The Independence Institute has long been a champion of tenure reform, local control, and flexibility in the realm of school and district personnel decisions. In 2010, the Institute was part of a broad, bipartisan coalition supporting Senate Bill 191, Colorado’s teacher evaluation and tenure reform bill. It continues to defend SB 191’s critical reforms from both legislative and legal attacks six years later.
The most recent assault on SB 191 comes in the form of a union-backed lawsuit (Masters v. School District Number 1) against Denver Public Schools for the implementation of the law’s “mutual consent” provision. This provision ends the previous system of forced placement, under which non-probationary teachers displaced from one school could be forcibly placed into different schools with or without the consent of those schools’ leadership or staff. Under SB 191, principals and teacher representatives must approve these placements before they can proceed.
In the suit, plaintiffs have argued that Colorado’s laws on non-probationary status for teachers create a constitutionally enforceable contract between those teachers and the state—a contract the duly elected legislature is powerless to alter. Further, the plaintiffs argue that teachers have a constitutionally protected property interest in continued employment under statute.
These arguments were wholly rejected by a Denver court, and the case was dismissed. However, that decision was overturned in favor of the plaintiffs by the Colorado Court of Appeals.
The Independence Institute believes that the constitutional authority to build and maintain an effective public education system lies with the Colorado General Assembly, and that Colorado’s constitutional local control provision is best preserved when schools have the ability to decide which teachers they employ.
To support Denver Public Schools on this critically important issue, the Institute has filed two amicus briefs in the Masters case. In the first brief, the Independence Institute partnered with Ready Colorado to argue that the appellate court erred in its application of legal precedent and to urge the Colorado Supreme Court to take the case. Colorado’s high court agreed to hear the case in March 2016.
The second brief, in which former Colorado Solicitor General Dan Domenico tackles the merits of the case, urges the Colorado Supreme Court to overturn the Colorado Court of Appeals decision. The brief argues that:
-Public education is central in the Colorado Constitution. It is the most important affirmative duty of government. “With that great responsibility, must come flexibility to adopt progressive policies, even if controversial.” So the Supreme Court should reject the plaintiffs’ invitation for the Court to second-guess the joint policy of the legislature and the local school districts.
-Statutes governing government employees should not be misconstrued as contracts between the legislature and those employees. “Constitutions create constitutional rights; statutes create statutory rights; and contracts create contractual rights and convey property rights, and each has its own method of amendment. The Court should not blur those distinctions in this case.”
-The Colorado Constitution requires the state and the school districts to work together to create a thorough public school system. “To require schools and districts to employ teachers known to be ineffective would be just the opposite.”
-Although there are sometimes tensions between state and local control, in this case the state and the district are in harmony. They recognize that the quality of education is seriously undermined when schools cannot make decisions about which teachers they employ.
Oral arguments in the Masters case will be heard in the coming months, though a final decision may not be issued until 2017. The Independence Institute will continue following the case closely until then.
Both amicus briefs can be reviewed in full using the links below.