Education / Schools

If You Care About Kids, This Is A Pretty Important Lawsuit

Kansas faces an interesting new challenge to its effort to strip tenure from public school teachers.

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Today, as the country watches the Senate try yet again to pass a bill to repeal Obamacare — an empty campaign ploy that their counterparts in the House voted for over and over again when they knew it was all for show — it’s a sobering reminder of just how little serious thought goes into turning these cable news talking points into reality. There’s a certain perverse relief in realizing that for a tier of the highest profile national conservative politicians, there’s still a sense that some of their boldest claims are just fodder for the vacuous on-air “talent” and the masses they’re trying to sway.

But for the last several years, Kansas has shown anyone willing to pay attention just what happens when the inmates take over the asylum. Between the tax policies based on the Reagan myth that they’d “drive growth” but have only run the state into the ground and the efforts to make Obama’s birth certificate a matter of official inquiry and a troubling effort to defund the judiciary for applying the state constitution, the mismanagement of Kansas has gotten so bad that even its diehard Republican state legislature is turning on the agenda they ran on.

While the judiciary and the rest of the state government continue to battle over underfunded schools — a breach of the state constitution stemming from disparate funding for poorer school districts — another right-wing hobby horse that Kansas took up, eliminating public teacher tenure, is soon to have its day in court.

In 2014, the Kansas legislature voted to strip the state’s teachers of tenure, robbing them of protections they earn after serving for three years and demonstrating a commitment to the profession. It’s intended to break public teacher unions, the most powerful lobbying group for children’s educational interests, by stripping the job of its security and diverting people from taking it up as a long-term career. Fewer career professionals means a work force less engaged in protecting the institution from budget cuts and half-baked private sector “innovations.”

Though usually it’s couched in fear-mongering that there are “bad” teachers out there who can never be fired because they have tenure. It’s a much more crowd-pleasing scam that way. Back in 2014, I wrote:

The anti-tenure movement is about giving school districts the cover of a constitutional right to fire their teachers at will.

Full stop.

Not the right to fire “ineffective teachers,” but any teacher the district wants. The argument is that school districts need the power to fire teachers at will because that’s the only barrier to ridding schools of “bad” teachers. Which they can’t define.

Here’s a fun fact you don’t read much in these discussions: tenure does not mean schools can’t fire incompetent teachers. If a tenured teacher is bad at their job there’s a process for firing them.

Sadly this is one of those times where too many people across the country are looking to Kansas for leadership.

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But a pair of Kansas teachers who were fired without recourse despite a combined 34 years of experience are challenging the constitutionality of the law, in a case that could disrupt creeping efforts to demolish teacher tenure across the country.

In its brief, the Kansas National Education Association argues that whatever power the Kansas legislature had to eliminate tenure in Kansas, that power could not go back and take tenure away from teachers who earned it before the vote without engaging in an unconstitutional taking of a property right without due process. One day, these teachers had a vested right to challenge their dismissal based on a status they earned through their service to the public schools in the state, and the next day they no longer had that status. Sounds a lot like a taking.

The state argues that even if they took away a property right, the fact that the legislature passed the law is sufficient due process. The teachers’ union disagrees — and Kansas law appears to be on their side, as reflected in this quote from Darling v. Kansas Water Office:

While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.

The state’s brief claims that Darling doesn’t apply because it involved a “relatively small number of persons.” Because property rights only matter when it’s a small group? It really is cagey to mount a legal challenge that hits conservatives right where it hurts. The union might have even gotten the state to settle if they’d cribbed the closing argument from A Time To Kill:

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Can you see it? Unchecked government power coming in and taking away a longstanding duly negotiated property right. I want you to picture that.

Now imagine it’s a multimillion dollar condo blocked by a wetlands preservation law.

Teachers Union, State Square Off For Second Kansas Supreme Court Showdown Over Tenure [KCUR]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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