Friday, April 29, 2011

Inside "Westphal v. Wagner," Part 1: Judge Gandhi glowers at Nancy Padberg and crew!

Feb. 17: scene of settlement conference
     NOW that “Westphal v. Wagner” is history, I can report the interesting—and sometimes amazing—events that occurred in the course of this case.
     The lawsuit was filed way back in November of 2009. It was settled 17 months later, at the end of March, 2011. For today, I’ll describe a relatively recent episode—starting this January.

THE JANUARY RULING

     Late in January, 2011, we received a mixed ruling from Superior Court Judge Gary Klausner, a conservative, seventy-year-old Bush appointee and ex-Marine. (Back in the 90s, he drew attention when he set S&L kingpin John Keating's bail at $5 million. More recently, he has played the heavy in some high profile cases.)
Judge Klausner
     With such a judge, we expected to have trouble, and we were not disappointed.
     On the one hand, Klausner held that Chancellor Raghu Mathur’s notorious “Jesus” slideshow (in 2009) and Don Wagner’s obnoxious scholarship awards ceremony rant (in 2008) were indeed unconstitutional. Heck, the judge even issued an injunction against the district that required that it comply with its policy according to which prayers can’t be hostile and sectarian!
     Team Westphal viewed the latter as quite a bonus.
     On the other hand, Klausner held that the board’s non-sectarian invocations are not offered with a Constitutionally impermissible purpose, effect, or entanglement. —That is, the board's generic prayers are kosher, as it were.
     We didn’t think much of his reasoning to that conclusion.
     Naturally, we could appeal the latter decision. And we knew we had a good chance of prevailing in the 9th Circuit.
Judge Jay Gandhi
     But, in the meantime, the district indicated a willingness to pursue a settlement of the case (a settlement conference had already been in the works), and that process would be handled by Magistrate Judge Jay Gandhi (U.S. District Court for the Central District of California), formerly of Paul, Hastings, Janofsky & Walker in Orange County. (The thirty-nine-year-old Gandhi is somewhat special; he's quite young and he’s only the second Indian-American federal judge in the country’s history.)
     And so we prepared for the settlement conference, to occur at Judge Gandhi’s digs, way up in the U.S. District Court Building in downtown LA, right next to the famous LA Courthouse.
     Judge Gandhi chose the date of February 17th at 10:00 a.m., a Thursday. That was pretty inconvenient for most of us. Nevertheless, he made clear that all plaintiffs and defendants would be required to attend, and anyone who failed to attend would be sanctioned by the court!

THE FEB 17 SETTLEMENT CONFERENCE

John Vogt
     Our attorneys made every effort to get all of us to the session, but one among us, a former Saddleback student, now lived in the Bay Area, and she couldn’t afford the trip. So, on the 17th, six of us—all but one of our number—attended the conference, held in Judge Gandhi’s courtroom. We were accompanied by AUSCS legal director, Ayesha Kahn, and local attorney, Chris Murphy (of Mayer Brown).
     And the defendants? Well, defendants were represented by two attorneys (John Vogt and his partner) with the famously pricey firm Jones Day, which had defended former Sheriff Mike Carona at his corruption trial. (Carona's now in federal prison, natch.)
     But, in Judge Gandhi’s courtroom on the 17th, only ONE of the defendants was present: trustee Nancy Padberg.
     Uh-oh.
     When the judge entered, he saw what there was to see. He looked at Nancy's tiny crew. He glowered. He sat down. He said, “What is it about ‘you are required to attend the hearing’ that is unclear?" (Something like that.)
     He stared silently at Padberg and her two shiny attorneys. He was pissed. Seriously pissed.
     He lectured at us (well, mostly at Padberg and Co.). He threatened sanctions.
     This went on for a while.
Chris Murphy
     In the end, Gandhi decided to go ahead with the “conference,” though it would not include the usual initial session with everyone in the room. Nope. He separated the two sides. He left us—the plaintiffs—in his courtroom. He sent Padberg and Co. to another courtroom down the hall. For the rest of the day—this went on until maybe 7:00 or 8:00 p.m.—Judge Gandhi would spend two hours or so haranguing one side, and then he’d walk down the hall to the other courtroom and harangue the other side. It was a kind of shuttle diplomacy—er, shuttle hectory.
     “Be realistic!” “You must be kidding!” “You’re dreaming!” –Such were the remarks (more or less) that punctuated our time—and no doubt the other side’s time—with Judge Jay Gandhi.
     Gandhi was smart and extremely focused. And he was ruthless. He’d browbeat us. Sometimes, when one among us wouldn’t bend sufficiently to his urgings, he’d seem to be disgusted; he'd head for the door, declaring that his time was being wasted. “I’m calling this whole thing off,” he’d roar.
     That always worked. Somebody would cave, or somebody would promise to make the person who needed to cave cave. And then they’d cave.
     It was amazing.
     At the end of the day, we had a tentative settlement. I was pretty pleased with it, but some of us were not. Their grimness prevailed, at least in my Chrysler as we rolled home for Orange County on that long freeway ride. I don’t think anybody said a single word.

Ayesha Kahn
TROUBLE HERDING CATS

     But "Westphal v. Wagner" wasn’t over yet. Far from it! After all the Sturm und Drang we—i.e., those of us who bothered to show up—endured on the 17th, when the board met eleven days later—at its scheduled February 28 board meeting—guess what happened!
     They failed to ratify the agreement!
     D’oh!
     We were pissed. Judge Gandhi, too. This wouldn't have happened had defendants showed up for the settlement conference like they were supposed to.
     It was back to the drawing board.
     The next month would be yet another wild ride.
     (To be continued….)

Don Wagner's obnoxious Scholarship Award Ceremony comments

What did you learn in school today, dear little boy of mine? (Rebel Girl)

Magic Tricks or How On his 9th birthday, in his Public School Classroom, Rebel Girl's Son is Told He is Going to Hell by his Substitute Teacher 

     Thursday was the little guy’s ninth birthday and despite her packed schedule, Rebel Girl made time to drive home for an intimate celebratory dinner before heading back to the college. 
     They had celebrated big earlier: a Saturday party of seven nine-year-olds and twin 12-year-old party crashers; a birthday morning breakfast of homemade pancakes and presents including a year’s subscription to Mad magazine. Good times. 
     The Little Guy spent the day at his school, the little school where Red Emma volunteers every other week to read in class. Rebel Girl imagined that the Little Guy’s class would have sung to him the special birthday song they sing at such times. She asked him while driving home. 
     No, he said. His regular teacher, much beloved, was absent. In her place was the much-admired occasional substitute, let’s call him Mr. Sub. He didn’t know about birthdays. 
     “But he did do a magic trick,” said the Little Guy. 
     The Little Guy is a big fan of magic. Last year the family celebrated his birthday at the world famous Magic Castle. 
     “That must have been fun,” replied Rebel Girl. “What kind of magic?” 
     The Little Guy, a fine storyteller, proceeded to tell a doozie involving Jesus and his devoted apostle Paul who traveled the world after Jesus’ death talking about Jesus to the unbelievers who often persecuted him. One time Paul was imprisoned and challenged by the guards to construct a cross from a single piece of paper. The guards gave him no scissors (it was, after all, a few years A.D.) and a stack of paper. 
     Where do prison guards at that time acquire paper anyway, Rebel Girl wondered. Office Depot? Kinko's? But no matter. After all, verisimilitude is not the goal of this storyteller - magic is. 
     The guards instructed Paul that he must create the cross by folding and tearing the paper only once. That was, apparently, the "magic trick."
 

     Rebel Girl imagines the scene now – Mr. Sub with the kids gathered around folding and tearing until he made the miraculous cross. He asked for volunteers and the Little Guy (who Reb has been encouraging to participate more in class and who is an origami aficionado) volunteered. 
     Mr. Sub finished the tale by producing the cross and then, from the scraps of discarded paper, unfolding selected letters which formed two words: first LIFE and then HELL. As the third grade volunteers held up each letter as directed, Mr. Sub told the class that those who believe in Jesus Christ will have eternal LIFE and those who don’t will go to HELL. 
     The Little Guy said that the girls in the class squealed at the mention of hell. The Little Guy held one of the L's. 
     Now Rebel Girl doesn’t say this often but she is not a Christian. Neither is her husband. Neither is her son, the Little Guy. She says this now because she feels attacked, assaulted. She realizes that her reluctance to say this fact aloud is related to a sense of shame she has carried all these years, as if her lack of faith, and, in particular lack of Christian faith, somehow reduced her value as a person. That sense of shame has lingered, despite everything she has learned about herself and the world. 
     On Thursday April 28, on his ninth birthday, her son, the Little Guy, stood in front of his classmates in his public school and was told by a teacher that he, as an unbeliever, was going to hell. 
     Rebel Girl asked the Little Guy a couple questions: How’d you feel when he said that? Do you think he should have done that? The Little Guy had mixed feelings. He likes Mr. Sub after all. But yes, he knew it was wrong. Yes, he felt sort of bad. No, he didn’t say anything. If he did, he would feel worse, that nine year old holding a piece of hell in hands. 
    He didn’t want to say anything, not his truth, not his family's - so he didn’t. 
    As he talked, Rebel Girl could tell that he carried this heavily, that he knew it meant something. Rebel Girl teaches her son about religions, about why some people believe and why some people do not. Some of her most admired heroes are Catholic Worker types. There are several Bibles in the house. The Little Guy owns a copy of Tomie de Paola’s Bible stories that they consult from time to time. 
     He knows about Budhha, about the Hindu gods, about Mohammed. They have attended sedars, celebrate Christmas, Easter. His favorite song to play on the piano is “Joy to the World.” 
     When they visited New Mexico recently he was most impressed by the “spirit holes” in the floors of a Pueblo dwelling that allowed the spirits of dead to join the living during special ceremonies. 
     However, his favorite deities remain the Greek gods. There's no competing with Zeus, apparently. 
     Mr. Sub’s "magic trick," of course, was an abuse of power, an abuse of privilege, an abuse of children who trust and admire their teachers. A violation. A hit and run magic trick that has made that classroom a crime scene. Rebel Girl imagines that some children in that class are, like her family, atheists or agnostics. She knows that at least one family is Jewish. She is herself, she reminded her son, a teacher too and one who takes her responsibilities seriously. While she has views, she knows her students have their own and she is hired to teach them, not her views and values, but her particular discipline. So she does. 
     Rebel Girl will be writing more this morning: letters to the principal, the board of trustees, other interested parties. She will do what a Rebel Girl does.

       Last night as the Little Guy blew out his candles on his birthday cake, he made his wish and Rebel Girl made hers: she wants Mr. Sub to return to that classroom and stand up in front of the class with her son at his side and tell her son and the class that the Little Guy is NOT going to hell and neither is anyone else.
 
She wants more, much more, but that’s a start.

* By the way, the story of the "magic trick" has been 
confirmed via a phone call to another family. *

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