Base teacher de­ci­sions on per­for­mance, not se­nior­ity

The Denver Post - - PERSPECTIVE - By Ross Izard

Ef­fec­tive teach­ers are the lifeblood of ed­u­ca­tion. More than any other school-re­lated fac­tor, teach­ers have deep and last­ing im­pacts on stu­dents’ fu­tures. But de­spite the power of ef­fec­tive teach­ing, nearly half of Colorado’s union­ized school dis­tricts are op­er­at­ing un­der ne­go­ti­ated poli­cies or agree­ments that place stu­dents’ ed­u­ca­tions and ex­cel­lent teach­ers’ jobs at risk by un­law­fully pri­or­i­tiz­ing sim­ple se­nior­ity, or length of ser­vice, over per­for­mance in lay­off sit­u­a­tions.

Re­search has re­peat­edly demon­strated the power of ef­fec­tive teach­ing — and not just on stan­dard­ized test per­for­mance.

School dis­tricts have a re­spon­si­bil­ity to en­sure that every student is taught by a great teacher — even when fi­nan­cial times are hard. As it turns out, they also have a le­gal obli­ga­tion to sup­port this goal when adopt­ing lay­off pro­ce­dures.

A lesser-known re­quire­ment in state law cur­tails the use of “last-in-first-out” (LIFO) teacher lay­off pro­ce­dures in Colorado school dis­tricts. Un­der LIFO sys­tems, jus­ti­fi­able re­duc­tions in force (RIFs) are con­ducted solely or pri­mar­ily on the ba­sis of se­nior­ity, or how long a teacher has served in a school dis­trict.

As of 2012, any con­tract or pol­icy cov­er­ing RIFs must con­sider per­for­mance as a sig­nif­i­cant fac­tor be­fore con­sid­er­ing se­nior­ity and non­pro­ba­tion­ary sta­tus. These lat­ter two fac­tors may be taken into ac­count, but only if do­ing so is in the best in­ter­ests of stu­dents.

De­spite these re­quire­ments, 16 of the 38 Colorado school dis­tricts known to for­mally bar­gain with their lo­cal teach­ers unions have main­tained se­nior­ity-based RIF pro­ce­dures.

In some cases, these un­law­ful pro­vi­sions have sim­ply been over­looked. Many dis­tricts do not scru­ti­nize their agree­ments or poli­cies while rene­go­ti­at­ing them. How­ever, a num­ber of the dis­tricts have at­tempted to jus­tify the con­tin­ued pres­ence of LIFO sys­tems us­ing two primary ar­gu­ments. First, that they have “elected not to” fol­low the law be­cause they have not re­cently con­ducted lay­offs and do not an­tic­i­pate do­ing so in the near fu­ture. And sec­ond, that the con­tin­ued ex­is­tence of these LIFO pro­ce­dures is ac­cept­able be­cause state law su­per­sedes dis­trict union agree­ments. These ar­gu­ments fail to pass muster.

In re­sponse to the first ar­gu­ment, we should ac­knowl­edge the im­por­tance of equal ap­pli­ca­tion of the law. Most of the state’s union­ized dis­tricts have al­ready brought their ne­go­ti­ated pro­ce­dures into align­ment with statute, pre­sum­ably de­spite the fact that they were not fac­ing lay­off sit­u­a­tions. These dis­tricts are to be com­mended. Why should other dis­tricts be held to a dif­fer­ent stan­dard?

The LIFO is­sue presents an op­por­tu­nity for school dis­tricts to en­gage in the type of re­spon­si­ble, for­ward-think­ing gov­er­nance cit­i­zens ex­pect. There is no com­pelling rea­son to wait un­til a volatile econ­omy once again de­liv­ers a fi­nan­cial down­turn to ad­dress the prob­lem. And, if these same dis­tricts’ per­pet­ual warn­ings about dire fund­ing short­falls are any in­di­ca­tion, one must as­sume that the specter of hard fi­nan­cial de­ci­sions looms larger than they now ar­gue. An ounce of pre­ven­tion is worth a pound of cure.

The sec­ond ar­gu­ment also falls short. It is true that “state law trumps” ne­go­ti­ated union agree­ments or poli­cies. Yet given this fact, one has to won­der why some dis­tricts have ne­go­ti­ated and rat­i­fied agree­ments — some­times re­peat­edly — that con­tain lan­guage they know is in vi­o­la­tion of statute. The needed changes are straight­for­ward. Why not sim­ply make them?

Some con­tracts con­tain clauses stat­ing that pro­vi­sions found to be un­law­ful are null and void, which fur­ther com­pli­cates the prob­lem. State law re­quires school dis­tricts to have re­duc­tion-in-force poli­cies in place and pro­vides guardrails for those poli­cies, but it does not of­fer a ready-made lay­off pro­ce­dure to be fol­lowed. Dis­tricts can­not sim­ply “re­vert to state law” should lay­offs be­come nec­es­sary in the ab­sence of a law­ful RIF pol­icy. They must ac­tu­ally have such a pol­icy in place.

State statute not­with­stand­ing, the goal of ed­u­ca­tion is and must al­ways be to pro­duce the best pos­si­ble out­comes for stu­dents. With this goal in mind, the re­main­ing dis­tricts with ne­go­ti­ated LIFO pro­ce­dures should make the sim­ple changes needed to serve the best in­ter­ests of stu­dents rather than adults.

Ross Izard is an ed­u­ca­tion pol­icy an­a­lyst at the In­de­pen­dence In­sti­tute, a free-mar­ket think tank in Den­ver.

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