News: CJ Exclusives

Official: Split Teacher Tenure Should Not Be A Problem

School boards spokeswoman compares new system to one used for principals for past 20 years

RALEIGH — North Carolina school districts should face few challenges administering a split tenure system for teachers following a state Court of Appeals opinion which maintained job protection for long-term teachers while eliminating it for those entering the profession, one official says.

Moreover, said Leanne Winner, spokeswoman for the North Carolina School Boards Association, the divided tenure system resembles a similar process implemented two decades ago for public school principals.

“Assuming that the decision stands as is, there will be under the law one group that will have one set of rights, and another group that has another set of rights,” Winner said.

“It’s not a new concept for school districts to have that, and there are other situations where you have employees under different scenarios,” Winners said. “When principal tenure was eliminated [in 1995], those who already had it were grandfathered in.”

School systems have to conduct bookkeeping for both those principal tracks, just as they must maintain separate benefits schemes for state employees who work in a district versus school district employees, she said.

“Some of them have different health benefit rights because the vesting periods have changed,” Winner said.

“We’re going to do whatever the courts are going to say to do,” Winner added. “We have not been involved in that case at all, so I don’t think it’s probably appropriate for us to comment” on the merits or the outcome of the case.

Two years ago, the General Assembly repealed the state’s career status law, which is akin to tenure. The move was intended to make it easier to dismiss ineffective teachers in keeping with various court rulings on the state Constitution’s requirement to provide students with the opportunity for a sound, basic education.

Lawmakers made the repeal retroactive for teachers who already had attained career status, and eliminated it going forward for those who had not completed the mandatory four years of probationary teaching required for eligibility.

The North Carolina Association of Educators and seven teachers filed suit to overturn the law. In a 2-1 opinion written by Judge Linda Stephens and released earlier in June, the Appeals Court panel concluded that “the substantial impairments the Career Status Repeal imposes on Plaintiffs’ vested contractual rights for the purported rationale of making it easier to dismiss ineffective teachers serves no public purpose whatsoever.” Judge Martha Geer concurred.

Before the case went to trial, some national legal experts said that the plaintiffs had employed unusual legal arguments and seemed unlikely to prevail.

On the other hand, former state Supreme Court Justice Bob Orr told Carolina Journal at the time that a 1998 precedent known as the Bailey case gave the teachers a solid chance of winning.

Superior Court Judge Robert Hobgood in 2014 ruled against the state at trial.

When the June Appeals Court ruling was issued, Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, released a joint statement saying they were disappointed, reviewing the ruling, and considering options. Because the Appeals Court decision was not unanimous, the state Supreme Court would have to accept the case on appeal if the state chooses that option.

Neither Berger, Moore, Attorney General Roy Cooper, nor NCAE President Rodney Ellis responded to requests for comment.

The plaintiffs argued that the General Assembly unconstitutionally deprived teachers of contract and property rights by repealing career status, which gives veteran teachers continuing contracts as opposed to the annual contracts they receive during their four-year probationary period.

Under previous law, teachers with career status could be dismissed, demoted, or shifted to part-time status for only 15 reasons, including inadequate performance, insubordination, and neglect of duty. But a series of hearings were required to be held before any of those actions could be taken against a career status teacher.

Under the repeal law, teachers would receive one-, two-, or four-year contracts, and school boards had the option of renewing a teacher’s contract. Nonrenewal was possible so long as it was not “arbitrary, capricious, discriminatory, for personal or political reasons, or on any basis prohibited by state or federal law.”

But the repeal provided no right to a hearing, even though school districts could conduct a hearing if requested. The repeal further directed school districts to offer four-year contracts to 25 percent of their teachers who had at least three years of experience, including a $500 raise in each year of the contract if they voluntarily relinquished career status before the repeal took effect.

At trial, Hobgood ruled the repeal deprived teachers of property and contract rights. But he said the state could eliminate career status for those teachers who had not yet attained it.

In summarizing Hobgood’s decision, the Appeals Court said when teachers “made their decisions both to accept teaching positions in North Carolina school districts and to remain in those positions, they reasonably relied on the state’s statutory promise that career status protections would be available if they fulfilled those requirements. The protections of the career status law are a valuable part of the overall package of compensation and benefits.”

Hobgood also found that “[e]ven if there was an actual need for school administrators to have greater latitude to dismiss ineffective career status teachers, that objective could have been accomplished through less drastic means, such as by amending the grounds for dismissing teachers for performance-related reasons.”

Based on the record and review of the case law, Stephens wrote, “we conclude that the trial court did not err in its determination that career status rights constitute a valuable employment benefit,” and that repeal “substantially impairs plaintiffs’ vested contractual rights.”

In dissent, Judge Chris Dillon said tenure repeal should be interpreted as a legislative policy rather than the ending of a contractual right.

“Policies, unlike contracts, are inherently subject to revision and repeal, and to construe laws as contracts when the obligation is not clearly and unequivocally expressed would be to limit drastically the essential powers of the legislative body,” Dillon wrote.

“I am also persuaded by the decisions from the highest courts of the other states which have seemingly universally concluded that statutes establishing tenure for public employees do not create constitutionally protected contract rights,” Dillon wrote.

“The language of the career status law compels a conclusion that a status was created for career teachers rather than a contract right,” he wrote. “As such, I believe the General Assembly is not restricted by the Contract Clause from modifying the law as it has done so on several occasions since its passage in 1971.”

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.