Judge reconsiders demurrer in education class action

LOS ANGELES -- Alleging children are being denied their constitutional right to basic education, plaintiffs' attorneys persuaded a Los Angeles County judge to reconsider a tentative ruling granting a demurrer.

After hearing arguments from both sides Wednesday, Superior Court Judge Yvette M. Palazuelos took the state's demurrer under submission, said she would issue an order within 10 days and set a trial date for Oct. 21, 2019.

Lead attorney Mark D. Rosenbaum from Public Counsel emerged from the courtroom to a round of applause after successfully demonstrating the class in the case, a group of elementary school students, is defined and deserving of an equal protection claim. According to the complaint, nearly half of the 26 most underperforming schools in the nation's 200 largest districts are in California. Ella T. et al. v. State of California, BC685730 (L.A. Super. Ct., filed Dec. 5, 2017). The students in the class belong to three schools of the lowest performing schools in the state based on state-mandated literacy test results, among other indicators.

Rosenbaum relied heavily on arguments made in Butt v. State of California, 4 Cal. 4th (1992) and Serrano v. Priest, 5 Cal. 3d (1971), arguing these cases underscored the protection of equal access to education for all children under state law and that a class of schools can be identified based on a shared constitutional violation.

"The problem is not that these children come from low income families, nor is it even sufficient that the schools themselves are in low income communities and they correlate with wealth," Rosenbaum told the court. "The problem is one of disparate impact. The problem is that the way the state goes about its business, the way it runs its system, is to disadvantage children based on their race and income level."

In its demurrer, the state presented a lengthy explanation of the steps California has taken to ensure a quality education, including the implementation of the Local Control Funding Formula, a 2013 legislation that "targets funding toward assisting students who are living in poverty, foster care, and who are English language learners." Jennifer A. Bunshoft, the deputy attorney general representing the state at Wednesday's hearing, said plaintiff's failed to establish a class because students who benefited from this improved framework would be included in the class even though they had not suffered any harm. Furthermore, she argued, the alleged harm was based on intra-district disparity, not inter-district disparity, making it a local issue rather than a state issue.

"They haven't made any allegations that the students have gone to their districts, have attempted to remedy the situation within the framework set up or that the districts have refused to help or are aware, even, of these issues," Bunshoft said in her rebuttal. "Really this is about plaintiffs wanting to bypass the system, bypass their own school districts."

Rosenbaum assured the court he would show in trial that students who performed well at these schools "are doing so in spite of the schools."

"For the state to make an argument that it owes no duty to ensure the constitutional rights of students at individual schools unless every school in the district is suffering a constitutional violation is shocking," Rosenbaum said in an interview after the hearing concluded. "Essentially they're saying it doesn't matter what happens to individual schools as far as the state's concerned. As long as the children of Brentwood are getting access to literacy, it doesn't matter that the children in South L.A. are not getting educational opportunity at all."

Rosenbaum is working alongside attorneys at Morrison & Foerster LLP on this case.

Bunshoft did not respond to a request for additional comment.