FROM THE LAWYER’S DESK
By: Larry Samuel, General Counsel
Louisiana Federation of Teachers
This is the first in a series of articles that will attempt to explain Acts 1 and 2 of the 2012 legislative session, which contain provisions that directly affect classroom teachers throughout the state. I am compelled to use the phrase “attempt to explain” because particularly when we begin to discuss changes to the tenure law in Act 1, it’s difficult because of sentences that are unclear and ambiguous, and even contradict other sentences in the law.
ACT 1
Act 1 was the first Act passed in a series of so-called “reform” measures proposed by the Jindal administration and rubber-stamped without question by many legislators. Act 1 has many separate and distinct purposes…so many, in fact, that it has caused us to file suit challenging the constitutionality of the law, as I will explain.
Act 1 requires school boards to set “performance targets” for superintendents (new law): Act 1 requires that future contracts between superintendents and traditional school boards must contain “performance targets” for schools that have received certain letter grade designations, and also requires that school boards must submit a copy of these superintendent employment contracts to the state superintendent of education.
The superintendent now has the sole authority to hire teachers…possibly. Act 1 changes the process to select and hire new teachers in traditional public schools. Under the old law, school boards had the sole power and authority to select teachers, which were based upon recommendations made by the superintendent. Under Act 1, the superintendent must ensure that all persons have proper certification and are qualified for the position. But in another section, Act 1 states that the Superintendent must delegate to the principal all decisions regarding the hiring of teachers, subject to the superintendent’s approval.
The principal now has sole authority to assign teachers…sort of. Under the previous law, the superintendent made decisions regarding the placement of teachers, and was required to consult with the principal before doing so. Act 1 transfers this authority to the principals. Act 1 requires the superintendent to delegate to the principal all decisions regarding the placement of teachers, subject to the superintendent’s approval.
Teachers at the school must be consulted before hiring or placing principals at that school…but…any recommendations made by teachers shall not be binding, but shall be “considered” by the superintendent when making employment decisions.
All “employment-related” decisions must be based on performance, effectiveness and qualifications. Under Act 1, superintendents and principals are required to make all employment-related decisions based on “performance, effectiveness and qualifications.” Under Act 1, “effectiveness” shall be used as the primary criterion for making personnel decisions. Under Act 1, “in no case shall seniority or tenure be used as the primary criterion when making decisions regarding the hiring, assignment or dismissal of teachers or other school employees”.
These changes are significant. Performance and effectiveness will be based upon performance evaluations, which as most educators know, will now be based in part upon student performance as measured by standardized tests. But while seniority may no longer be a primary criterion when making decisions regarding assignment and placement of teachers, it still may be used as one of the criteria.
The procedure to reduce the workforce (RIF) has changed: Act 1 has significantly changed the “reduction in force” law. Under former law, the school board was required to develop and adopt rules and policies to be used in dismissing teachers when a school board instituted a reduction in force. Act 1 requires school boards to delegate reduction in force decisions to the superintendent. Act 1 then adds a new provision that requires all reduction in force policies to be based upon demand, performance and effectiveness as determined by the evaluation program. Act 1 also states that “any reduction in force by a superintendent shall be instituted by dismissing the least effective teacher within each targeted subject area or area of certification first, and then proceeding by effectiveness rating until the reduction in force has been accomplished”.
Act 1 further states that “no reduction in force policy adopted by a local school board shall include seniority or tenure as the primary criterion to be considered when instituting a reduction in force”.
These changes are also significant. When a school board finds it necessary to reduce the number of teachers because of a reduction in force, it is now prohibited from using seniority as the primary criterion to determine who is dismissed. Instead, the determination is made by first dismissing the “least effective teacher” within each targeted subject area or area of certification, based upon the evaluation.
School boards now set salary schedules: Act 1 creates a new section of law stating that school boards shall establish salary schedules that must be based on specific criteria. One publication that has been distributed to school board suggests that the superintendent “appears to have the prerogative to set a different salary for similarly qualified personnel, depending on the structure of the new salary schedules.”
Act 1 states that a teacher or administrator who receives a performance evaluation rating of “ineffective” shall not received a raise in pay in the year after the evaluation.
Because of space limitations in this issue, the most significant changes to the law imposed by Act 1 – Tenure – will be discussed in the next issue.
As we stated in the introduction, the Louisiana Federation of Teachers has filed suit, challenging the constitutionality of Act 1. Our lawsuit claims that Act 1 violates a provision in the Louisiana Constitution that states that bills presented to the legislature must have a “single object”. One purpose of the “single object” provision is to limit the content of legislation so that a legislator is not placed in the dilemma of having to consider two or more unrelated matters when casting a single vote on a bill. Act 1 has a multitude of objects, ranging from superintendent contracts, to changes in the reduction in force law, to requirements involving salary schedules, and changes in tenure. We have asked the court to declare the law to be unconstitutional. If the Judge rules in our favor, then the old laws will remain in effect and will not be replaced with the new provisions in Act 1.
It is interesting that when we first filed the law, the Jindal administration didn’t respond by defending the Act as being constitutional. Instead, the administration chose to attack the union, accusing us of “supporting the status quo”/wanting to keep things the way they are. That type of spin is to be expected. But there are other – and more accurate – ways to look at the union’s challenge. First, we are a nation of laws, and the constitution reigns supreme. Have we reached the point in our society that our elected leaders can be allowed to disregard constitutions and laws in the name of what someone perceives to be necessary change?
Second, this is another example of a total and utter disregard of the opinions of the persons who are in the best position to suggest changes that are in the students’ best interest: the educators who work with our students each day in the classroom. This is yet another example of laws being forced from above, without so much as asking for your input. It is time for this lack of dignity and this disrespect to end.
Third, if Act 1 remains in effect, it is fraught with problems. Many of the provisions in Act 1 are unclear and ambiguous and have been poorly worded. There are some provisions that conflict with other provisions. And as we will see with Act 2, there are a multitude of unconstitutional provisions.
In the next issue, I will discuss changes to the tenure law. In my opinion, it’s more of the same: an attack on educators proposed by the governor and rubber-stamped by a majority of legislators who rubber-stamp their approval without fulfilling their responsibilities to serve the public interest.
