Facing a never-before-seen push to oust him because of a ruling, a California judge has become the focus of a political maelstrom centered around the politics of rape, gender and the rule of law. 

After giving a lenient sentence to Brock Turner, a former Stanford student convicted of sexual assault, Santa Clara County judge Aaron Persky was swiftly targeted by former colleagues, movement feminists and others, who mounted an unprecedented campaign to oust him from his position solely because of his exercise of discretion. As a statement released by the victim of the attack became a viral sensation online, Stanford Law Professor Michele Dauber “helped publicize the case by tweeting out excerpts of the offensive remarks Turner’s supporters made,” the Huffington Post noted. “Horrified by the lenient sentence Turner received, and as a family friend of the victim, she then started planning a recall effort against Persky.”

Turner was sentenced to six months in prison, three of which he was required to serve. “While prosecutors pushed for a six-year sentence, Judge Persky chose a lighter sentence due to Turner’s previously clean record, and the potential impact a heavier sentence could have on Turner’s future,” KCBS San Francisco reported. Dauber, meanwhile, has been a close friend of the victim’s family, according to Politico.

Far and wide

Across the country, mobilization around Dauber’s campaign was swift. Recently, HuffPost reported, she appeared at a New York fundraiser “organized by Grlcvlt, a secretive women’s-only society of about 3,000 members. To join, a woman has to be invited by one member, and a second member has to vouch for her character. Grlcvlt’s Facebook group is invite-only, and its events up until now have been private — but in June, members held their first public ‘F— Rape Culture’ event to write letters calling for Persky’s removal. They thought maybe 50 people would show up, but more than 1,000 people came, the line wrapping around the block.”

But in addition to under-the-radar groups, the recall effort has attracted a massive following online, where expressing support for Persky’s recall requires just a click or a tap of the screen. The petition for his removal hit 1.2 million signatures, thanks to the change.org website. There was more: “Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct, according to Politico, while UltraViolet, an organization instrumental to the recall petition, “also hired a plane to fly over Stanford during graduation carrying a banner that said, ‘Protect Survivors. Not Rapists. #PerksyMustGo,’ and paid for a billboard on a nearby, high-traffic freeway that sends the same message.”

Leery scholars

Persky has not been without his defenders, however. In an open letter signed by California law professors — including noted liberal progressives such as UC Irvine’s Erwin Chemerinsky — the campaign against Persky was portrayed as a dangerous precedent and a threat to the basic norms underpinning the rule of law. “Promoters of the recall movement have formed a political action committee, made media appearances, whipped up a storm of social media criticism of the judge to influence the opinion of Santa Clara County voters, and launched a website to raise money for the PAC and gather the necessary signatures to unseat the judge,” the signatories noted; but “[a]lthough the sentence may be lenient, there is nothing so far to establish that it is lawless, corrupt, or the product of a pattern of bias on the part of Judge Persky.”

“Naked political pressure of this kind risks undermining the very foundation of dispassionate, independent judgment upon which all criminal convictions and sentences depend for their legitimacy,” the authors concluded. “If disappointed litigants can influence the outcomes of future cases by unseating judges who rule against their interests, the administration of justice quickly falls into the hands of the wealthy, special interest groups, and anyone who wants to launch a political action committee on the heels of media coverage of a controversial case.”

At San Diego State and UCLA, the responses to an aggressive gambit by conservative activist David Horowitz were noticeably different. Horowitz distributed a poster that can be filled out to identify supporters of the Boycott Divestment Sanctions movement, which targets Israel, as “pro-Palestinian terrorists.” Horowitz rejects the idea that this is an extreme tactic, saying campus groups which back BDS also support Hamas, which is officially recognized by the State Department as a terrorist group.

When seven San Diego State students were so identified with the inflammatory posters in April, San Diego State University President Elliot Hirshman and his administration met with upset students. The subsequent statement issued by the university said a committee would review university policies with the goal of “balancing freedom of expression and protection from harassment.” But the statement alluded to the posters, however hateful they may be, as falling under the First Amendment — political speech with “protected status.”

This led to a protest in which dozens of students surrounded a car that Hirschman was in and wouldn’t let it leave. After an hour, Hirschman got out and spoke with the students. But they remain unsatisfied and have called for the SDSU president to resign. He also faces faculty criticism.

UCLA warned of legal action against Horowitz

At UCLA, the fliers — which named faculty members as well as students — triggered a much stronger response. In an email to campus students, faculty and employees, Jerry Kang, vice chancellor for equity, diversity and inclusion, said the tactics “amounts to a focused, personalized intimidation that threatens specific members of our Bruin community,” Kang said in the email.

The Daily Bruin reported that Kang said “UCLA will enforce university policies on harassment and intimidation by pursuing legal action against Horowitz.”

Horowitz responded by threatening to sue Kang for defamation. He also accused UCLA of double standards and hypocrisy — a view also voiced by high-profile UCLA Professor Judea Pearl, who said even the word Israel “has been shunned by the UC administration like leprosy.”

Now it’s UC Irvine’s turn for unrest.

On May 18, about 50 protesters disrupted the screening of “Beneath the Helmet,” a documentary about Israel soldiers, an event that was to include a discussion between students and former Israel soldiers. After protesters blocked exits, UCI police intervened and led those in the screening room to safety amid what witnesses described as a hail of profanity and anti-Israel chants.

UC Irvine Chancellor Howard Gillman emailed students, faculty and employees the next day, saying the protesters “crossed the line of civility.”

UC Irvine was the scene of perhaps the best-known U.S. campus protest against Israel. In February 2010, 11 UC Irvine and UC Riverside students repeatedly disrupted a speech by Michael Oren, then Israel’s ambassador to the U.S.  In 2011, 10 of the students were found guilty of misdemeanor counts of organized disruption of the event. They were ordered to do 56 hours of community service and serve three years of “informal probation.”

Orange County District Attorney Tony Rackauckas’ decision to pursue criminal charges over and above the mild discipline the students faced on campus was sharply criticized by Erwin Chemerinsky, dean of UC Irvine’s law school. He said it was “unnecessarily divisive.”

The California Court of Appeal, Second District, will take up the closely followed appeal in its Los Angeles courtroom.

The 2014 decision by Los Angeles Superior Court Rolf Treu made headlines across the nation. After the judge cited evidence showing the near-impossibility of firing incompetent teachers in California, he wrote, “All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience. There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms” — with most working in largely minority schools.

The result, said Treu, was a de facto segregated system that reminded him of the circumstances in Kansas that led to the 1954 U.S. Supreme Court ruling in Brown v. Board of Education that led to the end of segregated schools. He wrote that evidence presented by the Vergara plaintiffs — nine students in predominantly minority schools in Los Angeles Unified — showed California had failed to provide “a student’s fundamental right to equality of the educational experience.”

Poor teaching a ‘deep-rooted inequity’

The ruling was depicted by the California Teachers Association and the California Federation of Teachers as an outrageous exaggeration of problems in state public schools and a de facto attack on teachers and unions. Nevertheless, the ruling prompted the New York Times to run an editorial lambasting California’s schools for neglecting Latino and African American students:

When states are sued for providing inferior education to poor and minority children, the issue is usually money — disproportionately more money for white students, less for others. A California judge has now brought another deep-rooted inequity to light: poor teaching.

In an important decision issued on Tuesday, Judge Rolf M. Treu of the Los Angeles Superior Court ruled that state laws governing the hiring, firing and job security of teachers violate the California Constitution and disproportionately saddle poor and minority children with ineffective teachers.

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

Treu stayed his invalidation of the teacher-protection laws pending appeal.

The state government’s appeal of the ruling, filed by Attorney General Kamala Harris, questioned Treu’s assumptions about the effects of state law:

The notice of appeal cited several issues, including that “changes of this magnitude, as a matter of law and policy, require appellate review.”

 

The notice also faulted the trial judge, saying that he had “declined to provide a detailed statement of the factual and legal bases for [his] ruling.”

That’s from the Los Angeles Times.

High-profile law professors split on ruling

A powerhouse group of law professors, led by Harvard’s Lawrence Tribe, supported Treu’s decision in a friend of the court brief:

The California Constitution establishes public schools for the benefit of children, not teachers, and the State Education Clause talks about the right to public education as “essential to the preservation of the rights and liberties of the people,” not as a right essential to the economic security of the teachers selected by the state to make that right a reality. Public schools exist to educate students, not to provide jobs, and job security, to teachers.

 

Another group of high-profile law professors, including Harvard’s Charles Ogletree and UC Irvine’s Erwin Chemerinsky, criticized Treu’s reasoning in their brief opposing the ruling:

Even if the record supported and the trial court found that the statutes caused the harms to the education of poor and minority students, that would not be sufficient to find the statutes invalid on their face and enjoin their enforcement. There also would need to be proof that striking down these statutes would remedy the harms and improve the education for these students. … There is no basis in the trial court’s decision, or in the voluminous record of an eight-week trial, for concluding that education of any identifiable group of students would be improved by the elimination of tenure, the prohibition on considering seniority in layoffs, or the injunction against enforcement of the procedural requirements for performance-based dismissal.

 

For more on the various friend of the court briefs — including one filed by former GOP Govs. Pete Wilson and Arnold Schwarzenegger — go here for an EdSource overview.

State Senators Ted Lieu, D-Torrance, and Joel Anderson, R-San Diego, introduced legislation on Monday that would ban state agencies, officials and corporations that provide services to the state from supporting or assisting the federal government to spy or collect data on Californians, unless the government first obtains a warrant. The lawmakers say that they introduced Senate Bill 828 following “the repeated federal admissions of widespread spying on innocent American citizens.”

“The National Security Agency’s massive level of spying and indiscriminate collecting of phone and electronic data on all Americans, including more than 38 million Californians, is a direct threat to our liberty and freedom,” Lieu said in a statement announcing the bill's introduction. “Let’s be clear: when the government deliberately violates the Constitution on a mass basis, it poses a clear and present danger to our liberties.”

The bill, which is introduced as an urgency measure, requires two-thirds support in both houses of the Legislature. With Anderson, a prominent conservative Republican as a co-author, it is likely to pick up additional support.

“I support this bill because I support the Constitution, our Fourth Amendment rights and our freedoms to live in the United States of America,” Anderson said.

Response to Snowden revelations

Lieu's legislation comes in response to last summer's revelations by former defense contractor and government whistleblower Edward Snowden that the NSA has been collecting phone data on millions of Americans for years.  In December, a federal judge ruled that the “almost-Orwellian” bulk collection of Americans’ phone records is likely unconstitutional.

“The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Judge Richard Leon wrote in his December ruling.

Later in the month, another federal judge, District Judge William H. Pauley III, ruled in favor of the program, describing it as a key tool in the war on terrorism. That ruling has buoyed the argument on Capitol Hill that such widespread warrantless surveillance is in the interest of national security.

“I would hope that Judge Pauley's opinion will lessen at least some of the adulation for Edward Snowden as well as the rabid anti-NSA hysteria which has become so pervasive,” said Rep. Peter King, R-N.Y.

Lieu's military service brings credibility on national security

Supporters of warrantless government surveillance programs, such as King, will have a challenging time lecturing Lieu about national security. That's because Lieu is a decorated member of the armed services. Last year, while on the Legislature's spring break, the lieutenant colonel in the U.S. Air Force Reserves was awarded with the Air Force Meritorious Service Medal.

Lieu, who understands national security, recognizes that an unchecked federal government poses a threat to Americans.

“I agree with the NSA that the world is a dangerous place,” Lieu said. “That is why our founders enacted the Bill of Rights. They understood the grave dangers of an out-of-control federal government.”

Tech firms based in California

The bill is expected to have national implications as the biggest names in technology are largely based in California. Silicon Valley-based technology firms could embrace Lieu's bill in a bid to repair their image after many of them have been accused of being complicit in government surveillance.

According to the Guardian, Google, Yahoo, Microsoft and Facebook cooperated with the NSA spying and were paid millions of dollars for costs incurred from the Prism surveillance program.

State resources shouldn't be used for indiscriminate spying

Some legal experts question whether the bill could survive a challenge from the federal government.

“It is no different from a state saying it would not help the federal government carry out an order to desegregate schools,” Erwin Chemerinsky told the Daily Breeze; he's the dean of the School of Law at the University of California, Irvine and shares Lieu's concerns on NSA surveillance,”States cannot interfere with or impede the achievement of a federal objective.”

Lieu says that it comes down to a question of whether state resources should be used on unconstitutional practices.

“State-funded public resources should not be going toward aiding the NSA or any other federal agency from indiscriminate spying on its own citizens and gathering electronic or metadata that violates the Fourth Amendment,” Lieu said.

A national security expert told UT San Diego columnist Steven Greenhut that, even if the legislation is blocked in federal court, it can have a symbolic impact. Last year, Lieu introduced Senate Resolution 16, a measure that urged Congress to stop its unconstitutional practices.

“Even if the bill is in a sense symbolic, it can have a real effect,” Ivan Eland, a national security expert with the Oakland-based Independent Institute, told the UT San Diego.