Contract provision could shield Wichita teachers from state law eliminating tenure and due process

06/30/2014 11:54 AM

08/08/2014 10:24 AM

A little-known contract provision designed to protect Wichita school nurses from arbitrary firing could also protect more than 4,000 teachers from a new law designed to do away with tenure and due-process rights.

The question now is whether they can keep it.

A single paragraph in the contract between Wichita USD 259 and the United Teachers of Wichita guarantees that all teachers are protected by state tenure and due-process laws – regardless of whether state law actually defines them as teachers.

Removing K-12 educators from the legal definition of “teacher” was the mechanism that conservative Republicans used to try to take state due-process protection away from schoolteachers, while preserving it for instructors at community and technical colleges.

That’s sparked a backlash from teachers across the state. They say the Legislature’s action opens the way for them to be fired for capricious reasons such as teaching controversial subject matter, flunking a star athlete before the big game, or refusing to change a grade for the child of an influential parent.

More than 200 teachers and supporters turned out for a recent legislative forum in Derby to protest the passage of the anti-tenure provision. It was a late addition to House Bill 2506, a school budget measure designed to address a Supreme Court order that found inequities in how Kansas distributes money to local school districts.

But in Wichita, the anti-tenure provision of HB 2506 could be negated by an obscure paragraph on page 27 of the 78-page teacher contract.

That paragraph reads: “Teachers who are not covered by KSA 72-5437 to 72-5443 inclusive, because of the definition of teacher in KSA 72-5436, shall be covered by those statutes notwithstanding that definition.”

KSA 72-5436 is the statute that defines teachers – the definition the legislators changed.

KSA 72-5437 to 5443 include the two major job-security protections that lawmakers sought to eliminate from state law – the right of K-12 teachers to be told the reason if they’re dismissed and the right to challenge that dismissal before an impartial hearing officer or arbitrator.

As long as those statutes remain in state law and the contract language isn’t changed, “It looks like they (Wichita teachers) would still be covered by those statutes,” said Wichita State University professor Martin Perline, an expert on labor relations who reviewed both the teacher contract and the recent changes to state law.

“The problem (for teachers) is unless you’re unionized, you have no protection at all,” he said.

Republican legislative leaders have said by removing teachers from state-mandated due process, they are simply shifting the decision to local control and that tenure and due process can be negotiated district by district.

However, as a practical matter, the teachers are at a major disadvantage in such negotiations, Perline said.

“They can’t strike, legally, so they’re at the mercy of the school board,” he said.

In cases where a district and a union can’t reach agreement, state law provides for them to go to mediation. But if the district holds fast to its position, it can unilaterally impose a contract on its teachers.

Theoretically, teachers could quit their jobs, Perline said. But as a practical matter, “the only way to bring pressure is for everybody to walk out at one time.”

He said that’s highly unlikely to happen.

Perline said if he were negotiating on behalf of teachers, “as much as you can demand anything, I would want something in there (protecting due process).”

Rep. Jim Ward, a lawyer and a former member of the Wichita school board, also reviewed the USD 259 contract and said his analysis agrees with Perline’s.

“For as long as that language is in the contract, I think the teachers will continue to have their full due-process rights,” said Ward, D-Wichita.

And although he was on the losing side in Topeka, Ward said there doesn’t seem to be the same appetite locally for stripping teachers of due-process rights.

“USD 259 has had a long history, almost 50 years, of respect for due-process rights of teachers,” he said. “I would expect that to continue.”

So far, neither side has broached the subject in ongoing negotiations for next year’s teacher contract.

Neither the district nor the union will say much about the contract provision on due process, other than they are having their lawyers look at it.

But they did agree that the original intent was not to protect classroom teachers, but primarily nurses and social workers who aren’t required to have a teaching certificate and weren’t covered under the definition of teacher in state law.

Union field representative Keith Welty said the Wichita district is one of few that has nurses included in the teachers’ bargaining unit.

He said the language designed to give nurses due-process rights has been in the contract for many years, possibly since the 1960s. He said he doesn’t know of any instances where it’s actually been used.

It’s absurd that a contract provision designed to protect nurses by treating them like teachers might now be used to protect teachers by treating them like nurses, said Harold Schlechtweg, the local business representative for the Service Employees International Union, which represent non-teaching classified employees in the school district.

Schlechtweg suggested that the most orderly way forward would be to craft language on due process and put it in the teachers’ contract. That’s what the classified employees’ union did in 1993 for the employees it represents and it’s worked well for both sides, he said.

In the 21 years since the union negotiated due process into its contract, it’s actually taken firings to a hearing only four times – a small fraction of the total firings of union employees.

Schlechtweg said the union carefully screens termination complaints to ensure the employee has a case and tries hard to work things out with the district.

The hearing process is a last resort, but an important one, he said.

In cases that did go to hearing, the union has won three and lost one – and hasn’t lost since 1998, he said.

“The first one we did, we didn’t do very well,” he said.

The union so rarely uses the process because of the cost of hiring neutral and qualified mediators.

They usually have to come from out of state, so travel, lodging and the mediator’s pay runs in the thousands of dollars, which the union and district split.

Combined with legal fees, it costs the union about $10,000 to take a case to a hearing, Schlechtweg said.

If the union took every firing to hearing, “we’d be broke at $10,000 a pop for us,” he said.

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