From Education Week
By Sean Cavanagh
State-level battles over changes in education policy have shifted in many places from legislative chambers to courthouses, as unions and other critics of new laws challenge them on the grounds that they violate state constitutions and worker contracts.
Republican governors and lawmakers—their ranks bolstered by the 2010 elections—won passage this year of ambitious measures in many states that often drew strong opposition from teachers’ unions. Points of dispute include changes in how teachers are evaluated and compensated and expansions of private school vouchers.
The strategy of challenging such laws in court, while not new, comes as GOP elected officials pursue agendas loaded with policies reviled by many unions.
“We’ve seen an uptick in [legal] activity because more programs are being passed all of a sudden,” said Dick Komer, a senior attorney at the Institute for Justice, a law firm in Arlington, Va., that has defended voucher programs. “We’ve had a small explosion of school choice programs,” he said, including those in “states that haven’t had much action in the past.”
Sweeping changes to school policy have been adopted in several states this year, and now new laws and policies are being challenged in court, in some cases by teachers’ unions.
An INDIANA teachers’ union is supporting a legal action to stop a law that provides private school vouchers to not only low-income, but also some middle-income families.
A pair of OKLAHOMA school districts are challenging a 2010 law, amended this year, that provides public funds to cover private school costs to students with disabilities, claiming it violates the state’s constitution.
In FLORIDA, the state’s largest teachers’ union is opposing a measure, approved by the Republican-controlled legislature this year, to change the language in the state’s constitution in a way that some say could lead to an expansion of school vouchers.
In COLORADO, a judge has blocked the Douglas County school system’s implementation of a new voucher program. The district is appealing the decision.
FLORIDA’s teachers’ union is fighting a law that requires teachers and other public employees to contribute to their pension systems.
In NEW JERSEY, teachers’ and other public employees’ unions claim a new law violates existing contracts the state had made with workers.
• Merit Pay, Evaluation
The 600,000-member NEW YORK State United Teachers union sued the state this year, claiming that the board of regents’ rules for teacher evaluation violated a 2010 law that served as part of the state’s winning Race to the Top plan. A judge ruled in favor of the union on a number of points; state officials have said they will appeal.
In FLORIDA, a union is supporting a challenge to a new law that eliminates tenure for new hires and creates a merit-pay system.
In IDAHO, a union is opposing a law that phases out tenure, eliminates seniority preferences in layoff decisions, and ties teacher and principal evaluations to student achievement, claiming it violates existing contact rights.
In addition to legal actions challenging voucher programs, lawsuits filed in Florida and New Jersey seek to block the adoption of new laws that require teachers and other public employees to contribute more toward their pensions. A second suit in Florida attempts to block a new, far-reaching law that phases out tenure and implements merit pay for teachers. A legal action in Idaho takes aim at a similar law that phases out tenure and ties teacher evaluation to student performance.
Florida has been a staging ground for past legal and political fights over vouchers. In 2006, the state supreme court ruled that a program that awarded tuition vouchers to students in struggling schools violated the state constitution. Two other voucher programs, which provide public money for private school costs to students with disabilities and those from low-income households, have continued.
The 140,000-member Florida Education Association is supporting this year’s pension and merit-pay lawsuits. It is also challenging the placement of a constitutional amendment before voters on the November 2012 ballot. Florida’s Republican-led legislature this year gave its blessing to that ballot item, which would delete language in the state constitution that prohibits public money from being used “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”
The FEA, an affiliate of both the National Education Association and the American Federation of Teachers, believes the measure is meant to open the door to more voucher programs in the state.
FEA President Andy Ford said his union’s legal actions were a response to GOP efforts to “steamroll” the union, which he says have grown more intense since the election of Gov. Rick Scott, a Republican, last year.
“Everything changed” when Mr. Scott took office, Mr. Ford said.“There are three branches of government in Florida,” he added, and when the executive and legislative branches overstep their legal authority, “we go to the judicial branch.”
Amy Graham, a spokeswoman for the governor, disputed the union’s contentions. She said the tenure and merit-pay policy will improve the state’s schools and its teacher corps.
“Regular working folks don’t have tenure,” she said in a statement. “Why should bad teachers? And why shouldn’t good teachers be rewarded with merit-based pay? By retaining the best teachers, weeding out the worst, and expanding school choice, we are creating a world-class education system.”
Popular Hoosier Program
One of the most closely watched legal battles is playing out in Indiana, where legislators this year approved a law to create one of the broadest voucher measures in the country. Most existing state voucher programs provide public support for private tuition to a relatively limited group of students, such as those from poor backgrounds and those with disabilities. By contrast, the Indiana law set relatively loose eligibility requirements for the state’s new program, so that students from both low- and some middle-income families could take part.
A group of parents and other state residents sued to stop the program, arguing that it violates the state constitution and improperly directs public money to religious schools. The Indiana State Teachers Association, which is affliated with the NEA, is supporting the lawsuit, though it is not a plaintiff.
“It means diminishing resources for public schools at a time when our educators and administrators are being asked to do much more,” Nate Schnellenberger, the president of the 48,000-member union, said of the voucher law.
The Indiana program has drawn strong interest so far. About 3,800 students have signed up, and 259 nonpublic schools have been approved to participate in the program that began this fall, according to state department of education spokesman Alex Damron. More than 80 percent of the participating students, he added, are from low-income households.
The state does not have an official count of how many participating schools are religious, though it believes a majority are, given that religious schools make up a relatively large share of the state’s nonpublic schools, Mr. Damron said. But Glenn Tebbe, the executive director of the Indiana Catholic Conference, the public-policy voice of the Catholic Church in the state, said Indiana has about 200 Catholic schools, and a majority of them are participating in the program.
Tony Bennett, Indiana’s superintendent of public instruction, who supports the law, said that in addition to serving large numbers of impoverished students, early enrollees hail from a mix of urban and rural communities.
“Poverty has no geography to it,” Mr. Bennett said. “This was not a pro-private-school or anti-public-school piece of legislation.”
Clash Over Pensions
Many state leaders entered this year’s legislative sessions determined to tackle a financial issue that has a direct impact on teachers: the costs of state-run pension systems. And new pension laws have provoked lawsuits, too.
Some policymakers initially had shown an interest in shifting teachers and other public employees from defined-benefit systems—the norm in the public sector—to defined-contribution plans, such as 401(k) plans, in which workers’ returns are more closely tied to the market. But ultimately, state officials focused on simply requiring teachers and other employees to contribute more to the existing plans, said Ron Snell, a senior fellow at the National Conference of State Legislatures, a Denver-based research and policy organization.
Sixteen states have adopted such policies in 2011, and most of those changes will affect teacher pensions, according to the NCSL. Lawsuits in Florida and New Jersey, supported by teachers’ and other public employees’ unions, argue that new laws requiring new or increased employee contributions to pensions violate contract rights, among other legal claims.
The outcome of lawsuits over pension benefits often turns on the language in individual state constitutions, Mr. Snell said, and so it’s possible that the legal actions in Florida, New Jersey, and other states with ongoing lawsuits could produce very different results.
“We could very well see decisions that contradict each other,” Mr. Snell said.
Some lawsuits stemming from recently enacted state legislation are playing out in local communities.
In Oklahoma, two school systems, the 11,000-student Jenks public schools and the 15,000-student Union public schools, are suing to try to block a 2010 law, amended this year, that provides private school scholarships to students with disabilities. The districts argue that the law violates the state constitution.
“In the long term, a voucher system will destroy the system of public funding in the state,” said Cathy Burden, the superintendent of the Union school district.
But Eric N. Kniffin, a lawyer representing parents of students in the case, said the program gives families, many of them of limited means, a much richer array of learning environments and services than they could obtain through regular public schools. Mr. Kniffin works for the Becket Fund for Religious Liberty, a Washington law firm.
“They’re willing to make any sacrifice necessary to keep their kids in private schools,” Mr. Kniffin said.