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New York Lawsuit Will Take Aim at Tenure, Due Process

A lawsuit to be introduced next month will take aim at New York laws governing teacher tenure and dismissal, using arguments similar to a recent successful civil suit in California. 

The plan was first reported by the Wall Street Journal.

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.

As a state-court decision, Vergara is not binding in New York courts as a matter of precedent, but "I think a court would find it persuasive," Allon said in an interview. "The statutes we're challenging operate very similarly, so the types of evidence the court found persuasive in California are very similar to the kinds I think we'll see here." 

Allon said the suit has been in the works for more than six months. The law firm isn't formally connected to David Welch, the Silicon Valley entrepreneur who bankrolled Vergara, or to his Students Matter nonprofit, but it has coordinated with them. Instead, it will be supported by the Partnership for Educational Justice, a nonprofit started by former CNN anchor Campbell Brown. (Politico reports that two former Obama White House aides will launch a PR campaign similar to the juggernaut that helped propel Vergara). 

So far there are six confirmed plaintiffs. And if early signs are an indication, it will produce just as much controversy and as many heart-rending stories as Vergara.

"We have a really interesting plaintiff, actually, who has twins," Allon said. "One had a great 1st grade teacher and one had an ineffective one, and the father has told us he can see the difference in concrete metrics—reading abilities—in even one year. That's the starkest kind of contrast you can imagine." 

Half a dozen other suits modeled on Vergara are also expected, although differences in state constitutional clauses make it hard to determine how courts will receive them.

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