Thursday, June 26, 2014

Teacher Tenure Litigation Spreading Quickly

Over the past two weeks, there has been a steady stream of news of lawsuits and court decisions regarding changes in teacher tenure, evaluation, and rights.  California, North Carolina, Colorado, and Texas have all seen major decisions or lawsuits. See here for a host of posts.  Now, New York is prepared to join the group, apparently emboldened by the California decision finding that teacher dismissal processes were at odds with students' fundamental right to education.  According to Edweek:

The suit will be brought on behalf of plaintiffs across the state, said Devora Allon, a litigation associate at Kirkland & Ellis LLP, which is taking the case pro bono. As with Vergara, it will take aim at three state policies on the grounds that they are preventing poor and minority students from receiving an equitable education under the state constitution. Article 11 of the New York constitution guarantees a right to "sound, basic education," and it's under that clause that the plaintiffs will sue. 

The suit will take aim at teacher tenure, which takes three years to earn in New York; the state's infamous "3020a" disciplinary proceedings for getting rid of a tenured teacher; and the statute governing the order of layoffs in the Empire State.

Politico also reports that former Obama White House aides will also play a major role in shaping a public relations campaign similar to the one that propelled the California case into the national spotlight well before a decision was even issued.  Edweek reports there are another half dozen similar suits in the pipeline.

The White House and major law firm connections raise two significant issues.  First, the White House has had enormous success in pushing value added teacher assessments through Race to the Top funding and NCLB waivers.  There has been some political push-back at the local level, but the White House has basically won.  Why now push even further through less transparent and indirect means?  

Second, why would one of the nation's largest law firms jump into the teacher debate.  In my experience recruiting large law firms to take on civil rights cases pro bono, they tended to like cases where there was clearly a "right" side, either in law or morally.  This is not to say the cases were not controversial or legally difficult.  They always were one or the other, but the cases also uniformly screamed of injustice.  Cases styled after California's do not easily fit this model because the cause of and solution to the problem of ineffective teachers in needy schools is not obvious. Does Kirkland and Ellis not know enough about the underlying educational issues to appreciate they have jumped into an atypical pro bono case?  Has it assessed the case, but reached a reasoned conclusion that it is on the right side?  Or is it just looking for a high profile case?

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