Colorado Supreme Court Takes on Huge Tenure-Related Case
We just can’t stop talking about court cases, can we? First, we covered an interesting Blaine Amendment case out of Missouri. Then things took a turn for the sad (and scary) with Justice Antonin Scalia’s untimely death, and we looked at what that loss might mean for important education cases before the U.S. Supreme Court. Then Douglas County up and restarted its voucher program, this time without religious schools—a decision that has since caused no small amount of edu-drama.
Today, we’re going to look at another exciting development: The Colorado Supreme Court’s decision to grant certiorari to the very important tenure-related Masters case. That’s a really big deal.
I’ve been talking about the Masters case ever since the Denver Classroom Teachers Association and a group of non-probationary teachers started down that lonely road back in 2014. We celebrated when a Denver District Court judge shot down the union’s arguments. We covered the union’s opening arguments in the subsequent appeal. Then I neglected to post on the disappointing appeal outcome as I wallowed in grief and frustration about the ruling.
Why is Masters so important? Let me explain.
We talk about the Masters case mostly in the context of SB 191’s mutual consent provision, which states that non-probationary teachers who are displaced from a school in a district must win the consent of a different school’s principal and teacher representatives before being placed there. Under the previous law, districts would engage in “forced placement,” or the forcible insertion of those teachers into schools with our without the consent of the schools’ leadership or staff.
This practice often led to something we call the “Dance of the Lemons,” where potentially not-so-great teachers were shuffled from school to school because—surprise!—it’s really, really tough to just let nonprobationary teachers go entirely. More often than not, these teachers would find themselves in schools serving challenging populations of kids—populations that most need highly effective teachers to succeed.
Of course, forced placement is dangerous even when we’re not talking about ineffective teachers. As we’ve learned over and over and over, cohesive cultures and strong leadership-staff relationships are critically important to success in education. Teachers—even good teachers—are not interchangeable cogs in the education machine. Placing an effective teacher in an environment that won’t mesh well with him or her isn’t going to produce the kind of outcomes we want to see for our students.
Anyway, displaced teachers who are looking for a mutual consent placement under SB 191 are placed on paid leave. If they are unable to secure a placement within 12 months or two hiring cycles (whichever is longer), they are placed on unpaid leave. That seems pretty reasonable to yours truly, but it’s also the issue that lies at the heart of Masters. You see, Masters is an awful lot less about mutual consent than it is about non-probationary status. That fact becomes particularly clear when you look at the union’s primary arguments, which go a little something like this:
- The Teacher Employment, Compensation, and Dismissal Act (TECDA) creates vested contractual rights for teachers under the Colorado Constitution’s “Contract Clause” that the Colorado legislature has no authority to revoke or revise (Article II, Section 11 for you legal nerds out there).
- Teachers have a “constitutionally protected property interest in continued employment” that demands due process under the Colorado Constitution’s Due Process Clause (Article II, Section 25).
- Placing teachers who can’t secure a mutual consent placement within a reasonable period of time on unpaid leave amounts to “discharge without cause.”
In plain English, the union is arguing that the elected legislature lacks the authority to modify statutory provisions related to teacher tenure. They are also arguing that teachers own essentially lifetime job guarantees in roughly the same way you or I might own a bike or a car or a house. Finally, they are arguing that not paying teachers—even teachers who clearly can’t find a school willing to take them in a year or more—is not allowable because of non-probationary status.
Obviously, this all has implications far beyond the mutual consent provision itself. The union is seeking to preclude any changes to teacher tenure statute via the legislature, and to close off any possible avenue through which a non-probationary teacher might not be paid by a school district. Neither of those things are good news for those of us who are interested in developing stronger schools and ensuring that every Colorado kid has an effective teacher.
We definitely don’t want to let the appellate precedent stand, which is why the Independence Institute and myriad other education reform groups have come out against the union’s arguments in Masters. Most recently, these organizations filed a whole slew of amicus briefs aimed at convincing the Colorado Supreme Court to hear the case.
My Independence Institute friends filed an amicus brief in conjunction with Ready Colorado that examined—brace for incoming legal jargon—the historical context and precedent surrounding contract clause determinations as they relate to the logic applied in the appellate decision. In particular, the brief argued that the Colorado Court of Appeals relied on the wrong precedent when it determined whether or not TECDA creates a contract with teachers.
Lo and behold, the Colorado Supreme Court hinted in its announcement that this argument was part of the reason it took the case. Check it out:
Whether, given this Court’s modern contract clause precedent, the court of appeals erred in finding that a legislative contract exists that prevents the Legislature from amending the statute regulating public school teachers’ employment.
Pretty cool, eh?
I’m very excited that Masters is going all the way to Colorado’s high court because it means we have a chance to settle these tenure-related conversations once and for all. I’ll be watching over the coming months. I’ll also be paying close attention to efforts to prevent the case from finding legal resolution by just repealing SB 191’s mutual consent provision entirely (see HB 1099).
No matter how it all shakes out, you can rest assured that it’s going to be very, very interesting. See you next time!