Politics & Government

NC Appeals Court says lawmakers’ attempt to end teacher tenure is unconstitutional

Teachers, students and other protestors march from Middle Creek HS to West Lake Middle School in Apex on Nov. 4, 2013. Protestors wore red and held signs as part of a statewide network of teacher walk-ins. On Tuesday, June 5, 2015, a divided NC Appeals Court said lawmakers' attempt to end teacher tenure was unconstitutional.
Teachers, students and other protestors march from Middle Creek HS to West Lake Middle School in Apex on Nov. 4, 2013. Protestors wore red and held signs as part of a statewide network of teacher walk-ins. On Tuesday, June 5, 2015, a divided NC Appeals Court said lawmakers' attempt to end teacher tenure was unconstitutional. NEWS & OBSERVER FILE PHOTO

In a state where public school teachers have marched on the state Capitol and staged walk-ins to protest pay and policy reforms, the N.C. Court of Appeals issued a ruling Tuesday that buoyed the spirits of the rallying educators and struck a blow to the Republican education agenda in North Carolina.

A three-judge panel ruled that legislators’ attempt in 2013 to end teacher tenure was unconstitutional, echoing the findings last year of a Superior Court judge.

In a 2-1 decision, with Judge Chris Dillon agreeing in part with the majority, the three-judge appeals court panel found that the repeal of teacher tenure in 2013, a bill signed by Gov. Pat McCrory, amounted to an illegal taking of contract and property rights.

Judge Linda Stephens wrote the opinion, and Judge Martha Geer concurred.

In it, Stephens stated that for the past four decades, the “career status,” or tenure, section of the law governing teacher and principal employment contracts “have been a fundamental part of the bargain” that thousands of teachers across the state “accepted when they decided to defer the pursuit of potentially more lucrative professions, as well as the opportunity to work in states that offer better financial compensation to members of their own profession, in order to accept employment in our public schools.”

But in 2013, when Republicans first gained control of both General Assembly houses and the governor’s office, the lawmakers adopted a budget plan that would have phased out tenure by 2018.

Six teachers and the N.C. Association of Educators sued, and last year Superior Court Judge Robert Hobgood ruled that taking tenure from teachers was an unconstitutional taking of property rights.

The decision did not apply to teachers who had not earned tenure, though, and the teachers and N.C. Association of Educators appealed that part of Hobgood’s ruling.

Hobgood said retroactively abolishing tenure violated the contract clause in the U.S. Constitution and amounted “to an unconstitutional taking of plaintiffs’ property rights in their existing contract,” a violation of the state constitution.

Supporters of phasing out tenure called the ruling “judicial activism.” The state appealed. In January, the three-judge appeals court panel heard arguments for and against the dismantling of North Carolina’s teacher tenure system.

The majority decision backs Hobgood on both issues.

Dissenting opinion

Dillon, the appeals court judge who issued a dissenting opinion, said he did not agree with his colleagues about the 2013 change amounting to a taking of property, but he said the new law should have assured teachers a due-process hearing with their local school board before a termination could occur.

“Career status is a critical tool to recruit and retain quality educators, just like fair compensation and working and learning conditions,” Rodney Ellis, president of the N.C. Association of Educators, said Tuesday in a prepared statement. “We need to ensure all teachers can focus on educating our kids and helping them be successful and not worried about arbitrary disciplinary actions by administrators outside of the classroom. NCAE will continue to fight, from the statehouse to the courthouse, for students, educators and our public schools.”

“We are pleased the court heard the voices of educators and found that teachers cannot be stripped of their due process rights,” Ellis added.

After teachers marched on the Capitol and staged sit-ins before school to protest the 2013 education reforms, the lawmakers decided in 2014 to adopt a spending plan that included average 7 percent pay raises for the educators. That boost, according to a recent N.C. Association of Educators report, could push the state from 47th in the nation for teacher pay to 42nd.

Phil Berger, president pro tempore of the N.C. Senate and a chief architect of the recent education reforms, issued a joint statement on Tuesday with Tim Moore, speaker of the N.C. House of Representatives.

“While we are disappointed with today’s ruling, we appreciate the thoughtful dissent,” the Republican legislative leaders said. “House and Senate leaders are reviewing the court’s opinion and working together to explore appeal options.”

Rep. Larry D. Hall, a Democrat from Durham and the House minority leader, issued a statement praising the appeals court on Tuesday, saying he was pleased it had “acted to block this specific assault on educators in this state.”

“This legislature tried to retroactively take teacher tenure from those teachers who have earned it, and this is yet another law passed that the court has ruled unconstitutional,” Hall said in his statement.

Education organizations across the state said the court ruling on Tuesday could give hope in a state that has seen an exodus of teachers, bruised by what they consider a lack of respect.

Bill Anderson, executive director of the Charlotte nonprofit MeckEd, said that veteran teachers will be happy about the ruling and that a guarantee of due process is important. He said he doesn’t believe tenure matters as much to younger teachers.

Anderson said that by focusing on the tenure issue, lawmakers were spending their time and money in the wrong place.

“We’ve got to be paying more attention to what we are doing to retain teachers and keep folks in the profession, rather than talking about getting rid of them,” Anderson said.

“It’s a great day for all us veteran teachers,” said Charles Smith, president of the Charlotte-Mecklenburg Association of Educators. “It’s never been anything about a permanent or lifetime job; it’s just due process, protection from arbitrary firings.”

Blythe: 919-836-4948;

Twitter: @AnneBlythe1

What does tenure mean

Tenure allows public school teachers due-process hearings but does not prevent low-performing teachers from being fired. As many as 57,000 of 95,000 teachers have tenure, according to the N.C. Association of Educators. Since 1971, the employment protection has been granted to North Carolina teachers who passed a four-year probationary period.

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