January 29, 2014 Updated: January 30, 2014 at 8:30 am
A Colorado lawmaker has joined the fight to change an education reform provision from 2010 that teachers unions say has allowed at least 100 teachers to be fired in violation of the state Constitution.
The Colorado Education Association and the Denver Classroom Teachers Association filed a lawsuit Wednesday morning that challenges a narrow segment of Senate Bill 10-191, saying it violates the Teacher Employment, Compensation and Dismissal Act by failing to give tenured teachers due process before being fired.
And Sen. Nancy Todd, D-Aurora, pledged to co-sponsor a bill that would amend parts of SB191.
However, Democrats and Republicans who supported the bill in 2010, balked at the decision to challenge what they called a key provision of the law that ends the forced placement of teachers in schools regardless of whether it's a good fit.
"We cannot return to a system that rewards mediocrity in our classrooms," said former Gov. Bill Ritter, a Democrat who signed the bill into law.
Equally upset by the lawsuit was former Republican Gov. Bill Owens who advocated for the reforms and called the lawsuit a shame.
Forced placement of teachers is a practice that some say is in the same vein as the dreaded rubber rooms in New York City Public Schools where tenured teachers, unable to be fired because of strong protections negotiated by unions, are paid to sit in a room every day rather than being placed in a classroom with students.
But the big difference is the 100 teachers removed from Denver Public Schools under the new law weren't terminated for cause.
Many say they have nothing but positive evaluations and years of effective teaching, CEA President Kerrie Dallman said.
The teachers in the rubber rooms are going through due process to be fired for some violation, anything from not showing up to work to felony charges.
"We have fought the good fight with Denver Public Schools over the past two years to try to keep these veteran teachers, teaching and avoid going to the courts or the state legislature but sadly that hasn't occurred," Dallman said. "Some bills have loopholes that need to be fixed, but in the case of SB191, it feels like a sinkhole that has swallowed over 100 qualified classroom teachers."
Under previous law those teachers would have been guaranteed another job in the district with the same salary.
It's a practice Sen. Mike Johnston, D-Denver, said is not in the best interests of students who need high quality teachers that are a good fit in the schools.
"If you have a tenured teacher, they were guaranteed that job for life," Johnston said.
Under a provision of SB 191 called "mutual consent" tenured teachers who lose their jobs for some reason other than their performance or cause have a year to secure a job in another school. Only instead of those teachers getting forced into a classroom, Johnston said the principal must now agree to hire that teacher.
After that year, teachers go on what's called unpaid administrative leave.
But if a principal agrees to hire a teacher, they start right where they left off.
"What we've seen in the great majority of those cases, that happens," Johnston said, of teachers landing other jobs within the district. "This is really a shift to merit-based employment."
Tenure, or "nonprobationary status," is achieved in Colorado after three years. The concept is that teaching can be so political, that good teachers need protection from unfair dismissal and the threat of being replaced by younger and less expensive employees.
Five teachers who were fired under the new law are joining the lawsuit. Those teachers were removed from their jobs in May 2010, the lawsuit reads, and given until April 2011 to find a principal willing to hire them.
Despite their years of experience, clean records and applying for multiple job openings the teachers missed the deadline and were fired.
Dallman said during the past two years the number of teachers employed by Denver Public Schools has increased, raising questions about why the district labels these dismissals as "reductions."
The issue became a political football prior to the November election when Colorado voters were asked to approved a $1 billion tax increase for public education, which in part would have funded some of the other reforms in SB191 like a teacher evaluation system based in part of student test performance.
"We tried hard last year to bring the parties together in order to settle this litigation, and we are disappointed that our efforts were not successful," Gov. John Hickenlooper said. "We believe the law is constitutional and fair in its current application and we intend to defend it in the courts."
Johnston said the good news about the lawsuit is that it won't impact the roll-out of that evaluation system.
And both Todd and Dallman emphasized they are supportive of the new high-stakes evaluation system because it includes a due-process system before teachers are fired.
Contact Megan Schrader