SAANYS Enters the Fight to Save Tenure

The concepts of tenure and seniority-based layoffs (commonly referred to as “last-in, first out” or “LIFO” statutes) have always been controversial, and critics often voice their concerns loudly, but to little avail. Then the landscape seemingly changed this past summer, when a trial court in California determined that its state tenure and seniority-based layoff statutes were unconstitutional as they negatively impacted students in lower income districts, often heavily populated by minorities, at a greater rate than students in affluent areas. This case, Vergara v. State of California, is currently on appeal, but has started a wildfire of attacks against tenure and seniority that quickly reached New York.

In the wake of Vergara, two cases, backed by public interest groups, were filed in New York challenging the state tenure and seniority laws. Davids v. State of New York was commenced in Richmond County Supreme Court and Wright v. State of New York was brought in Albany County Supreme Court. The two cases were consolidated into a single action in Richmond County Supreme Court. Both cases challenge the constitutionality of New York’s various statutes dealing with tenure, seniority, and APPR, on the basis that they allow for the retention of “ineffective teachers,” thereby denying students the “sound basic education” provided under the New York State Constitution.

These actions only named the State Education Department, Commissioner King, and the Board of Regents as defendants, leaving the very individuals protected under the statutes without a voice. Accordingly, NYSUT, UFT, the City of New York, and several individual teachers, petitioned the court to become defendants and are now named parties. Interestingly, neither of the lawsuits mentioned the fact that school administrators are also bound by the same laws that are being challenged. A finding that teacher tenure and/or the seniority and recall statutes are unconstitutional would mean that school administrators would also lose the rights to tenure and seniority-based layoffs. Therefore, on behalf of representative members, SAANYS has also intervened in this important litigation and is actively defending the rights of all admin-istrators to earn the due process protections afforded under these statutes. SAANYS and all of the other defendants have filed motions to dismiss the litigations and, under the current scheduling order, will have oral argument as to why the cases need to be dismissed in mid-January 2015.

Prior to the decision in Vergara, changes to tenure and seniority systems throughout the United States came primarily through legislative action within each individual state. Given the complexity of public education, courts throughout the country have recognized that such matters remain best left to the people’s elected representatives. This is because the courts are ill-equipped to resolve the social, political and economic issues, and resulting controversies surrounding public education. The legal term for concepts such as this is “political question” and it is one of the basis used by SAANYS in its motion to defeat these meritless lawsuits. As any faithful reader of News & Notes over the years has learned, New York’s legislature is continuously revising the education law surrounding the retention of qualified teachers and administrators. In the past five years, SAANYS has provided its members with continuous updates on changes made by the legislature on topics such as the APPR system and Section 3020-a hearings.

Additionally, the lawsuits fail to connect the state to the implementation of the statutes, as ultimately it is the local school boards who have the power to grant or deny tenure, bring about disciplinary hearings to tenured educators, and implement layoffs. In the past twelve years, the New York State Court of Appeals has rejected other attempts to strike down these and other education law statutes on constitutional grounds, because of the very same defects in the pleadings.

Furthermore, the plaintiffs have no standing to bring the lawsuits. With the exception of one plaintiff in Wright, no other plaintiff in either action even alleges their child has been instructed by an ineffective teacher, thereby precluding any alleged injury. Additionally, not one plaintiff is in the “zone of interest” of the challenged statutes. Specifically, the legislative history and case law surrounding each of the challenged statutes clearly states that the purpose of the statutes in question is to protect educators, not students or their parents.

SAANYS supports the concept of tenure and the current system of managing layoffs for all educators, not just administrators, and will continue to vigorously defend these rights. Without these rights, educators will be subject to the political whims of their employing districts and will be forced to make the difficult choice between self-preservation and what is educationally correct. While SAANYS is confident that our members will continue to put the needs of students above their own, SAANYS has no intention of having its members placed in such a position without a fight. Keep an eye on upcoming issues of News & Notes for updates on this important litigation as they arise, and feel free to contact the SAANYS Legal Department if you have any questions.