News: CJ Exclusives

Experts: Property-Right Basis of Teacher Tenure Shaky Legally

Due-process claim key to lawsuit's fate

While the teachers lobby claims conservative North Carolina lawmakers are waging a “full frontal assault” on educators by eliminating career status protections to weed out ineffective teachers, some education and legal experts say the state’s action is aligned with a national trend to ensure children have top-quality instructors.

In a lawsuit filed Dec. 17 in Wake County Superior Court, the North Carolina Association of Educators, joined by six teacher plaintiffs, claim career status is a vested, contractual property right, a legal concept that has not been tested in North Carolina regarding public employment. As a property right, the General Assembly cannot remove the protections of tenure without “just compensation,” the lawsuit argues.

Career status

Career status confers continuous employment, rather than year-to-year work, to teachers who serve four consecutive years on probationary annual contracts.

Even though courts have not weighed in on the legal standing of career status, several legal experts said the property-rights argument used by the teachers union is a reach. The General Assembly created career status in 1971, and it should be able to take it away so long as it has used “fair and reasonable procedures” in doing so, said Tyler Younts, the John Locke Foundation’s director of public safety and legal policy.

The teachers union is overplaying its hand with the tenure lawsuit, said Terry Stoops, director of education and research studies at JLF.

“It’s going to take a legal leap of faith for the judiciary to buy that argument, and maybe they’ll come across the right judge or judges who will be sympathetic to that argument. But I think most people … will rightfully call it ridiculous,” Stoops said.

“I know there are places where a license is looked at as a property right, or tenure is looked at as a property right,” said Sandi Jacobs, vice president of the National Council on Teacher Quality. But interpretations of such a right “might be very much state-specific, based on a state’s laws and constitution.”

Property argument

The NCAE suit quotes Article I, Section 19 of the state constitution that guarantees “[n]o person shall be … in any manner deprived of his … liberty or property but by the law of the land,” and also provides that taking of property by the state shall not be done without just compensation.

“[T]he fundamental right to just compensation … is considered in North Carolina as an integral part of the law of the land,” the constitution states.

The suit further contends Article I, Section 10 of the U.S. Constitution prohibits a state from passing a law “impairing the obligation of contracts.”

As part of the state budget, the 2013 session of the General Assembly repealed career status; beginning in 2018, teachers who held that designation will lose it. Local school boards would then offer teachers one-, two-, or four-year contracts based on performance.

Beginning with the 2014-15 school year, local boards will offer the top 25 percent of teachers, as determined by the school district superintendent, four-year contracts and a $500 annual incentive to waive career status.

“I really think it is a close call on whether ending tenure in this way violates due process,” said Younts.

“Due process doesn’t mean that property interests cannot be deprived, but rather that whatever procedures that are used must be fair and reasonable,” Younts said.

“But here you have the unusual situation of the legislature is acting to abolish something that it previously created — career status. It is possible that the courts would consider the legislative process itself as satisfying due process. But again, I’ve not found any case law on point,” Younts said.

He said the courts may view any damages teachers may suffer by the loss of career status would be mitigated by the extra pay provided in the new law.

Rarely litigated

“I’m not quite sure how much this actual issue has been litigated,” said Michael Heise, a professor of law at Cornell University Law School and deputy chief of staff for former U.S. Secretary of Education Lamar Alexander.

Heise said he has not heard of due process or property rights being used as a legal argument in matters of “economic exigency or political decision-making” in which tenure is simply eliminated. “It’s a rare event, that’s for sure.”

To the extent that argument comes up, Heise said, “it only comes up in the context of a teacher being stripped of tenure because of ‘for cause’ — they are either pedophiles or something like that. Then they lose tenure and there’s no question about due process at all.”

A case in point occurred in the Monroe City School System in Ouachita, La., in which a teacher facing termination sued the state over its 2012 Act 1 law eliminating most teacher tenure provisions. A district court judge cited the Due Process Clause of the 14th Amendment of the U.S. Constitution and the Louisiana state constitution in his August 2013 ruling, saying “tenured employment is a right so important that it cannot be taken away without a hearing of some kind.”

The Louisiana Supreme Court vacated that ruling in January and sent the case back to district court for a retrial.

Teacher tenure laws “probably did create a status that counts as a right protected by the U.S. Constitution, but not a property right that can only be taken away by paying compensation as occurs when government takes your land by eminent domain to build a road,” said Stephen Sugarman, professor of law at the University of California-Berkeley Law School.

“Rather,” Sugarman said, it is a right “that can only be taken via the exercise of due process at least if individually withdrawn.”

No matter how the court battle turns out, Jacobs said North Carolina is on the right side of ensuring children have capable teachers leading their classrooms.

Tenure change a trend

“We have seen over the last few years an increasing number of states looking to change tenure policy,” she said. When her organization first started looking at these policies in 2009, no state required any evidence of teacher performance to be part of a tenure decision.

“In Florida, all teachers are on annual contracts,” Jacobs said. Louisiana made tenure much harder to achieve, so that only a certain percentage of teachers would win it.

“Some states have just looked to make sure that earning tenure is a high, meaningful bar [with] real evidence of effectiveness,” Jacobs said. Some states made tenure less permanent, so teachers without effective ratings reverted to probationary status.

“And then there’s another group of states, which I think North Carolina would fit in this category, which have essentially said, ‘We are getting rid of that continuing contract status,’” Jacobs said.

“We’re in the middle of a real culture shift in teaching, and the idea that teachers really need to be effective,” she said.

“I think there is a lot of evidence from around the country that it can be very, very difficult, and time consuming, and take a lot of money simply to fire an ineffective teacher,” Jacobs said. Students shouldn’t have an ineffective teacher, “someone who year after year is a real, chronic underperformer.”

The solution to ending students’ “luck of the draw” on getting good teachers one year and poorly performing teachers the next year ‘is exactly the direction we see states moving in to improve their teacher evaluation system so they include objective evidence as well as more subjective observation,” Jacobs said.

“With the teacher evaluation system that the state has developed, I think that it’s going to become crystal-clear which teachers are performing, which schools are performing, and which are not,” Stoops said.

“This is what scares the bejesus out of those teachers that for years have hidden in a system that has protected them at all costs despite their performance,” Stoops said. “Now we’ve gotten rid of that system, and they should rightfully be worried about that.”

N.C. research

Research in North Carolina with tenured teachers demonstrates “they really don’t care that tenure is being taken away … because it wasn’t as if you needed some sort of crutch that would help you to stay,” Stoops said.

“Rather, it was for the lower teachers, the teachers who didn’t perform well, and that’s why there is so much objection to losing tenure and to a merit-pay system, because the teachers on the lower end are scared that there won’t be any protections for them when their poor performance comes to light,” he said.

“In the private sector, employees are at-will employees, meaning they are employed at the will of the employer, and this just puts the teaching profession in line with the rest of us who are at-will employees,” Stoops said. “And they even have special protections that other at-will employees don’t have.”

“I don’t know any industry or profession where performance review isn’t the norm,” Jacobs said. “But somehow teaching has become exempt from that professional norm, and clearly it is changing. We see that all over the country.”

Dan Way is an associate editor of Carolina Journal.