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Just in: Court of Appeals Says Repeal of North Carolina Tenure Law is Unconstitutional
Writing for the court, Judge Linda Stephens said: (W)e cannot escape the conclusion that for the last four decades, the career status protections provided by section 115C- 325, the very title of which—“Principal and Teacher Employment Contracts”— purports to govern teachers’ employment contracts, have been a fundamental part of the bargain that Plaintiffs and thousands of other teachers across this State accepted when they decided to defer the pursuit of potentially more lucrative professions, as well as the opportunity to work in states that offer better financial compensation to members of their own profession, in order to accept employment in our public schools.
Just in: Court of Appeals Says Repeal of NC Tenure Law is Unconstitutional
Posted by : Sharon McCloskey Tuesday, June 2, 2015
The General Assembly’s 2013 repeal of the teacher tenure law amounted to an unconstitutional taking of contract and property rights as to those teachers who’d already attained that status, according to a Court of Appeals opinion released this morning.
Writing for the court, Judge Linda Stephens said:
(W)e cannot escape the conclusion that for the last four decades, the career status protections provided by section 115C- 325, the very title of which—“Principal and Teacher Employment Contracts”— purports to govern teachers’ employment contracts, have been a fundamental part of the bargain that Plaintiffs and thousands of other teachers across this State accepted when they decided to defer the pursuit of potentially more lucrative professions, as well as the opportunity to work in states that offer better financial compensation to members of their own profession, in order to accept employment in our public schools.
The ruling by the three-judge panel affirms Superior Court Judge Robert H. Hobgood’s decision handed down a little over a year ago.
Under North Carolina’s “Career Status Law,” teachers in their first four years were deemed “probationary” and employed year-to-year under annual contracts. At the end of the four-year period, they became eligible for career status, giving them rights to continuing contracts and due process protections from arbitrary or unjustified dismissals.
In summer 2013, lawmakers enacted a repeal of that law in an effort to rid the state of tenure by 2018, saying that it enabled bad teachers to stay in the system.
They eliminated tenure for teachers who had not reached career status by August 2013 and revoked career status for all teachers by July 2018.
As an enticement for already-tenured teachers to act sooner, lawmakers also required local school boards to offer 25 percent of them temporary 4-year contracts with annual raises of $500 in exchange for giving up their tenure rights early.
In May 2014, Judge Hobgood ruled that the revoking of tenure for teachers who’d already reached career status was unconstitutional, as was the “25 percent” plan, which Hobgood said included no standards to guide school districts and served no public purpose.
As to teachers who had not yet achieved career status, though, Hobgood found that they had no protectable contract rights and thus could not challenge the repeal.
Two judges on the panel, Stephens and Martha Geer, largely agreed with Hobgood’s ruling.
But Court of Appeals Judge Chris Dillon issued a separate opinion in which he agreed only with the lower court’s finding that tenured teachers had property rights warranting a hearing in the event they were dismissed (something the repeal did not allow).
Read the full opinion here.
Teachers worried and confused over new contract system
Posted on 11/20/2013 by Lindsay Wagner
Durham Public Schools high school English teacher Tim McNamara just got his first up-close look into the implementation of the new teacher contracts that were passed into law last July.
The contracts, which will eventually replace teacher tenure and are slated to begin with the 2014-15 school year, were described by DPS’ Office of Human Resource Services in a draft Power Point presentation forwarded to McNamara via email by another educator. The presentation also proposes a selection process for awarding 4-year contracts that come with a $5,000 pay bump to 25 percent of all eligible teachers.
“A couple of colleagues apparently went to a meeting on the new contracts that I wasn’t invited to,” said McNamara. “Then one of them just forwarded along an email about this that said, “if you have any questions, just look over the Power Point.”
McNamara does have a few questions about the selection process for the 4-year contracts, in addition to concerns surrounding the contracts altogether.
“I think in general the big concern is that if you look closely,” said McNamara, “it [the contract system] removes a right to a hearing or a right to request information about why our contracts might not be renewed. So there’s no recourse if we’re not asked back after a 1-, 2-, or 4-year contract.”
According to one lawmaker, the new teacher contracts have not been well-received by teachers and principals in his district – regardless of political affiliation.
“I just finished visiting 33 schools over a six and a half week period in my district,” Rep. Rick Glazier, D-Cumberland, told NC Policy Watch. “Almost without exception, principals and faculty members talked to me about this [teacher contract] provision and the incredibly demoralizing effect it is having in combination with other legislative changes that happened this year.”
The shift from tenure to contracts
Teacher tenure, formally known as “career status,” was enacted in North Carolina in 1971, under “An Act to Establish an Orderly System of Employment and Dismissal of Public School Personnel.”
Career status was intended not as a guarantee of a job for a school teacher, but rather as a protection of due process rights. If a teacher finds that he or she has been dismissed or demoted, with career status that teacher has a right to a hearing by a neutral third party that would sift through the evidence and make a determination of whether or not the dismissal or demotion was based on sound evidence.
In July, lawmakers passed a budget bill that abolishes career status for teachers.
Public school teachers protested an end to tenure this summer outside the NC General Assembly.
Public school teachers protested an end to tenure this summer outside the NC General Assembly.
Sen. Phil Berger is a longtime proponent of doing away with teacher tenure, saying that the current system does not remove bad teachers from the classroom.
“Our current system, in many respects, rewards mediocrity, punishes excellence by granting unlimited job security to all who teach a few years,” Berger said last March at a news conference to unveil his Excellent Public Schools Act of 2013 – which contained language that ended career status and was ultimately inserted into the budget bill passed last summer.
In place of career status, lawmakers have devised a system that puts teachers on 1-, 2- or 4-year temporary contracts. Teachers whose contracts are not renewed would not have a right to a hearing or even an explanation as to why they are being let go.
For the 2014-15 school year, teachers who already have tenure have the option of choosing whether or not they want to give up their tenure for a contract. By 2018, however, all teachers will be required to be on contracts and tenure will be completely abolished.
At this stage, only 25 percent of teachers will have the option of accepting 4-year contracts, which come with a $5,000 pay increase spread out over those four years. It’s not clear if teachers will have an opportunity to opt-in to 4-year contracts after the 2014-15 school year.
The State Board of Education is currently considering this model contract for teachers, viewable here.
Selecting the 25 percent
How will local school districts choose the teachers who will be eligible for 4-year contracts—and the $5,000 raises?
“Previously, I had been told our principal would make the determination,” said Tim McNamara, who teaches English at Middle College High School at Durham Tech. “But the Power Point says the superintendent will have the authority to make selections and will use criteria like years of teaching and evaluations to determine who gets the contracts.”
The law provides some guidance on selection of the 25 percent of teachers eligible for 4-year contracts.
Selected teachers must have been employed for at least three consecutive years by the local school board. And during the academic year 2013-14, superintendents shall review the performance and evaluations of all teachers, selecting 25 percent of those who have shown effectiveness as demonstrated by proficiency on the teacher evaluation instrument and recommending them for 4-year contracts to the local school board.
Durham Public Schools’ Power Point presentation, which is a working draft that contains a selection process that could change and must be approved by the local school board, according to DPS’ Director of Public Information Chip Sudderth, indicates that 355 of Durham’s teachers and other instructional personnel can be eligible for 4-year contracts.
To determine who could be one of the 355 teachers, the presentation provides the following guidance:
“Review evaluations of eligible staff (3 years or more) and eliminate staff who are not proficient on any standard. If narrative evaluations or no evaluations are available a committee of 3: HR Administrator, TOY and POY will use a point system and determine proficiency and numerical ratings.
Assign numerical value to standards included in the teacher summary rating form: Not Demonstrated-0; Developing-1; Proficient-2; Accomplished-3; Distinguished-4 for past two years (2011-12 & 2012-13); divide total by number of ratings; sort highest to lowest.”
McNamara says this system has some problems.
“So the superintendent will use my principal’s evaluation, which will be converted into points that may or may not qualify me for the 25 percent. But there’s no consistency there, because my principal could evaluate me differently than how another principal evaluates someone at another school,” said McNamara.
“Furthermore,” he said, “how do you rank someone who teaches honors level ACT students and compare that person with a teacher who deals with students in 9th grade remedial English?”
Who will take advantage of the contracts?
“You are asking us to build the gallows.”
That message was from one teacher in Rep. Rick Glazier’s district, who refused to take part in a principal’s brainstorming session seeking teacher input on selecting the 25 percent of teachers who would get 4-year contracts with raises.
Teachers are already frustrated with the raft of changes brought by the General Assembly in 2013. Salaries were frozen yet again, even though North Carolina ranks 46th in the nation in teacher pay. Cuts to instructional supplies and teacher assistants were severe. Teachers will no longer be afforded salary supplements for advancing their education. The NC Teaching Fellows program was defunded in exchange for bolstering the Teach For America program.
Implementing a pay for performance system, as the 4-year contract begins to do, could lower student achievement.
“Performance-based pay will likely take more of the focus away from the true exploration of ideas…and redirect the focus onto achieving higher test scores, which don’t necessarily reflect “better” educational techniques or outcomes,” said one teacher who submitted their story to NC Policy Watch’s “Your Soapbox” feature.
If eligible teachers don’t take advantage of the 4-year contracts in order to hold onto tenure and their due process rights, they also give up a real chance at pay raises – the first they have seen in years.
“Let’s say I haven’t gotten a raise in the last 5 years,” said McNamara, “and I opt out of the 4-year contract or I don’t qualify—then I’m looking at nine years of no pay raises here in North Carolina.”
Also unclear: what happens when not all of the 25 percent of eligible teachers accept the 4-year contracts? What is done with the surplus funds?
Who can opt out?
Public charter schools, which are funded with taxpayer dollars, are exempt from implementing the new teacher contract system.
Most charter schools do not adhere to the state salary schedule nor do most of them provide career status, or tenure, to their teachers to begin with.
Beth Carter, a teacher at Cape Fear Center for Inquiry, K-8 charter school in Wilmington, says she’s happy her school is excluded from the contract system.
“I don’t want our director to have to make that decision,” Carter said about awarding only 25 percent of the staff with contracts that include raises. “And I don’t want our staff to be divided. It [the contract system] is so counter to what we’re trained to do as professionals. We’re trained to collaborate and help one another, not compete and get someone’s attention so we’ll get more money than someone else.”
Eddie Goodall, executive director of the North Carolina Public Charter Schools Association, says charter schools already have the ability to reward the best teachers.
“The purpose of the new law is to separate educators based on their effectiveness. Charter schools can already do that, and I hope that charter schools are rewarding excellent teachers.”
Some traditional public schools are already looking to exclude themselves from the teacher contract system.
All of the teachers and support staff at Murray Middle School in New Hanover County have signed a petition to oppose the contract provision and reject any state money associated with it.
It’s not clear whether or not schools or local school boards have the legal standing to reject the teacher contract provision of the law.
“If there’s any capacity to do it,” said Rep. Glazier about rejecting the contract provision, “then local school boards ought to try.”
“But more importantly, local school boards should pass resolutions opposing the provision, explaining why its ill-timed and ill conceived, and suggesting the legislature repeal the provision. Then they should send those resolutions to the legislature and the Governor’s office,” said Glazier.
Tim McNamara says he will definitely opt out of the contract provision.
“I have zero intention of coming back to North Carolina schools after this year,” said McNamara.
In addition to seeking out better job security, McNamara said, “there are 46 other states that will pay me a fair and equitable wage.”