"Sue the b_____!" Are you sure?

["George N. Schmidt" <Csubstance@AOL.COM>]

In a message dated 2/20/02 9:20:48 PM, gkc@LOUISVILLE.EDU writes:

<< The courts give great deference to

school districts and state agencies in their choice of methodologies,

particularly to the extent that educational officials believe that what they

are doing is best for students.  And they do believe this, I can assure you.
>>

February 23, 2002

I'm sorry for breaking my silence and mourning, but let's not mislead people
about the value of going to court to achieve justice in our struggle for
democratic and decent public schools.

To second George Cunningham and put it another way:

Don't waste your time and money. The other side holds all the cards when you
sit down to play their game in their courts.

A dozen metaphors I could think of would all try to convey the same thing. If
you have to go to court, be as efficient as possible, work as quickly as you
can, and never give your allies the notion that your main strategy is to
"win" in court. When we are forced into court, we owe it to ourselves and w
hat we represent to do the best job we can. But we can do that without
promoting the illusion that the courts are the place to seek justice in this
nation today.

Every few months here on ARN, we have to return to this set of facts. This
tells me that a lot of people were brought up to have faith in the court
system, despite the facts of history and what anyone who wants to spend a
little time in court can learn. The most basic fact is that those of great
wealth and great power (usually, the two are one and the same) can afford the
lawyers and the resources to "win" no matter what the fact and the law. The
poor lose before they even get to court. Those of us in the middle sometimes
have illusions that the poorest teenager on Chicago's south side knows to be
false and ugly.

Our adversaries are much more powerful in the courts than we are.

Our adversaries don't care about the facts and the law. They will make up
facts, buy them, do whatever they need to do to "win."

Our adversaries are weakest in politics -- if the facts can get out through
the din of corporate (and governmental, and foundation-supported, and
university-touted) Testocratic propaganda. Better to organize politically
than to respond legalistically.

They have the dollars.

We have the numbers.

But our numbers are nothing if we are not organized and intelligent about how
we handle our organizations.

Anyone who intends to believe that our side can "Sue the Bast---s!" and win
at this point in history is asking for trouble.

Here in Chicago, we have been facing the need to use the courts (and various
agencies, where lawyers have to do much of the work). Tens of millions of
dollars have been spent since the Testocratic coup d'etat that turned
Chicago's public schools over to the Business Roundtable and their allies in
1995.

-- Substance is defending against a $1.3 million "copyright infringement"
lawsuit filed by the Chicago school board. To date, our side has been forced
to spend more than $100,000. The other side has poured more than a half
million dollars (paid for by our taxes) into that one set of legal cases (our
main case is in federal court; my termination is in state court). We're back
in court Wednesday, February 27, 2002, at 2:00 p.m. That is 37 months after
the case began when the Chicago school board sued us on January 26, 1999.
Even with the fact that the new copyright case before the U.S. Supreme Court
(the Mickey Mouse case), most people still don't understand that copyright
law was not put into the U.S. Constitution to make Bill Gates the world's
richest man or to give Chicago's Paul Vallas a way of creating military style
secrecy over dumb government documents (in this case, the Chicago CASE
tests). We've got the facts, the law, and justice on our side and always have
had those things. Over time, we've also organized thousands of people around
these issues. But it sure hasn't been because the courts are the place to be.

Substance is not the only group that's been forced into the courts (and
quasi-courts) since the Testocracy and its propagandists took over public
education in Chicago in 1995:

-- PURE filed a major complaint with the Office for Civil Rights regarding
the discriminatory impact of the use of the ITBS as the "promotion standard."
 I don't know the costs of that one, but it's still wandering around. Despite
all PUREs work, thousands of kids have been destroyed by Chicago's testing
program since 1996 when the first "graduation standards" were forced on
people.

-- The Chicago Teachers Union sued in federal court to stop the "termination
under honorable conditions" of 137 tenured teachers -- and lost at both the
district court and at the Seventh Circuit Court of Appeals. The Union spent
more than $200,000 on that litigation, and the Board of Education spent more
than $750,000 for the outside law firm of Jenner and Block (that friend of
the Clinton Wing of the Democratic Party and of the working man and woman) to
beat us and overturn tenure rights.

[I know. I know. I know.... Someone out there has a book about "Teachers'
Rights" and that book says tenured teachers can't be fired except for extreme
cause -- like abuse or conviction for a felony. You're wrong. That book's
wrong. I can give you the names of a dozen tenured Chicago public school
teachers I know personally who have been fired if you don't believe me and
want to call them. Or you can go to the federal court docket and read the
"Shegog" case file, if you don't believe me, and them. Or you can just
believe that damned book that says we've got tenure rights. We don't. They
were taken away. The courts upheld the taking away. Story over.]

-- More than a dozen Chicago principals and teachers have sued -- and won!!
-- major cases, after being dragged through the courts (and, often, the
appeals courts) since the Vallas administration was appointed to head
Chicago's public schools by the most powerful mayor in the Democratic Party
in 1995. Most of the victors would tell you their lives and dollars would
have been better spent doing their jobs than suing to correct the injustices
that we done to them.

Litigation at this point in history is fighting on the other side's terrain,
by their rules, using weapons of their choice, in a war of attrition where
they have more resources. We might win some battles from time to time, but we
won't win this war there.

One well-placed petition signed by thousands of people is, in my opinion,
worth more than the most eloquent (and expensive) legal briefs.

(And if you wish -- and send us a self-addressed stamped ($1.20) 9 x 12 inch
envelope -- I'll send you the November Substance. That issue has as eloquent
a statement of our position -- and defense of the First Amendment in the
current situation regarding testing -- as has yet been written. For all of
its eloquence, it was flicked off by U.S. District Judge John Darrah in less
than 60 seconds. He ignored it like he was flicking a booger off a baby's
nose...).

If we have to use lawyers and courts (as we certainly do at Substance, since
we're the ones being sued and I was the one who was fired from a teaching job
for publishing a newspaper -- on my second job!), at least let's not have any
illusions about getting "justice" that way.

Please, let's not teach our children and one another that the courts, at this
point in history, are the best place to seek and find justice on the issues
we hold dearest here.

People with power in this country today use the courts to control and funnel
dissent, with the lawyers coming out ahead no matter who "wins." If they can
get you away from the protests, board meetings, petitions, and streets, they
have done their job. By the time your "case" is resolved, in a decade or two,
your protest is lost. That strategy was first used against the labor unions
beginning under Reagan and has been successfully applied to other mass
movements since. Lawyers, be they "Democratic" or "Republican", do what they
do best, but doing that means not doing other things. Limited resources and
all that.

Am I saying don't go to court? No. We'll be back in court -- with dozens of
friends -- Wednesday afternoon. What I'm trying to say is that we shouldn't
spread the illusion that we will win our most decisive battles in the courts.

I would suggest that the history of the United States shows that on key
issues, if you try to use the courts to "win" you're as likely to get Dred
Scott (or Plessy versus Ferguson as you are to get Brown v. Board of
Education. The courts of this country have rarely defended the rights of the
poor and the disenfranchised. Walk into a federal court in Chicago and just
tally up an estimated cost of the shoes on the feet of the lawyers and judges
and you can get a good index of the social class of the people who are
comfortable in the courts. In fact, if you walk into a federal courtroom here
in Chicago wearing teacher clothes it's obvious you're not part of the club
that's running things from the other side of the railing that separates the
elect from the proles.

Every dollar we are forced to spend on our court cases is a dollar we are not
spending on more important things.

Our lawyers are devoted and hard working. But the expense in time and money
for litigation is simply not worth it unless you are forced there and have no
alternative.

To repeat:

Please don't spread the illusory hope that the victories people long for here
will come with the right lawyers and the right set of arguments in the right
case before the right court at this point in history.

Didn't we learn anything from the 2000 presidential election and the role of
the most powerful temporal court on earth in that power struggle?

George N. Schmidt
Editor, Substance
5132 W. Berteau
Chicago, IL 60641

773-725-7502

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