Kansas teacher group eyes legal challenge to tenure repeal
Officials at the state’s largest teachers’ union say the battle over tenure rights is far from over, and it may eventually have to be settled in court.
At issue, according to the Kansas National Education Association, is whether tenure protection is a form of property right, and whether the Legislature has authority to take away a property right that current veteran teachers already have earned.
“We are looking at challenges on a variety of levels and that is one of them, whether the Legislature can, by fiat, take away an earned property right,” said Mark Disetti, director of legislative and political advocacy for the union.
Such a challenge, however, would only benefit veteran teachers who already have tenure, KNEA officials said. And the union likely will not file a challenge until a tenured teacher is actually fired without cause.
“I think you’d have to wait until you have an actual case or controversy,” said KNEA General Counsel David Schauner. “As of right now, nobody has lost their property.”
On Monday, Republican Gov. Sam Brownback signed a school finance bill that includes a provision repealing tenure rights for public school teachers.
The original law, enacted in 1957, says teachers who have been working for a school district for three or more years are entitled to an administrative due process hearing with an independent hearing officer before they can be summarily fired or have their contract non-renewed for the following year.
Classified employees in state government enjoy similar protection under the state civil service code.
Supporters of the bill argued that tenure rights make it too difficult for districts to get rid of ineffective teachers. And in signing the bill, Brownback said repealing it from statute will provide more local control by allowing districts to decide for themselves whether to offer tenure as a negotiated benefit in teacher contracts.
Kansas Senate Vice President Jeff King, R-Independence, said he wasn’t surprised to hear that news, although he believes the Legislature is on solid legal footing.
“I would certainly expect a legal challenge,” said King, who is also an attorney. “In this day and age, it seems there are legal challenges to almost every public policy that’s made and this will be no exception.”
King cited a 1980 Kansas Supreme Court case in which the court said tenure has a negative effect on student outcomes because districts are reluctant to even start the lengthy process required to fire an ineffective teacher.
“In the recent Gannon decision, the Supreme Court said the most important thing in evaluating the school finance system in the state is improving student outcomes,” King said. “When the court has said student outcomes suffer because of tenure, and then issue an opinion saying the key determining factor in school finance is quality of student outcomes, I think this is a factor the Supreme Court will consider favorably.”
But KNEA says that for teachers who have already earned the right, the Legislature’s action may be unconstitutional.
“This notion of property and taking of property as a constitutional concept under the fifth and 14th amendments is that you can’t take it without due process,” Schauner said. “Status is considered to be property. The Legislature cannot just wave its legislative pen and say it’s gone.”
On Wednesday, the Kansas Association of School Boards issued a statement advising its members to be cautious about changing their hiring and firing procedures in light of the new law, in part because of the likelihood of a legal challenge.
The Lawrence school district had already opened negotiations on a new teachers contract when the Legislature passed the tenure repeal. School board president Rick Ingram said he and other board members have heard from teachers upset about the new law.
“I think it would be safe to say they’re concerned,” Ingram said. “It’s also safe to say you don’t improve teaching by demoralizing teachers, and you don’t attract teachers to teach in Kansas by removing tenure. I’m sure we will hear more in the future.”