Appeals Panel Hears Arguments in Contentious Lawsuit That Could Reshape Tenure Protections for New York Teachers

A high-profile lawsuit that could shake up job protections for teachers in New York inched forward Thursday when a four-judge panel of the state Supreme Court’s Appellate Division in Brooklyn heard oral arguments about whether the case should move to trial.

Defendants in the case, which was filed by nine parent plaintiffs in 2014, have long maintained the lawsuit should be tossed out, particularly after reforms in 2015 changed teacher job protections in the state. But the plaintiffs’ attorneys kept their argument consistent: State laws that govern teacher tenure, disciplinary proceedings, and “last in, first out” layoffs work in tandem to keep ineffective teachers in the classroom, denying children their constitutional right to a “sound basic education.”

Together, those state laws give public school teachers “lifetime employment because, under the disciplinary rules, you pretty much can’t fire a teacher for incompetence,” said attorney Jay Lefkowitz, representing the plaintiffs.

The lawsuit is one in a series of legal challenges in several states backed by The Partnership for Educational Justice, a national education reform advocacy group. Wright v. New York went before the panel after state judges twice, most recently in 2015, denied requests to dismiss the lawsuit from unions and state and city education officials. The justices did not render a verdict Thursday on whether the case should proceed to the discovery phase and, ultimately, to trial.

In 2015, state lawmakers approved revised teacher protection rules, requiring schools to overhaul their evaluation systems to better track teacher quality. That change lengthened the tenure eligibility requirement to four years and established a model for reviving poor-performing schools. Although defendants in the case maintained that those changes rendered the plaintiffs’ complaint moot, Lefkowitz called the reforms “cosmetic dressing.”

Among the parent plaintiffs is Tauana Goins, whose daughter’s teacher at P.S. 106 allegedly bullied the girl and called her “a loser.” Goins told The 74 in 2015 that she believes teacher tenure should be based on performance rather than seniority.

Before the attorneys began their arguments Thursday, the panel of four justices warned that they had a reputation for being a “hot court,” were already familiar with both sides’ briefs, were prepared to pepper attorneys with questions — and would interrupt should they reiterate the exact same points they laid out in their briefs. One judge in particular, Associate Justice Reinaldo Rivera, was quick to challenge attorneys’ arguments, cutting them off — and cracking occasional jokes.

Attorneys for the defendants — including New York City and state education officials and union leaders — came equipped with a list of challenges to support throwing out the case. Charles Moerdler, representing the New York State United Teachers and the United Federation of Teachers, said tenure doesn’t grant teachers lifetime employment, but rather ensures due process. Students are best served, he said, by a system of academic freedom that protects competent teachers from retaliation. He also took aim at the plaintiffs for failing to define “ineffective teacher.”

“We want teachers to have the ability to speak out when children are not getting what they need,” Adam Ross, general counsel at the UFT, said after the hearing. “If a student is not getting the services that their [Individualized Education Program] says that they’re supposed to have, if the physical conditions of their school building are not correct, if the educational resources that they’re being given are not good enough, teachers need to be able to say, ‘My children are not getting from the district what they need.’ And they can’t do that unless they have the security to know that they’re not going to be retaliated against for saying that the school district is not providing a special ed child what the IEP says the kid needs.”

PEJ’s other two lawsuits, which challenge teacher job protections in New Jersey and Minnesota, follow a brief victory for education reformers in California. That lawsuit, Vergara v. California, filed in 2012, alleged that job protections in that state kept “grossly ineffective” teachers on the job in violation of the Constitution’s equal protection clause. After a ruling in favor of the plaintiffs in 2014, a California Court of Appeals panel struck down the decision two years later, and the state Supreme Court declined to take up the case.

Meanwhile, in New Jersey, the PEJ-backed HG v. Harrington case argues that “last in, first out” rules prevent children in low-income schools from receiving a “thorough and efficient education.” A New Jersey Superior Court judge threw out that case in May, but the plaintiffs have since appealed that decision. In Minnesota, the state Supreme Court agreed earlier this month to take up the case Forslund v. Minnesota. Most recently, the Minnesota Court of Appeals ruled that teacher tenure decisions are up to the state legislature, and not the courts.

In the end, Lefkowitz said, he hopes the court will force action among lawmakers in Albany.

“The legislature has said that in education, unlike in a lot of other areas of life in New York, there is a constitutional minimum,” he said. “And when there’s a constitutional minimum, then the courts have to get involved to decide whether that constitutional minimum is not being satisfied. Obviously, it’s an imperfect system. The legislature will be left having to solve this and to come up with a better tenure system, a better disciplinary system. One that works.”

Disclaimer: The 74 co-founder and board member Campbell Brown founded the Partnership for Educational Justice.

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