NC Supreme Court to Rule on Teacher Tenure Law | Eastern North Carolina Now

    Publisher's note: This post, by Bob Luebke, was originally published in the Education section of Civitas's online edition.

• A case in NC's Supreme Court will decide the fate of the 2013 law that voids teacher tenure guarantees
• The court will need to decide: Is teacher tenure a protected contractual obligation?
• Conservatives argue that tenure establishes a poor incentive system and harms the quality of teachers in the classroom

    Earlier this week, the North Carolina Supreme Court heard oral arguments to decide the constitutionality of legislation to phase out North Carolina's teacher tenure system.

    The case before the court, North Carolina Association of Educators Inc. v. State, will likely turn on how the court responds to two questions: Does teacher tenure confer property rights that are guaranteed by the state? Or does the legislature have the right to void tenure because public employment benefits were never intended as contractual promises by the state?

    It's a case laden with impact and irony. Defending the state and the 2013 law is the Office of State Attorney General Roy Cooper. In December 2015 NCAE endorsed Cooper for governor, months before the Democratic primary. Some say Cooper - the presumptive Democratic gubernatorial nominee - has been courting teachers and public school advocates for months.

    The case is by no means an easy read for judges - or conservatives.

    Conservatives, more than anyone else, should be committed to protecting property rights. But does tenure, properly understood, confer a property right, as the appellate court held in its ruling?

    Legal analysts say most tenure claims focus on due process. This claim does not. If the Supreme Court agrees with the plaintiffs, the decision will likely expand the grounds on which teachers and employee associations can defend tenure.

    The case holds much significance for not only teachers but also legislators who made the elimination of teacher tenure a major part of their education reform plan.

    Tenure opponents want the Court to review the appellate decision that held continued employment or career status to be equivalent to the promised retirement and disability rights, i.e., a form of deferred compensation.

    Republicans who wrote the law have long asserted that improving teacher quality was the best way to raise student achievement. As such, they sought to give school districts the ability to remove ineffective teachers. While school districts can legally remove teachers for inadequate performance - one of fifteen criteria by which a career teacher can be "dismissed or demoted" (see: General Statutes. 115C-325(e) (1)) - history suggests that they have been very hesitant to do so.

    The court's specific task is to review the constitutionality of a law that repealed tenure and gave teachers one-, two- or four-year contracts for 25 percent of teachers who had at least three years' experience. A $500 raise is also included for each year of the contract for teachers who voluntarily relinquished career status before the repeal took effect.

    The legislation provides school boards the option of renewing each contract. Nonrenewal was an acceptable outcome so long as the decision was not "arbitrary or capricious or prohibited by law."

    Under the law, teachers had no right to a hearing, although if the school agreed, one could be granted.

    It's true tenure activists prevailed at the appellate level, but it wasn't a total victory. Wake County Superior Court Judge Robert Hobgood said the repeal deprived teachers of property and contract rights and that teachers accepted their jobs under the provision that career protection was part of compensation and benefits. Hobgood also said, however, the state could eliminate career status for those teachers who had not attained it.

    So how might the court rule? Court watchers might do well to see if the justices consider appellate Judge Chris Dillon's dissent. In his opinion, Dillon writes that tenure repeal should not be interpreted as the end of a contractual right but rather a change in legislative policy.

    Dillon holds that legislation created a status for career teachers - not a contract right. As such, the legislature is free to modify the law on tenure just as it has done several times since it was passed in 1971. To assert otherwise, that a policy can't be changed, would be to drastically limit the power of the legislature.

    Dillon's opinion also cited case law from courts in other states that said statutes establishing tenure for public employees do not create constitutionally protected contract rights.

    Conservatives and Republicans in the legislature support tenure repeal for a variety of reasons. Tenure is a system based almost entirely on seniority. As such it doesn't have the best interests of children at heart. It has impeded the effective functioning of educational systems. Far too many children are trapped in classrooms with teachers protected by tenure who otherwise may no longer be suited or motivated to provide students with the education they deserve.

    Eliminating tenure will end this system. The move will strengthen schools by giving principals the ability to get rid of ineffective teachers and the freedom to build more cohesive faculties.

    Whether that will be the case in North Carolina is the decision the court will have to decide.