School Board Votes To Break State Law On Teacher Pay
The Guilford County Board of Education, at its Saturday, Feb. 1 retreat, voted 5 to 1 to defy legislation passed by the North Carolina General Assembly in 2013 phasing out teacher tenure by 2018.
The school board turned around and voted 5 to 1 to table the issue until its Feb. 11 meeting so that all 11 school board members could vote on it.
“I certainly am with the board on this,” said school board member Amos Quick, the one school board member who voted against disobeying the law. “But I think our vote should be 11 and impactful in a way the legislature would understand.”
A complaint challenging the law abolishing tenure was filed in Wake County Superior Court on behalf of a handful of teachers by the North Carolina Association of Educators (NCAE) in December. The lawsuit claims that the bill phasing out tenure, which was attached to the 2013 state budget bill, violates the US and North Carolina constitutions.
That would be the legal remedy to a law the school board doesn’t like. What the school board said it will do is simply ignore a law – passed by the General Assembly and signed by the governor – that it doesn’t like.
The North Carolina law phasing out tenure, the NCAE’s challenge to it and even the Guilford County school board’s resistance to the law are getting national attention because abolishing tenure for public school teachers is a hot topic in school reform, and numerous states are considering doing so – against ferocious opposition from teachers’ unions.
A Guilford County school board vote to ignore the law would have little effect. Unlike an injunction against enforcement of the anti-tenure law, such as the NCAE has requested, a school board vote wouldn’t prevent the abolishment of tenure, even in Guilford County.
The new tenure law splits teachers into three groups, and the General Assembly gave school boards only partial control of one.
The first group is teachers who have not attained tenure. They won’t be able to get it.
The second group is teaches who have tenure but do not accept four-year contracts by 2018. They will lose tenure in 2018.
The third group is made up of 25 percent of teachers, chosen by the school board, who will get up to $5,000 in cumulative bonuses starting in 2014 and ending in 2018 if they choose to accept a four-year contract and surrender their tenure. The law provides that the school board must pick a quarter of a school system’s teachers, and those teachers must have three or more years in the system and be ranked as proficient on their evaluations.
The last group is the only one over which the school board has any control. The law doesn’t require that the 25 percent of teachers be the top 25 percent. School boards can choose any 25 percent of their teachers, as long as they meet the criteria.
Guilford County School Superintendent Mo Green and the school board made an issue of the fact that the bonuses for the 25 percent of teachers chosen for four-year contracts have only been funded for the 2014-2015 school year. But the General Assembly funds teacher salaries yearly – so there is no reason to expect it to fund bonuses four years in advance.
The school board’s vote would affect only the 25 percent of teachers given bonuses to take four-year contracts. In essence, the school board is planning to take the money and ignore what the law requires Guilford County Schools to do with it.
The school board, as often happens, seemed a little fuzzy on exactly what it was voting on when it voted to disobey the tenure law. Green’s administration had given the school board four options on how to pick the 25 percent of teachers who would get bonuses, and went into the meeting expecting the school board to approve one of them.
School Board Chairman Alan Duncan, after the vote, said that Guilford County Schools would be out $4.4 million if the General Assembly didn’t fund the remaining three years of bonuses. He clarified what the six school board members present voted on. That, too, is not unusual. The school board often votes on motions that Duncan has to explain before – or, as in this case, after – the vote.
Duncan said “The motion would be made that we not accept any of the four proposals that staff had made, and that we specifically instruct staff not to work on any other proposals at this time, or recommend any other decision that would take away rights that are already vested.”
School board members asked if the school board could challenge having to pick 25 percent of teachers – the school board is horrified at the idea of even implying that some teachers are better than others – and school board attorney Jill Wilson said that would only prevent Guilford County Schools from getting $491,000 from the state for the first year’s bonuses. The school system would get $4,910,000 from the state for bonuses over four years. The bonuses compound every year.
Wilson said the school board should just consider the $491,000 a pot of money and hope the state loses the NCAE lawsuit. She said the General Assembly would be unlikely to have time to defund that amount, so Guilford County Schools would get $491,000 in free money. She said, “There is no reason to be ahead of the curve on this.”
Wilson, in essence, was telling the school board to take the bonus money under false pretenses. She said, “There are ways to use this money to benefit the system.”
Apparently, neither the NCAE or the school board is challenging the General Assembly’s right to eliminate tenure for newly hired teachers. The issue is whether teachers who are already vested in tenure, and those who were hired after being promised tenure, have a property right in that tenure.
If Guilford County Schools were to follow the law for new hires, but not for all other teachers, the result would be that Guilford County Schools would not issue the four-year contracts to 25 percent of its teachers and those teachers would not get the bonuses.
Taking the $491,000 and not giving the teachers the bonuses might work, at least temporarily – although Guilford County Schools might have a lot of mad teachers and it’s hard to imagine that the General Assembly wouldn’t find a way to punish school boards that don’t follow the law, especially if the state wins the NCAE lawsuit.
One legal problem with the school board ignoring the law would seem to be that teachers also have a property right in the $5,000 in bonuses they would earn over four years if they want to accept four-year contracts. But the morale problem is likely to be much greater than the legal problem. Taking $5,000 away from employees may not be popular.
As for keeping tenure for teachers in 2018, after tenure is revoked statewide, it seems impossible. If the new tenure law withstands legal review, courts won’t recognize tenure in firing disputes. Also, the law that allows the school board to grant tenure has been revoked.
The new tenure law took effect on August 1, 2013 for teachers who did not have tenure as of that date.
The old law stated, “When a teacher has been employed by a North Carolina public school system for four consecutive years, the board, near the end of the fourth year, shall vote upon whether to grant the teacher career status.”
That provision has been repealed, so the school board won’t have legal authority to grant teachers tenure unless a court throws out the new tenure law.
Practical details weren’t really involved in the school board’s vote to violate the tenure law, which was driven by emotion.
School board member Jeff Belton apologized profusely to the handful of teachers who were present for the “dehumanizing” prospect of losing tenure and having to work under the protection of a contract.
“I don’t know whether to be mad or sad,” Belton said. “It’s heartbreaking.”
School board member Darlene Garrett called the new tenure law is reckless and wrong and compared violating it to the actions of the four North Carolina A&T State University students whose 1960 sit-in at the South Elm Street Woolworth lunch counter helped desegregate public accommodations in the United States.
Comparing the defense of the only industry in the United States that grants lifetime tenure after four years to pioneers of desegregation was an overstatement, and perhaps a tad tasteless coming shortly after the Jan. 9 death of Franklin McCain, one of the four.
Duncan pushed the school board over the threshold between debate and rhetoric, citing the oath school board members take to uphold the North Carolina and US constitutions.
“I’m sick of attacks on public education,” Duncan said. “I am sick of them from the General Assembly.”
Green made no recommendation to the school board on ignoring the law, but said if the school board chose to do so, it should do so quickly to give his administration time to come up with a fallback plan. He said, “Rejecting this tells us to go back and come up with something else.”
Duncan said, “I could vote today, tomorrow and the next day.” He made the motion to ignore the law.
After Quick’s dissenting vote and argument that the entire school board should consider the issue, the school board voted 5 to 1 to table the issue until the Feb. 11 meeting. Garrett cast the sole vote against doing so.
What the school board plans to do is simply break the law, and, presumably, if it does so, it will somehow be punished for breaking the law.
There is a legal way to challenge a law you don’t like, and that’s through the courts. That’s an entirely different thing, and is what the NCAE is doing at the state level.
The NCAE in its lawsuit is relying on a property rights argument to challenge the new tenure law.
The NCAE complaint claims that tenure is part of the compensation, or valuable consideration, that teachers accept in exchange for their services, and that teachers who have attained tenure have vested property rights in that compensation under the North Carolina Constitution. The complaint also claims that those property rights can’t be taken without compensation under the state constitution.
The complaint also claims that tenure is a vested contractual right. The Contract Clause of the US Constitution prohibits states from passing laws that reduce the value of a contractual right.
The USSupreme Court has defined a state law that does not violate the Contract Clause as one that doesn’t substantially impair a contractual relationship, for which the state has “a significant and legitimate purpose” and is “reasonable and necessary” for its purpose.
The University of North Carolina School of Government, in a publication on public employment law, states that the “reasonable and necessary” standard is hard to meet.
The School of Government states, “Both the U.S. Supreme Court and the North Carolina Supreme Court have rejected the notion that the courts should defer to a legislature’s or governing board’s assessment of what is reasonable and necessary, noting that the legislative body has an inherent conflict of interest in making this determination.”
North Carolina courts will probably consider whether tenure is a property right, and whether that right is obtained when a teacher is hired, or attains tenure after four years, or invokes tenure to avoid being fired.
The North Carolina Supreme Court ruled in a 1998 case, Bailey v. State of North Carolina, that public employees have a contractual right to retirement benefits, as explained by the North Carolina School of Government, “as the terms exist at the moment their retirement vests.” The court also ruled that the employee has a right to expect that the value of a retirement right not be “removed or diminished.”
The NCAE cites the Bailey case in its complaint.
One interesting question is whether tenure must have a monetary value for the property right to hold. Retirement benefits, unlike tenure, have clearly specified values.
Public school teacher tenure is an oddity. Teacher tenure, officially called career status, is a familiar concept to most from universities, where it takes a long time to achieve. In North Carolina public schools, however, almost all teachers achieve tenure after four years. The law is written as if school boards grant tenure to individual teachers, but, with few exceptions, school boards grant them in bulk to all their teachers.
If the courts decide that tenure is a property right, the most vulnerable part of the new tenure law would be the provision taking tenure away from teachers who already have it. If a court were to invalidate that provision, it would leave North Carolina with a very long transition to abolishing tenure.
Wilson, asked by school board members if any other states are removing tenure, said some are discussing it. She said, “I’m not aware of any state that is doing it retroactively.”
BY Paul C. Clark
February 6, 2014
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