Teachers union asks Kansas Supreme Court to restore tenure
TOPEKA ? The state’s largest teachers union asked the Kansas Supreme Court on Tuesday to restore a decades-old law that provided job protections known as tenure rights for most of the state’s nearly 34,000 public school teachers.
But the Kansas attorney general’s office said there was no reason to overturn a lower court’s decision to dismiss the lawsuit because the Kansas Legislature acted properly when it repealed the law. It also argued that the teachers union had no standing to bring the suit because it had not shown any teachers were actually harmed by repealing those tenure rights.
At issue is a bill that lawmakers passed late in the 2014 session that was mainly intended to address another Supreme Court decision regarding school funding equity.
That bill provided $130 million in additional funding for what was called “equalization aid” for certain kinds of school funding.
But in the political machinations of the Kansas Statehouse, lawmakers added numerous other provisions onto the bill, some of which had been considered as separate bills. Among those was a bill that had failed to pass the previous year repealing teacher tenure rights.
Tenure generally meant that teachers who had passed a two- or three-year probationary period could not be summarily fired or have their contracts nonrenewed without good cause. Teachers who were fired or not renewed were entitled to a due process hearing in front of an independent panel and to judicial review of those decisions if they lost at the hearing panel.
The Kansas National Education Association argued that repealing tenure rights as part of an appropriations bill violated a provision of the Kansas Constitution that generally prohibits passing bills with multiple subjects.
Jason Walta, a Washington, D.C., attorney for the National Education Association, arguing on behalf of KNEA, said attaching a permanent change in public policy, like the repeal of teacher tenure rights, to an appropriations bill amounted to what he called “log rolling,” or attaching a bill that couldn’t pass the Legislature on its own merits onto a “must-pass” piece of legislation like the school funding bill that was required to comply with a Supreme Court order.
He said that was the kind of legislative abuse that the one-subject rule in the Constitution was supposed to prevent.
But Solicitor General Stephen McAllister said it wasn’t log rolling but the typical kind of “horse trading” that is an ordinary and accepted part of the legislative process. And he argued the bill did not violate the one-subject rule because it all dealt with “education,” and the language in Article 2, Section 16 of the Constitution specifically exempts appropriations bills from the rule.
A Shawnee County District Court judge said KNEA did have standing to bring the suit. But he granted the state’s motion to dismiss it anyway, finding that the bill did not violate the Constitution’s one-subject rule.
At several points during Tuesday’s hearing, justices asked how far into the weeds they needed to probe in order to decide the case.
“What do we have to know to decide this case?” Justice Dan Biles asked from the bench.
Biles said that in order to answer the question of standing, the court may need to decide whether teachers covered by the old tenure law were given a property right interest in their continued employment.
“Do we have to answer that question, or can we skip over it?” Biles asked.
Walta argued that the deprivation of due process tenure rights was enough to establish standing.
But Justice Carol Beier asked what kind of due process were teachers being deprived of. She said there was a difference between “procedural” due process, which only involves the process through which someone’s rights are determined, and “substantive” due process, which would suggest that teachers were deprived of something tangible in value.
Walta, however, said he couldn’t talk about individual teachers who had been personally injured because that wasn’t part of the record in the case. He said that in the case at hand, KNEA was challenging the law only on the constitutional issue of the one-subject rule.
KNEA officials said after the hearing, though, that they have at least half a dozen other cases around the state involving individual teachers who were fired without due process hearings.
McAllister, meanwhile, argued that all of the previous court cases challenging the one-subject rule dealt with bills that had titles such as “An act concerning appropriations.” He said the bill KNEA was challenging had a lengthy title that begins with the words, “An act concerning education,” and he noted that all of the provisions in that bill concerned education.
Justice Lee Johnson seemed unconvinced by that argument.
“We don’t elevate form over substance,” he said. “We’re not bound by titles.”
But Justice Caleb Stegall said there was nothing in the record to suggest any lawmakers had challenged the tenure repeal provisions as not being germane to the underlying bill.
Several times, McAllister referred back to the language in the Constitution, specifically the last line in Article 2, Section 16, which says, “The provisions of this section shall be liberally construed to effectuate the acts of the legislature.”
The court did not indicate when it would rule on the case.