Teacher Tenure Under Attack in New York

NEW YORK – Under the state Constitution, every student has the right to a "sound, basic education."

That broad clause could incorporate a lot of things, but according to a new nonprofit group and a half-dozen New York families, it's directly violated by the state's teacher tenure and layoff procedures.

Spearheaded by former CNN anchor Campbell Brown and the Partnership for Educational Justice, six plaintiffs plan to file a lawsuit next month to challenge these statutes, which make teachers eligible for tenure after three years, protect their jobs with stringent disciplinary hearings and base layoffs on a seniority system.

Devora Allen, a litigation associate for the firm handling the lawsuit, said the claims are similar – but not identical – to the recent landmark ruling in California. Two weeks ago, a judge ruled tenure and layoff laws unconstitutional after a legal challenge on an equal protection claim.

Allen and attorney Jay Lefkowitz, both of the Kirkland and Ellis firm, will challenge New York's statutes based solely on the Constitution.

"Our case is alleging, really, a district-wide, systemic failure," Allen said. "Not confined to any race, or geographic area, or economic area."

Part of the lawsuit seeks to prove that New York's eligibility standards make it too easy for inexperienced teachers to obtain tenure. Teachers in New York can apply for tenure after three years, which is actually a much longer probationary period than California, which makes teacher eligible after 18 months. And once teachers receive tenure, New York law grants them significant protection if administrators wish to fire them. Allen said the second part of the lawsuit will challenge the disciplinary hearings for tenured teachers, which she said are often long and expensive ordeals that make it "almost impossible" to fire them. Finally, Allen said the lawsuit will challenge the statute that allows for the state to make layoffs based on years of experience, instead of performance evaluations.

"This all leads to a system where ineffective teachers are kept in the classroom," Allen said. "This case is not an assault on the public school system. Or teachers. It's actually a case that's designed to promote effective teachers."

Charles Peszynski doesn't see it that way, though. Before retiring, he spent 35 years as a social studies teacher at East High School, Riverside High School and McKinley High School in the Buffalo Public Schools. As the president of the regional chapter of the New York State Retired Teachers Association, Peszynski defended tenure as a way to protect teachers from petty arguments with administrators.

"The whole purpose of tenure in the first place, was to ensure academic freedom in the classroom," Peszynski said, noting that many teachers want to feel free to exercise unorthodox and creative teaching methods without fear of retribution. "A teacher like that, might incur the wrath of a principal and be dismissed by an administrator on a whim."

Peszynski also said the lawsuit is off-base for laying the blame on the teachers.

"They seem to think that everything is the teacher's fault, and I couldn't disagree more with that," he said. "There's a lot to take into account here. The skill and effectiveness of the administrators in the building level. The central office level. The cooperation you get from parents and parent's groups. They all play a part in how well the student does in school."

Peszynski also refuted the idea that it's impossible to remove a tenured teacher, claiming that while it may be difficult, "it can be done."

Phil Rumore, the president of the Buffalo Teachers Federation, said Tuesday he's confident a judge in New York will uphold the tenure and layoff statutes.

Allen said it could take a year or two to reach trial, with a decision obviously taking even longer. The firm has been working on the case since the fall, well before the judge's ruling in California.

"It's definitely related to what's happening in California, [but] we've been doing our own independent research and have been interested in bringing this claim for a while," Allen said.


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