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No Such Thing as 'Tenure' or 'Permanent Teachers,' Colorado Court Rules

A multi-year dispute over what job protections Colorado teachers are entitled to has come to an end for now—though the union vows it will keep fighting.

Colorado's Supreme Court last week ruled against teachers who are fighting a state law that allows school districts to put teachers on unpaid leave without a hearing. 

Seven teachers sued Denver public schools in 2014 over its use of a teacher-evaluation law, known as Senate Bill 191, that allows tenured teachers to be placed on unpaid leave for reasons like declines in student enrollment or program changes (such as when a school stops offering a particular course).

The Colorado Educators Association argues that the ruling violates teachers' rights to due process, amounting to the same thing as firing teachers without cause or a hearing. 

"It's baffling that during a time of teacher shortage, when we know teacher pay and working conditions do not stack up to the demands of the profession, that our courts would discard employee due process rights that provide teachers a small measure of protection against arbitrary actions," said Kerrie Dallman, president of the Colorado Educators Association, in a statement.

Dallman, arguing the decision would take a toll on teacher morale, vowed to continue the fight for due process in the legislature.

Due process is usually conferred after a teacher completes a probationary period and receives continuing contract status, sometimes referred to as tenure. Its aim is to prevent districts from letting teachers go without just cause, as Stephen Sawchuk explains in this article examining the complicated systems of educator job protections and how they vary by state.

But Colorado's Supreme Court ruled that because the law "provides for neither 'tenure' nor 'permanent teachers,'" Denver public schools did not violate teachers' rights. Instead of tenure, Colorado state law allows teachers to earn "non-probationary status" after three years of effective evaluations. Teachers with that status are entitled to a hearing before being fired.

Ending 'Forced Placement'

Before Senate Bill 191 was passed into law in 2010, teachers who lost their jobs due to enrollment declines or program changes were guaranteed a new placement in the district, even if the principal at the new school didn't want to hire them. That practice is sometimes called "forced placement." 

Since the law took effect, however, the Denver school system has placed excessed teachers on temporary assignments, allowing them 12 months to find a position through a process called "mutual consent," where the principal agrees to hire the teachers. Teachers who fail to land a job after 12 months are placed on unpaid leave.

Lawyers representing Denver public schools argue that putting teachers on unpaid leave is not the same as firing them.

"Forced placement was wrong: wrong for students, wrong for teachers, and wrong for schools, and it is good that practice will not come back," said Denver Superintendent Tom Boasberg in a statement.

District leaders and principals across the country have argued that forced placement puts low-income and minority schools at a disadvantage since these schools are the most likely to experience frequent openings and have to hire teachers who don't really want to be there. The practice, these leaders say, exacerbates achievement gaps.

Conversely, teachers and union leaders have argued "mutual consent" opens the door to favoritism and nepotism, the very practices unions were created to counteract. 

Some local education advocacy groups praised the decision.

Colorado Succeeds, a nonprofit representing the state's business leaders, was one of them. "To meet the diverse needs of students statewide, it is essential that principals have the authority and flexibility to hire who they want," the group's president Scott Laband said in a statement.

Denver is not alone in its fight against forced placement. Several school districts and statesRhode Island, District of Columbia, and Baltimore among themhave sought to put an end to these involuntary transfers.

New York City schools, on the other hand, in October began filling still-open positions with teachers who had lost their jobs and were awaiting rehiring (in what's known as the "absent teacher reserve" pool)—a move critics say amounts to forced placement.


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