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As your editor noted earlier this month in the commentary on the impact of the Vergara v. California ruling, one of the upshots of California Superior Court Judge Rolf Treu’s decision to eviscerate the Golden State’s laws granting teachers near-lifetime employment is that reformers in other states will likely file similar torts. For one, the ruling, along with arguments made by the Vergara families in the suit, can serve as a road map for their suits. There’s also the fact that nearly all states have equal protection clauses in their constitutions, and have been affected by school funding lawsuits that have determined that state responsibility for a child’s education goes beyond providing access to a classroom.

parentpowerlogoSchool reform and Parent Power outfits in New York State such as the New York City Parents Union have already announced that their plans to file their own Vergara suits. So no one should be surprised by this week’s announcement by former CNN anchor Campbell Brown’s Partnership for Educational Justice that it would help six New York State families file their own tort in the coming weeks. Not only do the families have a strong chance of winning their tort, a victory may further galvanize reformers around using the courts to advance systemic overhauls.

As in the case of the Vergara families, the Partnership for Education Justice’s six families will charge that the Empire State’s tenure laws, which grant near-lifetime employment to teachers after just three years on the job, violates the sound basic education and equal protection clauses of the state constitution. This is because near-lifetime employment, along with the state’s teacher dismissal laws, subject  children to low-quality, educationally neglectful teachers who can rarely be removed from their jobs.

Just as importantly, the lawsuit will also take aim at New York State’s reverse-seniority (or last in-first out) layoff rules, which force districts to sack younger teachers regardless of their success in improving student achievement while protecting veteran counterparts regardless of how well or poorly they do in instruction. Particularly for poor and minority kids, last in-first out layoff rules affect their academic (and ultimately, economic) prospects the hardest because they often lose out on high-quality younger teachers who are the most-likely to work in the schools they attend.

What makes the Partnership families’ possible suit likely to succeed is the successful school funding lawsuit against the state led by the now-defunct Campaign for Fiscal Equity. Besides New York State’s own constitutional requirement to provide “common schools”, the state’s high court, the Court of Appeals, ruled in Campaign for Fiscal Equity v. New York that the state is required to provide “sound basic education” for kids beyond providing them with classrooms and books. Based on the CFE ruling, reformers can argue that the state is violating its duty to kids by keeping in place the collection of laws at the heart of making teaching the most-comfortable profession in the public sector (and a key aspect of teachers’ union influence).

The Partnership lawsuit comes after a decade of fitful efforts by reformers in the Empire State to overhaul teacher quality.

Back in 2007, then-Gov. Eliot Spitzer convinced the legislature to pass a law requiring new teachers seeking tenure to prove that they successfully use standardized test scores and other forms of student performance data in shaping their classroom instruction. A year later, the American Federation of Teachers’ Empire State affiliate, New York State United Teachers, successfully pushed legislators and Spitzer’s successor, David Paterson, to roll back that law without so much as a committee hearing on the matter.

Over the past few years, Gov. Andrew Cuomo, the state’s Board of Regents, and Education Commissioner John King have pressed forward with the state’s new teacher evaluation system, under which student test score growth data must account for 40 percent of teacher performance assessment. But battle between AFT affiliates and districts in New York City and elsewhere have slowed the pace of implementation. The move last week by legislators to do the bidding of the AFT by not allowing for test score data from Common Core-aligned tests to be used in the evaluations is another set-back in efforts to address the low quality of teaching in the Empire State’s districts, especially the clusters of failure mills in cities such as Buffalo and Yonkers.

Meanwhile in New York City, former Mayor Michael Bloomberg spent much of his tenure pushing to get rid of lousy teachers working in Big Apple schools. Some of his efforts — including withholding tenure from newly-hired teachers performing poorly in classrooms — have resulted in fewer laggards staying in Big Apple classrooms. But the state’s teacher dismissal law, which effectively gives the AFT’s Big Apple local power over the process by essentially allowing it to pick arbitrators in termination cases, has resulted in even criminally-abusive teachers keeping their jobs.

This is an issue about which Brown knows all too well. Over the past four years, she has publicly sparred with the AFT local, the United Federation of Teachers, and even the national AFT’s leadership (most-notably, union boss Randi Weingarten) over the union’s defense of incompetent and criminally-abusive teachers. This included an infamous battle between Brown and the union two years ago that featured then-New York City local demagogue Leo Casey (now head of the AFT’s Albert Shanker Institute) accusing her of committing “blood libel” against teachers.

Empire State legislators, more-concerned about their allegiances to the AFT than about the futures of children, will not do more to advance teacher quality reform. Neither will Bloomberg’s successor, Bill de Blasio, who is more-concerned with toadying to traditionalists than fulfilling his obligation to kids as Big Apple Mayor.

This is where Partnership’s possible lawsuit comes in. By using the courts to take on policies and practices that violate the constitutional rights of children — especially those from poor and minority backgrounds — to high-quality education, reformers are embracing the examples set by civil rights activists of the last century, who successfully challenged Jim Crow segregation laws that harmed an earlier generation of black and brown children. At the same time, by working through the courts, which are charged by federal and state constitutions with interpreting laws (and thus, rejecting legislation that violates the principles contained within them), reformers are also holding legislators accountable for providing high-quality teaching to kids in the districts and schools they oversee.

Meanwhile the Partnership suit could further similar torts in other states because New York isn’t like the 15 states in the union whose constitutions require state governments with “the duty” to “encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement”. Since many states don’t have such constitutional requirements on the books, reformers will have to look to other clauses in state constitutions, along with school funding rulings, to build their cases for overturning near-lifetime employment rules. If the Partnership tort succeeds, it gives reformers an even better road-map for advancing their cause.

As Frank Sinatra would sing, if reformers can make their case in the Empire State, they can make their cases everywhere. It’s time to do so for our kids.

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