final ruling

Colorado’s high court: There’s no such thing as teacher tenure

PHOTO: Denver Post file
The Colorado Supreme Court.

The Denver teachers who challenged a landmark state law that allows school districts to put certain experienced educators on unpaid leave lost their cases Monday.

The Colorado Supreme Court ruled against the educators, who sued Denver Public Schools in 2014 alleging that the state’s largest district violated their rights to due process. Some of the teachers had lost their positions in schools and failed to get re-hired by a principal within a set period of time, which led the district to put them on unpaid leave — a move the teachers argued amounted to getting rid of them without cause or a hearing.

The district argued it was simply following a 2010 state law, known as Senate Bill 191, that changed the rules for teacher evaluations and assignments. The law allows teachers who lose their positions because of circumstances such as student enrollment declines to be put on unpaid leave if they don’t find new positions within 12 months or two hiring cycles.

The high court sided with the district, ruling that because Colorado law “provides for neither ‘tenure’ nor ‘permanent teachers,’” Denver Public Schools did not violate teachers’ rights. Instead of tenure, state law allows teachers to earn “non-probationary status” after three years of effective evaluations. Teachers with that status are entitled to a hearing before being fired.

The 2010 law also eliminated the practice called “forced placement” in which non-probationary teachers who lost their positions were assigned to open positions at other schools.

Denver district officials didn’t like forced placement. Teachers were often placed at schools where a majority of students were living in poverty, which officials said unfairly resulted in the district’s highest-needs students being taught by teachers who didn’t choose to be there.

After Senate Bill 191, the district began giving teachers who lose their positions temporary assignments with the expectation that they would look for permanent “mutual consent” positions, meaning a school’s principal agrees to hire them, within the 12 months or two hiring cycles.

The Colorado Supreme Court issued rulings in two related lawsuits Monday. One was filed by a group of seven Denver teachers, including some who’d been put on unpaid leave after losing their positions due to enrollment declines or program changes at their schools. The other was filed by a single teacher who suffered the same fate but for a different reason.

Attorneys for Denver Public Schools argued that putting teachers on unpaid leave is different than firing them. Under the law, teachers on unpaid leave are put into a “priority hiring pool.” If they find a mutual consent position, they are hired at their previous salary level.

Denver Superintendent Tom Boasberg said the district welcomes the high court’s decision upholding the provision of the law that ends forced placement.

“Forced placement was wrong: wrong for students, wrong for teachers, and wrong for schools, and it is good that practice will not come back,” Boasberg said in a statement.

The teachers were represented by attorneys from the the Colorado Education Association, the state’s largest teachers union. President Kerrie Dallman said teachers are “very disappointed by this pair of unreasonable decisions that strip away rights of experienced educators.”

“It’s baffling that during a time of teacher shortage, when we know teacher pay and working conditions do not stack up to the demands of the profession, that our courts would discard employee due process rights,” Dallman said in a statement.

She said the ruling was especially disappointing given that the backers of Senate Bill 191 “explicitly asserted that they were not repealing the due process rights of experienced teachers.” Dallman said the union would take its fight back to state lawmakers “to fix an education system that continues to operate with serious flaws to the detriment of our schools and students.”

Gubernatorial candidate Mike Johnston, a former educator and state senator who sponsored Senate Bill 191, said in a statement that “we all share the same goal: to do what’s right for Colorado’s kids.”

“With today’s decision,” Johnston said, “we can move forward in that spirit and work together to improve achievement for students across the state.”

Several local education reform advocacy organizations praised the decision.

Luke Ragland, president of conservative Ready Colorado, called it a “thorough and uniform repudiation of the teachers’ union and their radical view” and “a win for students and families.”

Colorado Succeeds, a non-partisan group that represents the state’s business community, called the ruling “a significant victory for Colorado’s students, educators, and education leaders.”

“To meet the diverse needs of students statewide, it is essential that principals have the authority and flexibility to hire who they want,” president Scott Laband said in a statement.

The Colorado Children’s Campaign, an advocacy group known for its work on health and education issues, also characterized the ruling as “a major win for Colorado’s kids.”

biding time

Strike vote by Denver teachers no longer imminent due to contract extension

PHOTO: Eric Gorski
The bargaining teams from Denver Public Schools and the Denver teachers union at a contract negotiation session in 2017.

Although the Denver school district and its teachers union failed to reach a deal on an overhaul of the district’s pay-for-performance system, the prospect of a strike is less imminent.

Earlier this week, the union’s board of directors authorized a strike vote if a new agreement couldn’t be reached by the time the current one expired at midnight Wednesday.

The two sides couldn’t come to terms on how to change the system, but did reach a different kind of deal: District officials agreed to the union’s request to extend the current pay-for-performance agreement until January 2019 in the hopes that Colorado voters will approve a tax increase in November benefiting schools, making teacher pay raises more likely. However, the union did not take the threat of a strike completely off the table.

A statement from the union, the Denver Classroom Teachers Association, said the union “will begin preparing to take work actions to ensure progress on the new compensation system. If no agreement is reached by the Jan. 18 deadline, DCTA will immediately ask for a strike vote from union members the following day.”

In other districts that have experienced labor conflicts, teachers have picketed, refused to work extra hours, and even waged “sickouts.” The Denver teachers union did not specify the types of work actions they were considering.

Denver Public Schools Superintendent Tom Boasberg said the district was reluctant to sign a ten-month extension, “but in the end, we are prepared to honor their request for more time.”

“We all have a very clear, common goal and common interest around supporting our kids and giving our kids the very best chances to learn and grow,” Boasberg said. “I’m confident that common goal and common aspirations will help us move toward an agreement.”

Denver’s pay-for-performance system, called ProComp, was first piloted in 1999. Under the current agreement, teachers earn a base salary based partly on their level of education and years of experience, and partly on how much training they completed the year before and on the outcome of a yearly evaluation that takes student test scores into account.

Teachers can also earn bonuses and incentives on top of their base salary. This year, for example, teachers who work in a hard-to-serve school with a high percentage of students living in poverty can earn an extra $2,578 per year.

The union wants to make teachers’ paychecks more predictable by moving back to a traditional “steps and lanes” salary schedule in which raises are based on education and experience. Union leaders also want higher base salaries. The union proposed a salary schedule that would pay teachers with a doctorate degree and 20 or more years of experience a base salary of $100,000 with the opportunity to earn a more limited number of incentives on top of that.

The district, meanwhile, proposed a salary schedule that would continue to take teacher evaluations into account when calculating raises but would allow teachers to more significantly build their base salaries for more years. While the union’s proposal shrinks some incentives, the district’s proposal grows the incentive for teaching in a hard-to-serve school.

District officials said the union’s proposal is too expensive. ProComp is funded by a voter-approved tax increase that is expected to raise about $35 million this year. The union’s proposal would cost more than twice as much, district officials said.

Union leaders asked to extend the current agreement until January 2019 in the hopes that Colorado voters approve a proposed ballot measure that would raise $1.6 billion for schools. Backers of the measure, which would increase income taxes for people who earn more than $150,000 per year, are collecting signatures to get it on the November ballot.

Colorado’s Taxpayer’s Bill of Rights requires that voters approve any tax increase. In 2013, voters rejected a school funding tax increase that would have raised $950 million its first year.

Boasberg supports this year’s effort. He’s among the Colorado superintendents pushing for a new, “student centered” school funding formula if the measure passes.

“The entire purpose of that funding measure is to strengthen teacher compensation, decrease class sizes, and improve supports for kids,” Boasberg said. “So if that passes, of course we will eagerly sit down with DCTA to discuss how we strengthen our compensation for teachers.”

Repairing harm

Inside one of three Denver schools serving as a national model for how to do discipline differently

PHOTO: Cyrus McCrimmon/The Denver Post via Getty Images
Principal Scott Wolf talks with a student in 2015.

What struck Erika Strauss Chavarria the most was the mutual respect she saw between adults and teenagers at Denver’s North High School. Having watched her own students in Maryland get handcuffed by armed police officers in the hallways, the Spanish teacher said North seemed almost like “a utopian society.”

“It’s like the little things that make this building great,” Strauss Chavarria said. After she and other visitors sat in on a history class, the buzz was not about the lesson but about how the teacher trusted students enough to go to the bathroom without asking permission.

North is one of three Denver schools serving as national examples of restorative justice. Educators and community members from around Colorado and the country have been invited to spend a day in one of these schools to see what it looks like when teachers and students are encouraged to sit down and hash out their conflicts.

Restorative justice – or restorative practices, as Denver Public Schools calls it – is an approach to school discipline that focuses on repairing harm rather than doling out punishment. In action, it looks like students or teachers who are in conflict having a conversation about how their actions affected each other and what they can do to fix the situation. Advocates say the method reduces punitive discipline and builds relationships that feed a positive school culture.

Denver began dabbling in restorative justice more than a decade ago with a pilot program at North and three other schools. It’s now part of the district’s discipline code, and officials said more than 40 percent of Denver’s 207 schools have staff dedicated to restorative justice.

The district has seen its number of suspensions drop even as its enrollment has grown. In 2010, the district suspended nearly 9,000 of its 78,000 students, according to district and state statistics. Last school year it suspended just shy of 4,500 of its 91,000 students.

The length and breadth of Denver’s experience make it a good exemplar, said Dwanna Nicole of the Advancement Project. The Washington, D.C.-based civil rights organization is part of a coalition that began arranging the visits last year. The coalition aims to host 15 visits a year split between North, Skinner Middle School, and Hallett Academy elementary school.

The visits are free for educators and community members, and the slots fill up quickly, Nicole said. The funding comes from a three-year grant from another coalition member: the National Education Association.

Teachers unions aren’t always fans of this approach. Some teachers worry that a soft touch will leave them without enough tools to deal with unruly students and might even make classrooms less safe. Denver’s union once had similar concerns but is now part of the coalition. The national union joined to inform more teachers about the approach, said Harry Lawson, associate director of NEA’s human and civil rights department.

There isn’t a lot of research on the effects of restorative justice, and studies haven’t found a direct causal link between restorative practices and better student outcomes. However, existing research consistently finds decreases in the use of suspensions and improved school culture.

The idea behind the visits, organizers said, is to answer questions common even among those who’ve been trained in the basics: What does restorative justice look like when it’s done well? What does it feel like? How do I know if I’m in a school that’s “restorative?”

They’re also meant to energize educators who may find themselves the lone advocate for the method in a community of skeptics. “They’re able to go back home and say to their principal, ‘I saw it. This is what they did,’” Nicole said. “It renews the work.”

The recent visit to North gave the 15 visitors, 14 of whom were from other states, a chance to pick the brains of administrators, teachers, and students who buy into restorative justice.

Kelsey Binggeli, a Spanish teacher who’s been at North for three years, fielded questions about how she gets to know her students and what she does when they’re late to class, an issue several visitors acknowledged was a problem at their schools.

“When they get to my class late?” Binggeli said. “Invite them in. ‘Welcome.’”

The visitors exchanged incredulous looks. Several remarked that wouldn’t fly at their school.

Lisbeth Vargas, a restorative practices coordinator at North, explained that students who are tardy get a phone call home. But unbeknownst to them, she said, all first-period tardies are excused. It’s a decision she said administrators made after hearing students’ stories of having to drop off younger brothers and sisters or take unreliable public transportation.

Vargas is teaching a new class at North this semester that gives students even more of a role in restorative justice by training them to facilitate conversations for low-level offenses, such as using a cell phone in class. In recruiting students for the class, the school aimed for a mix of ages and discipline records, inviting those who’d been in trouble and those who hadn’t.

Sophomore Laila Arguello said that before taking the class, she ditched school so much that Vargas had her mom on speed-dial. She was quick to escalate confrontations, she said, and often found herself part of the conversations she’s now learning to lead.

“You know how girls are,” Arguello said. If someone was gossiping about her, she said, “I’d go up to them and be like, ‘You want to fight? I’ll fight you.’ … Now I’m like, ‘If you have an issue, we can talk about it. I’m not going to waste my time on arguing and fighting with you.’”

Other students said the class has made them think of themselves differently, as leaders and role models. “My grades have flipped after being in this class,” said sophomore Francisco Alvarado-Melchor. He said his attendance has improved, too.

Principal Scott Wolf is a restorative justice evangelist. Even though it was in place before his tenure, he said the culture at North was still very top-down. He’s worked hard in the last five years to give students more of a voice, he said. The school got rid of its strict dress code and restarted the student council. All job candidates are interviewed by a panel of students and asked specific questions about discipline. Their answers can be a deal-breaker, he said.

The visitors were stunned. Our principals spend their time worried about test scores, they said.

“I will take lower test scores any day of the week,” Wolf told the group. “I don’t need to have the very best test scores if families and kids feel welcome and included.”

But Wolf was also honest about some of North’s challenges. He readily admitted that not all teachers are on board with restorative justice. While the district does provide some support, he said he’s had to do a lot things on his own. And although he said he strives to hire teachers who reflect the student population, which is 75 percent Hispanic, most teachers are white.

North also still suspends students. Last year, district statistics show the 1,000-student school had a 9 percent suspension rate, which is higher than some other similarly sized high schools.

If students are fighting and their conflict can’t be resolved with a conversation, dean Marisa Lucio said they’ll often be suspended. The difference is that in order to come back, the students and their families must participate in a meeting and restorative conversation.

“There’s always that skill building that happens,” Lucio said.

This year, Wolf said the school has issued half as many suspensions as it had at this time last year: 33 compared to 67. He said North is “committed to data integrity,” meaning it’s honest about recording when students are not in class for discipline reasons, whether they’re sent home or still at school cooling down after a conflict or thinking through what happened.

At the end of the day, the visitors gathered to debrief. Kevin Gilbert, the equity director of a school district near Baltimore, said what struck him the most was a brief conversation he had with one of the students who was part of the restorative justice class. The student had recently transferred to North, and when Gilbert asked about the difference between his old school and his new one, the student answered, “The adults in this building care about me.”

“That’s what all this work is all about: trying to change the culture and climate of our schools,” Gilbert said. “This is not about implementing a program. It’s implementing a way of life.”