High-priced legal team browbeats youths about shoddy schools

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Gov. vs. schoolkids

High-priced legal team browbeats youths about shoddy schools

Nanette Asimov, Lance , Chronicle Staff Writers Sunday, September

2, 2001

For 24 days this summer, high-priced attorneys from a politically connected

law firm grilled 13 witnesses, trying to topple their testimony that

California students don't have enough textbooks and that too many classrooms

are vermin-infested, overcrowded, sweltering or cold.

The lawyers hired by Gov. Gray -- in a case that has cost taxpayers

$2.5 million so far -- exhaustively combed through each claim. Some

witnesses cried. Others became frightened when the questioning took on the

tone of an interrogation. And some were defiant, angry at suggestions that

they had lied or exaggerated.

The witnesses ranged in age from 8 to 17.

Eleven-year-old of San Francisco had once fainted in a 90-

degree classroom with a perennially broken air conditioner. He asked to have

a substitute testify on his behalf because his mother had been shot to death

weeks before. The state's lawyers said no.

and the dozen other students deposed were among numerous children and

parents across the state who sued California in San Francisco Superior Court

in May 2000. They asked the state to set minimum standards for " basic

educational necessities, " such as up-to-date books and schools free of mice

and rats.

" We're just trying to get the state to give us an equal opportunity to

learn, " said Ortiz, deposed a few days after graduating from

ville High. " In my government class, the book was from the 1980s. The

other Bush was president. "

In the past few years, has directed the state Board of Education to

set minimum standards for English, math and other subjects. His campaign

promise to make education his " first, second and third priorities " is viewed

with skepticism by students and parents because of his reluctance to extend

the standards to clean facilities and sufficient textbooks.

However, has said that addressing problems at individual schools is

not the state's responsibility.

" We've got health and safety codes and local school districts " to handle

those problems at schools, said McLean, the governor's spokeswoman,

in an interview Friday. McLean added that has been boosting funding to

schools.

The case, vs. California, pits the state and its self-styled

education governor against the students they're aiming to educate.

hired the pricey, high-powered O'Melveny & Myers of Los Angeles to defend

the state. The students and parents are represented without charge by the

American Civil Liberties Union and the big-hitting Bay Area firm on &

Foerster.

THE DEPOSITIONS

Lawyers from O'Melveny & Myers started deposing students in May. Almost

immediately, a dispute arose between the firm and the ACLU.

O'Melveny attorneys refused a request by the ACLU to let an aunt sit in for

the boys: , 8, and , 11.

Their mother had been killed on their doorstep just weeks before, the victim

of a drive-by shooting. Their father had died in a car accident a year

earlier.

But because the aunt was not named in the original suit, the lawyers said

she was not qualified to represent the boys.

dropped out, but remained.

" The case was really important to their mom, " said Ana Araya, the boys'

aunt. " knew that. "

Attorney Rosenthal questioned the child over four days, at one point

asking 20 questions about the milk in the cafeteria at Elementary in

San Francisco. responded in monosyllables, occasionally laying his

head on the table.

" He was tired, thinking of other things, " Araya said.

What did emerge from the interview was that the air conditioner functioned

so poorly at that the summer school teacher had to keep a bottle of

water to spray on her sweaty children. One was , who fainted from the

heat one day. Rosenthal asked what happened.

" I felt like I wasn't there anymore, " he said.

" Is there a nurse at school? " Rosenthal asked.

" No, " said.

Rosenthal moved on.

O'Melveny attorneys referred questions about the case to the governor's

office.

However, transcripts illuminate a meticulous approach by the attorneys, who

questioned each student about each alleged condition in each class in each

grade, one by one.

A pattern emerged, as the state's lawyers repeatedly hinted that the

problems described were not so bad.

" Did the mouse droppings you saw on the floor affect your ability to learn

in U.S. history at all? " Rosenthal asked Alondra , 17, of Balboa High

in San Francisco.

" No, " Alondra said.

" Did (teacher) Ms. Safir ever tell you why you had to share the 'American

Odyssey' textbook in class? "

" She didn't have to. We saw that there weren't that many. "

" . . . You got an A, even though there were a number of unfair conditions in

this class, right? " asked Rosenthal.

" Just because the state failed doesn't mean I have to, " said Alondra. " It

didn't impede my ability to learn, but I'm pretty sure you didn't have mouse

droppings in your classrooms. . . . Why do I have to? "

Diego of South Central Los Angeles, showed her mettle, returning for

three more days of deposition, even after breaking down on the first day.

It was a Saturday. After going several hours, the 17-year-old said she was

too tired to continue. " I got home at 3 in the morning, " she said.

" Where were you last night? " Attorney Ben Rozwood asked.

Attorney Lhamon of the ACLU told not to answer.

But Rozwood persisted.

" Why were you out so late? " he said, his voice rising. " Did you know you had

a deposition today?' "

He slammed his palm on the table and began to weep.

" Was it a social event? " he asked. " I certainly wasn't out last night. . . .

What were you doing last night? "

" I went to a prom, " she said.

" To a prom. To your senior prom? "

" Yes, " she said.

HIGH-POWERED LEGAL FIRMS

O'Melveny & Myers has donated $13,800 to Gov. since 1997. Daum,

lead attorney in the case, is married to Nichols, '

secretary of resources.

The firm's attorneys charge $325 an hour, and its paralegals are paid $140

per hour. When O'Melveny attorneys visit San Francisco for hearings every

few months, they have stayed at the Park Hyatt, where the lowest corporate

rate is $285 per night.

The cost of depositions is estimated at $1,000 per day for court reporters

and transcribers.

More legal costs have been racked up by 18 school districts that

countersued last December, saying the problem of infestations and inadequate

supplies was theirs to fix. Judge Busch back-burnered the suit last

winter.

The governor hired O'Melveny against the advice of state Attorney General

Bill Lockyer. In a memo to the governor's office dated June 22, 2000, he

advised against hiring a private firm, estimating that a defense by his

office would cost " up to $6 million of state resources over the life of the

suit. "

The state has paid $2.5 million to O'Melveny in the first year and no trial

date has been set. Although the attorney general's rate is less than a third

of O'Melveny's, Lockyer would have had fewer lawyers on the case.

POLITICAL TIES

The O'Melveny firm has strong connections to the state and the national

Democratic Party. Senior partner Warren served as secretary of

State under President Bill Clinton and was former Vice President Al Gore's

lawyer in the Florida vote count dispute.

Other former lawyers at the firm include: Kathleen Brown, onetime state

treasurer; Louis Caldera, former state lawmaker and secretary of the Army

under Clinton; and U.S. District Judge Kim Wardlow, a Clinton confidante.

Records show that in the past four years, O'Melveny's senior partners and

the firm's political action committee have donated more than $432,000 to

political campaigns around the country, including $206,000 to Republicans

and $155,000 to Democrats. President Bush is the top single beneficiary, at

$17, 250.

State Deputy Attorney General Rick Tullis said he expects the hiring of

O'Melveny & Myers will result in " gigantic " legal fees.

Tullis, who noted he conferred with Lockyer and aides to the governor about

hiring a private firm, said he was told that ' office had selected

O'Melveny after a pitch from .

" It was my understanding that Warren was the contact, " said

Tullis.

WINDING THROUGH THE COURT

The state's lawyers have listed 176 more students for deposition this fall,

though the number may drop to 44.

Mark Rosenbaum, lead attorney for the ACLU, said the O'Melveny lawyers told

him they needed to depose students to oppose his efforts to make the case a

class-action suit on behalf of all 6.2 million California public school

students. The class action hearing is scheduled for Sept. 13.

Although the O'Melveny lawyers did not include the depositions in their

arguments, they did give the judge a 33-page summary.

" But they didn't use the depositions, " Rosenbaum said. " That was the

pretense. They did it to harass and intimidate these kids, to get them to

pull out of the suit and send a message to kids throughout the state: If you

complain about rats and no books, the price you have to pay is four days of

deposition and humiliation from the very government entity that is supposed

to be assuring you equal education. "