Republicans concede bill would let teachers be fired without cause

04/12/2014 4:09 PM

08/08/2014 10:23 AM

Statehouse Republicans are having to abandon a key talking point in their effort to defuse teacher anger over an anti-tenure bill the Legislature passed a week ago, conceding the bill would allow school districts to fire veteran teachers without having to give a reason why.

If Gov. Sam Brownback signs the bill into law, teachers would essentially be at-will employees of their school districts and able to challenge termination only if they allege the firing violates their constitutional rights.

Under current law, veteran teachers who are terminated by their district have to be given a list of the reasons why. And they can challenge their dismissal to an independent hearing officer or arbitrator.

Faced by large numbers of teachers angered over the attack on tenure, Republicans launched a charm offensive last week seeking to convince teachers the bill is not as bad for them as they’d been led to believe by their union and pro-teacher Democratic lawmakers.

However, following research and inquiries by The Eagle, the office of House Speaker Ray Merrick, R-Stilwell, conceded it had given Republican lawmakers and the news media misinformation in a statement claiming to clear up misinformation surrounding the controversial bill.

Late Friday night, the speaker’s office provided The Eagle with a copy of a memo sent to Republican legislators warning them about the error in the talking points they were provided after passing the bill.

“Since the April 9 release of the education talking points, it has come to our attention that due to a miscommunication with the Office of Revisor of Statutes, a few of the talking points on teacher due process should be clarified,” the new memo said.

The key change: “When a school district chooses to terminate or not renew the contract of the teacher, the district is no longer required to document the specific reasons for the termination under K.S.A. 72-5438.”

Rep. Jim Ward, D-Wichita, said he doesn’t think the inaccuracy in the original Republican statement was a mistake. He said he talked to the Revisor’s Office himself and was clearly told that the bill would repeal the teachers’ right to know why they were being fired.

“I believe they (Republican leaders) did know what was in that bill before they passed it, and I believe the speaker worked very hard to get the bill passed in its current form,” Ward said.

He said he thinks Republicans tried to soft-pedal its impact because “they underestimated the level of anger and outrage over the content of that bill, the way it was passed and the way the people who came to the Capitol to oppose it were treated.”

HB 2506

The anti-tenure provision is part of House Bill 2506, which the Legislature narrowly passed the night of April 6 after a series of heated middle-of-the-night meetings and two days of marathon debates.

During the deliberations, hundreds of teachers filled visitors galleries in the House and Senate chambers and lined Capitol hallways in protest.

The heart of the overall bill is a plan to provide a potential $129 million in funding to address a Supreme Court order that found inequities in the way the state distributes money between rich and poor school districts.

But as legislative leaders sought to cobble together a majority to do that, they tacked on the provision – demanded by Republican conservatives – to repeal tenure and due process rights for K-12 teachers.

The conservatives argued the elimination of tenure and due process is needed because firing incompetent teachers in Kansas is too difficult and takes too long, which hurts the students in their classrooms.

Their opponents, Democrats and a handful of moderate Republicans, argued that the loss of due process rights is more likely to hit good teachers than bad ones. They said the current rules protect teachers from being fired for actions such as flunking a star athlete, teaching controversial subject matter, defying influential parents who demand their child be given a better grade, or arguing with administrators over whether a child needs special education.

False assurances

A Republican legislator who posted his own analysis of the bill on Facebook, based on the information he’d gotten from the speaker’s office, had characterized the changes as minimal.

“Teachers continue to have due process rights under the School Finance plan approved Sunday evening,” J.R. Claeys, R-Salina, wrote. “Notice of non-renewal (of teachers’ employment contracts) continues to state reasons for non-renewal, teachers still have right to due process and hearing before a hearing officer within 90 days for violation of their rights, and districts may continue to insert a provision for tenure as a determining factor for a right to a hearing should a district choose.

“Under state law teachers are now aligned with classified state employees with regard to due process without tenure provisions.”

After a section-by-section reading of House Bill 2506, Claeys acknowledged that much of his post related to teacher rights could be wrong and he said he’d support passing a cleanup bill to clarify the first bill.

“We’ve done that before,” he said.

Claeys was correct that licensed teachers are now essentially equal to classified support employees in terms of job security.

Due process rights for classified school employees vary greatly from district to district and even within districts.

For example, Wichita USD 259 classified employees who are represented by the Service Employees International Union have negotiated due process and grievance procedures in their contract. Classified employees who are not in the union don’t have that, a district spokeswoman said.

In Claeys’ own home district, the handbook for Salina USD 305 says all classified employees are employed “at will.”

“Employment ‘at will’ positions may be terminated by the employee or by Salina USD 305 for any/no reason,” the handbook says.

Claeys said that the tenure provision was not the crux of his decision and that he voted for bills with and without it.

“The most important thing to me was getting $129 million into the classroom,” Claeys said.

What’s a ‘teacher’?

The confusion over tenure arose because K-12 instructors are specifically defined as not being “teachers” in one part of the bill and are specifically defined as being “teachers” in another section.

To understand the conflict, first you have to understand that the system for employing teachers is different from that used by most private businesses.

Each year, teachers are signed to an annual contract, which is automatically assumed to be renewed from year to year. That individual contract sets out the teacher’s personal terms of employment and is different from the better-known and broader union contracts that set general employment terms for groups of teachers.

Ordinarily, a school district would terminate a teacher by not renewing his or her individual contract.

New teachers go through essentially a three-year period of probation, during which their school district can decline to renew their contract without having to give an explanation.

In most cases, teachers who are underperforming will be given a plan of correction to follow to try to improve before that probationary period runs out.

Once the teacher passes the third year and is offered a fourth contract, he or she has tenure and the rules of employment change.

At that point, if the district decides to not renew the teacher’s contract, it has to provide a written notice and an explanation why. The teacher can challenge the decision and have the matter heard before a hearing officer or arbitrator.

A separate section of the law lays out an administrative procedure for teachers to challenge nonrenewal of their contracts if they allege the district has violated their rights guaranteed by the state and federal constitutions.

House Bill 2506 changes teachers’ rights by changing the definition of “teacher.”

In the section of the bill establishing general definitions, legislators removed K-12 teachers from a list of licensed professional educators who are deemed to be “teachers” for legal purposes.

Essentially, “teacher,” as defined in most of the bill, would only cover instructors in technical and community colleges and a technology institute at Washburn University in Topeka.

K-12 instructors are clearly defined as “teachers” in only one limited section of the bill, which requires that they be given a written notice – but not the reason – if their district decides not to renew their individual contract.

Legislative analysts say teachers remain covered by the section of the bill allowing them to challenge firings based on violation of their constitutional rights because the Legislature deleted the definition of teacher entirely from that section, leaving the meaning up to common usage of English.

Democratic lawmakers acknowledged that teachers probably still could get a hearing in a case where constitutional rights — such as race, sex or age discrimination — are at issue.

But they said that’s really just a political smokescreen for Merrick and the Republicans he leads because the Legislature can’t take away anyone’s constitutional rights and workers in any job can file a claim over violations.

“Merrick is misrepresenting this thing,” said Senate Minority Leader Anthony Hensley, a Topeka teacher.

A spokeswoman for Merrick said that if teachers want more than basic constitutional protection, they can still negotiate for it.

“The school boards are free to negotiate with teachers and add in whatever provisions regarding tenure and due process they believe will be most beneficial to their district,” said Merrick aide Rachel Whitten. “That's a big change, but one that the House Republicans who voted for the bill believe is vital in giving students a quality education."

The bill will soon go to the governor, who will have to decide whether to veto it, sign it or allow it to become law without his signature.

Like Claeys, the governor praised the financial part of the bill to address the court order and said he sees that as the most critical portion.

And like the speaker’s office, Brownback noted that even though state law wouldn’t guarantee due process for teachers if he signs the bill, teachers unions could still negotiate for it district by district.

“Some people are having differing opinions about its impact, whether it’s that significant of an impact or if a number of local school districts already provide tenure, so there’s an analysis going on,” Brownback said.

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