Thursday, March 29, 2018

Challenge to NYS Tenure Survives a Motion to Dismiss

In Davids v. State, ____A.D. 3d____ (1st Dep't. March 28, 2018), Plaintiffs in this consolidated appeal brought an action claiming that the various tenure statutes violate the NYS Consitution Education Article which guarantees students the right to a "sound basic education." The Appellate Division affirmed the lower court decision which refused to dismiss the case. As the court explained:
The Education Article requires the Legislature to provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated'" ... "[S]tudents have a constitutional right to a sound basic education'" (Paynter v State of New York, ..."[A] sound basic education consists of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury'" (Paynter ..." Fundamentally, an Education Article claim requires two elements: the deprivation of a sound basic education, and causes attributable to the State'" (Aristy...
Here, the Davids plaintiffs allege in their complaint that teachers are a key determinant of the quality of education students receive and have a profound impact on students' lifetime achievement. The Davids plaintiffs allege that students taught by ineffective teachers—those in approximately the bottom five percent of teachers in New York—suffer lifelong problems and fail to recover from this marked disadvantage.
The Davids plaintiffs allege that the statutory scheme which controls the dismissal of teachers in New York and a seniority-based layoff system make it nearly impossible for school administrators to dismiss ineffective teachers. Specifically, the Davids plaintiffs allege that the following statutes pertaining to the dismissal of teachers deprive students of a sound basic education: Education Law §§ 1102(3), 2509, 2573, 2590-j, 3012, 3014, and 3020-a (hereinafter collectively the Dismissal Statutes). They further allege that Education Law § 3013(2), which mandates that teachers with the least seniority be laid off first (i.e., "last in first out"; hereinafter the LIFO Statute), also deprives students of a sound basic education.
The Davids plaintiffs allege that because of the Dismissal Statutes, school administrators are compelled to either leave ineffective teachers in place or transfer them from school to school. This statutory scheme, they allege, inevitably presents a fatal conflict with the right to a sound basic education guaranteed by article XI, § 1 of the NY Constitution because it forces certain New York students to be educated by ineffective teachers who fail to provide such students with the basic tools necessary to compete in the economic marketplace and participate in a democratic society.
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This is a very important decision to watch. I predict the Court of Appeals will grant leave to decide this case and it will ultimately reverse this decision. This is what has happened in other states. see, Vergara v. California Teachers Assoc., ___P.3d___(Ct. App. 2016). See also, Forslund v. State, 2017 Minn. App. Unpub. Lexis 789 (Minn. Ct. of Appeals 2017)(dismissing challenge to state tenure statute). On the other hand, should Plaintiffs prevail in the Court of Appeals (survive the Motion to Dismiss) and ultimately win at trial, this case has to potential to change tenure as we know it.

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