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Tuesday, July 8, 2014

Michael Rebell: The Anti-Tenure Lawsuit In NYC Will Fail, and Why

Why the anti-tenure lawsuit will fail 

For one, New York laws are much different than California's

Monday, July 7, 2014, 4:30 AM


Campbell Brown

A few weeks ago, a judge in California struck down the state’s teacher tenure and seniority-order layoff laws. Even though the ruling has not yet been reviewed by the California Supreme Court — which may well reverse it — there already is a strong copycat effect, as groups in a number of states, including New York, have announced plans to file similar lawsuits in the near future.
I doubt that a New York version of the California suit will succeed. And though some liken it to an earlier lawsuit I filed, which secured the promise of more equitable funding for city schools, the parallel is misguided.
I was the attorney for the plaintiffs in Campaign for Fiscal Equity vs. New York, the landmark case in which, in 2006, the state’s highest court ordered the governor and the state Legislature to increase funding for the public schools by billions of dollars to ensure all students their right to a decent education.
Since that decision was issued, I have been repeatedly tagged as an advocate of “judicial activism” by conservatives, who have expressed outrage at the courts’ ordering the state to spend more money on the schools. They argue that such judicial orders usurp executive and legislative authority and violate the constitutional separation of powers.
Now, these very same conservatives are rushing to ask the courts to wade into the weeds of legislative policy decisions to an extent that would dwarf anything that the courts have done in the school-funding arena.
Move past the hypocrisy to the merits, and those filing this New York case stand on even shakier ground.
First of all, the tenure laws in California are markedly different from those in New York and most other states. The tenure statute at issue in California essentially require the school authorities to make a decision on a candidate’s permanent right to employment after a novice teacher has been on the job for only 18 months - and before a mandatory evaluation process has been completed.
The law in New York, as well as in the vast majority of other states, requires at least a three-year probationary period. The New York Legislature also recently enacted a major new personnel evaluation system for the purpose of improving the quality of the teaching corps and identifying poorly performing teachers more effectively than the procedures that were used in the past. The long-term results of that reform are as yet unknown.
Second, the New York Court of Appeals has repeatedly emphasized its respect for the separation of powers and the importance of courts avoiding “intrusion on the primary domain of another branch of government.” It made an exception to this pattern of deference in regard to education funding because of language in the Constitution that guarantees all students the opportunity for a sound basic education.
In a companion case involving claims of racial segregation in the schools that the court decided on the same day as CFE, judges made clear that they were not willing to extend the protections of the concept of “sound basic education” to other types of alleged discrimination.
Third, there is no clear evidence that eliminating tenure and seniority layoffs will result in a more effective teaching corps or more equal access to quality teaching. Certainly, there are ineffective teachers in our schools, and they tend to work in the schools attended by low-income and minority students.
But tenure arguably promotes stability in the teaching force, values experience and may well be an incentive for recruiting capable individuals for what is still a relatively low-paid profession. Tenure may also shield skilled teachers from politically or ideologically motivated retribution in an education system that has become increasingly politicized.
The California judge did not consider all these factors in making his decision. I believe the New York courts will.
Rebell is a professor of law and educational practice at Teachers College, Columbia University.