Thursday, September 7, 2017

Minnesota Court of Appeals Rejects Constitutional Challenge to Teacher Tenure, But Did It Focus on the Wrong Reasons?

Earlier this week in Forslund v. Minnesota, the Minnesota Court of Appeals upheld the dismissal of plaintiffs’ challenge to the teacher tenure statutes in the state.  As in Vergara v. California, the Forslund plaintiffs had argued that teacher tenure statutes violate their right to education under the state constitution because they keep ineffective teachers in the classroom.  The Minnesota Court of Appeals held that plaintiffs’ claim was non-justiciable.  More specifically, the court reasoned that considering plaintiffs’ claim on the merits would require the court to adopt qualitative standards regarding what amounts to an adequate education and ineffective teaching.  Judgments regarding those standards, according to the court, were reserved to the legislature, which had yet to set those standards. 

In reaching its decision, the court relied heavily on another recent court of appeals case, Cruz-Guzman v. State.  In Cruz-Guzman, the court had rejected, as non-justiciable, plaintiffs claim that school segregation violated their right to education.  The Minnesota Supreme Court has since granted certiorari in Cruz-Guzman.  Before the Supreme Court, education law scholars and the Education Law Center point out in an amicus brief that the court of appeals wrongly decided Cruz-Guzman.  High courts routinely adjudicate educational adequacy and equality claims.  The Minnesota Court of Appeals refusal to do so in Cruz-Guzman marks it as an outlier.  Moreover, Minnesota Supreme Court precedent in Skeen v. State recognized that these types of claims are justiciable in Minnesota as well.

The Court of Appeals in Forsland does identify some potential statutory standards for assessing plaintiffs’ claims, but reasons that they are insufficient.  While the court correctly indicates that those statutes do not definitively resolve plaintiffs’ claim, they do provide baselines for the court to rely on.  Rather than justiciability, the problem seems to be an unwillingness of this court to engage statutory and constitutional interpretation.  But that is the exact type of inquiry that other courts have undertaken.

Putting those justiciability critiques to the side, the court of appeals does deserve some credit.  In a few instances, it skirts close to the merits of the case and hints at what I believe is the fatal flaw in teacher tenure challenges: “ineffective teachers will remain in the education system even if the teacher-tenure statutes are held unconstitutional” and “Appellants do not identify what percentage of ineffective teachers would demonstrate an unconstitutional burden on children’s right to an adequate education.”

As I explain in The Constitutional Challenge to Teacher Tenure,

First, plaintiffs lack evidence to demonstrate that tenure is causally connected to ineffective teaching. Ineffective teaching might persist with or without tenure. For instance, labor market forces, segregation, school funding, and school leadership significantly contribute to ineffective teaching. No evidence suggests that tenure supersedes these factors. Moreover, even if eliminating tenure allowed administrators to more easily remove ineffective teachers, eliminating tenure could also produce indirect effects that might undermine the teaching profession overall. If so, the net result of eliminating tenure could be negative, and tenure would not play the causal role that plaintiffs assume.

Second, even if tenure causes ineffective teaching, plaintiffs have not demonstrated that the number of ineffective teachers that tenure protects rises to the level of a substantial and systematic educational deprivation. For instance, one out of a student’s ten teachers may be ineffective, but that teacher does not necessarily undermine the student’s overall educational opportunity to the extent necessary for a court to deem the student’s education inadequate. Even if inadequate, plaintiffs may need to show systematic repetition of the problem. Otherwise, random local variation, rather than state policy, would be the cause of the inadequacy. . .

Third, ignoring these and other serious causal questions, plaintiffs rely on generalized social science about the effects of quality teachers on student outcomes. This generalized research does not address the effects of tenure on student outcomes. Even if it did, generalized evidence of this sort is insufficient to establish the specific state level causation that courts have required in school funding cases.

Yet, on their face, teacher tenure challenges present plausible and justiciable claims.  If plaintiffs state plausible and justiciable claims, rules of civil procedure in many states provide them the right to attempt to make their claim in court, even if plaintiffs are probably wrong.  Therein lies the quandary in teacher tenure challenges.  When they present claims that will almost certainly fail when we dig into the facts, should courts be required to expend their resources on the case?  As a matter of practicality, that seems like a bad idea.  But given that plaintiffs dispute the facts, some state rules of procedure would allow them to move forward anyway.

The one saving grace for dismissing these cases is that the particular remedy plaintiffs ask for in these cases raise serious separation of powers concerns.  As I explain,

Plaintiffs identify tenure as a singular flaw in state law and its elimination as a singular solution. No prior litigation to enforce the right to education has ever narrowed its focus so far, and for good reason. The details of educational policy, including solutions to constitutional violations, rest within the discretion of legislatures. Where more than one solution to a constitutional violation is possible or reasonable, constitutions vest legislatures with the discretion to choose among them.

The potential solutions to ineffective teaching and teacher removal are multifaceted, placing them within the domain of the legislature and making them ill-suited to judicial prerogative. Moreover, plaintiffs assume that some other better alternative to a tenure system exists, but current research and litigation indicate serious practical and constitutional due process flaws in the alternatives. None of the foregoing is to minimize the problem of ineffective teaching. Ineffective teaching demands a solution, but presuming that eliminating tenure through constitutional litigation is a solution, much less the best among many competing possibilities, is dangerous.

Read my full analysis of teacher tenure challenges here.  

Download Forslund decision.

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