While a California judge recently found that state’s teacher tenure system unconstitutional, similar suits against New York’s tenure and discipline laws are less certain of achieving a similar outcome, education law experts say.
A case expected to be filed Monday in Albany Supreme Court will be the second one this month challenging job protections for teachers as being antithetical to guarantees that school children receive a “sound, basic” education under Article XI of the state Constitution.
Another suit, Davids v. State of New York, 101105/14, was filed on July 3 in Staten Island Supreme Court.
One of the plaintiffs’ lawyers in the Albany case, Kirkland & Ellis litigation associate Devora Allon, said the action is not an offshoot of the California litigation, but one with distinct similarities and reasons for hope in New York.
“We have been looking at this [New York litigation] for about six months and we are not really being driven by the California case,” Allon said in an interview. “But we are definitely encouraged by the results and the reason the statutes were struck down, the reasons that they found troubling, they are the same things we find troubling here.”
Jonathan Tribiano of Staten Island is representing the plaintiffs in the Staten Island case. He said the plaintiffs’ success in Vergara v. California, BC484642, was a motivating factor behind the filing of the Davids case in New York.
“We believe that the political and legal climates in California and New York are similar,” Tribiano said in an interview. “[Vergara] encouraged them that they would not just be spinning their wheels and could effect real changes if they brought a case here.”
In addition to contending that tenure creates career-long protection for substandard teachers, both New York suits are attacking other teacher provisions under §3020 of state Education Law. They include due process protections afforded teachers who face disciplinary problems and the “last-hired, first-fired” statute that requires the least-tenured teachers to be the first to be laid off when districts cut teaching positions.
In Vergara, Los Angeles County Superior Court Judge Rolf Treu ruled tentatively on June 10 that the California tenure system was ineffective at rooting out unqualified teachers, who the judge said are especially harmful to students in minority and low-income schools. He will not issue a permanent ruling until mid-August, and California education officials and teachers’ unions are expected to appeal.
Michael Rebell, who successfully represented plaintiffs in the landmark Center for Fiscal Equity (CFE) school funding case in New York, said New York courts have generally considered the mechanics of public schooling such as tenure and teacher discipline a matter for the governor and Legislature to work out.
In the 13-year-long CFE case, the Court of Appeals found that New York was shirking its constitutional responsibility to some students by not providing enough overall funding for a “sound, basic” education (NYLJ, Feb. 18, 2010). The case, however, did not focus on the role of teacher tenure in the quality of education.
To duplicate the success of CFE, Rebell said, plaintiffs in tenure cases would need to show that having access to an effective teacher is a constitutional right. But he said that such a finding would entail taking into account “15 other things” that courts could find are beyond their control, such as better working conditions for teachers, better salaries, better college preparation and a better tenure system.
“I think the courts will want to avoid getting into the weeds,” said Rebell, a professor at Columbia University. “The courts put the pressure on the Legislature in CFE to move in a certain direction, and they gave some parameters for what had to be considered as part of a sound, basic education. But it is not the court’s role to get into the nitty-gritty, into the fine points of policy. I think it is going to be heavy sledding for the plaintiffs.”
Rebell and other Education Law experts point out that the system struck down in California provided tenure after 18 months of employment, while New York requires teachers to serve a three-year probationary period before gaining tenure, and can be extended to up to four years.
The tenure situation in New York is also complicated by the introduction of a new statewide evaluation system in 2013 which puts more weight on teachers’ performance in the classroom. It is too early to tell if that system, which proponents say will make it easier to fire incompetent new teachers, will be a factor that state defendants in New York will use to fend off challenges to tenure.
There are about 200,000 teachers and about 2.7 million students in public schools in New York state.
Allon and Kirkland & Ellis litigation partner Jay Lefkowitz will bring the Albany action pro bono on behalf of a group of parents organized by the Partnership for Educational Justice, an advocacy group founded by Campbell Brown.
Brown, a former CNN news anchor, lives in New York and is a parent.
Allon said the case will be filed in Albany because that is where the suit’s chief defendants—the state of New York and the state Board of Regents—are based, and because “what we are really alleging is a statewide systemic failure, not specific to any district.”
The Staten Island case was brought by the New York City Parents Union, an advocacy group. Many of its 11 student-plaintiffs are the children of parents active in the group.
Mona Davids, president of the parents’ group, called educational inequity “a crisis of epic proportions.” She said New York City neighborhoods that are mostly black and Latino have the schools with the highest concentration of teachers rated unsatisfactory. “Yet,” Davids said, “every attempt to hold teachers accountable for educating our children is blocked.”
Davids’ daughter, Mymoena, is the lead plaintiff in the suit.
The state’s largest teachers’ union, New York State United Teachers, said it will seek to intervene on the defendants’ behalf in the Davids case and in the Albany action, once it is filed.
State United Teachers President Karen Magee said tenure is far more apt to protect teachers who take unpopular positions with their employers by advocating for education improvements than it is to protect incompetent teachers. Magee, a former special education teacher in Harrison, N.Y., said it is not unusual for teachers to incur the wrath of school districts by arguing that they spend more on students and better facilities.
“Tenure is a due process right,” Magee said. “It takes away nepotism and favoritism. It takes away patronage. It causes a district to do their due diligence when deciding if teachers are worthy of tenure.”
Attorney Arthur Schwartz has also filed a motion seeking to intervene in Davids as a defendant on behalf of Schwartz’s group, Advocates for Justice.
Schwartz, who often works for the Transport Workers Union and other labor organizations, said he will argue that tenure and other job protections under Education Law §3020 work to the benefit of students and the education system by providing job security for teachers.
“We believe that the statistics will show that the states where there are job protections for teachers coincide with the states that have the highest ratings for standardized tests and state’s without any protections are at the bottom,” he said.
Even some who agree with the impulse behind the California lawsuit question whether the courts are the right arena for deciding which teachers stay or go.
“The intention here is entirely admirable,” said Rick Hess of the American Enterprise Institute, a conservative think tank. “I don’t think the results are likely to turn out in a way that’s going to actually promote reform.”
He added, “It’s not clear what exactly constitutes an acceptable teacher tenure standard. These are judgment calls.”
Jay Worona, counsel at the New York State School Boards Association, said he can understand the frustration of the plaintiffs who think the current system offers unreasonable protections for incompetent teachers.
But he said that making the argument in court that the tenure and discipline system for teachers is unconstitutional as it affects students will be difficult, if not impossible.
“I don’t think that tenure is evil,” Worona said. “Protecting people makes sense. The question for us is how much protection is necessary to comport with the Fourteenth Amendment due process provisions? The question is, how much is too much? I think we are at the too-much stage”
Rebell is also the plaintiffs’ attorney in another education funding suit, New Yorkers for Students’ Educational Rights v. State of New York, 650450/2014, in which the plaintiffs argue that the commitment to education that the governor and the Legislature promised under the pressure of CFE has fallen billions of dollars short of being adequate.
The coalition of plaintiffs in that suit include the state PTA, the state School Boards Association and the New York City Parents Union, the organizer of the Davids tenure litigation. The case is before Manhattan Supreme Court Justice Manuel Mendez (See Profile).