Court Asks If Kansas Lawmakers Had Power To Kill Teacher Tenure
Tenure, as Kansas public school teachers had known it for decades, died at the hands of lawmakers without a hearing in the spring of 2014.
No one disputes that.
On Wednesday, state and teachers union lawyers went head-to-head before the Kansas Supreme Court over whether the ending of those long-standing job protections ran afoul of the state and U.S. constitutions.
“This was run through,” union lawyer David Schauner told the justices, “without any regard for whether anybody whose property was being taken would have an opportunity to respond before it was a fait accompli.”
A small school district defending its 2015 firing of two veteran teachers — with backing from a state attorney — argued that’s irrelevant because legislators have the power to change the law.
If the justices find for the Kansas National Education Association, thousands or even tens of thousands of teachers who had earned tenure before the 2014 change could get their job protections back. If the ruling goes the other way, it will be the KNEA’s second failed attempt to upend the tenure repeal in court.
Before 2014, Kansas public school teachers earned tenure — formally called non-probationary status — in their fourth year at a single school district. If a district didn’t like a teacher’s work, administrators could prevent tenure by letting them go before the fourth year.
And if administrators wanted to fire a teacher after that, they had to give the reasons. Tenured teachers had the right to defend themselves against any allegations by presenting witnesses or documents to an independent hearing officer.
The union’s fight to win those protections back hinges on the idea that tenure is property — and that government can’t take people’s property without giving them notice and a chance to object.
Not true in this case, said Ed Keeley, a lawyer for the Flinthills school district near Wichita. Keeley said tenure was just a provision in state law, not the constitution — the House and Senate voting to change it is sufficient.
“We elect these legislators to make those decisions," Keeley said.
He was skeptical lawmakers needed to do anything more — such as tell the public in advance.
“Do they have to publish it in a paper? I mean, what notice are we talking about?” he said. “We have to send out emails to everybody on a list?”
But Schauner called the 2014 repeal "a midnight raid” on people’s property with little room for lawmakers to dissent.
The tenure change was part of a school funding bill. The House amended it without hearings in either chamber, and Schauner argued lawmakers could hardly vote down the bill because it contained money to fulfill a court order in a high-stakes school finance lawsuit.
Schauner faced tough questions from the justices about whether that matters. After all, it’s not uncommon to makes changes to law that didn’t pass through public hearings first. Schauner argued the bar is higher here.
"What was being taken was, in the case of my two clients, their livelihood,” he said.
It’s unclear how many teachers had tenure when the legislature ended it in 2014. Neither the KNEA nor the state education department kept count.
The Kansas Association of School Boards has said it was too difficult sometimes to remove bad teachers who had tenure.
Charles Walther, a social studies teacher at Shawnee Heights Middle School, disagreed. The KNEA member and teacher of 22 years said tenure lets teachers take unpopular stances — such as making a child repeat a grade — without fear of an unfair firing that could ruin their job prospects elsewhere.
"In this business," he said, "if you don't have your reputation, you don't have much."