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Second Vergara-Inspired Lawsuit Filed in New York

UPDATED

A second lawsuit challenging New York laws governing teacher tenure, layoffs, and dismissals was filed this morning on behalf of seven schoolchildren in the state.

The suit, modeled on the successful Vergara v. California lawsuit in California, argues that those protections are depriving pupils of their constitutional right in New York to a "sound basic education" because they make it nearly impossible to fire an ineffective or incompetent teacher.

Filed in the state Supreme Court, in the county of Albany, Wright v. New York names as defendants the state; the Board of Regents, which oversees elementary and secondary education; the chairman of the Board of Regents, Merryl Tisch; and state education Commissioner John King. It is being spearheaded by the Partnership for Educational Justice, a nonprofit set up by Campbell Brown, a former news anchor. 

Among other things, the suit claims:

  • That three years is an inadequate amount of time to assess whether a teacher is qualified to be granted tenure; 
  • That notification requirements in the state's teacher-evaluation laws mean that principals have to make the determination whether to award tenure before a third annual evaluation of each teacher's skill is complete;
  • That the state's disciplinary laws and approved modifications made through bargained contracts impose "dozens" of procedural hurdles, such as improvement plans and a lengthy arbitration process; beyond that, the standard for proving just cause "is nigh impossible to satisfy." 
  • That reverse-seniority laws require districts to lay off talented junior teachers before ineffective senior teachers.

The lawsuit doesn't contend, as the plaintiffs in Vergara v. California did, that disadvantaged and minority are disproportionately impacted by these laws. It's unclear why, but it may be because of differences in New York's constitutional language and case law regarding public schooling.

Brown has come under fire from critics because her husband is on the board of directors for StudentsFirst NY, a wing of the advocacy group begun by union foe Michelle A. Rhee. She also hasn't disclosed who has helped fund the nonprofit, the New York Daily News reports. (The firm providing the legal representation is taking the case pro bono.)

Meanwhile, the lawsuit carries the name of John Wright, the father of twin girls—one of whom, in kindergarten, was purportedly assigned a weak teacher and is now several reading levels behind her sister, who excelled in a different classroom.

The United Federation of Teachers didn't have an immediate response to the lawsuit. It has already intervened as a defendant in another, similarly themed lawsuit filed a few weeks back.

UPDATED, 2:37 p.m.: "Campbell Brown may be tearing up, but her secret hedge-fund supporters will be crying all the way to the bank if she succeeds in her mission to undercut public education and privatize our schools," UFT President Michael Mulgrew said in a statement. "Parents know that attacking teachers is not the answer to the problems of New York's public schools.  We expect New York's courts to reject the fact-challenged and legally questionable assertions in this case."

As I've reported elsewhere for Education Week, it's not certain that this lawsuit will be met with the success that the California case was. For one thing, teachers are eligible for tenure after three years in New York, rather than 18 months, as in California. And the New York City system has made a policy of permitting principals to "extend" the tenure timeline, which means that a good many eligible teachers have had to wait an additional year, although overall rates of denying tenure to teachers remain low.

New York's due-process laws also differ significantly from California's; cases are heard by arbitrators rather than by a three-person panel, and the timelines and requirements are also different.

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