Anti-Tenure Lawsuit Filed in New York

Published October 3, 2014

Teacher quality is the most important in-school factor in students’ education, the National Council on Teacher Quality says. 

After a first-of-its-kind teacher quality lawsuit was decided in favor of education reformers in California, the first similar lawsuit has been announced—this time, in New York.

Typically, reforms to the American education system occur in state legislatures, and some education reformers say it may not be wise to pursue reforms through the courts. 

Vergara v. California struck down the state’s laws that required teacher layoffs based solely on seniority with no regard to teacher effectiveness, gave teachers permanent status after two years on the job, and made it difficult for school administrators to dismiss ineffective teachers. 

Those laws interfered with students’ right to a quality education and disproportionately affected minority students, attorneys for the plaintiffs—18 teenagers and 10 young students—argued successfully. 

Former CNN reporter Campbell Brown and her nonprofit organization, Partnership for Educational Justice, said six parents have agreed to serve as plaintiffs in the case they plan to sponsor arguing against similar laws in the Empire State. 

Shifts to Teacher Policy

“There’s a shift under way where data and research are really trumping rhetoric,” said Nancy Waymack, managing director for district policy at NCTQ. “Now, people are looking at the issue more deeply, and there have been some successful attempts to change some of the issues in different states.”

Teachers unions decried the California court’s ruling, but Alexandra Freeze, spokeswoman for the Association of American Educators, said the lawsuits and policy changes help raise the standard of professionalism for teachers. 

“Professionalism in the private sector means you can negotiate your own contract, you’re rewarded for performance. That’s not how it is in teaching right now,” Freeze said. “Teachers are embracing that philosophy—they want to be rewarded for a job well done, which is not something rewarded under that union mode.” 

Teachers are well-respected in public opinion, she said, but are often unfairly targeted by those seeking to improve education. A higher standard of professionalism can help change that, she said.

Adopting Opponents’ Tactic

Education lawyers have a long history of questioning whether states are providing enough money for education to meet constitutional requirements, often with support from the teachers unions. But raising questions over specific policies such as tenure is new.

“What we’ve not seen before is people using the courts to change the rules regarding tenure or change job protections for teachers, or to do things that are going to be uncomfortable for people who work in K-12 education,” said Frederick Hess, resident scholar and director of education policy studies for the American Enterprise Institute. “Usually the shoe’s been on the other foot.” 

Most reform measures don’t lend themselves well to litigation, said Joshua Dunn, a professor at the University of Colorado at Colorado Springs. It’s difficult, he said, to argue state constitutions require school choice programs, for example.

Nonetheless, activists are turning to the courts to press for specific policy changes. 

“From there, it’s not as long a jump to ask the courts, ‘Do you have to offer Advanced Placement classes?’ Or preschool?” Hess said. “I’m deeply concerned about a Pandora’s Box, where we’re inviting the courts to start making decisions about all manner of educational provisions.… I don’t think that’s good for kids, taxpayers, or teachers.” 

Winning Isn’t Everything

Through lawsuits, activists can succeed without actually winning the court case, Dunn said. 

“My general sense is that they think they can win even if they don’t win,” he said. “That’s because, just through the discovery process, the teachers unions are going to have to end up defending policies that allow obviously incompetent teachers to keep their jobs. If nothing else, they view it as a kind of political victory.” 

“What the judges end up ruling is almost secondary with these cases,” he said. 

Attorneys for the New York plaintiffs said they expected to file their lawsuit in August.

Mary C. Tillotson ([email protected]) is an education reporter for Article is reprinted with permission.

Photo by Wally Gobetz.