Plaintiffs Urge Judge to Let Case Against Teacher Tenure Proceed

Lawyers representing the state, New York City, teachers and principals all urged a Staten Island judge on Wednesday to dismiss a lawsuit challenging teacher tenure.

The suit was brought by two groups of parents who claim the rights of students to a sound, basic education under New York state law have been violated because the tenure system makes it too hard to get rid of bad teachers. But lawyers representing the city and state argued that the state's sound basic education law is really about a minimum level of funding, not teacher quality.

Steven Banks, a lawyer with the state Attorney General's office, said that while tenure is a state law, it's the local school districts that decide whether to bring charges against any teachers or to eliminate their positions. That position was echoed by an attorney for New York City, Janice Birnbaum, who also said any changes to tenure should be made by the legislature not the courts. She called the lawsuit "political."

When State Supreme Court Justice Philip Minardo asked if that means it's "not my business," Birnbaum argued that the plaintiffs have no standing. While it's cumbersome to remove a teacher, she said, lawmakers have continually made revisions.

The hearing in Minardo's small courtroom was crowded with more than 30 spectators, including plaintiffs and reporters. There was a total of seven lawyers, two for each groups of plaintiffs and five representing the city, state and unions for teachers and principals. Each side had a total of 50 minutes to divide among the different attorneys. A ruling isn't expected for months.

The unions made a vigorous defense of tenure. Richard Casagrande, representing New York State United Teachers, said the laws that are being challenged, "are not a gift to teachers." Instead, he said, they provide for due process. He also noted that a teacher with two ineffective ratings can be dismissed under the state's new teacher evaluation law. He said the entire process is supposed to take 125 days at the most.

A lawyer for two principals who have joined the defense said one professional educator has already been terminated since the new evaluation law went into effect in 2012. This prompted Justice Minardo to ask, "One?"

The attorney responded that terminations are just happening now because the teachers needed two years of ineffective ratings.

Attorneys for the plaintiffs seized on this as further evidence that it's still way too hard to remove a bad teacher. Jay Lefkowitz, who is representing the group of plaintiffs led by Campbell Brown's Partnership for Educational Justice, said only 1 percent of teachers statewide received ineffective ratings last year under the new evaluation system. Meanwhile, he noted that more than two thirds of the state's elementary and middle school students failed their state math and English tests.

Lefkowitz said the plaintiffs don't have to prove tenure is the sole cause of low test scores in order to meet the burden of proof for challenging its constitutionality. For the case to proceed, he said, they need only show that they are at "imminent risk" of getting a bad teacher, which he called a substantial injury caused by the tenure law.

If the case proceeds, he said he would bring academic studies showing how tenure should not be granted after just three years, as it is now. He said it would be more effective if given after four or five years.

An attorney for the other group of plaintiffs, led by the New York City Parents Union, also argued that parents need the court to intervene because legislators can be swayed by powerful lobbyists for the unions. This led Minardo to note that parents could always choose not to reelect their representatives.

Both groups of plaintiffs said they are not asking the court to repeal tenure completely. Instead, they said they are asking it to order the legislature to reform the process for earning tenure, along with its disciplinary rules and seniority protections.

After the hearing, New York City teachers union attorney Charles Moerdler complained about a climate in which teachers are scapegoated. He also said it does matter that Lefkowitz couldn't prove any injury to children from tenure.

"In order to be in the courthouse, you have to have been hit by the bus, you have to have fallen under the bus," he said. "You have to have an injury."