Gray Davis finally won one last week: The outgoing governor scored in a court case that could affect hundreds of thousands of California schoolchildren for years to come. But it’s not the kind of victory that many would cheer.

A Superior Court judge has concluded that the state is not to blame if rats run through a public-school classroom, if ceiling tiles fall or if the stench in a school bathroom overpowers. Or even if students lack textbooks. Nor is it necessarily the state’s business if poor students have to suffer these conditions while students from prosperous families do not.

The pre-trial ruling, in Williams vs. California, begins to define the legal battlefield about who’s responsible for the state’s unequal public schools and what should be done about it. For more than three years the case has sent shudders through the education establishment, because it fundamentally challenges the state’s entire approach to the business of schooling. It lays bare the dirty truth that children in Beverly Hills aren’t getting the same deal as children in Lynwood’s poor neighborhoods, even though they need the opportunities of a sound education even more than their well-heeled neighbors to the north. This albatross has now outlived the Davis administration and will become an early test of Governor Arnold Schwarzenegger’s commitment to the children of the poor.

To Davis and various school districts, including L.A. Unified, the entire costly exercise has distracted from ongoing, successful reforms. The outgoing administration argued that it should have been trusted to continue its efforts, while also leaving much of the job to local school districts.

Judge Peter Busch appeared to side mostly with Davis. Busch wrote that there are limits to what the state can and should do, especially during difficult financial times. Although “the State must sometimes intervene to ensure that its public school system does not deprive students of basic educational equality, that does not mean that the State must intervene whenever any student experiences any degree of inequality.” For one thing, wrote Judge Busch, the state must respect the authority and initiative of local school districts.

The opposing advocates, including ACLU attorneys, had asked the judge to rule in their favor without even going to trial, by granting a “summary judgment.” They argued that the state constitution stands overwhelmingly on their side, and also that their case rests on fundamental notions of decency, justice and civil rights.

Busch not only denied the motion, he also suggested that the Davis administration holds stronger legal cards if the case goes to trial.

It comes down to what level of government is responsible, and local government comes first, said Fram Virjee of O’Melveny & Myers, the L.A-based law firm that is representing the Governor’s Office. State intervention could be called for, said Virjee, only if the matter is sufficiently serious, and “only after the individual student has demonstrated that the terrible problem exists and that they’ve tried to get the district to fix the problem and the district can’t or won’t fix it.”

The ACLU’s Peter Eliasberg retorted that “the kid who is sitting in the classroom where the roof leaks is blameless. This attitude of ‘Let’s say it’s not our problem and that it’s the local school district’s problem’ – that’s not a real commitment to the kids.” He also insisted that his side has plenty of evidence to prevail at trial.


Gray Davis may be leaving office, but it’s hard to separate his identity from this litigation — especially because his rhetoric put education front and center.

“Schools with filthy, unusable bathrooms are deplorable,” said Davis spokesperson Hillary McLean. “The Davis administration and the entire education community are opposed to the same thing. But we fear this lawsuit would hinder the structure and nature of our reform efforts.” And she was ready with the list of these reforms, including refined student testing, special assistance for low-performing schools and a 30 percent increase — $9.6 billion — in funding for education along with successful bond campaigns that made billions available for new construction. Said McLean: “Poor and minority students are the very first ones to get the benefit of these efforts and improvements.”

Try telling that to Amanda Piercy, who filed a declaration with the court over the summer after completing her freshman year at Balboa High in San Francisco. “The bathrooms at Balboa are really gross,” she said. “A lot of the stalls in the girls’ bathroom have doors that are broken so that you can’t lock them and there is no privacy. If you try to shut the door it just swings open. Often there is no soap in the dispensers or the dispensers are broken . . . The toilet seats are dirty and have something gooey on them. A lot of the time there is no toilet paper and the toilet paper dispensers are broken. It’s not just one particular bathroom at Balboa — they are all like that. I only go to the bathroom at school if I really have to go, and when I do it is always a bad experience. I hold my breath.”

Then there’s the experience of Clive Aden, a sophomore at Fremont High in Los Angeles. “From the beginning of July until the end of August there were no books in my chemistry class,” he said in his declaration. “When we went back on track in October, we finally got a class set of books . . . We don’t have books to take home. I need a book to study from at home and in school because I want to go to college and I want to study science and become a doctor.”

Books weren’t the only difficulty: “When I started my chemistry class, the classroom had about 50 students in it. It was very overcrowded. Then they split up the class into two separate chemistry classes . . . The second chemistry class, my class, did not have a permanent chemistry teacher. For about the first month and a half of the school year we had a new substitute almost every other day . . . Out of all the substitutes, we had only two substitutes who gave us an assignment. One teacher taught us poetry instead of chemistry.”

For its part, L.A. Unified, in court papers, characterized allegations of widespread textbook shortages as false, exaggerated or “corrected.” “We have worked fervently to address some of the concerns raised in the initial filings,” said spokesperson Stephanie Brady.

Three private law firms as well as in-house attorneys have handled the case for L.A. Unified. Its legal fees are almost certainly more than $1 million. Meanwhile, the state has spent upwards of $18 million, most of that going to O’Melveny, according to published reports.

“One of the reasons this case has lasted so long is a real shocking attitude on the part of the Davis administration,” said Eliasberg, “that it’s better to spend millions of dollars hiring a large corporate law firm — that engages in scorched-earth legal tactics — than it is to spend that money trying to address problems that everyone knows are real.”

That sentiment was oddly echoed by Assemblyman Fabian Núñez (D-Los Angeles) who opposed the recall but disliked Davis’ reaction to legislation on school bathrooms. “Davis came in and said, ‘You can’t say that districts must maintain clean bathrooms as a first priority because of the ACLU lawsuit. You’re validating their lawsuit.’ I’m thinking, ‘Who gives a shit?’ Keep the bathrooms clean at schools. It’s very simple.” In the end, Núñez watered down the bill to avoid Davis’ veto, and it’s unclear what effect his legislation will have.

Davis did veto a related bill by state Senator John Vasconcellos (D-San Jose). It would have collected data on school conditions to gauge students’ opportunity to learn. The veto arrived five days after Davis’ recall. “A perfect epitaph for the so-called education governor,” said Eliasberg.


The entire matter will be an early test for Schwarzenegger, who criticized Davis’ record, but could pick up right where Davis left off.

“We are encouraged by the ruling,” said Schwarzenegger spokeswoman Karen Hanretty, “and we hope that gives the parties the opportunity to once again resolve this case.” It’s hard to see support for the ACLU position in that terse comment. For what it’s worth, a senior O’Melveny partner, Charles Diamond, is part of Schwarzenegger’s transition team. Diamond was among a handful of O’Melveny attorneys who provided counsel to recall initiator Ted Costa. Diamond and the other attorneys have acted on their own, without the firm’s involvement, said O’Melveny’s Virjee. In addition, Schwarzenegger’s incoming secretary of legal affairs is a former top deputy of the state attorney general, whose office also has opposed the ACLU suit.

Still, there’s some indication of backdoor contacts between the new administration and the advocates. Eliasberg sees a potential opening both with the new governor and his education secretary, former Los Angeles mayor Richard Riordan. “The Davis attitude was just, ‘Let’s test all the kids, and that will make them better,’” said Eliasberg, “while Schwarzenegger the candidate actually talked about the lawsuit during the debate. And Riordan says his primary mission in life is to make sure poor kids are educated properly.”

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