School Board’s Backbone Buckles
on Teacher Tenure
Despite its brave talk, the Guilford County Board of Education on Tuesday, Feb. 11, did not vote to defy the North Carolina General Assembly and refuse to implement a law requiring school boards to phase out teacher tenure by 2018.
School board Chairman Alan Duncan and other school board members had heavily advertised their vote as an act of civil disobedience against the tenure law. As a result, the school board chamber was so packed with teachers and reporters that Guilford County Schools set up an overflow room where teachers could watch the meeting on television.
Many teachers spoke from the floor at the meeting, one comparing the “criminal and dehumanizing” idea of replacing lifetime tenure for teachers with contracts to Jim Crow segregation laws.
At the school board’s Saturday, Feb. 1 retreat, the board voted to defy the law, then voted to table the issue until Tuesday’s meeting, when all the school board members would be present. Guilford County School Superintendent Mo Green called the action “monumental.” Duncan said he was drawing a line in the sand and said, of obeying the new tenure law, “I’m personally not going to be doing any of this.” School board members Darlene Garrett and Amos Quick compared the school board’s stand to the 1960 Greensboro sit-ins. On Tuesday, Quick said Greensboro had changed the world’s minds once, and that “certainly, I’m all in favor of changing their minds again.”
In between the retreat and Tuesday’s meeting, Guilford County Schools hyped the meeting beyond belief, inviting every media outlet within driving distance and requiring them to RSVP to reserve seats.
The hype worked, but the school board didn’t deliver.
Instead of defying the legislature by voting not to comply with the law, the school board merely voted 9 to 0 to ask the General Assembly to rescind the law. The school board has been asking the state legislature for things for years without success.
The resolution the school board unanimously approved also stated that the school board has “significant concerns” about the new tenure law, although it wants to keep the money the legislature gave school boards to increase some teachers’ pay for accepting contracts instead of tenure.
The resolution also authorized Green, Duncan and school board attorney Jill Wilson to ask a court for a declaratory judgment finding unconstitutional the law’s revocation of tenure for teachers who already have it.
That was it.
No vote to defy the state legislature. No school board members lining up to be arrested for breaking the law. The meeting had all the trappings of a brave stand but none of the substance. The only thing monumental about it was its success as a public relations campaign, and nobody seemed to notice the bait-and-switch.
After the school board vote, Guilford County Schools issued a press release headlined, “Guilford County Board of Education Takes Historic Vote.” There’s nothing like a little modesty.
The press release stated that the school board “decided in a unanimous vote to take legal action rather than adhere to new legislation it considers unconstitutional.”
Only the first part of that statement was true.
The vote authorized Green, Duncan and Wilson to go, hats in hand, to the General Assembly, asking it to scrap the new law, and to the court, asking the court for a declaratory judgment.
A declaratory judgment, to quote Black’s Law Dictionary, is “One which simply declares the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done.”
That’s a far cry from defying a law, much less a heroic stand on principle.
The school board’s sudden shift in strategy from having the courage to ignore the law to asking the court to define the state’s obligations under tenure contracts may be a result of a Feb. 7 memo from Gerry Cohen, a special counsel in the General Assembly’s Legislative Services Office.
The new tenure law requires school superintendents to review the performance of all teachers who have worked in their school systems for at least three years. Superintendents must pick 25 percent of the teachers to be awarded four-year contracts beginning in the 2014-2015 school year. School boards can accept superintendents’ recommended teachers or substitute their own.
Teachers accepting four-year contracts would “voluntarily relinquish career status” – give up tenure – and would get a $500 pay raise for each year of the four-year contract, raising their salaries by a total of $2,000.
President Pro Tem of the NC Senate Phil Berger had asked the Legislative Services Office whether school boards could disregard the new tenure law and refuse to offer teachers contracts.
Cohen wrote Berger, “In my opinion, the local board may not ignore the statute and decline to make any contract offers (unless it did not find an adequate number of teachers who qualify ... If there are not adequate numbers then I believe it could make a smaller number of offers than 25%, but then it would have to make offers to all those who qualify. The local board has a statutory mandate to act.”
Cohen stated that it is a Class 1 misdemeanor for a school board member to “willfully omit, neglect or refuse to discharge any of the duties of his office,” and that officials can be removed from office if convicted.
Cohen also stated that school board members refusing to offer the new contracts would be violating their oath of office, although not “corruptly,” which if proven would require them to be removed from office.
Wilson later said that Cohen’s memo wasn’t a factor.
“We have been studying and thinking through this serious issue, and courses of action to resolve it, since the retreat,” she said. “This board is very conscious of the weighty obligations that come with the office, and they decided to seek court guidance after thoughtful consideration because that is the method we have to resolve struggles between what they believe to be constitutional and what they have been legislated to do.”
The school board, according to its resolution, intends to ask the court to rule that eliminating tenure from existing contracts is unconstitutional and to ask for “declaratory relief” – presumably a ruling that the state can be held to a tenure contract and can’t invoke sovereign immunity to escape it.
Sovereign immunity is a privilege that gives the government immunity from being sued unless it waives that immunity.
The resolution the school board approved gives many justifications for its case – most to justify it to the public, not the court.
Duncan, before reading the entire four-page resolution, quoted heavily from the 1976 North Carolina Supreme Court case Smith v. State, which hinged on sovereign immunity. The opinion in the case was written by Susie Sharp, the first female chief justice of the court, who Duncan praised.
In Smith v. State, the NC Supreme Court found that the State of North Carolina, when it enters into a contract, implicitly consents to be sued for damages if it breaches the contract.
If the school board is successful in its claim that the state, and Guilford County Schools are like any other parties in a contract dispute, teachers who had tenure but lost it could sue the state, if the court agrees that tenure is a property right.
The North Carolina Association of Educators (NCAE) has challenged the new tenure law at the state level. The real test of the school board’s courage will come if that case is not decided by June 30, the date by which the General Assembly ordered school boards to offer contracts.
Wilson said it seemed unlikely that the NCAE case would be decided by June 30.
By Paul C. Clark
February 13, 2014
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