California legal setback fails to discourage tenure opponents

[August 29, 2016]  By Alex Dobuzinskis

LOS ANGELES (Reuters) - A nationwide drive to weaken job guarantees for U.S. public school teachers shows no sign of fading away even though an extended legal battle to stop the practice of granting tenure in California went down in defeat last week.

The California challenge, which would have made it easier for school districts to fire teachers deemed to be underachievers, reached the end of the line when the California Supreme Court declined to take up the case.

The decision was a setback for advocates of sweeping changes in education that unionized teachers generally oppose, including a repeal of tenure and more funding for charter schools.

Even so, advocates of change have wasted little time in regrouping. One group has introduced a federal lawsuit in Connecticut aiming to boost student access to charter schools, while a second group announced plans for a lawsuit challenging teacher job protections in a still-undetermined state.

"Moments like these, for people who understand the legal landscape, it motivates them even more to say 'OK, let's try it somewhere else,'" said Ralia Polechronis, executive director of the Partnership for Educational Justice.

Her group already is behind lawsuits aimed at ending teacher tenure in Minnesota and New York. It said last week it was planning to help bring a similar lawsuit as soon as this year in a state yet to be named.

In addition to opposition to tenure, other like-minded advocacy groups have embraced standardized testing for students, more funding for charter schools and linking teacher salaries to student performance.

In the last five years, North Carolina, Florida and Kansas, all with Republican-controlled legislatures, have passed laws to eliminate or phase out tenure for public school teachers. But most other U.S. states have some form of tenure.

The lawsuits are the latest salvo in a decades-old battle over job guarantees in U.S. public schools, which critics say have failed students despite public spending on education that exceeds that of many other developed countries.

Unions and their supporters say, however, that many schools suffer from inadequate funding and inept administration, not bad teachers. Tenure for experienced teachers guarantees them due process, not necessarily a job for life, they say. It enables instructors to teach controversial topics without fear of being dismissed or pressured politically.

Lawsuits that challenge tenure are imposing a significant litigation cost on states and unions that have to defend against them, said Randi Weingarten, president of the American Federation of Teachers.

"They are on an ideological path to undermine public schools," she said of union opponents.

CALIFORNIA BATTLE

California is among a number of states whose lawmakers tend to support teacher unions and have rejected proposals to weaken tenure laws.

Randi Weingarten, president of the American Federation of Teachers (AFT), addresses the audience of public school teachers during the AFT convention in Detroit, Michigan, July 28, 2012. REUTERS/Rebecca Cook/File Photo

That led a California group called Students Matter to a novel approach in 2012. In a case named after high school student Beatriz Vergara, Students Matter side-stepped the legislature and filed a lawsuit seeking to strike down tenure, arguing that job guarantees infringed the constitutional rights of students.

In 2014, a Los Angeles judge agreed, finding that poor and minority students were disproportionately harmed because they were most likely to be saddled with bad teachers school districts cannot not fire.

In April, however, a California appeals court panel overturned the ruling, saying problems with the state's educational system stemmed from the decisions of school administrators, not just state tenure laws. The California Supreme Court on Aug. 22 declined to review the case, Vergara v. California.

Legal analysts said reform groups face an uphill battle with the lawsuits.

Even so Marc Porter Magee, chief executive and founder of the education advocacy group 50CAN, said more legal actions to end tenure are likely.

Students Matter filed its latest lawsuit in federal court in Connecticut on Tuesday, a day after the defeat of its Vergara case. The lawsuit challenges laws that, according to Students Matter, prevent students from attending charter schools, which are privately run but funded with taxpayer money, or campuses with specialized instructional programs.

The group said it is appropriate to elevate their fight to federal court.

"In our history as a nation, when the states decline to protect the constitutional rights of their citizens under their own constitutions and under their own laws, citizens have had to turn to the federal courts," Students Matter attorney Ted Boutrous said.

(Reporting by Alex Dobuzinskis in Los Angeles; Editing by Sharon Bernstein and Steve Orlofsky)

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