) As a

result of this increased churn, the LIFO Statute imposes “large educational

costs on students and significant recruitment and training costs on schools”

with higher percentages of poor and minority students. (Exhibit 40 at pp.

4930, 4941-4945; Exhibit 57 at pp. 4138, 4629-4630 [“When you have a

constant churn . . . the ability of a school leader and a school to really get to

the heart of high quality, effective instruction is negatively impacted”].)

Plaintiffs: Plaintiffs and their guardians submitted declarations and

testified at depositions about the harm they have suffered as a result of

grossly ineffective teachers. For example, Beatriz Vergara had a teacher

who referred to his Latino students as “cholos” who would “never

graduate” and would instead “clean houses for a living.” (Exhibit 21 at p.

1857; Exhibit 22 at pp. 1860-1861.) Brandon Debose, Jr. had a geometry

teacher who expected his students to learn math on their own and whittled

10

away the lion’s share of class time taking attendance. (Exhibit 26 at p.

1881.) And Karen Martinez described her daughter as “broken” after three

consecutive years of grossly ineffective teaching. (Exhibit 57 at pp. 4138,

4682.) Further, six of the nine Plaintiffs are minority and/or economically-

disadvantaged students who are disproportionately impacted by the

Challenged Statutes. (Exhibit 23 at p. 1864; Exhibit 34 at p. 1915; Exhibit

27 at p. 1885; Exhibit 32 at p. 1904; Exhibit 36 at p. 1928.)

B. Procedural History

1. The Demurrers

In August 2012, State Defendants filed demurrers to the Complaint,

making the same arguments that they and the other Petitioners make here:

that Plaintiffs did not adequately plead “a causal connection between the

. . . Challenged Statutes and the existence of [] allegedly ‘grossly

ineffective’ teachers in the classroom”; that the “only classifications in the

Challenged Statutes are among permanent, probationary and temporary

teachers,” not students; and that Plaintiffs “have no standing” to bring their

claims. (Exhibit 71 at pp. 6346-6347, 6360.) In a comprehensive opinion,

the Respondent Court rejected these arguments and overruled the

demurrers, finding that Plaintiffs had “alleged [the] denial of basic equality

of educational opportunities” and now faced the “burden to prove their

constitutional claim, which is not properly directed at the pleadings.”

(Exhibit 58 at pp. 5403-5411.)

2. The 2012 Writ Petition

State Defendants next filed in this Court a petition for writ of

mandate, certiorari, and/or prohibition, seeking to compel the Respondent

Court to vacate its order overruling their demurrer. (Exhibit 72 at pp. 6377-

6379.) Again, State Defendants made the same arguments that they and the

other Petitioners make here:

11

2012 Writ Petition Present Writ Petitions

“The Legislature has enacted a uniform system by which the governing school boards are to exercise their authority.” (Exhibit 72 at p. 6381.)

“The challenged statutes apply uniformly to all California public school teachers—and students . . . .” (IP at p. 20.)

“[T]he Challenged Statutes do not use racial, ethnic, or wealth classifications of teachers, let alone students, on their face.” (Exhibit 72 at p. 6401.)

“[T]hey do not allege any classification under which the State treats similarly situated groups differently.” (SDP at p. 1);

“[N]one of the statutes classifies students at all . . . .” (IP at p. 19.)

“Since the decisions to employ, retain or terminate teachers are made by the local school governing boards, any alleged disparities . . . cannot be causally connected to the Challenged Statutes . . ., which apply equally to all school districts.” (Exhibit 72 at pp. 6398-6399.)

“There can be no question that school districts – not the challenged statutes - assign particular students to particular teachers . . . . With each of the challenged statutes, multiple independent decisions intervene between the statute and the alleged harm.” (IP at p. 28.)

“[P]laintiffs . . . have not sufficiently pled, nor can they, that the application of the Challenged Statutes is the cause of the problem they allege.” (Exhibit 72 at p. 6406.)

“[T]here no evidence of such causation.” (SDP at p. 18);

“With each of the challenged statutes, multiple independent decisions intervene between the statute and the alleged harm.” (IP at p. 28.)

12

“State Defendants will be irreparably harmed if [they are] . . . compelled to engage in costly and disruptive litigation that will cost the State millions of dollars . . . .” (Exhibit 72 at p. 6378.)

“State Defendants will suffer irreparable injury in the absence of the requested relief because they will be forced to go through an expensive and unnecessary four-to-six-week trial.” (SDP at p. 11.)

This Court directed Plaintiffs to submit an opposition to State

Defendants’ writ petition and permitted State Defendants to file a reply.

(Exhibit 73 at p. 6428; Exhibit 74 at p. 6429.) After full briefing by the

parties, this Court dismissed State Defendants’ writ petition and allowed

the litigation to proceed. (Exhibit 75 at p. 6430.)

3. Intervention by the Teachers’ Unions

In March 2013, Intervenors filed a motion to intervene in this action.

(Exhibit 76.) Plaintiffs did not oppose Intervenors’ motion, though they

noted “their concern that additional defendants [could] slow down the

proceedings and otherwise prejudice Plaintiffs.” (Exhibit 77 at p. 6451.) In

response, Intervenors represented to the Respondent Court that they “[did]

not intend to ask that the resolution of this case be postponed” and “[did]

not . . . intend to request a delay of the trial date” (Exhibit 78 at pp. 6456,

6459)—commitments they have now repudiated by filing a stay request

with this Court.

C. The Respondent Court’s Summary Judgment Order

After a year of discovery, State Defendants and Intervenors again

sought to dispose of Plaintiffs’ claims without trial by filing motions for

summary judgment, or in the alternative, for summary adjudication.

(Exhibit 4; Exhibit 8.) In addition to submitting their own evidence and

arguing the absence of disputed material facts, State Defendants and

Intervenors again made the same legal arguments they make here, urging

13

the Respondent Court to dismiss the case as a matter of law, irrespective of

the evidence.

Based on the parties’ legal arguments and evidentiary submissions,

the Respondent Court issued a nine-page, single-spaced decision denying

Petitioners’ motions for summary judgment or for summary adjudication.

(Exhibit 70.) The Court emphasized repeatedly that it was “mak[ing] no

determination herein of whether the Challenged Statutes are, or are not,

constitutional” (id. at p. 6323), and that it was denying the motions solely

because it “finds sufficient evidence exists to permit the parties herein to

proceed to trial, where all issues will be addressed.” (Ibid.) The

Respondent Court specifically considered and rejected the three legal

arguments that Petitioners make in their petitions to this Court:

Classification: The Court disagreed with Petitioners’ argument that

“Plaintiffs cannot maintain their equal protection claims because the

Challenged Statutes do not involve classifications of an identifiable group.”

(Exhibit 70 at p. 6329 [citing Cooley v. Super. Ct. (2002) 29 Cal.4th 228,

253].) As an initial matter, the Court held that “to the extent this argument

relies on whether there are express classifications [in the Challenged

Statutes], that is not the standard.” (Ibid. [citing Altadena Library Dist. v.

Bloodgood (1987) 192 Cal.App.3d 585, 590] [emphasis in original].)

Although “[Petitioners] argue[d] that only the text is considered in a facial

challenge,” the Court found that “[t]he facial challenge standard . . . does

not prohibit consideration of the actual procedural scheme.” (Ibid. [citing

Cal. Ass’n of PSES v. Cal. Dept. of Education (2006) 141 Cal.App.4th 360,

372].) “[Petitioners] fail[ed] to cite any authorities that hold that the

requisite classification for an equal protection claim must be express.”

(Ibid.)

Next, the Court found Plaintiffs’ evidence sufficient to support a

finding that the Challenged Statutes do classify among students: Plaintiffs’

14

evidence “support[s] the finding that the Challenged Statutes result[] in the

assignment of [grossly ineffective] teachers to students and/or to minority

and low-wealth students,” thereby resulting in “classifications based on the

inequality among those students who are assigned grossly ineffective

teachers and those who are not.” (Exhibit 70 at p. 6329.) As the Court

explained, “Plaintiffs’ evidence can support the finding that the Challenged

Statutes . . . result[] in an equal protection violation in every instance that a

student is assigned [to a grossly ineffective] teacher.” (Id. at p. 6330.) And

“[Petitioners] fail[ed] to submit any evidence or logical argument that such

students are not an identifiable group.” (Id. at p. 6329.)

Causation: With respect to causation, the Respondent Court

considered Petitioners’ argument that “the effect of the Challenged Statutes

on students is attenuated, [and] that the Challenged Statutes do not provide

for the assignment of teachers.” (Exhibit 70 at p. 6326.) But the Court

found that “Plaintiffs’ evidence raises triable issues of fact as to the effect

of the Challenged Statutes.” (Id. at p. 6327.)

Specifically, the Court held that Plaintiffs had introduced sufficient

evidence to support the following findings of fact: that (1) the Permanent

Employment Statute “results in school district[s] reelecting some grossly

ineffective teachers (PAMF ¶¶ 14, 16) who otherwise would not be

reelected if given more time for evaluation (PAMF ¶¶ 17-18)”; (2) the “cost

and time for dismissal proceedings [under the Dismissal Statutes] result in

school districts retaining grossly ineffective teachers (PAMF ¶¶ 33-34)”;

(3) the LIFO Statute result[s] in grossly ineffective teachers being retained

who otherwise would have been laid off”; (4) “schools with high

percentages of minority and low-wealth students have a disproportionate

number of teachers with low levels of experience (PAMF ¶ 53), resulting in

such schools losing a greater percentage of their teaching staff during RIFs

(PAMF ¶ 55)”; and (5) “grossly ineffective teachers are predominately

15

assigned to minority and low-wealth students.” (Exhibit 70 at pp. 6326-

6327.)

Standing: The Court rejected Petitioners’ argument that Plaintiffs

lack the requisite standing. As the Court explained, “Plaintiffs have

submitted declarations from each Plaintiff and their parents that support

standing”—that is, “evidence [that] can support the factual findings that

Plaintiffs have been assigned to a grossly ineffective teacher, are in

substantial danger of being assigned to a grossly ineffective teacher, and/or

decided not to attend traditional public schools because of the risk of being

assigned to a grossly ineffective teacher.” (Exhibit 70 at p. 6327 [citing

Holmes v. Cal. Nat’l Guard (2001) 90 Cal.App.4th 297, 318; B.C. Cotton,

Inc. v. Voss (1995) 33 Cal.App.4th 929, 948; Dibona v. Matthews (1990)

220 Cal.App.3d 1329, 1338-1339].)

Request for a Stay: Finally, at oral argument on Petitioners’

motions for summary judgment, State Defendants requested that the

Respondent Court delay the trial date. (Exhibit 69 at pp. 6319-6320.)

Plaintiffs opposed State Defendants’ request, noting that the trial date has

been calendared for many months and that every passing day exposes

Plaintiffs and other California children to irreparable harm. (Id. at p. 6320.)

After hearing from both sides, the Respondent Court denied State

Defendants’ request for a continuance of the trial. (Ibid.)

LEGAL STANDARD

“A petition for writ of mandate asks for extraordinary relief: it is

outside normal channels of appellate review where issues are examined

with slow deliberation on a full record after the trial is over.” (Jones v.

Super. Ct. (1994) 26 Cal.App.4th 92, 100.) “[E]xtraordinary relief is

supposed to be extraordinary.” (Roden v. AmerisourceBergen Corp. (2005)

130 Cal.App.4th 211, 213.)

16

“Writ relief, if it were granted at the drop of a hat, would interfere

with an orderly administration of justice at the trial and appellate levels.”

(Omaha Indemnity Co. v. Super. Ct. (1989) 209 Cal.App.3d 1266, 1272.)

Therefore, extraordinary writs are limited to cases where: “(1) the issue

tendered in the writ petition is of widespread interest or presents a

significant and novel constitutional issue; (2) the trial court’s order

deprived petitioner of an opportunity to present a substantial portion of his

cause of action; (3) conflicting trial court interpretations of the law require

a resolution of the conflict; (4) the trial court’s order is both clearly

erroneous as a matter of law and substantially prejudices petitioner’s case;

(5) the party seeking the writ lacks an adequate means, such as a direct

appeal, by which to attain relief; and (6) the petitioner will suffer harm or

prejudice in a manner that cannot be corrected on appeal.” (Id. at pp. 1273-

1274 [internal citations omitted; emphasis added].)

In evaluating Petitioners’ summary judgment motions, the

Respondent Court was required to deny the motions unless “all the papers

submitted show[ed] that there [was] no triable issue as to any material fact

and that the moving party [was] entitled to a judgment as a matter of law.”

(Code. Civ. Proc. § 437c(c).) The summary judgment procedure is “drastic

and should be used with caution in order that it may not become a

substitute” for trial. (Roger H. Proulx & Co. v. Crest-Liners, Inc. (2002) 98

Cal.App.4th 182, 195.) The moving party “bears the burden of persuasion

that there is no triable issue of material fact.” (Id. at p. 194 (citing Aguilar

v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850).) The moving party

also bears the “burden of production to make a prima facie showing of the

nonexistence of any triable issue of material fact.” (Ibid.) “Accordingly,

declarations of the moving party are strictly construed, those of the

opposing party are liberally construed, and doubts as to whether a summary

17

judgment should be granted must be resolved in favor of the opposing

party.” (Roger H. Proulx & Co., supra, 98 Cal.App.4th at p. 195.)

Similarly, summary adjudication is a “severe remedy” and must be

denied if a triable issue of material fact exists. (Everett v. Super. Ct. (2002)

104 Cal.App.4th 388, 391-392; Civ. Proc. Code § 437c(f)(1).) “[D]oubts

about the propriety of granting the motion should be resolved in favor of

the opposing party.” (Everett, supra, 104 Cal.App.4th at p. 392 [citation

omitted].)

ARGUMENT

After a careful and detailed examination of the factual record and

relevant legal authorities, the Respondent Court concluded that Plaintiffs

have amassed enough evidence to create triable issues of fact. The Court

made no determination whatsoever on the merits of Plaintiffs’ claims,

“preserving all such issues for trial.” (Exhibit 70 at p. 6331.) Thus, in just

a few weeks’ time, after more than a year of discovery, both sides of this

dispute will have an opportunity to present their evidence and make their

arguments to the Court. And, when the trial concludes just a few weeks

later, if Petitioners do not prevail, they will have an opportunity to make the

very same arguments on appeal that they urge this Court to decide now—

but with the benefit of a full evidentiary record and the Respondent Court’s

final findings of fact and conclusions of law.

There is no reason for this Court to take the premature and

extraordinary step of intervening at this stage of the proceedings.

Petitioners’ bare desire to avoid trial does not warrant extraordinary relief,

and nothing in the Respondent Court’s thorough ruling is erroneous—let

alone clearly erroneous enough to warrant an emergency correction by this

Court. Plaintiffs respectfully request that this Court deny the petitions.

18

A. There Are No Extraordinary Circumstances That Warrant Writ Relief.

The Respondent Court’s ruling presents no extraordinary

circumstances warranting writ relief. Importantly, the Order does not

address the merits of Plaintiffs’ constitutional claims. Like any other order

denying summary judgment, the Respondent Court simply “f[ound]

sufficient evidence exists to permit the parties . . . to proceed to trial, where

all issues will be addressed.” (Exhibit 70 at p. 6323.)

In addition, Petitioners point to no irreparable injury they will suffer

as a result of the Respondent Court’s Order, which merely allows the

parties to proceed to trial and provides both sides an opportunity to present

evidence to support their arguments. The timely progression of this lawsuit

and State Defendants’ responsibility to litigate it fall far short of the

extraordinary showing required for writ relief. (Freidman v. Friedman

(1993) 20 Cal.App.4th 876, 890; see also Ordway v. Super. Ct. (1988) 198

Cal.App.3d 98, 101 fn. 1.) And the Intervenors have no basis whatsoever

to complain about the cost of trial, given that they asked to be part of this

case. Both petitions should be denied on that basis alone.

Finally, notwithstanding Petitioners’ efforts to label Plaintiffs’

claims “unprecedented” and “radical” (IP at p. 1; SDP at p. 16), the

constitutional issues in this case (and the trial that is about to begin on those

issues) are not novel. Forty years ago, a group of California public school

children and their parents brought a substantially similar lawsuit against the

State of California to rectify harmful inequities in California’s public

education system. Although the laws being challenged in that case, like the

laws in this case, seemed benign on their face, the plaintiffs argued that the

statutes had devastating consequences because they “[f]ail[ed] to provide

children of substantially equal age, aptitude, motivation, and ability with

substantially equal educational resources” and “had a disproportionately

19

adverse impact on poor and minority students.” (Serrano I, supra, 5 Cal.3d

at p. 590 fn. 1.)

In the 60-day trial that ensued, the trial court examined the effects of

the statutory scheme to determine whether the laws at issue contributed to

the disparities being alleged and “assess[ed] the discriminatory effect of the

system.” (Serrano v. Priest (1976) 18 Cal.3d 728, 746-748, 756 [“Serrano

II”].) After carefully reviewing all of the evidence, the trial court

determined that the statutes at issue “cause[d] and perpetuate[d] substantial

disparities in the quality and extent of availability of educational

opportunities.” (Id. at p. 747.) In the words of the California Supreme

Court, “[t]he system in question has been found by the trial court, on the

basis of substantial and convincing evidence, to suffer from . . . basic

shortcomings”—“to wit, it allows the availability of educational

opportunity to vary” in substantial and unjustified ways. (Id. at p. 768.) As

a result, the trial court, applying “strict judicial scrutiny,” struck down the

statutes at issue as unconstitutional and the California Supreme Court

affirmed. (Ibid.)

In the years since Serrano I, the California Supreme Court has

reaffirmed that “California’s constitutional scheme requires careful scrutiny

of state interference with basic educational rights.” (Butt v. State of Cal.

(1992) 4 Cal.4th 668, 683; see also Cal. Statewide Communities

Development Auth. v. All Persons (2007) 40 Cal.4th 788, 806-807; Hartzell

v. Connell (1984) 35 Cal.3d 899, 906-908; Crawford v. Bd. of Education

(1976) 17 Cal.3d 280, 297.) The California Supreme Court has also held

on twelve occasions that laws imposing a “real and appreciable impact” on

the exercise of a fundamental right are subject to heightened equal

protection scrutiny. (See, e.g., In re Marriage Cases (2008) 43 Cal.4th

757, 784; Butt, supra, 4 Cal.4th at pp. 685-686; Fair Political Pracs. Com.

v. Super. Ct. of L.A. County (1979) 25 Cal.3d 33, 47; Gould v. Grubb

20

(1975) 14 Cal.3d 661, 670.) And, contrary to Intervenors’ argument (IP at

pp. 23-24), the California Supreme Court has repeatedly held that it is

unconstitutional for the public educational system to create “substantial

disparities” based on race or wealth, even in the absence of discriminatory

intent. (Serrano I, supra, 5 Cal.3d. at pp. 602-604; see also Butt, supra, 4

Cal.4th at p. 682; Serrano II, supra, 18 Cal.3d at pp. 765-766; S.F. Unified

School Dist. v. Johnson (1971) 3 Cal.3d 937, 937; Jackson v. Pasadena

City School Dist. (1963) 59 Cal.2d 876, 881; cf. Sanchez v. State (2009)

179 Cal.App.4th 467, 488-489 [explaining that plaintiffs were required to

prove discriminatory intent in part because their claims did not involve the

denial of basic educational equality].)

As these cases make clear, Plaintiffs’ equal protection claims are

grounded in long-settled California constitutional law. This lawsuit, just

like Serrano, seeks to strike down five statutes that create substantial and

unjustifiable disparities in the educational opportunities provided to

similarly situated students, thus violating the equal protection guarantees of

the California Constitution. Petitioners point to no extraordinary reason to

deprive Plaintiffs of their opportunity to prove their well-founded claims at

trial.

B. The Petitions Mischaracterize Plaintiffs’ Allegations, The Evidence, And The Respondent Court’s Order.

Lacking any basis for the extraordinary relief they seek, Petitioners

attempt to attract this Court’s attention by blatantly mischaracterizing

Plaintiffs’ allegations, the evidence, and the Respondent Court’s Order.

State Defendants even go so far as to declare it “undisputed . . . that

plaintiffs have no evidence” to support their claims, a preposterous and

obviously erroneous contention. (SDP at p. 1 [internal quotation marks

omitted].) The Respondent Court’s careful examination of Plaintiffs’

21

actual allegations, their actual evidence, and California case law properly

led it to deny summary judgment.

1. Plaintiffs’ Evidence Supports A Finding That The Challenged Statutes Classify Students.

In their petition, State Defendants contend that “Plaintiffs’

‘fundamental interest’ claims fail as a matter of law because they do not

allege any classification under which the State treats similarly situated

groups differently.” (SDP at p. 1.) They also contend that “the respondent

court held that plaintiffs are not required to show a classification as an

element of their ‘fundamental interest’ claims.” (Id. at p. 9; see also id. at

p. 15 [“The Respondent Court Committed Plain Legal Error By Holding

That A Classification Is Not A Required Element Of An Equal Protection

Claim.”].)

Those contentions, however, are plainly false:

• Plaintiffs have maintained throughout this litigation that the

Challenged Statutes do classify students by treating similarly situated

students differently—some students are deprived of their fundamental right

to equal educational opportunity because they are taught by grossly

ineffective teachers, while other students are not. (See, e.g., Exhibit 1 at p.

0006 [“Even within the same school, some students are taught by teachers

who fail to teach at a minimally effective level, while other students receive

an education from teachers of average or superior effectiveness.”]; Exhibit

16 at p. 1421 [“This lawsuit, like Serrano, seeks to strike down five statutes

that create substantial and unjustifiable disparities in the educational

opportunities provided to similarly situated students”]; Exhibit 69 at p.

6305 lines 9-11 [“[O]ur argument is that [the Challenged Statutes]

discriminate[] against a[n] identifiable class of persons,” namely “students

who have grossly ineffective teachers”]; id. at p. 6306 lines 19-21 [there is

a “very concrete, discrete group of students who are being victimized by

22

these laws”].) That is the very essence of a classic equal protection claim.

(People v. Gonzalez (2001) 87 Cal.App.4th 1, 12 [“Equal protection applies

to ensure that persons similarly situated . . . receive like treatment”]; see

also Cooley, 29 Cal.4th at p. 253 [a “classification” is something that

“affects two or more similarly situated groups in an unequal manner”];

People v. Romo (1975) 14 Cal.3d 189, 196 [“The constitutional guaranty of

equal protection of the laws has been judicially defined to mean that no

person or class of persons shall be denied the same protection of the laws

which is enjoyed by other persons or other classes in like circumstances in

their lives, liberty, and property and in their pursuit of happiness.”].)5

• And the Respondent Court explicitly held that “Plaintiffs’

evidence concerning the effect of the Challenged Statutes . . . supports

classifications based on the inequality among those students who are

assigned grossly ineffective teachers and those who are not.” (Exhibit 70 at

p. 6329.) The Court went on to explain that “Moving Parties fail to submit

any evidence or logical argument that such students are not an identifiable

group.” (Ibid.) State Defendants’ contrary description of the Respondent

Court’s holding is inexplicable.

5 Petitioners point to Plaintiffs’ counsel’s statement at oral argument—that “all students are members of the group who are affected” by the Challenged Statutes (IP at p. 20; SDP at p. 8)—as proof that Plaintiffs are not alleging any classification. But counsel’s statement does not support Petitioners’ conclusion. All students are “affected” by the Challenged Statutes because they are the ones being classified. As Plaintiffs’ counsel explained later during the oral argument, every student is “a potential member of the group whose rights are being violated.” (Exhibit 69 at p. 6306 lines 7-10[emphasis added].) And once the classification occurs, “[w]e have students who are not being taught by grossly ineffective teachers and students who are.” (Ibid.)

23

Whether or not the text of the Challenged Statutes expressly

classifies between students is a separate point. (See IP at p. 19.) But even

if the text of the statutes at issue lacks an express classification of students,

that is not “fatal” (IP at p. 20) to Plaintiffs’ equal protection claims, as both

parties argued in their summary judgment motions (see Exhibit 9 at pp.

0180-0181; Exhibit 5 at p. 0051.) The Respondent Court correctly held

that, under California law, equal protection claims do not require an express

classification that appears in the text of the statute itself. (Exhibit 70 at p.

6329 [“[T]o the extent th[eir] argument relies on whether there are express

classifications, this is not the standard.”].)

It is well established that courts in California do not confine

themselves to the text of a statute when determining whether the statute

violates equal protection. Rather, as the name of the California Supreme

Court’s test implies, it is the statute’s “real and appreciable impact” that

matters. Courts therefore routinely consider evidence beyond the statutory

text itself to determine whether the statute in fact results in an

unconstitutional deprivation of fundamental rights. (See, e.g., Gould,

supra, 14 Cal.3d at p. 669 fn. 9 [“It is the unequal effect flowing from the

[challenged law] that gives rise to the equal protection issue in question”]

[emphasis added]; 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 and

brackets omitted]; In re Smith (1904) 143 Cal. 368, 372 [“[C]ourts are not

limited in their inquiry to those cases alone where such a situation is shown

upon the reading of the statute. They will consider the circumstances in the

light of existing conditions.”].)

Indeed, the California Supreme Court and Court of Appeal have

repeatedly emphasized the importance of external evidence and practical

considerations in determining the constitutionality of a statute under the

24

Equal Protection Clause. For example, the statutes that comprised the

school financing system at issue in Serrano I did not contain any express

classifications,6 but the Court examined the real-world effects of the

relevant statutes and determined that “as a practical matter districts with

small tax bases simply cannot levy taxes at a rate sufficient to produce the

revenue that more affluent districts reap with minimal tax efforts.”

(Serrano I, supra, 5 Cal.3d at p. 598 [italics added]; see also id. at pp. 599-

600 [“[A]s a statistical matter, the poorer districts are financially unable to

raise their taxes high enough to match the educational offerings of wealthier

districts.”].) The Serrano Court rejected the defendants’ argument that the

Court should not concern itself with “unequal treatment [that] is only de

facto, not de jure” (id. at p. 601), holding that courts “‘must

unsympathetically examine any action of a public body which has the effect

of depriving children of the opportunity to obtain an education.’” (Id. at p.

606 [quoting Manjares v. Newton (1966) 64 Cal.2d 365, 376] [italics

6 Intervenors claim that the statutes at issue in Serrano expressly classified on the basis of wealth. (IP at p. 21.) But that is demonstrably false. The public education financing scheme at issue in Serrano I, supra, 5 Cal.3d at pp. 594-595, consisted entirely of several components that—on their face—applied neutrally to all districts (and even appeared to provide less wealthy districts with extra financial support): (1) basic aid, which was distributed “on a uniform per pupil basis to all districts;” (2) equalization aid, which was provided only to poorer school districts; and (3) local real property taxes, which each district could levy at whatever rate it selected, commensurate with the “willingness of the district’s residents to tax themselves for education.” (Serrano I, supra, 5 Cal.3d at pp. 592, 598.) The court recognized that although these seemingly-neutral laws distributed basic aid “equally to all pupils” and permitted each “district to choose how much it wish[ed] to spend on the education of its children,” the system as a whole nevertheless violated the equal protection clause because “fiscal freewill” was “a cruel illusion” for poorer districts. (Id. at p. 611.)

25

added]; see also Parr v. Mun. Ct. for the Monterey-Carmel Jud. Dist. of

Monterey County (1971) 3 Cal.3d 861, 865, 868 [refusing “to look

exclusively to the operative language of the ordinance” because “we may

not overlook its probable impact”]; Mulkey v. Reitman (1966) 64 Cal.2d

529, 533-534, affd. sub nom. Reitman v. Mulkey (1967) 387 U.S. 369 [“A

state enactment cannot be construed for purposes of constitutional analysis

without concern for its . . . ultimate effect.”].)

Likewise, in Somers v. Superior Court (2009) 172 Cal.App.4th

1407, 1411-1412, the plaintiff challenged the constitutionality of a law that

required California-born transgendered individuals seeking changes of

gender on their birth certificates to file petitions in their counties of

residence. Plaintiff alleged—and the court agreed—that the statutory

provision at issue violated the equal protection rights of California-born

transgendered individuals who lived out-of-state because it “effectively”

denied them the right to obtain new birth certificates. (Id. at pp. 1414-

1416.) Crucially, although the statute “on its face [did] not appear to create

a class of petitioners that [was] treated differently, the [statute] . . . act[ed]

to deny the rights created under the statute” to California-born

transgendered individuals who lived out-of-state. (Id. at p. 1414 [emphasis

added].)7

Indeed, when an equal protection challenge is premised on the

infringement of a fundamental right, rather than a suspect classification, the

7 To the extent Petitioners contend that the Challenged Statutes “apply uniformly to all California public school teachers—and students,” (IP at p. 20), that is a disputed issue of material fact requiring examination of the “practical” consequences of the statutes at trial. (See, e.g., Gould, supra, 14 Cal.3d at p. 664 [reaching its decision “[a]fter a full evidentiary presentation at trial”]; Serrano II, supra, 18 Cal.3d at p. 756.)

26

law at issue is often facially neutral. In Bullock v. Carter (1972) 405 U.S.

134, 144-145, for example, the U.S. Supreme Court held that a law

requiring all political candidates to pay election filing fees was

unconstitutional under the federal Equal Protection Clause, despite the fact

that the statutory language at issue did not expressly distinguish between

individuals or expressly classify groups of individuals. The Bullock Court

held that the filing fee requirement, the “initial and direct impact” of which

was “felt by aspirants for office, rather than voters,” nonetheless violated

the equal protection rights of voters because it “tend[ed] to deny some

voters the opportunity to vote for a candidate of their choosing.” (Id. at pp.

142, 144 [“This disparity in voting power based on wealth cannot be

described by reference to discrete and precisely defined segments of the

community as is typical of inequities challenged under the Equal Protection

Clause”].) It would “ignore reality,” the court held, to overlook the fact

that the “limitation . . . [fell] more heavily on the less affluent segment of

the community.” (Id. at p. 144.)

Similarly, in Gould, the California Supreme Court was asked to

“determine the constitutionality of an election procedure which

automatically afford[ed] an incumbent, seeking reelection, a top position on

the election ballot.” (Gould, supra, 14 Cal.3d at p. 664.) Even though the

statute itself said nothing about voters, the Court applied strict scrutiny and

struck down the law because it “impose[d] a very real and appreciable

impact on the equality, fairness and integrity of the electoral process,”

thereby infringing the equal protection rights of voters. (Id. at p. 670

[emphasis added].) As the Court explained, by providing “advantageous

positions” to certain candidates, the election procedure “inevitably

discriminate[d] against voters supporting all other candidates.” (Id. at p.

664 [emphasis added]; see also Choudhry v. Free (1976) 17 Cal.3d 660,

664 [“Because the right of franchise is fundamental in character,” strict

27

scrutiny applies where a statute “has a real and appreciable impact upon the

equality, fairness and integrity of the electoral process.”].)8

Most recently, in In re Marriage Cases, supra, 43 Cal.4th at p. 839,

the defendants argued that a state statute defining the term “marriage” as a

union between one man and one woman did not discriminate on the basis of

sexual orientation because, “on [its] face, [it] [did] not refer explicitly to

sexual orientation and [did] not prohibit gay individuals from marrying a

person of the opposite sex.” The California Supreme Court rejected this

argument, holding that the statute, when “realistically viewed, operate[d]

. . . to impose different treatment on gay individuals.” (Ibid. [emphasis

added].)

As Serrano, Somers, Bullock, Gould, and Marriage Cases make

clear, it is immaterial whether the text of the Challenged Statutes expressly

classifies students; what matters is that a subset of California’s students are

being “effectively denied” their equal protection rights. (Somers, supra,

172 Cal.App.4th at p. 1415.) Plaintiffs have introduced more than enough

evidence to create a triable issue of fact as to whether the practical effect of

8 Indeed, Gould makes it clear that Plaintiffs’ equal protection claims are actionable even if there were a requirement that the text of the statutes expressly enact a classification. Both State Defendants and Intervenors have conceded (as they must) that the Challenged Statutes expressly classify among teachers—providing protections to permanent teachers that are not provided to probationary or temporary teachers. (Exhibit 76 at p. 6437; Exhibit 9 at p. 0181 [“To be sure, the dismissal statutes distinguish between permanent and probationary teachers”]; Exhibit 5 at p. 0043.) And that classification of teachers is sufficient because it imposes a “very ‘real and appreciable impact’ on the equality, fairness and integrity of the [public education system],” “inevitably discriminat[ing] against [certain students].” (Gould, supra, 14 Cal.3d at pp. 664, 670.)

28

the Challenged Statutes is to subject students to substantially unequal

treatment.9

2. Plaintiffs’ Evidence Supports A Finding That The Challenged Statutes Cause Constitutional Harm.

In their petition, State Defendants contend “it is undisputed—and the

respondent court acknowledged—that plaintiffs have ‘no evidence’ that the

Challenged Statutes cause grossly ineffective teachers to be assigned

disproportionately to minority and low-income students.” (SDP at p. 1.)

That is a flagrant and indefensible misrepresentation of the Respondent

Court’s decision.

To support their misstatement, the State Defendants quote the

following language from the Respondent Court’s decision, portraying it as

the Court’s holding: “‘Plaintiffs provide no evidence concerning how

teachers are assigned.’” (SDP at p. 18 [quoting Ex. 70 at 6327].) The

actual quote, read in full, reveals that the Court made no such finding. The

underlined phrase that the State Defendants excerpt out of context was

9 The State Defendants express concern that Plaintiffs’ equal protection claims will “open the floodgates” and render “any random difference in the provision of government services . . . cognizable as an equal protection violation.” (SDP at p. 16.) The defendants in Serrano I pointed to the same parade of horribles, arguing that the court’s decision would result in the “destruction of local government.” (Serrano I, supra, 5 Cal.3d at p. 614.) But the court “unhesitatingly reject[ed] this argument.” (Ibid. [“We cannot share defendants’ unreasoned apprehensions of such dire consequences”].) As the court explained, the decision whether to apply heightened equal protection review must be made on a case-by-case basis and is appropriate only where, as here, the law at issue “clearly affects [a] fundamental interest”—for example, “the fundamental interest of the children in the state in education.” (Serrano II, supra, 18 Cal.3d at 766 fn. 45.)

29

merely a description of Petitioners’ position, which the Court subsequently

rejected:

Although Moving Parties note that Plaintiffs provide no evidence concerning how teachers are assigned, a reasonable trier of fact can conclude that, given limited resources, the existence of grossly ineffective teachers supports a causal relationship between the Challenged Statutes and the assignment of grossly ineffective teachers to students.

(Exhibit 70 at p. 6327 [emphasis added].)

The Respondent Court went on to describe in detail some of the

evidence that Plaintiffs submitted, which included evidence pertaining to

the causal connection between the Challenged Statutes and the disparate

burden on poor and minority students. For example, the Court found that

Plaintiffs submitted evidence showing that “[i]n California, minority and

low-wealth students have a disproportionate number of grossly ineffective

teachers”; that “[t]o avoid the dismissal process, grossly ineffective

teachers are sometimes transferred to other schools”; and that “[i]n

California, schools with high percentages of minority and low-wealth

students have a disproportionate number of teachers with low levels of

experience, resulting in such schools losing a greater percentage of their

teaching staffs during RIFs.” (Exhibit 70 at p. 6326.)

In addition to the evidence highlighted in the Respondent Court’s

Order, Plaintiffs submitted a substantial amount of other evidence that the

Challenged Statutes have a real and appreciable impact on students’

fundamental right to education and impose disproportionate burdens on

poor and minority students. For example, Plaintiffs submitted deposition

testimony and declarations from school district superintendents and human

resource officials across the state, all of whom testified that the Challenged

Statutes prevent them from dismissing grossly ineffective teachers they

would otherwise dismiss. (Exhibit 18 at pp. 1502-1506.) Plaintiffs also

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submitted deposition testimony from lay and expert witnesses establishing

that the Challenged Statutes “disproportionately damage[] the education

environment for [California’s] most high-need kids,” who are far more

likely that their peers to be taught by grossly ineffective and novice

teachers. (Exhibit 57 at pp. 4139, 4830-4831; Exhibit 53 at p. 3528.)

The State Defendants nevertheless argue that the Challenged

Statutes do not “cause” any equal protection violations because “it is the

‘districts’—rather than the Challenged Statutes or State Defendants—that

‘make teacher assignment decisions.’” (SDP at p. 18 [quotation marks

omitted] [emphasis in original].) Intervenors, too, contend that “‘the

process by which students are assigned teachers’ is the fundamental

question presented” by Plaintiffs’ claims. (IP at p. 25.) But these flawed

arguments ignore that the Challenged Statutes—by causing districts to

reelect and retain grossly ineffective teachers—create the very pool of

teachers from which districts make teacher assignment “decisions.” Under

the “real and appreciable impact” test, Plaintiffs are not required to prove

that the Challenged Statutes are the sole or proximate cause of the

infringement on students’ fundamental right to education or the disparate

adverse impact imposed on poor and minority students, as State Defendants

seem to believe. The California Supreme Court clarified this very point in

Gould:

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.

(Gould, supra, 14 Cal.3d at p. 669 fn. 9 [emphasis added].)

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Similarly, in Serrano II—a case, like this one, involving statutes that

both impinged on a fundamental right and imposed a disparate impact on a

suspect class—the school financing statutes at issue did not force districts

to tax themselves at rates that produced disparities in educational

opportunity or to impose a disparate adverse impact on a suspect class;

districts could, after all, select whatever tax rate they desired. (Serrano II,

supra, 18 Cal.3d at p. 742.) The court recognized, however, that “the

system itself” imposed practical “limitations” on districts’ ability to provide

their students with equal educational opportunities. (Id. at p. 761; see also

Fair Political Practices Com., supra, 25 Cal.3d at pp. 46, 48 [applying

strict scrutiny to statutory provision that did “not directly limit or restrict

the right to petition,” but still constituted a “significant interference” with a

constitutional right].) Notwithstanding the nominal “decisions” that

districts could make under the statutes, the court held that the “source of

the[] disparities [was] unmistakable, ” and that the “anti-equalizing effect”

of the laws was to “condition[] the full entitlement to the interest in

education on wealth.” (Serrano II, supra, 18 Cal.3d at pp. 740, 755

[quoting Serrano I, supra, 5 Cal.3d at pp. 594, 614] [emphasis added]

[brackets omitted].)

The State Defendants, like the defendants did in Serrano, pretend

that the harms being suffered by students are the result of independent

decisions being made by the school districts, rather than the California

Education Code. (SDP at pp. 17-19.) But, as in Serrano, the school

districts’ discretion with respect to teacher employment decisions is a

“cruel illusion” (Serrano I, supra, 5 Cal.3d at p. 611) because it is confined

by the “limitations” of the Challenged Statutes; it is “the system itself” that

is the “source of the[] disparities.” (Serrano II, supra, 18 Cal.3d at p. 740.)

The unequal effect flowing from the Challenged Statutes is that school

districts are forced to make premature tenure decisions and then are

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prevented from dismissing grossly ineffective teachers—to the detriment of

their students, especially poor and minority students. (See Exhibit 55 at pp.

4044-4047, 4049-4050; Exhibit 51 at pp. 2307-2311; Exhibit 57 at pp.

4138-4139, 4772-4773 [admitting that a teacher was “impossible [to

dismiss] because the teacher was tenured”], 4812-4813, 4816-4817, 4821-

4822, 4829-4831, 4836, 4884-4885,.)

In any event, causation “is generally a question of fact” that should

be reserved for trial. (Hoyem v. Manhattan Beach City School Dist. (1978)

22 Cal.3d 508, 520; see also Boon v. Rivera (2000) 80 Cal.App.4th 1322,

1334 [“Whether or not certain conduct . . . was a legal cause of injury [is]

normally [a] question[] of fact.”]; Eric M. v. Cajon Valley Union School

Dist. (2009) 174 Cal.App.4th 285, 298 [“[C]ause of injury [is] a question of

fact”].) Thus, to the extent there is any doubt as to the causal link between

the Challenged Statutes and the harm being inflicted on students (as State

Defendants urge), that is yet another reason the Respondent Court was

correct to permit the parties to proceed to trial.10

3. Plaintiffs’ Evidence Supports A Finding That Plaintiffs Have Standing To Assert Their Claims.

With respect to Plaintiffs’ standing to bring suit, it is the Intervenors

who woefully misrepresent the Respondent Court’s ruling. According to

Intervenors, “[t]he trial court . . . found that, although Plaintiffs have no

evidence that the challenged statutes have caused them harm or will cause

them harm in the future, they nonetheless have standing to pursue their

attack upon those statutes.” (IDP at p. 2 [emphasis added].)

10 Plaintiffs’ claim for declaratory relief should likewise proceed to trial because it is “derivative” of Plaintiffs’ other claims, as State Defendants point out. (SDP at p. 19.)

33

That is not at all what the Respondent Court found. To the contrary,

the Court found that Plaintiffs did submit the requisite evidence: “Plaintiffs

have submitted declarations from each Plaintiff and their parents that

support standing. Plaintiffs’ evidence can support the factual findings that

Plaintiffs have been assigned a grossly ineffective teacher, are in substantial

danger of being assigned a grossly ineffective teacher, and/or decided not to

attend traditional public schools because of the risk of being assigned a

grossly ineffective teacher. Each of these grounds supports Plaintiffs’

standing.” (Exhibit 70 at p. 6327.)

Again, the Respondent Court’s finding was firmly grounded in

California case law. Plaintiffs—all nine of whom are California

schoolchildren—unquestionably possess a concrete and “beneficial

interest” in the outcome of this action. (Holmes v. Cal. Nat’l Guard (2001)

90 Cal.App.4th 297, 315.) Indeed, it is well established that students have a

unique interest in the quality of their education. (See Doe v. Albany

Unified School Dist. (2010) 190 Cal.App.4th 668, 684-685 [“[W]e fail to

see how defendants can seriously argue [that] plaintiff Doe does not have a

beneficial interest in the District’s compliance with” a statute designed to

“improve the health and well-being of elementary school students”].) And

while their status as students alone should be sufficient to warrant a finding

that Plaintiffs have standing,11 Plaintiffs in this case have an even stronger

11 In Serrano II, for example, the plaintiffs’ standing was never even

questioned or examined by the California Supreme Court. (See generally Serrano II, supra, 18 Cal.3d 728.) The court did not ask whether any of the plaintiffs’ own schools or school districts were being adversely affected by the funding statutes; merely being students was enough. (See ibid.; see also Serrano I, supra, 5 Cal.3d at p. 589; Global Minerals and Metals Corp. v. Super. Ct. (2003) 113 Cal.App.4th 836, 851 [all members of a class must “possess the same interest and suffer the same injury” as the named plaintiff] [citation omitted].)

34

“beneficial interest” because each of them has a tangible and rational fear

of the significant threat of being assigned to grossly ineffective teachers in

the near future. (See Holmes, supra, 90 Cal.App.4th at p. 318 [to seek

declaratory and injunctive relief, Plaintiffs need only “demonstrate[] . . .

that the [statutes at issue] could have the effect of infringing [their] rights

under the California Constitution.”] [emphasis added]; see also Zubarau v.

City of Palmdale (2011) 192 Cal.App.4th 289, 300.)

Indeed, Plaintiffs identified and described, in vivid detail, specific

teachers to whom they have been assigned that they believe were grossly

ineffective, the reasons why they believe those teachers were grossly

ineffective, and the long-lasting harm that those specific teachers caused

Plaintiffs. (Exhibit 23 at pp. 1864-1867; Exhibit 21 at pp. 1856-1858;

Exhibit 22 at pp. 1860-1861; Exhibit 34 at pp. 1915-1916; Exhibit 35 at pp.

1922-1926; Exhibit 26 at pp. 1881-1882; Exhibit 32 at pp. 1904-1906;

Exhibit 33 at pp. 1909-1910, 1912; Exhibit 24 at pp. 1871-1872; Exhibit 25

at pp. 1875-1877; Exhibit 36 at pp. 1928-1931; Exhibit 28 at pp. 1890-

1892.) Moreover, Plaintiffs expressed a justifiable fear of being assigned to

grossly ineffective teachers in the future as a result of the Challenged

Statutes. (Ibid.) The superintendents of LAUSD, Oakland Unified School

District (“OUSD”), and other districts throughout the State, for example,

admit that there are ineffective teachers in their districts. (Exhibit 57 at pp.

4138-4139, 4588-4590, 4870, 4874-4876, 4886; Exhibit 38 at pp. 1941,

2033; Exhibit 45 at p. 2178; Exhibit 47 at p. 2188; Exhibit 48 at p. 2195;

Exhibit 46 at p. 2128; Exhibit 44 at p. 2171; Exhibit 41 at p. 2151; Exhibit

42 at p. 2158.) Both the State Defendants and Intervenors likewise admit

that there are ineffective teachers throughout California’s public school

system. (Exhibit 57 at pp. 4138, 4745-4746; Exhibit 58 at pp. 4930, 4966,

4980-4981.) And the evidence demonstrates the substantial harm that

Plaintiffs will suffer if they are unfortunate enough to be assigned to one or

35

more grossly ineffective teachers. (Exhibit 51 at pp. 2296, 2303, 2306-

2307, 2346.)

To the extent Intervenors challenge Plaintiffs’ standing because they

dispute that the Challenged Statutes are the cause of Plaintiffs’ harm (or

threatened harm), they are simply ignoring the abundant evidence to the

contrary. For example, superintendents from around the State—including

from Plaintiffs’ districts—have explained that their school districts would

be diligent in dismissing ineffective teachers if only the statutes allowed

them to do so. (Exhibit 57 at pp. 4137, 4139, 4370, 4374, 4824, 4826,

4868-4869.) As then-OUSD Superintendent Tony Smith described, “the

levels of protection [provided by the Challenged Statutes] ensure that

[teachers] continue to be employed, regardless of their effectiveness or their

impact on children.” (Id. at pp. 4139, 4815.) At a minimum, the degree of

harm that Plaintiffs have suffered and the causal relationship between the

Challenged Statutes and Plaintiffs’ harm constitute disputed issues of

material fact, the resolution of which is improper on summary judgment.

(Gould, supra, 14 Cal.3d at p. 664.)

Finally, Intervenors attempt to portray Plaintiffs’ evidentiary

showing as mere “speculation” (IP at p. 29). But Intervenors already

made—and the Respondent Court already rejected—these very same

evidentiary objections. (Exhibit 70 at pp. 6324-6325 [overruling

Intervenors’ evidentiary objections].) Notably, Intervenors do not request

that this Court revisit any of the Respondent Court’s evidentiary rulings,

including the Intervenors’ objections based on alleged speculation.

C. There Is No Basis For A Stay Of The Trial Court Proceedings.

Even if this Court elects to consider the Petitioners’ writ petitions, it

should decline their request to stay the trial court proceedings. The

Petitioners’ decision to seek (yet again) extraordinary, interlocutory

appellate review of the Respondent Court’s Order does not give them a

36

right to stay the underlying litigation. Stays are warranted only when

petitioners establish the urgency of the requested relief with a showing of

irreparable harm. (See Cal. Rules of Court, rule 8.486(a)(7)(A); see also

Jones, supra, 26 Cal.App.4th at p. 101.) They have made no such showing

here.

Petitioners have not demonstrated that they will be irreparably

harmed in any way if the trial court proceedings are permitted to continue

concurrently with this review process. The mere fact that they must

proceed with trial cannot, by itself, constitute irreparable harm—if it could,

every defendant seeking a stay from the Court of Appeal after the denial of

summary judgment would automatically satisfy the standard. (Freidman v.

Friedman (1993) 20 Cal.App.4th 876, 890 [“Case law has made clear that

mere monetary loss does not constitute irreparable harm.”]; see also Eight

Unnamed Physicians, supra, 150 Cal.App.4th at p. 515 [“[L]itigation

expenses, however substantial and nonrecoverable, . . . do not constitute

irreparable injury.”] [citations omitted].) “The key word in this

consideration is irreparable. Mere injuries, however substantial, in terms of

money, time and energy necessarily expended in the absence of a stay, are

not enough.” (Sampson v. Murray (1974) 415 U.S. 61, 90 [citations and

internal quotation marks omitted].)12

In contrast, Plaintiffs and other schoolchildren throughout California

suffer severe and irreparable injury every day that their fundamental rights

12 State Defendants also profess a concern that the trial will consist of witnesses whose testimony is “unconnected to the elements of the legal claims” at issue. (SDP at p. 11.) But the proper means to address that unfounded and misplaced concern is to file a motion in limine with the Respondent Court, not to seek extraordinary writ relief with this Court. (Ceja v. Dept. of Transportation (2011) 201 Cal.App.4th 1475, 1480-1481.)

37

go unprotected. (See, e.g., Butt, supra, 4 Cal.4th at pp. 692-694 [holding

that students would suffer substantial and irreparable injury if the court

failed to enjoin state action that infringed upon their fundamental right to

education].) A stay imposed by this Court risks replicating the harm

suffered by the Serrano plaintiffs, who endured years of violations of their

fundamental rights while the parties appealed the trial court’s demurrer

order.13

Further, a stay of the trial court proceedings so close to trial would

cause great inconvenience to the Respondent Court itself, which scheduled

the upcoming trial nearly a year ago. (Jones, supra, 26 Cal.App.4th at p.

101 [“[A] halt of proceedings puts a strain on [the] superior court in terms

of ‘the incredible effort’” required to hold trial].) A stay would also

jeopardize the conclusion of expert discovery, which includes a number of

upcoming depositions in early January that were difficult to schedule. And

it could potentially cast into doubt the future availability of Plaintiffs’ trial

witnesses—lay witnesses and expert witnesses from across California and

across the country, many of whom have already adjusted their schedules to

be able to appear at trial in just a few weeks. Thus, even if this Court were

to determine that the petitions warrant further consideration (which it

should not), the more sensible and cautious approach would be to allow the

trial court proceedings to progress in parallel.

13 Intervenors contend that any delay that may be experienced by Plaintiffs “is insignificant in comparison” to the number of years that the Challenged Statutes have “been on the books.” (IP at p. 17.) But Intervenors do not provide any logical explanation as to how the dates of the Challenged Statutes’ enactment ameliorate the constitutional harms that are being imposed on California’s students.

CONCLUSION

Petitioners have failed to demonstrate any extraordinary grounds to

compel this Court's intervention at this .stage of the litigation, less than four

weeks from the start of trial. Plaintiffs respectfully request that the Court

deny the Petitions and allow the parties to proceed to trial in the ordinary

course.

DATED: December 30, 2013GIBSON, DUNN & CRUTCHER LLP

Attorneys for Plaintiffs and Real Partiesin Interest Beatriz Vergara, et al.

38

CERTIFICATE OF WORD COUNT

Pursuant to rule 8.204, subdivision (c), of the California Rules of

Court, the undersigned hereby certifies that the foregoing Informal

Opposition to Petitioners-Defendants' Writ of Mandate is in 13-point

Times New Roman type font and approximately 11,336 words, which is

less than the 14,000 words permitted by the rule, according to the word

count generated by the computer program used to prepare the brief.

DATED: December 30, 2013

-~~t~i~" i~ 1 /

Attorneys for Plaintiffs and Real Partiesin Interest Beatriz Vergara, et al.

39

VERIFICATION

I, Theodore J. Boutrous, Jr., declare as follows:

I am an attorney licensed to practice in all of the courts of the State

of California. I am a partner in the law firm of Gibson, Dunn & Crutcher

LLP, counsel of record for Plaintiffs and Real Parties In Interest Beatriz

Vergara, et al., and I have been authorized to make this Verification on

their behalf.

I have read the foregoing Preliminary Opposition to Petition for Writ

of Mandate and/or Other Extraordinary Relief from Denial of Summary

Judgment and Summary Adjudication, and I am familiar with its contents.

I am informed and believe under penalty of perjury that the matters set forth

in the Preliminary Opposition to Petition for Writ of Mandate and/or Other

Extraordinary Relief from Denial of Summary Judgment and Summary

Adjudication are true.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct and that this Verification

was executed by me at Los Angeles, California on December 30, 2013.