Act III of Act 1 Fight Ends: Time to Prepare a Backup Plan

On Wednesday, District Court Judge Michael Caldwell doubled-down on his decision from March of last year and once again declared Act 1 [see full-text below] unconstitutional. In May, the Louisiana Supreme Court vacated Caldwell’s original decision and remanded the case back to the 19th Judicial District Court for reconsideration in light of subsequent case law. Nevertheless, Caldwell apparently didn’t get the hint and instead reiterated his belief that Act 1 violates the “single object requirement” of the state constitution that prohibits the legislature from passing bills with more than one aim or purpose.

Signed into law by Governor Bobby Jindal in 2012, Act 1 establishes performance objectives for local superintendents, limits the meddling of local school boards in personnel decisions, and prohibits districts from using seniority as the primary factor in reduction-in-force decisions. In addition, Act 1 sets a much higher bar for teachers to meet in order to receive tenure, which in most cases guarantees teachers a job for life. Since the law would effectively preclude these employment policies from collective bargaining, it has been vigorously opposed from the start by the state’s teachers unions, including the Louisiana Federation of Teachers (LFT), who brought the original lawsuit challenging the constitutionality of Act 1 [see LFT’s original petition below].

While LFT President Steve Monaghan has portrayed the lawsuit as a crusade in defense of the state’s constitution and the union is using last week’s victory in an effort to rally the rank-and-file, one could also interpret LFT’s ongoing legal challenge as a sign of weakness. Louisiana’s embrace of education reform policies over the past two decades has resulted in a steady erosion of LFT’s influence in Baton Rouge. Not only do reform supporters have a solid majority on the Board of Elementary and Secondary Education, but LFT’s attempts to push their agenda in the legislature – including an effort to derail the provisions of Act 1 during the 2013 legislative session – have ended in failure. Thus, in a sense, the courts are one of the few venues where LFT can still hope to prevail – and on Wednesday at least, they did.

Regardless, the final act in the battle over Act 1 has yet to be written. Governor Jindal almost immediately responded to Wednesday’s decision with a promise to appeal, saying:

“These reforms are constitutional and will help improve Louisiana schools for children and families across the state. The law rewards effective teachers for their hard work and ensures that we have a great teacher in the classroom so that our children have the opportunity succeed.”

Jindal’s determination to continue the fight means the case will again head back to the Louisiana Supreme Court, although it could be several months before the justices issue a final ruling. In meantime, as State Superintendent John White reminded reporters on Wednesday afternoon, “The law remains in effect. It is the law of our state until such time as the Supreme Court says it is not.”

Although there is good reason to believe that the state will prevail before the Supreme Court – as Jindal noted: “I’m no lawyer, but if the Supreme Court tells you to reconsider, I think they’re sending you a pretty strong message” – obviously, the ultimate outcome of the case is anything but certain. Therefore, it would seem wise for the Jindal Administration to take steps to hedge its bets. During last year’s legislative session, pro-reform lawmakers in fact readied a so-called “backup plan,” filing three bills that when taken together, were identical to Act 1 (all three were eventually deferred in committee).

For the time being, however, officials have dismissed the possibility of legislative action until the appeals process is exhausted. As House Education Committee Chairman Steve Carter (R-Baton Rouge) told the Times-Picayune, “Why would we want to tinker with something that’s the law, now that the appeals process hasn’t run its due course?” His counterpart in the Senate, Conrad Appel (R-Metairie) agreed, adding, “We don’t believe there’s a violation of law…I would hope the Supreme Court would take it up quickly and rule quickly.”

The reticence to pursue a legislative workaround is no doubt a tacit recognition that the political winds have shifted since 2012, as the troubling case of House Bill 160 clearly demonstrated last spring. Moreover, LFT President Steve Monaghan has made it clear that the union will fight any attempt to reintroduce the elements of Act 1 during the upcoming legislative session:

“No matter how this case is ultimately decided, the legislature will have to revisit the whole concept of education reform. We hope they will not try to pass the repugnant sections of this act as individual pieces of legislation.”

Nevertheless, given the fact that an adverse ruling by the Supreme Court could effectively derail state’s entire education reform agenda, perhaps policymakers need to reconsider their strategy. At the very least, a contingency plan needs to be prepared that could be quickly put into action should the high court strike down the law in whole or in part. In the meantime, reform supporters need to send a clear message to our elected officials ahead of the 2014 Regular Session that Louisiana cannot turn back on the progress we’ve made in public education.

Post-Script (1/13/14): The Times-Picayune reports that the Louisiana Supreme Court vacated a smaller case out of Ouachita Parish regarding Act 1 – read more here.