Independence Institute Stands Up (Again) for Tenure Reform

I have double good news for my fellow policy nerds on this fine Thursday morning. First, the Colorado State Board of Education voted yesterday to continue disaggregating student subgroup data for accountability purposes. I had some rather strong thoughts on the issue, so this decision makes me smile.

The conversation will continue, and, if Chairman Durham’s comment in the official CDE press release is any indication, may even lead to some thoughtful new approaches. In the meantime, I’m pleased to know that we won’t be sweeping challenging populations of students under the rug or compromising taxpayer accountability to satisfy the edu-blob.

Maybe even more exciting, though, is the fact that the Independence Institute has fired its next salvo in the war to protect teacher tenure reform in Colorado. Some of you probably recall my excitement when the Colorado Supreme Court agreed to take the very important Masters case. The court even hinted its announcement that a joint amicus brief from the Independence Institute and Ready Colorado played a part in its decision.

For those who don’t remember much about Masters, here’s a refresher on the substance of the case from a helpful overview page on the Independence Institute’s website (those who want a more in-depth summary can check out the previous post linked above):

The most recent assault on SB 191 comes in the form of a union-backed lawsuit (Masters v. School District Number 1) against Denver Public Schools for the implementation of the law’s “mutual consent” provision. This provision ends the previous system of forced placement, under which non-probationary teachers displaced from one school could be forcibly placed into different schools with or without the consent of those schools’ leadership or staff. Under SB 191, principals and teacher representatives must approve these placements before they can proceed.

In the suit, plaintiffs have argued that Colorado’s laws on non-probationary status for teachers create a constitutionally enforceable contract between those teachers and the state—a contract the duly elected legislature is powerless to alter. Further, the plaintiffs argue that teachers have a constitutionally protected property interest in continued employment under statute.

These arguments were wholly rejected by a Denver court, and the case was dismissed. However, that decision was overturned in favor of the plaintiffs by the Colorado Court of Appeals.

The Independence Institute believes that the constitutional authority to build and maintain an effective public education system lies with the Colorado General Assembly, and that Colorado’s constitutional local control provision is best preserved when schools have the ability to decide which teachers they employ.

Written by former Colorado Solicitor General Dan Domenico, the Institute’s new brief covers the “merits” of the case, which I’m pretty sure is lawyer for “important stuff.” The brief argues that:

  • Public education is central in the Colorado Constitution. It is the most important affirmative duty of government. “With that great responsibility, must come flexibility to adopt progressive policies, even if controversial.” So the Supreme Court should reject the plaintiffs’ invitation for the Court to second-guess the joint policy of the legislature and the local school districts.
  • Statutes governing government employees should not be misconstrued as contracts between the legislature and those employees. “Constitutions create constitutional rights; statutes create statutory rights; and contracts create contractual rights and convey property rights, and each has its own method of amendment. The Court should not blur those distinctions in this case.”
  • The Colorado Constitution requires the state and the school districts to work together to create a thorough public school system. “To require schools and districts to employ teachers known to be ineffective would be just the opposite.”
  • Although there are sometimes tensions between state and local control, in this case the state and the district are in harmony. They recognize that the quality of education is seriously undermined when schools cannot make decisions about which teachers they employ.

In other words, control of education policy decisions belongs in the hands of our elected legislators, government employees are not entitled to special protections from the democratic process, and policies that expand constitutional local control in our state should not be undermined by the judiciary. That sounds about right to me.

Oral arguments in Masters probably won’t happen until sometime this winter, and it’s a good bet that we won’t get a final decision until sometime in 2017. My famous cynicism about the courts won’t allow me to offer a prediction about what that final decision might be, but I will say this: The court has plenty of good arguments to consider thanks to the Independence Institute, Denver Public Schools, and other reform-minded allies.

Let the waiting game begin.