Court Challenges Loom for Public School Shifts

by Scott Mooneyham, Capitol Press Association, The Insider, December 16, 2013.

Over the last two years, the changes made to public education in North Carolina by the Republican-controlled legislature have been as significant as any in the last 30 years.

Not surprisingly, the two biggest -- phasing out teacher tenure in favor of employment contracts and allowing publicly-funded vouchers to pay for private schooling -- have created the most consternation among teachers and public school employees.

Democrats, during the last 30 years that they ruled the roost in Raleigh, mostly left the teacher tenure laws alone, even if some believed the job protections went too far. They didn't want to anger a powerful constituency that has traditionally supported them.

As for private school vouchers, they had always been seen by the public school establishment and its Democratic patrons as distinctly anti-public school, something to try to divide and conquer public support for the public schools.

So, it should come as no surprise that the largest teacher group in the state is turning to the courts to try to stop these moves.

Setting aside the policy arguments and implications, a planned lawsuit (expected to be filed Tuesday) challenging the repeal of teacher tenure probably has the best chance for success.

The reason is that tenure, under old common law principles, is seen the same as property rights. Once you have it, it is yours. Taking it away requires a high level of justification.

That knotty little problem doesn't appear to have been lost on those who put together the legislation to replace tenure with employment contracts. The law calls for superintendents and school boards to identify the top 25 percent of teachers, and offer them $5,000 raises in exchange for accepting the contracts.

In other words, the teachers would be acting to give up their tenure in exchange for the raises.

Slick, huh?

Well, it wasn't slick enough to avoid a lawsuit.

If legislators wanted to avoid a legal battle, they should have recognized that moving existing teachers out of the tenure system was too problematic and forced contracts on only new hires.

If the teacher group that is leading the legal charge, the N.C. Association of Educators, has a good case on tenure, its arguments on vouchers may be more suspect.

The legal complaint filed by the group argues that the state constitution dictates that tax dollars earmarked for primary and secondary education go only to public schools. In trying to make that case, though, the complaint relies heavily on a constitutional provision that deals with certain lands acquired and sold by the state, and not general appropriations for education.

The lawyers for the state likely will characterize the vouchers, up to $4,200 for qualifying children attending private schools, as not so different from state grants that go to private college scholarships and tuition.

It is not an easy argument to counter, even if vouchers are the line often seen as separating those who believe in the public schools and their ideal of equal educational opportunity, and those who really don't.