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NEA President Reminds Us That Education Policy Belongs in Legislatures, Not Courts

I don’t want to write about the teachers union today. I already did that this week, and it resulted in a whole bunch of grownups calling me and my friend Ross Izard ugly names. When I told Ross, he just laughed and said “If you’re catching flak, you’re over the target.” I don’t really know what that means, but I know I don’t like meanies.

Besides, I’d much rather write about the fact that the top schools in Denver are charters, or a weird math thing called Simpson’s Paradox and how it relates to the recent release of NAEP scores in social studies. Even better, I’d like to just post a video of a dinosaur and leave it at that.

Unfortunately those things aren’t in the cards (today). My friend Jason Bedrick caught my attention with a tweet too fantastic to ignore this morning:

Fine. We’ll talk about unions again. I have no choice if they’re going to make it this easy.

First, I should mention that Jason’s tweet contains a link to the actual quotation from Lily Eskelsen García. From that Politico post:

NEA President Lily Eskelsen García said she fully expects the “California Court of Appeal will return education policy to where it belongs: the legislature … Every student deserves a highly effective teacher in his or her classroom … The California legislature has worked to provide fair due process protections that ensure quality teachers are in every classroom. Due process prevents good teachers from being fired for bad reasons, and it protects teachers’ professional judgment and academic freedom.”

The bit about the California Court of Appeals is a reference to ongoing fight over California’s monumental Vergara decision. That should ring a bell for many of you. If you’ll remember, we had a discussion a while back about a detailed piece by Ross Izard on teachers unions, testing, and tenure reform.   From that piece:

… just last year, a California judge handed down an earth-shaking decision in Vergara v. California that destroyed the state’s teacher tenure statute, one of the unions’ most critical planks, on the basis that it disproportionately harms vulnerable student populations by keeping ineffective teachers in classrooms. After examining evidence of the effects of ineffective teachers on students, the judge stated in his opinion that “The evidence is compelling. Indeed, it shocks the conscience.”

For those unfamiliar with the concept, teacher tenure is a statutory provision that provides near-complete job security once a teacher has been employed for a certain period of time. In the past, Colorado simply required three years of continuous employment as a teacher in order to qualify for tenure, which in our state is known as “non-probationary status.” Once a teacher is granted non-probationary status, it often becomes extremely difficult for districts to let him or her go without first completing an arduous and expensive type of due process—even if that teacher is not effective in the classroom. During the Vergara case in California, it was posited that only 2.2 teachers were dismissed for unsatisfactory performance each year out of California’s total teaching force of 275,000. That amounts to a statewide performance-based dismissal rate of .0008 percent. In 2009, a large study showed that there had been zero formal dismissals in Denver Public Schools during a three-year period.

Yes, it’s safe to say that Eskelsen Garcia’s talk of due process falls somewhat short of the truth. But we don’t need to retread old ground. Instead, let’s focus on her statement about moving education policy back to the legislature “where it belongs.”

I find that statement entertaining. Why? Well, because one of the unions’ new tactics is to move education policy battles from the legislatures to the courts in the debate over teacher evaluation and its inextricably linked partner: Tenure reform. And as Jason implies, school choice has also fallen victim to legal assaults around the country, many of which are union led or supported.

New Hampshire won its legal battle for choice last year, but Alabama, Georgia, and Florida are all fighting off legal attacks on their scholarship tax credit programs. North Carolina also finds itself engaged in a legal battle (some of you will recall our discussion on this case last summer) over its voucher program for low-income kids. And, of course, I eagerly await a decision in the Douglas County voucher case here in Colorado.

Obviously, all of these programs (except Douglas County, the nation’s first local voucher program) passed through the relevant state legislatures. In Florida, roughly 70,000 kids are using the program, and the legislature recently voted to expand it in several key ways. Given her statement, Ms. Eskelsen Garcia would surely agree that is how it should be and quietly walk away with her state and local affiliates. Right?

I wouldn’t hold your breath. There’s not much chance of Ms. Eskelsen Garcia doing what my dad always says and “putting her money where her mouth is.” In fact, if I were a more cynical young man, I might be inclined to say that Ms. Eskelsen Garcia is really saying that she’ll take the battle where she is more likely to win. Like, say, the heavily democratic California legislature in the case of the Vergara tenure ruling. After all, it’s much harder for the union to wield its favorite weapon—political spending—against judges than against state legislators. In places where the legislature might be less inclined to cooperate, however, I’d imagine the union will continue dragging policy discussions into court.

The union isn’t likely to actually alter its behavior anytime soon. But the next time you hear about a union legal attack against school choice or reform policies, make sure you remember this quote.