Smithfield Herald

NC Appeals Court judges ask probing questions about teacher tenure benefit

N.C. Appeals Court judges had an array of questions for attorneys fighting for and against North Carolina’s teacher-tenure system.

But after an hourlong hearing on Jan. 22, with many skeptical questions from the three-judge panel, a couple of sweeping questions remained.

Will some 56,000 of the 96,000 North Carolina public school teachers who have tenure get to keep the employment protection? Or will the judges side with state lawmakers fighting for a law adopted in 2013, one that requires veteran teachers to surrender the “career status” benefit in exchange for multiyear contracts?

Appeals court judges Martha Geer, Chris Dillon and Linda Stephens did not issue a ruling immediately after the hearing. It could be weeks or months before they answer the broader questions.

But their probing questions raised doubts about the legality and wisdom of the legislative move that rankled teachers across the state.

In an effort to move North Carolina to a performance-based pay system instead of one based on longevity, lawmakers called on school districts to identify the top 25 percent of their teachers and offer them new four-year contracts with $500 annual salary increases. In exchange, those teachers would lose their career status protections.

State lawmakers pitched the idea as one meant to improve the public school system.

“How in the world are we going to attract better teachers when, not only have they historically received extremely low salaries for being teachers in North Carolina, they’ve gotten no raises and now they’ve got no career status option?” Stephens said.

Tenure allows public school teachers due-process hearings but does not prevent poor-performing teachers from being fired. The employment protection has been granted since 1971 to North Carolina teachers who passed a four-year probationary period.

State law provides a number of reasons that career teachers can be dismissed. Melissa Trippe, the deputy attorney general representing the lawmakers, argued that the 2013 changes only modified those conditions.

But Narendra K. Ghosh, an attorney representing the North Carolina Association of Educators and several teachers who sued the state, argued that the legislative changes simply pushed tenured teachers back to probationary status.

“How are the teachers who’ve been awarded career status any different from probationary teachers other than they might get a contract of more than one year?” Geer asked.

N.C. Superior Court Judge Robert Hobgood ruled in May 2014 that stripping teachers of the tenure benefit was an unconstitutional taking of property.

The judge did not find that, however, for teachers who had not yet achieved such status.

Under the career-status program, advocates say, teachers knew where they stood. “They could teach controversial subjects,” Ghosh said. “They could advocate for their students in ways that maybe administrators wouldn’t appreciate. They knew they could do those things because they were not crossing the lines of the statute.”

The 2013 law would allow someone to say a teacher is not teaching as well as the best teacher in the district and contend that a better teacher could be hired.

But Ghosh argued that lawmakers and administrators presented no evidence showing they wer having difficulty getting rid of low-performing teachers.

“Teachers can be dismissed even if they have career status,” Ghosh said. “Therefore, repealing career status does nothing to improve our schools. It does nothing to improve the odds of a sound basic education and, in fact, is counterproductive.”

Under the 2013 statute, teachers are not given a list of reasons for not receiving contract renewal, nor do they have a right to a hearing.

Trippe countered that local school districts could choose to have hearings. She said the 2013 law “merely changed the review periods to one, two and four years,” noting that no teachers have lost their jobs because of the change.

“It’s clear the state is legislating for the education of the children in North Carolina,” Trippe said. “The state has a constitutional duty to be promulgating educational policy.”

Ghosh said the teacher advocates were not there to “discuss tenure generally.” Rather, he said, the attorneys for the teachers were there to talk about why the change represented a constitutional taking of property.

Ghosh described the benefit as “a valuable part” of a compensation package “that helps to offset their poor pay as teachers.”

“We’re not here to debate tenure as a nationwide policy issue,” Ghosh said. “We’re solely here to discuss how career status worked in North Carolina.”