Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.
Experts cite 1998 Bailey decision as potential trump card against General Assembly
RALEIGH - In laying out its legal case against the state over elimination of teacher tenure, the North Carolina Association of Educators cites some of the same constitutional constructs of contract law that state employees used two decades ago to overturn the General Assembly's repeal of income tax exemptions for state retirees.
The 1990s Bailey case, named for its lead plaintiff, former Wake County Superior Court Judge James H. Pou Bailey, was one of North Carolina's most protracted and complex constitutional challenges. Like the teacher tenure case, it was sparked when the General Assembly ended longstanding employment policies. In that instance, the state began subjecting state retirees' pension benefits to state income tax.
"The decision was held in favor of the state retirees that there was a contractual property right in that the state could not change it in regard to those who were already vested," said former state Supreme Court Justice Robert Orr.
The 1998 ruling resulted in a two-tiered system of income taxation. It exempted employees who had logged a minimum of five years of service prior to Aug. 12, 1989, from income tax on their pension benefits and taxed those who had not.
Orr said the Bailey case is the only North Carolina litigation he can recall in which a constitutional claim was used such as the one the teachers lobby is using now. In the current controversy, the NCAE and other plaintiffs are challenging a law ending "career status" for teachers and replacing it with annual contracts tied to teacher performance evaluations.
Some legal observers say the two-tiered hierarchy often results when reforms are made and challenged as violations of contracts. Some education leaders have supported a similar move on tenure.
"When the legislation was going through the General Assembly, our position was that teachers that are in the pipeline should be able to keep their tenure," said Ed Dunlap, executive director of the North Carolina School Boards Association.
In its lawsuit opposing elimination of career status, the NCAE cited Article I, Section 19, of the North Carolina constitution regarding property rights and due process, and Article I, Section 10, of the U.S. Constitution concerning due process and the impairment of contracts.
Ironically, NCAE did not support those same claims when put forth by plaintiffs in the Bailey case in winning reversal of the repeal of income tax exemptions on retirees.
NCAE was among groups that "assisted in passage of the law that took away teachers, state and local government employees' tax benefits upon retirement. For the next 10 years these groups opposed the Bailey plaintiffs' effort to stop illegal taxation and recover taxes paid in violation of one's constitutional rights," according to an essay on the case by Raleigh attorney Gene Boyce, who represented the plaintiffs.
"They refused even to run notices about what was going on in court. Requests for monetary and political support were refused," Boyce wrote.
"That's a strong case. That's a standard practice," said John Coons, a retired professor of law at the University of California-Berkeley Law School, of the Bailey ruling's two-tiered solution and whether it might have application to the teacher tenure litigation.
"In this [teacher tenure] case, it does seem to me the employees have a plausible case," Coons said.
"They've been hired under a certain set of promises and conditions, and they say, 'You can't just end our interest here, whatever you call it, property or contract interest. Unless you go through bankruptcy, you just can't destroy the value of the promises you made.' It's a simple contract idea," Coons said.
"On the other hand, the state certainly has to have some elastic in dealing with its production of education," Coons said.
But state statues and legal precedents would have much to do with how much flexibility the state might have, he said, and there seems to be a lack of legal precedent in teacher tenure law with which he is familiar.
"Maybe they're going to have to pay to do it," Coons said, suggesting the state may have to offer teachers additional compensation in exchange for ending tenure.
NCAE President Rodney Ellis has condemned tenure reform.
"It's part of a full frontal assault on the teachers, the children, the families and the future of our state. No wonder teachers are leaving our state in droves," Ellis said when the lawsuit was announced in December.
"The idea that the motive is to disrespect and insult teachers is just a figment of their imagination, and just a way for them to mobilize their base and to make an argument that there is some statewide, and perhaps nationwide, conspiracy to destroy public education," said Terry Stoops, director of education and research studies at the John Locke Foundation.
"Unfortunately, that kind of thinking has taken the place of having a debate of whether it's a good policy to have tenure, and merit pay, and other changes that the Republicans made," Stoops said.
As to a mass exodus of teachers, he said there is no data to support that claim.
"Louisiana changed its tenure policies and there was no evidence of any widespread chaos in the teacher work force," Stoops said.
"During the last school year, only 17 out of 95,028 [North Carolina] instructors were dismissed for cause, and that's one reason why tenure was reformed under the Excellent Public Schools Act," Senate Majority Leader Phil Berger, R-Rockingham, said in a statement released by his office last week.
"Instead of granting permanent job-security to all after a few years in the classroom, teachers will work under contracts that are renewed based on performance - like nearly every other profession," Berger said.
U.S. Education Secretary Arne Duncan has made pay for performance the "highest priority" of his department, Berger said.
"Beginning in 2014, the top 25 percent of teachers identified by their local school boards will receive four-year contracts with built-in annual increases. That means those highly effective teachers will earn an additional $5,000 over the four years of their contract through a permanent salary increase," he said.